               THE    ATTORNEY      GENERAL.
                         OF TEXAS

                         August 2, 1989




Honorable Bob Bullock          opinion NO. JM-1079
Comptroller of Public Accounts
L. B. J. Office Building       Re: Whether the county sales
Austin, Texas 78774            tax applies to residential
                               9-s and electricity    sales
                               (RQ-1727)

Dear Mr.   Bullock:

     You suggest that provisions  of sections  323.206 and
323.207 of the Tax Code are in conflict with regard to
whether residential  gas and electricity sales are exempt
from the county sales tax. You ask how this conflict should
be resolved.

     Tax Code section 323.101 authorizes certain counties to
adopt a sales tax. If a county has adopted      such tax, a
sales tax is imposed at a stated rate on "the receipts  from
the sale at retail of taxable    items within  the county."
Tax Code 5 323.103.

      Section 323.206 provides in part:

              (a) The sales tax authorized      by this
           chapter does not apply to the sale of a
           taxable item unless the sales tax imposed by
           Subchapter C, Chapter 151, also applies to
           the sale.

               . . . .

              Cc) Subsections (a) and (b) do not apply
           to the taxes authorized by this chapter    on
           the sale, production, distribution, lease, or
           rental of, and the use, storage, or consump-
           tion of gas and electricity for residential
           use.1



     1. Subsections (b) and (d)       of section   323.206. deal
with excise, and not sales, tax.



                                p. 5638
Honorable Bob Bullock - Page 2   (JM-1079)




Thus, pursuant to section 323.206 (a), the county sales tax
applies to a sale only where the state sales tax imposed by
the Tax Code applies to the sale.      A state sales tax  is
imposed on the sale of a taxable item in the state.      Tax
Code § 151.051. The exemptions,      which are set out in
subchapter H of chapter 151, include section 151.317, which
provides that gas and electricity     are exempted  from the
state sales tax except when sold for commercial use.     &g
Tax Code 5 151.317(c)   (defining "residential" and "commer-
cial" use).

     The focus of your inquiry is subsection (c) of section
323.206, which states that subsection   323.206(a) does not
apply to   county sales  taxes  on  the  "sale, production,
distribution, lease, or rental of . . . gas and electricity
for residential use." Under section 323.206(a), the county
sales tax applies only to sales that are subject to state
sales tax. Subsection (c) would appear to provide      that,
although residential gas and electricity   sales are exempt
from the state sales tax, they are not exempt      from the
county sales tax.

     You say that subsection   (c) conflicts  on this   point
with section 323.207 of the Tax Code, which provides:

           The exemptions provided by Subchapter   H,
        Chapter 151, apply to the taxes authorized by
        this chapter, except as provided by Section
        151.317(b).2

     The exemption in section 151.317(a), for non-commercial
gas and electricity sales, is among the state sales tax
exemptions provided by subchapter H of chapter 151, which
section 323.207 appears to make applicable     to the county
sales tax.     Thus, while subsection (c) of section  323.206
appears to provide that residential-use gas and electricity
are not exempt   from the county sales tax, section   323.207
indicates that the section 151.317(a)     exemption  of non-
commercial gas and electricity also applies to the county
sales tax.

     We agree that the provisions of sections   323.206,
subsections  (a) and (c),  and section 323.207,    taken




     2. Subsection (b) of section 151.317, to which section
323.207 refers, deals with city, and not county, tax exemp-
tions.



                             p. 5639
Honorable Bob Bullock - Page 3 (JM-1079)




together, are ambiguous  as to whether residential-use          gas
and electricity are exempt from the county sales tax.

     Title 3 of the Tax Code, of which sections 323.206 and
323.207 are a part, was enacted as part of the state's
statutory revision program, which contemplates a "revision
of the state's general    and permanent   statute law without
substantive change." Tax Code § 301.001.       This title was
enacted in 1987. Acts    1987, 70th Leg., ch. 191, at 1410.
Section 13 of the 1987 act stated that l'[t]his Act is in-
tended as a recodification   only, and no substantive   change
in the law is intended by this Act."    &   5 13 at 1466:  see
also Foreword to Proposed Title 3 (Revisor's Report, January
1987) ; Gov't Code 8 323.007 (Statutory Revision Program).

     When provisions of statutory revisions are unclear           as
to their intent and meaning,      courts  have   resorted  to   the
statutes from which the revisions were derived in order to
arrive at a proper construction.         See, e.q., Stevens v.
State, 159  S.W. 505,  506  (Tex.  Crim.  App. 1913);     see also
Gov't Code 5 311.023    (in construing a statute, whether         or
not  ambiguous,   a   court  may   consider    former   statutory
provisions): Collins, Continuino Statutorv Revision:          Where
did the Civil Practice and Remedies Code come from?, 50 Tex.
B.J. 134 (1987).      The revisor's notes for title 3, the
session laws, and the Vernon's     edition of the Tax Code all
indicate that the source law for section 323.206 was former
V.T.C.S. article 2353e.3 See aenerallv H.B. 79, Acts          1986,
69th Leg., 3d C.S., ch. 10, art. 1, 55 21(B), 23(~), at
21-23. Having reviewed those provisions of repealed article
2353e, however, we find nothing there that withdraws            the
county sales tax exemption       for residential-use      gas and
electricity, as subsection (c) of section 323.206 purports
to do. Section 21(B) provided in part for imposition of the
county sales tax on items subject to the state sales tax;
this provision is carried    forward in the 1987 codification
as subsection (a)   of  Tax Code   section 323.206. The other
indicated source provision     for section      323.206, section
23(A) of repealed article 2353e, dealt with excise and not
sales tax. We find no provision, other than subsection           (c)
of section 323.206, in repealed article 2353e or elsewhere
that removes the county sales tax exemption from sales of
gas and electricity for residential use.




     3. Article 2353e was repealed by Senate            Bill   888.
Acts 1987, 70th Leg., ch. 191, § 12, at 1466.




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Honorable Bob Bullock - Page 4    (JM-1079)




     The paramount       object of statutory     construction   is
ascertainment of the legislature's intent. There are numer-
ous indications      that the legislature     intended that the
recodification of law into title 3 be without         substantive
change. There was no provision among those recodified         into
title 3 that authorized an exception for residential-use gas
and electricity from the exemptions provided for in subsec-
tion (a) of section 323.206. Therefore,         we conclude   that
the legislature did not intend to subject residential-use
gas and electricity to the county sales tax. To the extent
that subsection (c) of section 323.206 purports to withdraw
the exemption for such sales, it should not be given effect.
See. e.cf., Ex Darte    COD&and,   91 S.W.Zd 700 (Tex. Crim. App.
1936); Attorney General Opinions JM-136 (1984); H-622 (1975)
(giving effect to legislative       intent despite omission of a
page of the appropriations bill in the enrolled version        due
to a clerical error): see also Jessen Assoc. v. Bullock, 531
S.W.Zd 593 (Tex. 1975)       (ascertaining legislative intent is
primary object of statutory construction).

     Therefore, it is our opinion that, pursuant to Tax Code
sections 323.206(a) and 151.317(a), residential-use gas and
electricity are exempt from the county sales tax.4




     4. We think it unnecessary to speculate as to how the
provisions of subsection (c), excepting residential-use   gas
and electricity from county sales tax exemptions, crept into
section 323.206 during the codification process.   A letter
sent to this office in connection with your request from the
Legislative   Council,  which drafted    the   codification,
confirms our conclusion that the insertion of the subsection
(c) provisions in question was inadvertent, there being no
counterpart provision  in the source law on county      sales
taxes in repealed article 2353e.

     Also, we find further examination   of section  323.207
unnecessary   to the result we reach here, since those
provisions   indicate consistently  with our ruling     that
non-commercial use gas and electricity are exempt from the
county sales tax. We do note, however, that the reference
in section   323.207 to subsection  (b) of section   151.317
seems anomalous in the context of these codified provisions
on county taxes, since the latter provision deals with city,
and not county, taxes.




                                p. 5641
i

    Honorable Bob Bullock - Page 5 (JM-1079)




                           SUMMARY

               Pursuant to Tax Code sections   323.206(a)
            and 151.317(a), residential-use gas and elec-
            tricity are exempted from the county sales
            tax. The provisions    of subsection  (c) of
            section 323.206 purporting to except residen-
            tial-use  gas and electricity    from county
            sales tax exemptions   should not be given
            effect.




                                         JIM     MATTOX
                                         Attorney General of Texas

    MARY KE'LLER
    First Assistant Attorney General

    MU MCCREARY
    Executive Assistant Attorney General

    JUDGE ZOLLIE STEAKLEY
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by William Walker
    Assistant Attorney General




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