                       October 26, 1988




Honorable James A. Adkins           opinion No.   al-972
Commissioner
Texas Department of Mental Health   Re: Whether a state official
   and Mental Retardation           or employee    traveling  at
P. 0. Box 12668                     state expense on official
Austin, Texas 78711-2668            state business   is   exempt
                                    from the hotel occupancy tax
                                    imposed by chapter   156 of
                                    the Tax Code  (RQ-1470)

Dear Mr.- Adkins:

     You ask whether a state official or employee  traveling
at state expense on official business for a state agency  is
exempt from the hotel occupancy taxes provided       for in
chapters 156, 351 and 352 of the Tax Code.‘

     Chapter 156 of the Tax Code imposes a state tax

        on a person who, under a lease, concession,
        permit, right of access, license, contract,
        or agreement, pays for the use or possession
        or for the right to the use or possession  of
        a room or space in a hotel costing $2 or more
        each day.

Tax Code g 156.051. Additionally,   chapters 351 and 352 of
the Tax Code in similar language authorize a municipality
and the    commissioners   courts   of   certain   counties,
respectively, to impose hotel occupancy taxes.

     This office was asked this question with respect to the
chapter 156 state hotel occupancy tax six years ago.      In
Attorney General Opinion RR-528 (1982), this office ruled
that "no such exemption exists" from the chapter 156 state
hotel occupancy tax. On May 16, 1988, however, this office
issued Letter Opinion No. LO-88-58, withdrawing MW-528   for
further study and consideration.   Having carefully  consid-
ered the question, we now reaffirm the conclusion of MW-528
that state officials or employees traveling at state expense
on official business for a state agency are not exempt  from




                              p. 4947
Honorable James A. Adkins - Page 2      (JM-972)



the state hotel occupancy tax under chapter 156 of the Tax
Code. We also conclude that there is no such exemption    to
the local hotel occupancy taxes provided for in chapters 351
and 352 of the Tax Code.

     Attorney General Opinion WW-528 based its conclusion in
part on the ruling in Attorney General Opinion WW-738
(1959) I that officers and employees of the Federal Reserve
Bank traveling on official business are not exempt from the
state hotel occupancy    tax.  The situation   addressed  in
WW-738 may not have been the best analogy in support df the
result of WW-528, involving as it did possible issues with
respect to taxation      of federal instrumentalities    not
relevant to the question in MW-528. See. e a.
                                              ?Pg+&
State of Marvland, 17 U.S. (4 Wheat.) 316 (i819).
ample support elsewhere, however, for the conclusion reached
in MW-528.

     We would note at the outset, the well settled rule that
claims  for tax exemptions       are strictly and    narrowly
construed.  See. e.a   Davies  v.  Mever 541 S.W.2d 827 (Tex.
1976).   Also, we &e       that the e&ess      exemptions   '
chapters 156, 351 and 352 for persons using a room thir:;
days or more, and in chapter 156 for religious,    charitable
or educational organizations, indicate, under the exoressio
unius rule of statutory construction,    that any exemptions
not expressly provided  for are to be deemed as expressly
excluded by the legislature from the statutory scheme.    See
Tax Code 55 156.101, 156.102, 351.002(c), 352.002(c).

     In Attorney General.Opinion JM-865 (1988), we concluded
that counties and home rule cities were without authority to
grant hotel occupancy tax exemptions to certain   religious,
charitable, and educational    organizations.  That opinion
quoted the court in Citv of Wichita Falls v. CooDey,     170
S.W.2d 777 (Tex. Civ. App. - Fort Worth 1943, writ ref'd),
which held that cities could not by ordinance provide    for
tax exemptions  on homesteads beyond those authorized     by
state law or constitutional provision.

           It is clear to us that it was intended by
        the framers of our Constitution     that all
        property should be subject to taxation,  upon



     1. We do not mean here to reconsider Attorney General
Opinion WW-738.   But see Attorney  General Opinion H-380
(1974) (Motor Vehicle    Retail  Sales and Use Tax     not
applicable to federal employee renting vehicle on official
business).




                              P. 4948
Honorable James A. Adkins - Page 3       (JM-972)



        an equal and uniform basis for the purpose of
        defraying the governmental expense,
        excention  onlv of SW      nronertv ?s%
        document soecificallv  exemnts therefrom     a
        such as    the   Leaislature    shall.    under
        Constitutional  restrictions,    bv    XDllC
        lancuaae. declare to be exemnt.   (HmpEasis ii
        added in Attorney General Opinion JM-865
        (1988), at 3.)

Cooner, 170 S.W.2d 777, 780.

     Though JM-865 did not deal with pronertv        taxation
exemptions as did the Coooer case, it reached its conclusion
based on the general rule enunciated there that, under Texas
law, tax exemptions exist only if specifically provided   for
in the constitution or by statute. We follow here the rule
followed in JM-865. We find no specific provision in chapt-
ers 156, 351, 352, or elsewhere    in state law or in the
constitution to the effect that state officials or employees
traveling on state business are exempt      from the hotel
occupancy taxes provided for in those chapters. Hence, we
conclude, as did- Attorney General Opinion- MW-528 , that no
such exemption exists.

                       SUMMARY

              State officials or employees travel ing
        at state expense on state business are not
        exempt from the hotel occupancy tax provided
        for in chapters 156, 351 and 352 of the Tax
        Code.




                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEANLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General


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