                                                                              883


             OFFICE   oFmE    A~ORNEY       OENERALOFTEXAS
'0
                                   AUSTIN




     Honorable Gee. B. ShepparU
     Comptroller of Public Aooounts
     Austin, Texas
     Dear sir:




                                                       real    estate.
                  Your opinion   revue                 er 2, 1043, reads
     as followsr~
                                                                                    /
                                                      9 known as Eouse
                                                      tion    7 of AttAcle

                 MBroker an                  From every person, aoting
          for hinTelf or dn b&alVoof                enaas.ed in the
                                          Broker or F%or,       whether
                                            such business or not,
                                       Ten Dollars ($10) per year.
                                       or the purpose or this sub-
                              per&     who, for another and for a
                               other valuable consideration,       rents,
                              ansfers,   for aotual spot or future
                              iates purchases or sales or transfers
                            , bills of exohange,~neSotlable       paper,
                            , bank notes, exchange, bullion,        coin,
          money, real estate,    lumber, coal, cotton,     grain, horses,
          cattlei  hogs, sheep,. produoe and ~erahandise of any
          kind; whether or not he receives      and delivers    possession
          thereof,  provided that this subseotion      sMl1 not apply
          to a salesman who is employed on a salary or commission
          basis by not more than one retailer,       v?holesaler,   jobber,
          or manufaoturer, nor shall this subsection apply to or
                                                                           890
                                                                                     1


Ron. Cao. B. Sheppard,   page 2


     be aonatrued  to lnolude persons selling   property only
     as reaeivers,   trustees in bankruptcy, exeoutors,    admlnis-
     trators,  or persons selling  under the order of any Court,
     or any person who is inoluded within the definition      of
     any other ocaupation and is paying or subject to the
     payment of a tax under any other subsection     of this Aot;
     however, this exemption shall not apply to any individual
     engaged in more than one occustion     as defined by the
     other aubseotion of this Act. 1
            lAttaahed herewith is a oopy of a letter       reoeived
     tram Rr. W. C. Perkins, keautive        ;eeretery   of the Texas
     Real izstate Association,    in..>nhiah he erpreases his doubt
     as to the constitutionality      of t:?e above quoted Act, and
     raises   the question of disorimination      beoause salesnen
     employed by a retailer,     whDleoaler,    jobber or xanufaaturer
     are exempt from payment of the tax and real estate salesmen
     employed on a salary or commission, are not.
          Tour opinion is respectfully        requested   with referenoe
     to the following questions:
           *l. fs the above quoted Act unconstitutional  beoause
     it apparently applies to all real estate salesmen employed
     on a salary or conmission and not to a salesnan who is
     a&uployed on a salary or conmission basis by not more than
     ona retailer,  wholesaler,  jobber or msnufaoturer?
           -2. Should the application of the Aot be sorerned by
     taots pertaining  to the actual duties _rerformed by a real
     estate salesman, rather than whether he is employed on a
     salary or conmission bnsls?*
          Mr. Perkins,’ letter    requests   that:
             0. . . an offioial   ruling be obtained iraPe    the Attorney
     Caneral on the question of real ostate salemen,           holding
     salesnuin*s license,     and xorhing only out of one     dealer *s
     oifice,    either on a salary or cormnission basti ,     not being
     exempt from pyaent       of the occupation tax under     this Aot."

                                                                                 .




                                                          \
                                                             I”   ~...
                                                                         891


Hon. Ceo. H.. Sheppard,   page 3


           Sinoe we have deoided that Seotion 2 of B. B. 677
1s unoonstitutional   insofar as it attempts to levy ah oooupa-
tion tax upon brokers and factors    of real estate beoause of
a defect in it’s caption,   we shall net attempt to give speoifio
answers to the questions stated in your letser and in that of
Ix. Perkins6
          Pertinent   portions   of the caption    of Ii. 8. 677’are
as follows:
           *An Aot . . . to amend &bee&ion      7 of Article   7047,
     as heretofore   amended, so as to provide for an annual
     Oocupation Tax of Ten Dollars (.“:lO) per year to be col-
     lected l’roie every ‘broker’ or ‘factor, * defining aaxe,
     inclLudlng brokers and factors   of all classes,  end exempt-
     ing certain salesmen, and certain ot?.er persons;      . . .
     providing that this Act or any portioh of this Act shall
     not levy or be construed as levying any tax on any new
     oooupation or oocupations or be construed as levying any
     inoreased and/or additional    tax of any kind or oharacter
     whatsoever upon any person, f%rm, partnership,     association
     and/or corporation;    . . .*
           Immediately prior to the effective   date of R. 2. 677
no occupation  tax was levied upon brokers and factors   of real
estate unless suah tax was levied by Section 7 of Article    7047,
V. A. C. S    which Set ion read as foll.ows prior to the act
uuder dism*%ion :      7
           *7. Prokers.-    Stocks and Bonds. - From every person,
     rim,   association    of persons, or corporationa,       dealing in
     bonds, and/or stocks,      either exclusively      or ia connection
     with other business,      the sum of Piftg dollars      (:@O.OO) for
     each town or city in nbic?:. suah peruon, firm, association
     or oorporation     mintaim     ari office.     For the purjioneof
     this Act, every person, fira,         association.  of pereons, or
     oorporation   whose business it is to negotiate         purchases
     or sales of stocks,      bonds, excchan~e, bullion,     coin, znoney,
     bank notes , promissory notes, produce or nerohandise,            or
     anything else for sale, for30thers,          shall be regarded as
     a broker.    Acts 1E.97, ‘1st C.3., p. 49; Aots 1951, 42nd
     Leg .* p. 355, ch. 212, 0 1.”
Eon. Oeo. H. Sheppard,     page 4


            In our Opinion No. O-4287 we held that this Section
levied an occupation    tax only upon stock md bond brokers of
 the type therein described   and that the seoond sontenoe of
 aald Section IO no way authorized    the levying of an oocupation
 tax upon brokers of drugs, food products and other merchandise.
 In the course of t-his opinion we aaid with raspeot    to the
 seoond sentence of this Section:     “It was not intended to
 extend the subjects   tared in the first   sentence of Seotion 7.*
 In conformity with this opinion we are oo:~at:aineU to hold that
no oocupation tax was levied uDon real estate brokers and factors
 prior to tile passage of EI. B. 677, and thue that K. B. 677 doe8
purport to levy a tar upon an occupation not heretofore       subjeat
 to.Asuoh tax.
            section   35 OS kticle   XII of the Texas Constitution
provides:
             -0 bill,  (except General aprzoprintlon     bills,   whloh
      may eubmce the various subjects      and accounte,    for and on
      aooount or whioh moneys are appropriated)      shall    aontain
      nofe than one subject,    whloh shall be expressed In Its
      title.    But If any subject shell be embraped In an aot,
      which shall not be expreo3ed In the title,      such sot ,shall
      be void only as to so muoh thereof,     as shall not be 80
      expressed.*
           A3 we3 said In Donaldson v. State ex rel. Janes,
161 3. $. (2d) 324 (error refused),     the purpose of this sea-
tion Is to ap-grise legislators   of the contents of bills,   to
the end that surprise    and fraud Iu legislation  may be prevented.
Moreover, as was held by the Co*lrt of Criminal qppesla In De
Silvia v. State, 22a 3. %. 542, a statute is violative      of this
seotion if the title   is misladlng;    and, as wus said In @iM
v. E. 0. L. C., 125 S, Yi+. (2d) 1063 (dismissed),   If the aaption
epecifles  the nature of a propo&d amendment to an existing 1
statute,  the body of the amendment must conform thereto,     and    ‘-~.
any ohange attempted in any other reapcct is void.
           Insofar a3 H, B. 677 attempts to levy an ocoupation
tax upon brokers and i’aotors of real estate we feel that It
runa oounter to all of these principles.    A perusal ot the
Hon. Geo. E. Sheppard,         page 5


oaption of this act would serve to lull a legislator      or any
other Interested   person into the belief  that the act Imposed
no new taxes and would in no way apprise such person of the
atte.apt to levy a tax upon an occupstion   not heretofore   sub-
jeot to an oocu::ation   tax.  The csption is nisleading;
patently the body of the act varies fraa the natuze of the
aot as stated ir, Its caption.
           Gouseguehtly,    you are respeatfully  advised that
insofar a8 I?. 3. 677 attempts to levy an occn~ation tax upon
brokers and factors   of real estate mid act is violative      of
Seation 35 of Artiole    III of out Constitution,   acd that auoh
tax ia void.   This opinion in no way passes upon the validity
of those portions   of 11. B. 677 whioh purport to tax ooaupations
other than that of a real estate broker oz factor,
             Trusting   that    the foregoing   ruiiy   answers your
Inquiries,    we are
                                           Yours   very truly




                                                R. Dean Moorhead
                                                       Assistant
