                                 ATTORNEY GENERAL OF TEXAS
                                               GREG         ABBOTT




                                                     May 12,2003



The Honorable Kenneth Armbrister                                  Opinion No. GA-0071
Chair, Senate Committee on Natural Resources
Texas State Senate                                                Re: Whether article III, section 55 of the
P.O. Box 12068                                                    Texas Constitution prohibits the rebate of
Austin, Texas 78711                                               municipal sales taxes (RQ-00 11-GA)

Dear Senator Armbrister:

         On behalf of the City of Rosenberg, you ask whether article III, section 55 of the Texas
Constitution prohibits the rebate of municipal sales taxes.’

         As background to your request, you inform us that the City of Rosenberg (the “City”) is
concerned that some municipalities “have adopted the practice of providing financial incentives for
economic development by rebating sales tax to retain and/or attract certain businesses” pursuant to
article III, section 52-a of the Texas Constitution and chapter 380 of the Local Government Code.2
The City notes that sometimes a “purchasing company” may negotiate a sales tax rebate from the
“municipality where it is located, despite the fact that the inventory or place of sale may be located
in another municipality.“3      It asserts that this practice deprives the second municipality “from
recoupment of the cost of municipal services expended that supported the production of the
inventory.“4

        The state imposes a state sales tax under chapter 15 1 of the Tax Code. See TEX. TAX CODE
ANN. 5 15 1.05 1(a) (Vernon 2002) (“A tax is imposed on each sale of a taxable item in this state.“),
(b) (“The sales tax rate is 6 l/4 percent of the sales price of the taxable item sold.“). A municipality



           ‘You submitted this request in your former capacity as chair of the Senate Committee on Criminal Justice. See
Letter from Honorable Kenneth Armbrister, Chair, Committee on Criminal Justice, Texas State Senate, to Susan Gusky,
Division Chief, Opinion Committee, Office of the Attorney General (Dec. 18,2002) (on file with Opinion Committee)
[hereinafter Request Letter]; Letter from Steven L. Weathered, City Attorney, City of Rosenberg, to Steve Foster,
General Counsel, Senate Committee on Criminal Justice, at 1 (Nov. 25,2002) (attached to Request Letter) [hereinafter
City of Rosenberg Letter].

         *City of Rosenberg   Letter, supra note 1, at 1.

         31d.

         41d.
The Honorable Kenneth Armbrister                 - Page 2      (GA-0071)




may impose an additional sales tax under chapter 32 1 of the Tax Code. See id. 0 32 1.101. A person
who makes a sale subject to these taxes is required to add the amount of the taxes to the sales price
and to remit the taxes to the Comptroller, see id. $3 151.052(a), 151.401-.432, 321.201, 321.301,
who then sends the municipal tax to the municipality, see id. 5 5 32 1.50 l-.505.

         We understand that the City of Rosenberg asks about an arrangement whereby a business
collects municipal sales taxes when making sales and remits them to the Comptroller as required by
law? The city where the sales take place then provides the business with a tax rebate based on the
amount of municipal sales taxes the business has collected as an economic development grant6
Although the City suggests that the business has changed the location of its sales in order to
minimize paying municipal sales taxes, we do not understand the City to ask about that practice.
Rather, the City asks whether “the rebate of sales tax” is “a release or extinguishment” of an
“‘indebtedness, liability, or obligation”’ for purposes of article III, section 55,7 which provides as
follows:

                             The Legislature shall have no power to release or extinguish,
                    or to authorize the releasing or extinguishing, in whole or in part, the
                    indebtedness, liability or obligation of any corporation or individual,
                    to this State or to any county or defined subdivision thereof, or other
                    municipal corporation therein, except delinquent taxes which have
                    been due for a period of at least ten years.

TEX. CONST.        art. III, 8   55.


        “A tax that has been levied and has become a liability matured under a tax statute is an
indebtedness or obligation within the meaning of this provision of the Constitution.” Smith v. State,
420 S.W.2d 204,209 (Tex. Civ. App.-Austin), afld, 434 S.W.2d 342 (Tex. 1968). “[Tlaxes due
are clearly an obligation to a taxing entity that cannot be forgiven under article III, section 55.”
Corpus Christi People’s Baptist Church, Inc. v. Nueces County Appraisal Dist., 904 S.W.2d 621,
625 (Tex. 1995). However, the City asks about sales tax-rebates rather than the forgiveness of taxes.
Here, a business collects and remits municipal sales taxes but then later is paid moneys by the
municipality based on the amount of municipal sales taxes the business has collected.                The
municipality has not released or extinguished an obligation to the state or municipality if the business
has collected and remitted the sales taxes as required by law.




         ‘See Letter from Kerry L. Neves, City Councilman and Mayor Pro Tern,, City of Dickinson, to Susan Gusky,
Division Chief, Opinion Committee, Office of the Attorney General, at 1 (Feb. 19, 2003) (on tile with Opinion
Committee) (“The economic development plans do not alter any tax collection responsibility imposed by the Texas Tax
Code.“).

        6See id.

        7City of Rosenberg       Letter, supra note 1, at 1.
The Honorable       Kenneth Armbrister     - Page 3         (GA-0071)




        The City also notes that this office has concluded that section 380.001 of the Local
Government Code does not authorize a municipality to abate delinquent taxes.’ See Tex. Att’y Gen.
LO-95-090. Section 380.001(a) provides that “[tlhe governing body of a municipality may establish
and provide for the administration of one or more programs, including programs for making loans
and grants of public money and providing personnel and services of the municipality, to promote
state or local economic development and to stimulate business and commercial activity in the
municipality.” TEX. LOC. GOV’T CODEANN. 8 380.001(a) (Vernon Supp. 2003). The legislature
enacted section 380.001 to implement article III, section 52-a of the Texas Constitution. See Tex.
Att’y Gen. Op. Nos. JC-0092 (1999) at 8 (section 380.001 implements article III, section 52-a);
DM-185 (1992) at 4-5 (same). Article III, section 52-a authorizes the legislature to

                    provide for the creation of programs and the making of loans and
                    grants of public money, other than money otherwise dedicated by this
                    constitution to use for a different purpose, for the public purposes of
                    development and diversification of the economy of the state, the
                    elimination of unemployment or underemployment          in the state, the
                    stimulation of agricultural innovation, the fostering of the growth of
                    enterprises based on agriculture, or the development or expansion of
                    transportation or commerce in the state.

TEX. CONST. art. III, 5 52-a. In essence, section 52-a establishes   that economic development is a
legitimate public purpose for public spending. See Tex. Att’y Gen. Op. Nos. JC-0092 (1999) at 8
(article III, section 52-a “provid[es] that programs fostering economic growth or loans or grants of
public funds to assist private businesses to foster economic growth serve a public purpose”);
JM-1255 (1990) at 8-9 (article III, section 52-a clarifies that economic development is a public
purpose but does not repeal requirements of article III, section 52); see also TEX. CONST. art. III,
4 52(a) (prohibiting political subdivisions, including cities, from lending their credit or granting
public money to individuals, corporations and associations); Tex. Mun. League Intergovernmental
Risk Pool v. Tex. Workers ’Camp. Comm ‘n, 74 S.W.3d 377,383 (Tex. 2002) (article III, section 52
“does not prohibit payments to individuals, corporations, or associations so long as the statute
requiring such payments:      (1) serves a legitimate public purpose; and (2) affords a clear public
benefit received in return”).

        In the letter opinion the City cites, this office concluded that article III, section 52-a does not
create an exception to the prohibition against releasing obligations in article III, section 55 and that
section 380.001 does not permit a municipality to abate a taxpayer’s delinquent taxes as part of an
economic development program. See Tex. Att’y Gen. LO-95-090, at 3. In addition, the City cites
another letter opinion concluding that article III, section 55 prohibits a taxing unit from reducing the
amount of delinquent taxes owed on real property. See Tex. Att’y Gen. LO-96-099. Because the
City does not ask about abatement or reduction of delinquent taxes but rather about the rebate of
taxes a business has collected and remitted as required by law, those letter opinions are inapposite.




        ‘Id. at2.
The Honorable Kenneth Armbrister            - Page 4           (GA-0071)




        The City’s query is liniited to whether sales tax rebates violate article III, section 55. We do
not consider whether statutes and the constitution authorize any particular sales-tax-based grant of
public funds.’




         ‘See, e.g., Tex. Att’y Gen. Op. No. JC-0092 (1999) (addressing authority of county to enter into agreement to
make payments of county funds to a private company that would be the economic equivalent of an abatement of real
property taxes).
The Honorable Kenneth Armbrister      - Page 5         (GA-007 1)




                                        SUMMARY

                        If a business collects and remits municipal sales taxes as
               required by law, the city’s rebate of those taxes to the business does
               not violate article III, section 55 of the Texas Constitution.       See
               TEX. CONST. art. III, 8 55 (prohibiting the legislature and political
               subdivisions from “releasing or extinguishing, in whole or in part, the
               indebtedness, liability or obligation of any corporation or individual”
               to the state or political subdivision).

                                               Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
