                        March 22, 1971


Honorable Bill Clayton           Opinion NO.~ M-817
Chairman, counties committee                            ,
P. 0. Box 120, Capitol Station   Re: Whether Section g(b)
Austin, Texas 78711                  of H. B. 383, 62nd
                                     Leg., R. S., 1971,
                                     amending Article
                                     6675a-9, V. C. S.,
                                         allowing     counties   to
                                         collect    either    a county
                                         regiatr~ationfee of
                                         $5.00 for each vehicle
                                         registered or persons1
                                         property taxes on the
                                         registered vehicle'ia
                                         in violation of eny
                                         portion of the Texas
Dear RepresentativeClayton:              Constitution.
      By Letter of February 23, 1971, you request our opinion
on the constitutionalityof Subsection (b) of Ii.8. 383, 6Znd
             1971 which Bill would emend Article 6675a-9,
%kn%     k&l   St&utea, by adding thereto Subsection (b)
reading as followa:
            "(b) In addition to the license fees
     otherwise provided by this Act, a county may
     elect to collect a county registrationfee of
     $5 for each vehicle. ThS County Tax Collector
     shall deposit the net collectionsmade under
     this subsection in the County Depository to the
     credit of the General Fund. A county may Eliot
     elect to collect the fee provided by this sub-
     section in any year in which it assesses end
     collects personal property taxes on the vehicle?
     registeredwithin the county."
      Article VIII, Section 1 of the Texas Constitutionreads,
in part, aa follows:
             "Section 1. Taxation shall be equal end
      uniform. All property in this State, whether owned
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Honorable Bill Clayton, page 2            (M-817)


      by natural pereona or corporations.
                                        -  other
                                           - - --- -
                            be tan:ed in propor-
      than municipal, a_h_all
      tion to its value, which shall be aacer-
      tained as may be provided by law..."
      (Rnphaaieadded).
       It will be seen from the above quotation from the Texas
Constitutionthat all property in this State ".ehallbe taxed
in proportion to its value." This is a constitutionalmandate
and cannot be changed except by a constitutionalamendment.
       The tax OS $5.00 per vehicle provided for in Subsection
(b) of Ii.8. 383 la not an ad valorem tax but is an exciae.tex.
To be an ad valorem tax it would have to be a direct tax on
the property itself according to ita value. This tax would not
be based on the value of the vehicle but would be a tax on all
vehicles regardless of their value.
      The case of State v. W  e, 134 Tex. 455, 133 SW (2) 951
(lg%), distinguishesthe two%pea of taxes. The Court said:
            "It is not always easy to draw an ex-
      act line of demarcationbetween an ad valorem
      tax and an occupation or excise tax. In
      Cooley on Taxation, 4th Ed., vol. 1, p. 131,
      a 45, the distinctionbetween a property tax
      and an excise tax is stated as follows:
      'Generallythe answer to the question whether
      a particular tax is a property or an excise
      tax is 80 apparent that there is no room for
      argument; but in many-hhaaea the question has
      been the subject of much litigation,especially
      in regard to whether a tax on a corporationla
      an excise tax or a property tax. IS the tax is
      directly on property itself, the tax is a prop'-
      erty tax;but a tax is en excise tax rather than
      a property tax where it is not a tax on property
      as such, but upon certain kinds of property, hav-
      ing reference to their origin and their intended
      uee. Another thing to be noted, it has been said,
      is that the obligationto pay an excise tax is
      baaed,upon the voluntary action of the person
      taxed in performing the act, enjoying the privi-
      lege, or engaging in the occupationwhich is the
      subject of the excise, and the element of abao-
      lute and unavoidabledemand, as in the case of a
      property tax, is lacking.'" (at p. 956).

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    Honorable Bill Clayton, page 3             (M,-817)


           Subsection (b) provides an excise tax to be collect-
    ed in years when the county does not collect the ad valorem
    tax provided by Article VIII, Section 1, of our Texas
    Constitution,aupra. The Bill expressly provides that a
    county which collects the property tax provided for by the
    Constitutionis prohibited in the same year from levying.
    end collect the excise tax. Since the county is bound
    by the Constitutionto levy and collect the ad valorem
    tax, this Bill would, in effect, be telling the county it
    does not have to levy and collect the ad valorem tax.
    This would have the implied effect of amending the Con-
    stitutionwhich cennot be done except by a vote of the
    people.
           In our opinion this Subsection (b) la unconatitution-
    al.
                                  SUMMARY
                  Subsection (b) of H. B. 383, 62nd Leg.,
          R. S., 1971, providing for the levy of $5.00
          per vehicle on all vehicles in any year the
          ad valorem   tax la not collected on vehicles
          is unconstitutional.
                                   Yours    very truly,
                                   CRAWFORD C. MARTIN
                                   Attorney General


                                     By:
                                       First Assistant
    Prepared by Fisher A. Tyler
    Assistant Attorney General




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Honorable Bill Clayton, page 4       (M-817)




APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairmen
W. E. ALlen, ~ko-Chairman
Kenneth L. N&dquiat
A. J. Gallerano
James Swearingen
Scott Garrison
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Aaalatant




           L




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