                    THEAYTOFXNEY                GENERAL

                                   OFTEXAS

                               AUSTIN    ~~.TExAs
  WILL     WILSON
ATFORNEY     C4ENERAI.

                              June 15, 1960

      Honorable Robert S. Calvert            Opinion No. WW-855
      Comptroller of Public Accounts
      Capitol Station                        Re:    Interpretation and
      Austin, Texas                                 administration of Art.
                                                    19.01(T), Title 122A,
                                                    R.C.S.,,imposing an occupa-
                                                    tion tax and other duties
      Dear Mr. Calvert:                             upon dealers in pistols.
           Your recent request for an opinion of this Officescontains
      several questionsrelating to Article 19.01(T), Title 122A,
      R.C.S., which we here set out in part:
                   "(7) Tax on Dealers in Pistols. There
                 shall be collected from every person,
                 firm or corporation engaging in the
                 business of bartering, leasing, selling,
                 exchanging, or otherwise dealing in
                 pistols for profit, whether by wholesale
                 or retail, an annual occupation tax of
                 Ten Dollars ($10) to be paid on or before
                 January 1st of each year, and to be paid
                 before continuing said business. Before
                 engaging in said business, each such
                 dealer shall obtain a license therefor,
                 to be issued by the County Tax Collector
                 of each county in which the applicant has
                 a place of business, and for each separate
                 place of business. The Comptroller of
                 Public Accounts shall furnish said forms
                 to the Tax Collectors."
           The three questions under paragraph 1 of your letter are
      interrelated,and we will therefore discuss them together.
      We set them out as follows:
                    "(a) Do you interpret this article as
                  requiring a dealer in pistols to first pay
                  to the Comptroller of Public Accounts an
                  annual occupation tax of Ten Dollars?
                    "(b) Before engaging in said business,
                  must a dealer in pistols obtain a license
                  from the County Tax Collector to engage in
                  that business?
Honorable Robert S. Calvert, Page 2   Opinion NO. ~~-855


           "(c) If the answer to (a) and (b) above
         is in the affirmative, what fee, if any, is
         due the Count! Tax Collector for issuing
         such license?
     It is our opinion that a dealer must (a) pay the $10.00
occupation tax and (b) obtain a license from the County Tax
Collector before engaging in this business. It is our further
opinion that (c) no fee is due the County Tax Collector for
issuing such license.
     Some of the wording of this subdivision of Art. lg.01 is
rather obscure, probably due in part to its having been taken,
with minor change, from the previously existing Art. 70478,
V.C.S., which assessed the same tax and imposed the same
duties upon dealers in pistols. The phrase ". . . and to be
paid before continuing said business,,. . . ." was doub,tlessly
inserted in the original act (coupled with the phrase
within thirty (30) days from the effective date hereof"j to'
insure its application to those dealers who were engaged in the
business at the time of its passage, and hence would appear to
be mere surplusage in the present Art. lg.Ol(7).
     The first paragraph of the subdivision does two things:
     it levies an occupation tax payable to the State for
Erenue purposes and (2) it imposes a licensing requirement,
presumably to asiist regulation and supervision of a potential~ly
dangerous enterprise. See 27 Tex.Jur., Licenses, Sets. 45, 48.
The occupation tax is levied by the first sentence of the
subdivision. The second sentence imposes the 'licenserequire-
ment as a prerequisite to engaging in the business. However,
Art. lg.04 of the same chapter specifies that
           "No individual,'company, corporation
         or association, failing to pay all taxes
         imposed by this Chapter, shall receive
         a permit, when such is required, to do
         business in this State, or continue to do
         business in the State, until the tax hereby
         imposed is paid. The receipt of the State
         Treasurer shall be evidence of the payment
         of such tax, and such receipt shall be
         construed as a permit to do business when
         a separate permit is not otherwise required
         by law."
     We believe that the "license" required by Art. lg.Ol(7)
is a "permit to do business" within the meaning of Art. 19.04.
See 27 Tex.Jur., Licenses, sees. 1, 10, 48. Since issuance
of the license is specifically made a condition precedent to
Honorable Robert S. Calvert, Page 3   Opinion No. W-855


engaging in the business of dealing in pistols, and since,
under 19.04, no license can issue until the occupation tax is
paid, it necessarily follows that the tax must be paid before
pursuing the occupation.
     No fee may be collected by the Tax Collector for issuing
the prescribed license, since none is provided by the Article.
McCalla v. City of Rockdale, 112 Tex. 209, 246 S.W. 654 (1922);
Nueces County v. Currinnton 139 Tex. 299, 162 S.W.2d 687 (Tex.
Comm.App. 1942; Op. Adopted).
     Part 2 of your request reads as follows:
           "The question also has arisen as to the
         definition of a (pistol). Will you please
         give us a definition that we may use in
         administering this tax. Specifically, we
         would like to know if the following are
         classed as'pistols under this law:
           "When it is an instrument that is
         intended or designed to be aimed or fired
         from one hand ,fromwhjch a missile, dart,
         pellet or shot is expelled or discharged
         from;
           "(a) By power exerted by a rubber band.
           "(b) By power exerted by a spring.
           "(c) By power exerted by air pr,essure
                where one stroke of pump creates the
                maximum pressure.
           "(d) By power exerted by air pressure where
                it is compressed by repeated strokes
                of the pump.
           "(e) By power exerted by a cartridge of air
                or gasI commonly referred to as a Co2
                gun."
     It is our opinion that none of these items are "pistols"
w~ithinthe meaning of the Article.
     We refer you to the definition of a pistol provided by
Art. lg.Cl('i')(c),
                  as follows:
         us~~cj,er~.sntol
                        defined. 'Pistol,'as
                    > shall include every kind of
I   .




                                                                         --   -




        Honorable Robert S. Calvert, Page 4    Opinion No. W-855


                  pistol, revolver, automatic, semiautomatic,
                  magazine pistol, and every other short
                  firearm intended or designed to be aimed
                  or fired from one hand."
             Note that following the en$meration of specific types
        of pistols there is the phrase      . and every other short
        firearm." The word "firearm" necessarily modifies the term
        "pistol". A firearm is ordinarily,defined as any weapon
        which discharges a shot by force of gunpowder. Harris v.
        Cameron, 81 Wis. 239; 51 N.W. 437; Atwood v. State, 53 Ala.
        508. This would limit the scope of Art. 19.01(T) to include
        only "pistols" which are "firearms," as'defined above, thereby
        excluding all the items which you listed in your request
        from the operation of the Article.

                              SUMMARY
                  Art. 19.01(7), Title 122A, requires
                  a dealer in pistols to pay the occupation
                  tax levied and procure the license
                                                -. -required
                  before engaging In business. The County
                  Tax Collector may not charge a fee for
                  issuing the license. The term "pistol"
                  used in the Article refers only to "firearms"
                  and items other than firearms are not included
                  therein.
                                   Yours very truly,
                                    WILL WILSON
                                    Attorney General of Texas


        JRI:ctn
        APPROVED:
        OPlNION COMMITTEE:
        W. V. Geppert, Chairman

        Wallace Finfrock
        J. Arthur Sandlin
        Fred B. Werkenthin
        Marietta McGregor Payne
        REVIEWED FOR THE ATTORNEY GENERAL
        By: Leonard Passmore
