Mr. Robert C. Lanier                   Opinion No. JM-593
Chairman
State Department of Highways           Re: Whether a sales tax on motor
  and Public Transportation            fuels must be used exclusively
Dewitt C. Greer State Highway Bldg.    for public roads by virtue of
11th and Brazes Streets                article VIII, section 7-a. of
Austin, Texas 78701                    the Texas Constitution

Dear Mr. Lanier:

     You have asked.for an interpretation of article VIII, section
7-a, of the Texas Constitution, which provides:

            Subject to legislative appropriation, alloca-
         tion and direction, all net revenues remaining
         after payment of all. refunds allowed by law and
         expenses of collection derived from motor vehicle
         registration fees, and all taxes, except gross
         production and ad valorem taxes, on motor fuels
         and lubricants used to propel motor vehicles over
         public roadways, shall be used for the sole pur-
         pose of acquiring rights-of-way, constructing,
         maintaining, and policing such public roadways,
         and for the administration of such laws as may be
         prescribed by the Legislature pertaining to the
         supervision of trafficsand safety on such roads;
         and for the payment of the principal and interest
         on county and road district bonds or warrants
         voted or issued prior to January 2, 1939, and
         declared eligible prior to January 2, 1945, for
         payment out of the County and Road District High-
         way.Fund under existing law; provided, however,
         that one-fourth (l/4) of such net revenue from the
         motor fuel tax shall be allocated to the Available
         School Fund; and, provided, however. that the net
         revenue derived by counties from motor vehicle
         registration fees shall never be less than the
         maximum amounts allowed to be retained by each
         County and the percentage allowed to be retained
         by each County under the laws in effect on January
         1. 1945.    Nothing contained herein shall be




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Mr. Robert C. Lanier - Page 2   (.JM-593)




          construed as authorizing the pledging     of   the
          State's credit for any purpose.

In your request letter, you stated:

            It is of course well established that this
         constitutional dedication is applicable to motor
         fuel taxes imposed under chapter 153 of the Texas
         Tax Code. While we are confident that the dedica-
         tion would equally apply to any taxes which might
         be imposed on motor fuels through appropriate
         amendments to provisions of the Limited Sales,
         Excise, and Use Tax Act, chapter 151 of the code,
         we seek your official legal confirmation.

Simply stated, your question is whether, if the Texas Legislature were
to impose a sales tax on gasoline, the proceeds of that tax could be
used for any purpose other than those stated in article VIII, section
7-a. We answer in the negative.

      If the constitution earmarks money for specific purposes, that
money can be dedicated to no other purpose. See, e.g., Gulf Insurance
Company.V. James, 185 S.W.2d 966 (Tex. 1945); Brazes River Conserva-
tion and Reclamation District v. McGraw. 91 S.W.2d 665 (Tex. 1936);
Lawson v. Baker, 220 S.W. 260 (Tex. Civ. App. - Austin 1920, writ
ref 'd). Article VIII, section 7-a provides in relevant part that

          [slubject to legislative appropriation, allocation
          and   direction . . . all   taxes, except    gross
          production and ad valorem taxes, on motor fuels
          . . . used to propel motor vehicles over public
          roadways, shall be used for the sole purpose of
          [accomplishing specific objectives].

It is beyond cavil that this language earmarks the revenue generated
by 9   tax on motor fuel, other than a gross production or ad valorem
tax, for the purposes named in the article. It can hardly be argued
that a sales tax on gasoline could be characterized as either a gross
production or an ad valorem tax, nor could it be contended that such
tax is not a "tax on motor fuel" within the meaning of the constitu-
tional provision. The proceeds of a sales tax on gasoline, therefore,
fall squarely within the terms of article VIII, section 7-a.

     The prefatory language in article VIII, section 7-a gives the
legislature the right to control the "appropriation, allocation and
direction" of the proceeds of a sales tax on gasoline. Neither this
nor any other portion of this constitutional provision, however,
permits the legislature to dedicate those proceeds to any purpose
other than those enumerated therein.




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,
    Mr. Robert C. Lanier - Page 3      (3.6593)




                                    SUMMARY

                 The proceeds of a sales tax on gasoline could
              be used only for the purposes expressed in article
              VIII, section 7-a. of the Texas Constitution.


                                              Very tru y yours.


                                               l&-h
                                              JIM     MATTOX
                                              Attorney General of Texas

    JACK HIGHTOWER
    First Assistant Attorney General

    MART KELLER
    Executive Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Comittee

    Prepared by Jon Bible
    Assistant Attorney General




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