                       The Attorney                 General of Texas
                                             December       14,    1978
JOHN L. HILL
Attorney General


                   Honorable Bob Bullock                               Opinion No. H- 12 82
                   Comptroller   of Public Accounts
                   L.B.J. Building                                     Re:   Whether    a city adopting
                   Austin, Texas 78774                                 the local sales and use tax after
                                                                       October 1, 1979, may impose that
                                                                       tax on the residential use of gas
                                                                       and electricity.

                   Dear Mr. Bullock:

                           You have asked for an interpretation          of article  1066q section 4A,
                   V.T.C.S., which governs the exemption from the local sales and use tax of gas
                   and electricity    for residential use. Article 1066~ permits cities to adopt a one
                   percent local sales and use tax by holding an election for that purpose.            As
                   originally enacted, article 1066c, V.T.C.S., imposed a tax on sales of gas and
                   electricity    for residential    use. V.T.C.S. art. 1066c, 5 2B; see Tax.-Gen.   art.
                   20.04(R). The sixty-fifth        legislature amended article 1066sy    adding section
                   4A, which reads in part:

                                  Sec. 4A.         Effective    October    1, 1979, there are
                               exempted       from the taxes imposed by this Act the
                               receipts    from the sale, production,        distribution,  lease
                               or rental of, and the use, storage,                or other con-
                               sumption      within the city of gas and electricity            for
                               residential      use within a city adopting              the taxes
                               imposed by this Act unless prior to May 1, 1979, the
                               governing body of the city, by a majority vote of the
                               membership        of the governing body, votes to continue
                               the taxes authorized         by this Act on the sale, produc-
                               tion, distribution,       lease or rental of, and the use,
                               storage,    or other consumption         of gas and electricity
                               for residential       use.     At any time before or after
                               October 1, 1979, the governing body of a city that has
                               adopted     the tax authorized       by this Act may, by a
                               majority vote of the membership               of the governing
                               body, exempt from the taxes imposed by this Act the
                               receipts from the sale, production,           distribution,  lease
                               or rental of, and the use, storage, or other consump-
                               tion within        the city of gas and electricity              for




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Honorable   Bob Bullock      -   Page 2    (H-12 82 )



             residential    use.    The governing        body of a city that has
             adopted the tax authorized          by this Act and provided for the
             exemption     authorized     or required by this section may, by a
             majority vote of the governing body, reimpose the taxes on
             the sale, production,      distribution,   lease or rental of, and the
             use, storage,     or other consumption         in the city of gas and
             electricity   for residential use.

H.B. No. 1, Acts 1978, 65th Leg., 2d C.S., ch. 2, S 6, at 6-7. You ask whether a city
which first adopts the local sales and use tax after October 1, 1979, may impose
that tax on the residential use of gas and electricity.

        As of October 1, 1979, the amendment         exempts the residential     use of gas and
electricity    from the tax imposed under article 1066~ unless the city fits within one
of the exceptions provided in section 4A. These exceptions are as follows: (1) Prior
 to May 1, 1979, its governing body votes to continue the tax. (2) The governing body
of a city which has adopted the local sales and use tax and exempted the residential
 use of gas and electricity    reimposes the tax by majority vote.          A city which does
not adopt the local sales and use tax until after October 1, 1979, cannot fit within
the first exception.       Nor can it in our opinion fit within the second exception.
After October 1, 1979, the residential       use of gas and electricity     will be “exempted
from the taxes imposed by this Act, ” i.e. article 1066c, V.T.C.S.             Cities adopting
the provisions of article 1066~ after October 1, 1979, will not be able to impose the
tax on sales of gas and electricity       for residential   use. Thus they cannot become
cities which have adopted the local sales and use tax and then exempted                      the
residential     use of gas and electricity.        Their exemption      will come about by
operation of law rather than the city’s action.           Moreover, cities which have never
had the tax cannot be said to reimpose it, since “reimpose”                 means “to impose
again.”     Webster’s Third International     Dictionary (emphasis added). -.+    Cf. Lowr v.
Aetna Life Ins. Co., 120 S.W.2d 505 (Tex. Civ. App. - Dallas 1938, writ dmm’d
(definition of reinstate).    ln our opinion, section 4A of article 1066~ gives cities a
limited time in which to impose a tax on the residential           use of gas and electricity.
Cf. Attorney      General Opinion H-loll (1977) (time limit for counties to qualify for
Eefits      of National Flood Insurance Program).

                                       SUMMARY

             Cities that first adopt the local sales and use tax after
             October 1, 1979, may not impose the tax on the residential
             use of gas and electricity.




                                                Attorney   General   of Texas




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Honorable   Bob Bullock   -   Page 3 (H-12 82 )



APPROVED:




C. ROBERT HEATH, Chairman
Opinion Committee

jsn




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