             T~AEA~ORNEY                                GENERAL
                                  OF TEXAS
                          Aus-.        We,              78711




                                    April    5, 1974



The Honorable Robert       S. Calvert             Opinion       No,   H-   274
Comptroller   of Public    Accounts
State of Texas                                     Re:          Authority of cities to
Austin,  Texas 78774                                            collect taxes due under
                                                                Article 1066c, V. T. C. S.,
                                                                the Local Sales and Use
Dear   Mr.   Calvert:                                           Tax Act

       You have requested         an opinion     on the following      questions:

                     “Whether any city has authority under Vernon’s
              Ann. Civ. Stat. Art. 1066~. common law, or otherwise
              to engage in any collection    activities,    including collec-
              tion on a judgment,    for tax liabilities   that arise under
              Vernon’s    Ann. Civ. Stat.  Art. 1066c, other than joining
              as a party plaintiff with the Attorney General in a suit
              for collection   as provided in Vernon’s       Ann. Civ. Stat.
              Art. 1066~. Sec. 12, subsequent        to a certification   of a
              tax liability by the Comptroller      to the Attorney General
              for collection?   ”

                      “In the event any amounts due under Vernon’s
              Ann. Civ. Stat. Art. 1066~ are in fact received by a
              city, either legally or illegally,    is that city required
              to either remit the total amount collected,       exclusive
              of court   costs,   if any, to the Comptroller   or to submit
              an  accounting    to the Comptroller   of all amounts so col-
              lected? ”

        The Limited Sales,      Excise and Use Tax Act (Chapter 20. Taxation-
General,    V. T. C.S.)    was enacted in 1961.   The Local Sales and Use Tax Act,
Article   1066c, V. T. C. S., became effective in 1967.     It authorizes cities,
towns and villages      to adopt a local sales and use tax which is superimposed
on the state sales tax in local,      taxable transactions.




                                            p.   1280
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    The Honorable      Robert   S.   Calvert.    page 2     (H-274)




           We believe that the State Comptroller      is the sole party authorized
    to collect these local taxes on behalf of the city.     Our opinion is based
    upon the many provisions      in Article 1066~ which contemplate      collection
    of the local taxes by the Comptroller.      The caption to the Act sets out
    that it is an act “providing for the administration     and collection    and
    enforcement    of such tax by the State of Texas. ” (Acts 1967, 60th Log.,
    KS.,    ch. 36. p. 62).    Section 5 of the act provides that “the Comptroller
    shall perform all functions incident to the administration,        collection,
    enforcement,    and operation of the tax, and the Comptroller        shall collect
    . . . an additional tax under the authority of this Act of one percent (1%)
    . . . . ” It further states that the local tax and state tax will be “col-
    lected together and reported upon such forms . . . . as may be prescribed
    by the Comptroller.     . . . ” Section 6 establishes   provisions    which “shall
    govern the collection by the Comptroller      of the tax imposed by this Act”
    and Section 4, establishing     an excise tax, states that “the tax imposed
    by this Section of this Act shall be collected     by the Comptroller      on behalf
    of and for the benefit of such city. ” (emphasis added)

          These provisions   clearly show that the Legislature        intended that the
    State Comptroller  be the central collector of these taxes.

           The answer to your second question is dictated by our answer to the
    first and is governed by the same statutory provisions       as those quoted
    above.   Since the Comptroller     is the sole agent authorized    to collect the
    Local Sales,   Excise and Use tax, any such tax collected by a city in any
    manner must be paid over to the Comptroller         to be deposited in the State
    Treasury   for the city’s benefit.

            In connection with your first question you have referred    to $12 of
    Article   1066~. V. T. C. S., which provides a convenient procedure enabling
    a city to join as a “party plaintiff” in suits brought by the Attorney General
    to collect delinquent state taxes when a city tax is also delinquent.     How-
    ever, this procedure is not exclusive     and a city also has a general common
    law right to file suit to recover delinquent taxes.     Brummer   v. City of Gal-
    veston,    76 S. W. 428 (Tex. 1903); City of Henrietta v. Eustis,   26 S. W. 619
    (Tex. 1894).     See also Article 11, 5 $4 and 5 of the Texas Constitution and
    Article   962,   V. T. C. S.




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    ,   .

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            The Honorable      Robert   S.   Calvert,   page 3      (H-274)




                                                  SUMMARY

                                  The State Comptroller     is the sole collector
                           of taxes under Article   1066c, V. T. C. S., although
                           cities may independently    file suit therefor,   and
                           any such tax moneys received by cities should be
                           remitted to the State Comptroller      for deposit in
                           the State Treasury   for the cities’ benefit.




            APPeCjVED:




            DAVID     M.   KJSNJJAJ
            Opinion    Committee




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