                                  The Attorney                 General of Texas
                                                       April    18,     197’3
‘ARK WHITE
norney General


i .a”‘111 CoUrt   nullalng   Honorable Tim Von Dohlen                        Ooinion No. MW-11
                             Chairman
                             House Committee on Constitutional               He: Authority      of legislature to
                               Amendments                                    permit taxing districts to exempt
                             State Capitol                                   automobiles from property tax on a
                             Austin, Texas 78711                             local option basis.

                             Dear Representative     Von Dohlen:

                                     You nsk whether the legislature may, pursuant to article VIII, section 1,
                             of the Texas Constitution,     provide by general law that automobiles may be
                             exempted from ad valorem taxation except where local taxing jurisdictions
                             have determined within a specified time to impose a personal property tax
                             on nutomohiles on a “local option hasis.” Article VIII, section 1, as amended
                             effective   Jnnunry 1, 1979, provides in pnrt:

                                         . . . the Legislature by general law may exempt all or
                                         part of the personal property homestead of a family
                                         or a single adult,      ‘personal property  homestead’
                                          meaning that personal property exempt by law from
                                         forced sale for debt, from ad valorem taxation.

                                    Article   3836, V.T.C.S.,   lists the personal property which is exempt
                             from attachment       for deht. Section (ax31 of that statu!c exempts “any two
                             of the following categories of means of travel: . . . an Iaittomobile or station
                             wagon; . . . a truck; a, pickup truck.’ Thus artic~le VI& section 1, authorizes
                             the legislature    to enact a general law exempting from rtd valorem taxation
                             personal     property    homestead    which under current     law  includes       ones
                             automobile or station wagon owned by a family or single adult. See Co hlan
                             v. Sullivan, 480 S.W.2d 229 (Tex. Civ. App. e El Paso 1972, no            .wrlt .
                                                                                                  ---f--T
                                                                                   .
                             additional-automobiles      were to bc exempted, :irtlcle 3836 would have to be
                             amended.

                                     WC next consider        whether     the IOCHI option      tax statute would
                             unconstitutionally    deleg:lte~ legislative~ power to make or suspend law, in
                             violation   of nrticle   ill. seclion I or nrliclc      I, section 28 of- the Texas
                             Constitution.     Certnin locnl option laws hnve been held unconstitutional       in
                             the absence of cxprcs< ronstitutional         authority to enact them. In Rx parle




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Honorable Tim Von Dohlen        -   Page Two          (MM-11)




Mitchell, 177 S.W. 953 (Tex 1915), the Supreme Court concluded that a statute authorizing
voters to decide whether pool halls should be prohibited in the county unconstitutionally
delegated the power to make laws.          In nddition, the local option statute suspended a
general law which licensed the operation of pool halls. Accord, Lyle v. State, 193 S.W. 680
(Tex. Grim.. App. 1917); contra, Ex parte Mode, 180 S.W. 708 (Tex. Crim. App. 1915); Ex
parte Francis, 165 S.W. 147x.        Crim. App. 1914). See also Brown Cracker & Candy CT
v. Citv of Dallas, 137 S.W. 342 (Tex. 19ll) (city ordinance permitting houses of prostitution
unconstitutionally   suspended state law prohibiting them); State v. Swisher, 17 Tex. 441
(1856) (local option liquor control statute held an unconstitutional  delegation of legislative
power).

        Although the legislature may not authorize n political subdivision to make or suspend
state law, it may permit it to accept or reject a power which is consistent with general
law. Lyle v. State, m           at 683. The people of a locality may be empowered to accept a
completely      enacted general law relating to administration        and local control.  Ex parte
Francis, e         at 171 (dissent).  Relying on this principle, the courts have upheld numerous
statutes granting politicaI subdivisions power to be exercised only upon a favorable vote of
the governing        body or the people.         A statute    leaving   it discretionary  with the
commissioners court to order the election of public weighers was upheld in Johnson v.
En,        12 S.W. 321 (Tex. 1889), while Stanfield v. State, 18 S.W. 577 (Tex. 1892) approved a
law suthorizing      counties to crente and abolish the office of county superintendent          of
puh!ic instruction.       Statutes authorizing   county school lrustces ‘to change the lines of
legislatively ‘created school districts did not violate article I, srction 28. Rdsebud 1.S.D. v.
 Richardson, 2 S.W.2d 513 (Tcx. Civ. App. - Waco 1928, no wril). See also Spears v. City of
i;an Antonio, 223 S.W. I66 (Tex. 1920) (statute authorizing cities, on vote of the people, to
Improve streets and asqcss costs against abutting property did not unconstitutionally
~!c:legste legislative power!; Sullivan <. Roach-Manigan        Paving (:o. of Texas, 220 S.W. 444
(Tcx. Civ. .4pp. -San         Antonio 1920. writ dism’d) (street imarovement statute nulhorizine
>Icceptanc’c !$ city does not violate article III, section 1 or article I, section 28 of Texas
~ZonstituIian).

       The more recent cases accept the principle that the legislature          may ‘authorize a
political subdivision to accept the provisions of ‘general law by a vote of the people. The
statute permitting cities to provide a police and firemen’s civil service bystem, following
HII election. did not unconstitutionallv   delegate the .wwer to susoend laws       Citv of Fort
Worth v. Fire Departmeni     of City of Fort Worth, 213 S.W.2d 347 (Tex. Civ.‘App. -- Fort
Worth 19481, aff’d,~in part, rev’d in part on other grounds, 217 S.W.2d 664 (Tex. 1949). ln
Rcy~nolds v. Dallas County. 203 S.W.2d 320 (Tex. Civ. Apt   _ ->. -- Amarillo 1947, no writ), the
court upheld a statute autt iorizing counties to use voting machines on a local option basis
It held-rhtit  the statute &d not unconstitutionally      delegate the legislature’s power to
suyend :md make laws, stnting as follows:

            Article  2997e is n general law Andy completes within itself.         It
            applies to 1111counties in the Stnte hut bccomcs operative        in R
            county only upon its adoption by the commissioners court of that
            county. . . . [Tihc legislature ennnot dclcgate lo the people . . . its




                                          p.   :31.
  Honorable Tim Von Dohleo          -   Page Three       (MW-11)




               authority    to make laws; but that does not         mean the legislature is
               without authority lo confer a power upon            a municipal corporation
               or its governing body authority and power            lo accept or reject the
               benefits ,tnd provisions of a general law            legally enacted by the
               legislature.


  203 S.W.2d al 324.      It went on lo say that local au:tl:)rilics   were helter nble than the
  legislature to determine whether voling machines were: nccdt~c! in their districts, and under
  such circumstances    the legislature could delegate them lhe power to decide whether lhe
  general law should become effective        within their jurisdictions.   See also Trimmier   v.
  Carllon, 296 S.W. 1070 (Tex. 1927) (legislature may enact law on matter of local concern to
  become operative on vote of people lo be affected).


          Additionally,  unlike the early cases limiting      the use of local option laws, the
  legislature    here is exercising a .specific permissive constitutional      power which it has
  chosen not to exercise to the fullest degree.         The legislature has adopted a law which
  effectively    provides an exemption only when a certain condition is met. The condition
  which the legislature has recognized is the determination         by the local jurisdiction to tax
  autotiobiles    and is grounded in lhe constitutional        authority  of the various political
  subdivisions to levy and collect taxes. Even if Mitchel!, Lvle and similar cases still are
  correct statements of the law, we believe this situation i~tiamentally              different from
  those cases which involvd      the local option prohibition of thr operation of pool halls.


           In view of the huquage and holdings of the more recent cases on local~option laws
   nnd in view of the fact that the constitutional   provision allowing the legislature to exempt
   is a permissive one, we believe the legislature can entlcl a local option lax law without
   violating    article I, section 28 or article 111, section 1 of the Texas Constitution.      The
   earlier ca.ses ~struck down local opl.ion laws which permitted        polilical  xxbdivisions to
   excepr ;l!emselves frum general laws regarding the legnlity           of ccrlain    conduct and
   occupalio,ls.       We believe these cases must be limited to their :::?ls, and that their
,. rationale does not npr!y lo matters of local adminislrnlion.


          Wc finally con:%ler tihether      lhc tnx on nulorno!~ile~ will hc “equal and uniform”
  within chr first sentcn1.c of article VIII, scclion 1, if :P::I(! trlxing jurisdictions provide the
  cxrrnpl ion while oth~*rs do 1101. ‘I’axc*s rlrc “equal nnd Imiforrn” within tht* constitutional
  nrovi+n     w1k:11no on*. wilhin thr lnsinr Ilistricl    is Irtr~*<l :tt :, diffcrcnt    rl11c than other
  pcrhons in the! snmc ,!i,.fiirt   upon the sn& properly.      Norris v. City of Wnco, 57 Tex. 635
  (1882); set &so ~~._!)fi~$,           42f S.W.2d 827 (Tex. l%~\c’cnlherlv
                                                                       ---            1.S.l). v. Hughes, 41
  S.W.2d 4-1:,x.       (Xv. :\pp. ..- Amarillo 1931, no writ).     I’hercfore. the stntulc permitlinE
  taxin;: di:;lricts to t:~y. r&to!nobilcs will nolviolnle    thv “equ:d and uniform” piovision of
  arliclc  VIII, section I.     Of course, nny legislnlion should be slruclured              to insure thal
  ndoption of the proposed tnx by some connties but not others dots not cause the state ad
  valorcm tax to be levied on vrlrying hnses in differenl counties




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Honornble Tim Von Dohlen         -     Page Four       (XW-11.)




                                               SUMMARY

            The legislature  may exempt certain automobiles from ad valorem
           taxation.   It may also permit local taxing authorities to determine
            whether lo impose a tax on automobiles.

                                                      kmrwwg

                                                      MARK        WHITE     ’
                                                      Attorney    General of Texas

JtiHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant   Attorney       General

Prepared by Susan Garrison
Assistant Attorney General

APPROVED:
OPINlON COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Rick Gilpin
William G Reid
Martha Smiley




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