                    March 9, 1967

Honorable Jack N. Fant          Opinion No. M-35
County Attorney
El Paso County                  Re:   What tax may the
El Paso, Texas                        County and City of
                                      El Paso each levy
                                      on each coin-operated
                                      billiard table in its
                                      area, and related
Dear Mr. Fant:                        question.
       You have requested the opinion of this office as to
what occupation tax, If any, the City and County of El Paso
may each levy on each coin-operated billiard table in its
area. In addition, you inquire as to what power and authority
the County and City have to levy and collect an occupation tax
on each not-coin-operated billiard table.
       Article 7048, Vernon's Civil Statutes, in pertinent
parts, provides as follows:
            "Each commissioners court .     shall
       have the right to levy one-half of the oc-
       cuvation tax levied bv the State won all
       oc&pations not herein otherwise specially
       exempted; . . .
           "The governing body of any lncorpo-
      rated town or city shall in no case levy a
      greater tax on any occupation than that au-
      thorized by this Chagter to be levied by the
      commissioners court.   (Emphasis supplied
      throughout.)
       In 1959, the Legislature enacted Title 122A, Taxation-
General, by which it provided a comprehensive enactment by
rearranging, revising by amendment, and repealing certain
statutes. In Section 7(b) thereof, a list of statutes is
expressly repealed, among which are a number of sections of
Article 7047 and in particular, Articles 7047a-2 through
7047a-18, the Coin-Operated Machines Tax. There was no
authority to tax not-coin-operated machines in Article 7047
at the time of its repeal in 1959.
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Honorable Jack N.,Fant, Page 2 (M-35)


       Title 122A provide@ in Section 3 that the enactment
should be construed as follows:
              "With respect to the provisions of
         this Act which tax transactions subject
         to taxation by the State prior to the ef-
         fective date of this Act, this Act shall
         be considered to be the equivalent of a
         revision by amendment even though it is
         in the form of an enactment of new law and
         repeal of the old law. This Act shall be
         construed to make a substantive change in
         the prior law only where the language of
         this Act manifests a clear intent to make
         such a change."
       The caption of the Bill states that it is 'An Act re-   _-
vising and rearranging certain statutes of Title 122 'Taxation'"
and the emergency clause states, "The necessity for revising
and rearranging the taxes referred to in this Act . . ."
       From the above guides to construction and from the
canons of construction under the general law, it is abundantly
clear that the controlling factor in interpreting the statutes
in question must be the legislative intent as evidenced from
the entire Act, including those statutes brought forward and
amended or rearranged in Title 122A. 53 Tex.Jur.2d 191,
Statutes; also, Sec. 130; p. 229, Sec. 1.60, Statutes.
       It Is, therefore, necessary to examine the wording of
the particular statute in Title 122A to see if its language
"manifests a clear intent to make . . . a change" in regard
to the authority of counties and cities to tax coin-operated
and not-coin-operat,edmachines.
       In Chapter 1 of T,itle122A, entitled "General Provisions,"
the Legislature set up provisions which govern all of the
specific kinds of taxes with which the Legislature,dealt in the
following Chapters 2 through 23. In Article 1.09, being a part
of Chapter 1, the Legislature specifically spoke as to the
taxing authority of counties and cities, as follows:
              "No city, county or other political
         subdivision may levy an occupation tax
         levied ~by this Act ,unless specifically per-
         mitted to do so by the Legislature of the
         State of Texas."
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*   ;..




Honorable Jack N. Fsnt, page ,,3.
                               (M-35)


       It Is thus evident that this limitation was intend-
ed to operate on or govern the kinds of taxes ,speciflcally
dealt with in the other Chapters of Title 122A.
       In Chapter 13, Article 13.02 (1), the Legislature
specifically dealt with coin-operated machines and billiard
tables, levying a $10.00 tax thereon and specifically permit-
ting both counties and cities to levy an occupation tax there-
on as follows:
            11
             . . . Provided.that all counties and
       cities within this State may levy an occu-
       pation tax on coin-operated machines in
       this State in an amount not to exceed one-
       half (3) of the State tax levied herein."
       In Chapter 19, Article 19.01, the Legislature speci-
fically dealt with and levied an annual occupation tax on
certain miscellaneous occupations, and in subdivision (lo),
not-coin-operated, Billiard Tables, a tax of $5.00 for each
billiard table was levied, specially permitting or authorizing
cities and towns, but omitting counties, as follows:
               "All cities and towns . . . shall have
          the power and authority to levy and collect
          a tax, equal to one-half (a) of the amount
          herein levied a . 9fl
       It is thus seen that the legislative intent is evidenced
by failing to permit or authorize counties to tax not-coin-
operated billiard tables or machines. Under Article 1.09,
Taxation-General, before counties may levy an occupation tax
on same, such specific permission must be authorized by the
Legislature.
       Giving the legislative intent controlling effect from
the above statutes, we find that such clear intent was mani-
fested by the Legislature in failing to grant to counties the
authority to levy an occupation tax on not-coin-operated
machines.
                        SUMMARY
               Under Article 7048 and Articles 1..09,
          13.02(l) and 13.14, Title 122A, Taxation-
          General, Vernon's Civil Statutes, both cities

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Honorable Jack N. F.ant,page 4 (M- 35)


       and counties may~each levy an annual occu-
       pation tax in an amount not to,exceed $5.00
       on each coin-operated billiard table in their
       areas.
            Under Article 7048, Articles 1.09 and
       lg.Ol(lO), Title 122A, Taxation-General,
       Vernon's Civil Statutes, the cities do have
       the power and authority to levy and collect
       an annual occupation tax of $2.50 on each
       not-coin-operated billiard table in their
       areas.
            Under Article 7048, Articles 1.09 and
       19.01(10),~~countieshave no power to levy
       and collect a tax on each not coin operated
       billiard table in their areas.




                                  ney General of Texas

Prepared by:Kerns B. Taylor
As~s.i'stantAttorney
                   General
KBT/lr
APPROVED:
OPINION COMMITTEE ,."
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
W. E. Allen
Arthur Sandlin
Gordon Cass
Wade Anderson
STAFF LEGAL ASSISTANT:
A. J. Carubbi, Jr.




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