                       A.rJSTI,v.     TsxAf3   78711



                         October         11, 1972


Honorable Preston Smith                        Opinion No. M- 1232
Governor of Texas
State Capitol Building                         Re:   Whether the Ft. Worth
Austin, Texas 78711                                  City Ordinance conflicts
                                                     with the State Constitu-
                                                     tion or statutes in its
                                                     provisions for the
                                                     regulation and licensing
                                                     of bail bondsmen in the
                                                     city municipal courts,
Dear Governor Smith:                                 and related questions?

     You have requested an opinion of the Attorney General of
Texas in reference to the following questions:

                "1 . Does the Fort Worth City Ordinance
          conflict with the Constitution and statutes
          of the State in a manner that would render
          the ordinance void in its entirety or in
          any part or parts because of inconsistency
          as prohibited by Article XI, Section 5
          of the State Constitution and Article 1165,
          V.A.T.C.S.?

               2.  Does the Fort Worth City Ordinance
          provide additions to the Constitution and
          statutes of the State in a manner that
          would render the ordinance void in its
          entirety or in any part or parts because
          of inconsistency as prohibited by Article
          XI, Section 5 of the State Constitution
          and Article 1165, V.A.T.C.S.?




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               3. Does the Fort Worth City Ordinance
          in any manner whatsoever violate the Consti-
          tution or statutes of the State?

               4. Does the Fort Worth City Ordinance
          in any manner whatsoever violate the Consti-
          tution of the United States?"

      This proposed ordinance submitted with your request would
be an amendment to Chapter 12 of the Fort Worth City Code (1964)
by adding Sections 12-16 through 12-32. It is designed to re-
gulate the entities which serve as sureties for compensation
on bail bonds in the municipal courts of the City of Fort Worth.
Lhder this ordinance the City of Fort Worth, which is a home
rule city, will create a licensing commission to process appli-
cations by such sureties, pursuant to the criteria named in
Section 12-21 of the ordinance. Exceptions to the license
requirement are enumerated in Section 12-18, which categories
comply with Articles 17.01 through 17.38, Vernon's Code of
Criminal Procedure. A one hundred dollar annual license fee
is required by this ordinance (Section 12-29), and certain
conduct is prohibited (Section 12-32). A penal provision
 (SECTION 4) provides for a fine not to exceed two hundred
dollars for violation of the ordinance.   Our opinion is that
the ordinance is a regulatory measure, and that the hundred
dollar fee does not appear to be an unreasonable annual li-
cense fee as a matter of law. Our opinion is that there is
no conflict between this ordinance and state or federal law
which would invalidate any portion of the ordinance.

     Questions 1 through 3 may be analyzed together.

      Article XI, Section 5, of the Texas Constitution con-
 cerning cities with a population in excess of five thousand,
requires that
          II. . . no charter or any ordinance passed under
          said charter shall contain any provision
          inconsistent with the Constitution of the
          State, or of the general laws enacted by
          the Legislature of this State; . . ."

A similar prohibition is contained in Article 1165, Vernon's
Civil Statutes.




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     The Texas Constitution, Article I, Section 11, provides in
part that, "All prisoners shall be bailable by sufficient sure-
ties, . . .' Rules for the posting of bail bonds are set out by
the Texas Code of Criminal Procedure, Articles 17.01 through 17.38,
Vernon's Code of Criminal Procedure.

        Article VIII, Section 1 of the Texas Constitution states
that:
                  II. . .[The Legislature] may also impose
             occupation taxes, both upon natural persons
             and upon corporations, other than municipal.
             doing any business in this State. . . . provided
             . . . that the occupations tax levied by any
             county, city or town for any year on persons or
             corporations pursuing any profession or business,
             shall not exceed one-half of the tax levied by
             the State for the same period on such profes-
             sion or business."

     It is clear that under Article 1165, and Texas Constitu-
tion Article XI, Section 5, a home rule city cannot enact rules
and regulations contrary to the Constitution and the general law.
City of Austin v. Clendennen, 323 S.W.2d 158, (Tex.Civ.App.,
1959, error ref. n.r.e.). Nevertheless, a home rule citv such
as Fort Worth can exercise any power not denied it by the Consti-
tution or general statutes. Interstate Circuit, Inc. v. City of
hllas, 247 F.Supp. 906 (N.D.Tex. 1965), affirmed 366 F.2d 590
(5th Cir. 1965).--

     In order to determine if there is a conflict between the
ordinance and any statutory or constitutional provision, it is
important to bear in mind that we should look to legislative acts
not for grants of power to a city but only for limitations on the
power available to cities. Forwood v. City of Taylor, 147 Tex.
161, 214 S.W.2d 282 (1948). This                      stated in
State v. City of La Porte, 386 S.W.2d 782 (Tex.Sup. 1965):
             II. . . The governing body of a city is not
             required to look to the Legislature for a
             grant of power to act. Such power is given
             by the Constitution.   The governing body only
             looks to acts of the Legislature to ascertain
             if it has placed any limitations on the power




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          to act as granted by Article XI, Section 5.
          See Forwood v. City of Taylor, 147 Tex. 161,
          214 S.W.2d 282 (1948); Yellow Cab Transit Co.,
          Inc. v. Tuck et al., Tex.Civ.App. (1938), 115
          S.W.2d 455, wr. ref.; City of Houston v. City
          of Magnolia Park, 115 Tex. 101, 276 S.W. 685
          (1925). . . ." (at p. 785).

This doctrine is supported by the Supreme Court's decision in
City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex.Sup. 1964),
where the Court notes a presumption in favor of a city's ability
to enact ordinances unless there is a clear indication by the
Legislature to the contrary. The Court said:

          " . . . Although the broad powers granted to
          home rule cities by the Constitution, Article XI,
          Section 5, Vernon's Ann. St., may be limited by
          acts of the Legislature, it seems that should the
          Legislature decide to exercise that authority, its
          intention to do so should appear with unmistakable
          clarity."

     In view of this reasoning there is no apparant conflict or
any consistency between the ordinance in question and Articles
17.01 through 17.38 of Vernon's Code of Criminal Procedure, Arti-
cle XI, Section 5 of the Texas Constitution or Article 1165. The
same holds true regarding Article I, Section 11 of the Texas
Constitution as there is no indication that this ordinance will
interfere with the sufficiency of sureties.

     Another aspect of this question however, concerns an occu-
pation tax question.  In addition to Article VIII, Section 1
of the Constitution, supra, Article 1.09, Title 122A, Taxation-
General, Vernon's Civil Statutes, reads:

               "NO city, county, or other political
          subdivision may levy an occupation tax levied
          by this Act unless specifically permitted to
          do so by the Legislature of the State of
          Texas. "

Although the labels are often interchanged by various commenta-
tors, the Texas Supreme Court has consistently defined the dif-
ference between occupation taxes and licenses. Whereas occupa-
tion taxes, when authorized by the Legislature, are used primarily




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    Honorable Preston Smith, Page 5       (rl-1232)



    to raise revenue, the primary purpose of a license must be that of
    regulation, and it must be reasonable and not arbitrary. Hurt v.
    Cooper, 130 Tex. 433, 110 S.W.Zd 896 (1937); H. Rouw Co. v. Texas
    Citrus Commission, 151 Tex. 182, 247 S.W.2d 231 (1952). In com-
    nlvinc with Article 1.09, supra, the Legislature has authorized
    ;e;y few occupation taxes. '- Our opinion is that this license
    fee is a reasonable regulatory matter which in no manner conflicts
    with any statutory provisions concerning occupation taxes.

         There is relatively little federal law concerning the subject
    of this ordinance with which the city's action might encounter
    conflict. See Title 6, United States Code. The United States
    Constitution contains nothing directly on this point other than
    the Eighth Amendment, which would not conflict with this ordinance.
    The United States Supreme Court has long indicated that the in-
    dividual states would retain power to resulate corporations actinc
    as sureties within those states. Fidelity and Deposit Company of-
    Maryland v. Commonwealth of Pennsylvania, 240 U.S. 319, 36 S.Ct.
    298 (1916). As indrcated by Interstate Circuit, Inc., supra, the
    federal courts do recognize the Texas constitutional and statutory
    provisions in this area. Therefore, in our opinion the Fort Worth
    City ordinance does not violate the Constitution of the United
    States in any manner.

                               SUMMARY

              The Fort Worth City ordinance does not conflict
         with nor provide additions to the Constitution and
         statutes of the State in a manner that would render
         the ordinance void in its entirety or in any part
         or parts because of any inconsistency as provided
         by Article XI, Section 5 of the State Constitution
         and Article 1165, Vernon's Civil Statutes. Further,



         'The Legislature has authorized occupation taxes in Title 122
    A, Taxation-General, Vernon's Civil Statutes, on coin operated
    machines (Sections 13.02, 13.14); dealers in pistols (Section 19.0
    (7)); and operators of billiard tables (Section 19.01(10)). This
    also applies to certain liquor permittees (Article 666-15a(l),
    V.P.C.) and certain beer licensees ,(Article 667-3(h), V.P.C.).




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Honorable Preston Smith, Page 6       (M-1232)



     this ordinance in no manner violates the Constitution
     or statutes of the State of Texas nor the Constitution
     of the United States.




Prepared by E. Bruce Curry
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman


John Banks
Gordon Cass
Bill Campbell
Sam Jones


SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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