                                 The Attorney General of Texas
                                                    October   12, 1984
JIM MAlTOX
Attorney General


Supreme Courl Building
                               Ronorable Bob Bullock                              Opinion No. JM-211
P. 0. Box 12546                Comptroller of Pub1.l.c Accounts
Austin. TX. 76711. 2546        L.B.J. State O~fficc! Building                     Re: Whether country club fees
512l4752501                    Austin, Texas   781’7’4                            are subject to the amusements
Telex 910/674.1367
                                                                                  tax
Telecopier  5121475-026fm

                               Dear Mr. Bullock:
714 Jackson. Suite 700
Dallas. TX. 75202~4508                Chapter 151 of the Tax Code imposes limited               sales,     excise,   and
2141742-6944
                               use taxes on busincwses operating within this state engaged In certain
                               specified       activit,Le!s.     Legislation     enacted    during     the recently-
4624 Albmta Ave., Suite 180    completed      special     session    designed   to increase     state     revenues     to
El Paso. TX. 799052793         offset    increased st.ste expenditures        for public education expanded the
915/53%3464                    tax to include “amwement sen+zes.”               See Tax Code ch. 151. Acts 1983,
                               68th Leg., 2nd C.S., ch. 31, art. 7, =534-44.                  Section 1 of article
  ,l Texss. Suite 700
                               7 expands the de:i:!nition           of “taxable     item” set forth         in section
Houston. TX. 77002-3111        151.010 of the Tax Code to include “taxable               services.”      Section 2 of
71312235668                    article     7 adds section          151.0101   to the code,       defining      “taxable
                               services”       to incblde       inter    alia   “amusement services.”           Section’
                               151.0028 of the T~:K Code was added by section                  3 of article        7 and
806 Sroadway, Suite 312
Lubbock. TX. 79401.3479
                               provides the follov:.ng:
6061747.5236
                                               Sec.  i.51.0028.    ‘AMUSEMENT  SERVICES.’
                                           ‘Amusement: services’       means the      provision      of
4309 N. Tenth. Suite S
McAllm. TX. 76501-1685
                                           amusemen!:!, entertainment,    or recreation,    but does
51216624547                                not include the provision      of educational   or health
                                           services  :Lf prescribed    by a licensed    practitioner
                                           of the lwaling arts for the primary purpose of
200 Main Plaza. Suite 400
                                           education or health maintenance or improvement.
Son Antonio, TX. 762052797
512r2254191
                               In response to thwe and other amendments, you ask for                     our official
                               opinion on the folhwing four questions:
An Equal Opportunitvl
Affirmative Action Elnplove*                   1. An!      social membership Initiation   fees
                                            and/or m~lthly dues at a country club subject    to
                                            amusemenl::i tax?

                                                2.  I:! the answer to        question  number (1) is
                                            ‘no,’  arc’ the additional          membership initiation
                                            fees and/Jr monthly dues         for golf and recreation
                                            subject 1:~ tax?




                                                                  p. 950
Honorable   Bob Bullock        - Page 2      (JM-211)




                3. Are guest fees for using club                   recreational
            facilities subject, to amusements tax?

                4. Are      membership    initiation     fees    and/or
            monthly dues at athletic            and sporting       clubs
            subject    to    amusements    tax     when   the   primary
            activity     of   tL:    club    Involves     recreational
            activities    which would be subject        to tax if an
            individual    admiss:.on fee was charged?

      We are unable to answer your questions  because the legislature
has seemingly removed from :he authority   of sny official  other than
you the right    to declare  what constitutes    “amusement services.”
Section 151.0101 of the Tax Code provides the following:

               Sec.        151 .OlOl .   ‘TAXABLE           SERVICES.’        u
            ‘Taxable     services’ -- means:

                   (1)     amusemfm$ services;

                   (2)     cable     t,Aevision     services:

                   (3)     personml services;

                    (4)   motor        vehicle      parking       and     storage
                services;   and

                   (5)  the repair,   remodeling.  meintenance.
               and restoraticn  of tangible personal property,
               except:

                         ‘3)     aircraft;

                       (B) a ship, boat, or other vessel, other
                   than a spo::ts  fishing   boat or any other
                   vessel used for pleasure;  and

                       (C) the     repair,   maintenance,                     and
                   restoratior, of a motor vehicle.

                (b) fie comptroller      shall    have    exclusive
             urisdiction    to interpret Subsection    (a) of this
            section.     (Empha& added).

Acts   1983. 68th Leg.,        2nd C.S.,     ch. 31, art.       7. sec.   2. at 534.

       You have not asked atcut,   and accordingly  we do not address the
 constitutionality   of subsection   (b).    On its  face.  this language
 appears to contravene artic1.e II, section 1 of the Texas Constitution.




                                           p. 951
P’   .

         Honorable   Bob Bullock   - Page 3 (JM-211)




         It has been suggested,     hovever, that a court might construe subsection
         (b) to confer authority       on f:he comptroller      only to promulgate rules
         not inconsistent     with the stz,tute.      In any event, the legislature    has
         clearly   indicated   its preference    that the comptroller   make the initial
         determination      as to the proper         constructfon    of subsection    (a).
         Accordingly,     as a matter of policy,           we decline    to answer your
         questions until you have fwrished          us with your construction     of those
         provisions.



                         The attorney  gweral    will not as a matter of
                     policy  answer a question whose initial     determina-
                     tlon the legislatwre    has clearly  indicated    shal.1
                     be left to the comptroller.



                                                         Very I truly   your


                                                     ~A/rwua
                                                         JIM     M A T T 0,X
                                                                               I’ll-if-



                                                         Attorney General of Texas

         TOMGREEE
         First Assistnut   Attorney   General

         DAVID R. RICHARDS
         Executive Assistant Attorney      Geueral

         RICK GILPIN
         Chairman, Opinion Committee

         Prepared by Jfm Noellinger
         Assistant Attorney General

         APPROVED
                :
         OPINIONCOMMITTEE

         Rick Gilpin.   Chairman
                               .
         Cclln Carl
         Susan Gatrison
         Tony Cuillory
         Jim Hoellinger
         Nancy Sutton




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