            HE      ATTCBWNEW            GENERAL
                                   XAS




Honorable Robert S. Calvert              Opinion No.M-418
Comptroller of Public Accounts
Capitol Station                          Re: Construction of H.B.
Austin, Texas                                1158, Acts of the 61st
                                             Legislature amending
                                             Section (9), Article 7.08,
                                             Title 122A, Taxation-
                                             General, relating to
                                             payment for cigarette
                                             stamps.
Dear Mr. Calvert:

     You have requested our opinion concerning the effect of
H.B. 1158 on the availability of money received in payment for
cigarette stamps and meter settings during the month of August.

     Section (9), Article 7.08, Title 122A, Taxation-General,     as
amended by H.B. 1158, provides in part as follows:

          "The State Treasurer shall require that payment
     in full for stamps or meter settings be made within
     fifteen (15) days from the date the stamps or the
     set meter are received by the distributor.   In each
     fiscal Year, payment for stamps and meters received in
     Auqust of that year shall be paid in full on or before
     Auqust 31 no matter when purchased or received by the
     distributor durinq that month."   (Emphasis added.)

     In Muldrow v. Texas Frozen Foods, Inc., 157 Tex. 39, 299
S.W.2d 275 (1957), the Supreme Court of Texas held that taxes
were not paid to the State until the tax money becomes available
to the State.




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Honorable Robert S. Calvert, page 2 (M-418)



     Section (9) of Article 7.08 requires in each fiscal year
that payment for cigarette stamps and meter settings received
in August of that year to be paid in full on or before August 31
regardless when purchased or received by the distributor during
that month. These provisions are mandatory.   In view of the
holding in Muldrow v. Texas Frozen Foods, Inc., supra, money due
the State must become available to the State during the fiscal
year in which the cigarette tax stamps and meters are received
by the distributor.

     This mandatory provision was apparently provided by the
Legislature for the reason that Section 49a of Article III of
the Constitution of Texas provides:

          "From and after January 1, 1945, no bill containing
     an appropriation shall be considered as passed or be
     sent to the Governor for consideration until and unless the
     Comptroller of Public Accounts endorses his certificate
     thereon showing that the amount appropriated is within
     the amount estimated to be available in the affected
     funds."   (Emphasis added.)

     Therefore, the provisions of Section (9) of Article 7.08
above quoted, requires all revenue to be available to the State
during the fiscal year when cigarette tax stamps and meters
are received by the distributor.

      You are therefore advised that Section (9) of Article 7.08,
Title 122A, Taxation-General, Revised Civil Statutes of Texas,
1925, as amended by H.B. 1158, Acts of the 61st Legislature,
1969, requires that payment for cigarette tax stamps and meters
received by the distributor during the month of August shall be
paid in full to the State Treasurer before the end of the fiscal
year.




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.   -




    Honorable Robert S. Calvert, .page 3 (M-418)


         Article 1.13, Title 122A, Taxation-General, referred to in
    your request has no application to monies due under the provisions
    of Section (9) of Article 7.08 for the reason that Article 1.13
    applies to reports and paymenisto be remitted to the Comptroller
    of Public Accounts, while Section (9) of Article 7.08 applies
    to monies to be paid to the State Treasurer.

         Accordingly, all monies due for cigarette tax stamps and
    meters received by the distributor during August must be
    considered as revenue available to the State within the meaning
    of Section 49a of Article III of the Constitution of Texas during
    that fiscal year for the reason that such monies are required to
    be paid in full before the end of the fiscal year.

                                 SUMMARY

                   Section (9) of Article 7.08, Title 122A,
              Taxation-General, Revised Civil Statutes of
              Texas, 1925, as amended by House Bill 1158, Acts
              of the 61st Legislature, 1969, requires that
              payment for cigarette tax stamps and meters re-
              ceived during the month of August shall be paid
              in full before the end of the fiscal year and
              all monies due for cigarette tax stamps must be
              considered as revenue available to the State
              during the fiscal year.




                                                   .,
                                             Attorney General of Texas

    Prepared by John Reeves
    Assistant Attorney General




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Honorable Robert S. Calvert, page 4 (M-418)


APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
George Kelton, Vice-Chairman

Louis Neumann
R6bert Crouch
Roland Allen
John Grace
Terry Goodman
John Banks

HAWTHORNE PHILLIPS
Executive Assistant




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