              HEAYTORXEY              GENERAL
                        OFTEXAS




Honorable George K. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir:                  Opinion No. O-4047
                           Re: Whether the tax levied by Article
                                7047, Section 41a, V.A.C.S., as
                                amended by Article 12'of House
                                Bill No. 8, 47th Leg., accrues on
                                cement purchased from an out-of-
                                State manufacturer by a Texas
                                municipality.
           In your letter of September 14, 1942, you made the
following inquiry:
           "Please tell me If the tax levied by Article
    7047, Section 41a, V.A.C.S., as amended by Article 12
    of House Bill No. 8 of the Forty-seventh Legislature,
    accrues on cement purchased from an out of State manu-
    facturer by a Texas municipality. I have in mind the
    case of the City of Dallas who purchased cement out of
    the State for the reason they cannot obtain it from a
    Texas manufacturer.
           "Will the City of Dallas be liable for the tax
    on cement used that was shipped to them from points
    outside of the State?
          "I do not know whether or not the City of El Paso
   case on Motor Fuel Tax would have any bearing in this
   matter."
            The statute in question reads In part as follows:
          "(a) Cement Distributors, There is hereby imposed
   a tax of two and one half (24) cents on the one hundred
   (100) pounds, or fractional part thereof, of cement on
   every pereonin this State manufacturing or producing
   In and/or importing cement into this State, and who
   thereafter distributes, sells or uses; provided, how-
   ever, no tax shall be paid except on one sale, dis-
   tribution or use. The person liable for said tax is
   hereby defined as a 'distributor,' to be allocated
   as hereinafter provided.'
Honorable George H. Sheppard, page 2             o-4847


            In opinion No. O-4731, this department has construed
 this statute as levying an occupation tax. Section 1, Article
 VIII, of our Constitutionprovides that the Legislature may
 "impose occupation taxes, both upon natural persons and upon
 corporations, other than municipal." (Emphasis ours) There-
'fore, the City of Dallas is not liable for the tax on cement
 under the facts submitted in your letter.
           In the case of State v. City of El Paso, 143 S-W,
(2d)~366, the Supreme Court held that the motor fuel tax was
not an occupation tax, and made this further distinction: "It
follows that the tax here sued for is manifestly a ta~xon using
motorsfuel in the operation of motor vehicles on the public
highways of this State." Since the cement tax is an occupation
tax, the constitutional exemption of mnicipal corporatfons from
occupation taxes applies,
                                  Yours   very   truly
                              ATTORNEY GENERAL OF TEXAS

                                  By s/Thos. B. Duggan; Jr.
                                       Ttos, B. Duggan, Jr.
                                       Assistant
TBD:AMM:wc
APPROVE0 OCT 19, 1942
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
This Opinion Considered And Approved In Limi~tedConference
