Untitled Texas Attorney General Opinion ( 1977 )

.
The Honorable Bob Bullock Opinion No. H-1068
Comptroller of Public Accounts
L.B.J. Building Re: Constitutionality of
Austin, Texas 787-74 article 1118x, V.T.C.S.
Dear,&. l+lloc+:
You have asked several questions regarding article,ll18x,
V.T.C.S., which was recently amended by Acts 1977, 65th Legis-
lature, -chapter 863, at 2168. The legislation authorizes
creation of metropolitan'rapid transit'authorities and in most
respects is identical to Acts 1973, 63ra Legislature, chapter
141, ,at'302 which was the subject of Attorney General Opinion-
H7119 0q73.1. "_'
'..
Your first.question is: .a.-
:
Is section 11B of Tex. Rev. Civ. Stat.
Ann. art. 1118x which creates a.local
sales and use tax void pursuant to Tex. .
Const. art. III 5 35 since the title
(caption) of H.B. 657 contains no men-
tion of.the creation of a tax?
Article 3, section 35 of the Texas Constitution requires
that the subject~of a bill be expressed in its title. The
title of the legislation which forms the basis of your inquiry
is:
An Act relating to the creation, ad-
i' ministration,and powers of metropoli-
tan rapid transit authorities; amending
Sections 1 through 17A of, and adding
Sections 6C and 11B to, Chapter 141,
Acts of the 63ra Legislature, Regular
Session, 1973, as amended (Article
1118x, Vernon's Texas Civil Statutes).
It is well established that article 3, section 35 does
not require every detail of a bill to be recited in its
caption. It is sufficient if the general object is'expressed
and the provisions of the bill are related or germane to the
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The Honorable Bob Bullock - Page 2 (~-1068)
general object expressed in the caption. xqr, Robinson v.
H&, 507'S.W.2d 521 (Tex. 1974); ---
State v. Spartan's Industries,
Inc., 447 S.W.2d 407 (Te%. 1969) app eal dismissed 397 U.S. 590
(1970); King v. Carlton ,Independent School Dist., 295 S.W.2d
408 (Tex. 1956). Here the title gives notice that the bill
relates to the powers of 'a 'metropolitan rapid transit authority
which we believe is more than sufficient under the constitutional
te\st to include powers of taxation.-
Another question you pose is:
:Does H.B. 657 violate Tex. Const. art. III
S56?.
..(, ‘. ; ‘. ~.
Article '3,,section 56 of the T&as Constitution prohibits
the enactment of certain local and special laws. -.
This question was.discusied in great detail in Attorney
General.Dpinion'H-119 (1973) where it was determined that the
Act involved there was not a local or special.law. The present
statute is identical to'the one considered in Attorneys General
Opinion H-119 except,that the population classification in the
1977 statute is substantially broader than the one in the 1973
Act.:? Accordingly, we believe Attorney General.Opinion H-119
requires a finding that this.statute is not a prohibited
local or special law.
.,
You,also~ask: :
:-Does Section &.of H.B. $57 violate Tex.
Const, art. .I.S 28, art. II S 1, art..
III S 1 since the section reenacts Section
-.13.of.Tex. Rev. Civ. .Stat. Ann.. art. 1118x
which Tex. Att'y Gen. Op. No. H-119 (1973)
declared unconstitutional?
The provision you challenge here permits the authority
to promulgate rules and-regulations and to.make violation of
those rules and regulations punishable by fine or imprison-
ment. The language oE.this provision is identical to that
found in section 13'of the statute considered in Attorney
General Opinion H-119. The provision was found to be uncon-
stitutional in that opinion, and since the same language
appears in the 1977 Act.we believe it is invalid here as well.
We.note, however, that you pose your question in terms of the
constitutionality of section 1 of Acts 1977, 65th Legislature,
chapter 863, at 2168 (House Bill 657) and suggest that the
entire section .is invalid. Section 1 contains and incorporates
quoted sections 1 through 17A of article 1118x, V.T.C.S.- The
section includes all of the substantive provisions of the bill,
and if it is unconstitutional, the entire bill is invalid.
The quoted section 13, which is the portion of &he legislation
found unconstitutional in Attorney General Opinion H-119, is.
The Honorable Bob Bullock. -: Page 3 (D&1668)
.:
only a small part of the statute'and does not affect the 1
basic powers and responsibilities of the authority. The
Legislature has specifically provided that all statutes are
severable and.that an unconstitutional portion of a statute
will not affect theremainder qf.the Act. _ V.T.C.S..art. lla.
Here, it is our opinion the quoted section 13 of section 1
of the Act is invalid, butits invalidity-does not affect any
of the remainder of-the Act or the basic powers or responsi-
gilities of-*the rapid transit authority.
YOU ask:
-Does the creation of the local sales and,,
use-tax for the purpose of funding metro-.
politan rapid transitauthorities violate
'Tex. Const. art.:VIII S 3 %ince.it is a ..:
1tax for reveiure.purposes.iinlike:the
.'emission taxiwhich-Tex .Att'y Gen. Op.. -.
-No. ET119 (1973) found to beregulatory .
in,:nature? '
:..
Article 8, section a3 of the Texas;Con&t&ion provi&s:.~'
Taxes-shall be.levied and.collected:by
.general laws+and for publitzpurposes only.
. .. :
The issue~presented in Attorney GeneralDpinion H-119 was
whether the emissions.tax suffered the same constitutional
defect under article 8, section 3 of the Texas Constitution
as aid the *wheel tax" in County of Harris v. Shepperd, 291
S.W.2d 721 (Tex.,l956)r The Supreme Court found that-tax to ~:
be unconstitutional sincethe Act was a local law and the'fee
aufhorized:by the statute was a tax:rather than a regulatory
device. If.either the statute had been a general law or the
fee had.been a regulatory measure, the requirements of article
8, section.3 would have been satisfied. .Although either find-
ing would have,been sufficient to save the statute, neither
finding.was:possible in County of Harris'v.,Shepperd. In
Attorney General Opinionpgs Were
made. Since we have determined that article 1118x is a general
law, it is irrelevant that the sales and use tax is.a revenue
rather than a regulatory measure.
We note that the.zjistinction between revenue .measures and
regulatory measures..has been important in.the context of con-
stitutional provisions.relating to ad valorem taxes, Atkins V.
State Highway Dep't, 201 S-W. 226 (Tex. Civ. App; -- Austin
i918, no writ), but since your question involves a sales tax
rather than a property tax we need not consider those provisions.
p. 4578
_. i
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The Honorable Bob.Bullock.' .:..iPage 4 '(H'&lO68j
You.also ask:: ..'
*Does .the".Legi'slature.havethe' constitu-:..
tional'authority to create 'a metropolitan
rapid transitauthority with taxing power
.s.inc&:,sucha%r.eation is not*specifically
constitutionally authorized'as are other
special .districts such as hospital~dis-
tricts Tex. Const: art: IX 9,>9, navigation "
districts Tex. Const. art. XVI 9 59, and
road districts Tex. Const; a~rt. III 9 52?., ..
~;'. :;,
The Supreme Court of Texas has &ecifically rejected
arguments that.only.those'bodies .politic.authorised:in the
constitution.maybe created:.Davis 'v. City,..of.
Lubbock, 326.
S.W.2d 699 (Tex...l959)::-TexasTurnpike Authority vI Shepperd,
279 S.W.2d 302 (Tex.L:1955),. Unlike.the federal constitution,
the state constitution.is a 'limitation rather .than.a:.grantof
power. An act of.the.Legislature-is valid unless a'.specific
provision of the constitution prohibits it:"Shepperd v. San
Jacinto Junior College Dist., 363 S.W.2d 742 (Tex. 1962). In
San Jacinto Junior College District;~theSupreme.Court said:
:.
It'follows that.if.there be no limita-
tion found in-the Constitution, the legis-
lature would be fully empowered to create
..;orauthorize the creation of ;~ ;~ -*districts
: and:authorize.them to levy .an ad:valorem
' ,tax; .: ._
Id. .at-*743;-'ThecoGrt:uitimately'deciaed the.case on a'dif-9
ferentground since it'.foundindependent.constitutional.author-
ity.for the~'creation of: junior college districtswith the power
to levyian -ad valorem tax. -'However,~the arguments presented as
potentially limiting.the Legislature'spower.all related to
ad valorentaxation and are not relevant hereywhere a salesand
use tax is.involved. :Tex; Const. 'art. 8, S 17;'American Transfer
and Storage.Co,. v.' Bullock; ,525 S.W.2d.918 .(Te~.:Civ::App. .&-
Austin 1975,.writ ref:'.d);> ~.
.. .~
S%IJ M &A D Y "
Article 1.118x, V.T.C.S., as amended by
Acts.1977, 65th Legislature, chapfer.863,
at 2168 is constitutional with the ex-
ception of:section 13 which permits the
rapid transit authority to establish
penalties for violation of itsrules'anh
regulations.
p. 4579 :
The'H&&&ie Bob Bull& - Page S (H-1068)
Very truly yours;
Attorney General of Texas
Opinion.Conmitt&e
Opinion.Conmittee
jst'
p. 4580