                            July 9, 1951


Hon. Drew S. Davis                Opinion No. V-1202
County Attorney
San Augustine Cou,nty             Re:   The tax situs of personal
San Augustine, Texas                    property owned by a resident
                                        of San Augustine County and
Dear Mr. Davis:                         located in an adjoining county.

             You request the opinion of this office as to the taxable
situs of personal property, including livestock, where the taxpayer
owns such property not only in the county of his residence, but al-
so in an adjoining county.

             There is no question as to the taxable situs of the prop-
erty which he owns and which is situated in the county of his resi-
dence. To. Con&, Art. VIII, Sec. 11. Hence it is not necessary
to notice this thher.

            This leaves only the question of the taxable situs of the
personal property in the adjoining county in which the taxpayer does
not reside, We are not able to say categorically, in the absence of
more detailed and specific facts, that all of the parsonal.property
of the taxpayer, including that owned in the adjoining county, should
be rendered and the taxes paid thereon in the county of his residence,
or that a part should be rendered and paid in the adjoining county.
We should keep in mind that under the law of this State taxable situs
for the purpose of ad valorem taxation is determined as of January 1.

            In the determination of the tax situs of .tax .situs of twa-
ble personal property in general, the following constitutional and
statutory provisions require consideration:

             “All proper.ty, whether owned by persons or cor-
      porations shall be assessed for taxatitn, and the taxes
      paid in the county where situated . . .  (Tex. Const.,
      Art, VIII, Sec. 11)

             “All property, real and personal, except such as
      is required to be listed and assessed otherwise, shall
      be listed and assessed in the county where it is situ-
      ated; and all personal property, subject to taxation and
      temporarily r,emoved from the State or county, shall
      be listed and assessed in the county of the residence of
      the owner thereof, or in the county where the principal
      office of such owner is situated.” (Art. 7153, V.C.S.)
Hon. Drew S. Davis, Page 2 (V-1202)



              It is observed that the term “in the county where situ-
ated” appears in the Constitution, and the term “in the county where
it is situated” appears in the statute; thus the same terms are em-
ployed. A judicial construction of the term “where situated” appears
in the case of Great Southern Life Insurance Co. v. City of Austin,
112 Tex. 1, 243 S.W. -5           ) . In this case the Court said:

             “Our ‘Constitution, therefore, in declaring that
      property shall be taxed where situated, has done no
      more than declare the commod-lsare.          The purpose
      of the Constitution in declaring that property should
      be taxed in the county where situated, was merely to
      define the general jurisdictional unit for the exercise
      of the taxing power, and to confine the exercise of that
      power to the subjects of taxation within that unit. It
      did not define what was meant by the words ‘where
      situated’ . . . it evidently meant property where situ-
      ated for the purpose of taxation under, the general prin-
      ms      of law as then understood.” (243 S.W. at 780.)

             In this case the Court further said, “no sovereignty or
taxing district could exercise the power of taxation except as to
property actually or constructively within its jurisdiction.  This
rule applies to counties and municipalities, as well as states. ~; .”
(243 S.W. at 780.)

             We are aware of the often referred to maxim of “mo-
bilia sequuntur personam, ” meaning that personal property, that is,
movables, follow the person.. In the early economic life, personal
property occupied a position of minor importance. for the simple
‘reason that personal property played an insignificant part in the
economic life of the owner. In brief., it had little to do with profits
or advancement of the economic condition of the owner. Such pro-
tection as was afforded the owner in the possession and enjoyment
of such property was rendered by organized society at the owner’s
domicile, hence there originated the rule of “mobilia sequuntur per-
 sonam. ”

            The ownership and use of personal property in the eco-
nomic life of the country and its citisens has, in modern times, be-
come increasingly important and has given rise to a relaxation of
the dogmatic rule embodied in the maxim, and the Supreme Court
of Texas has recognized this relaxation. This~is apparent from the
statement in the Great Southern Life Insurance Company case:

             “It is true that the actual situs of certain classes
      of visible and tangible personal property . e . may have
      a situs for taxation where they are permanently kept,
      separate and apart from the domicile of the owner. . . .”
      (243 S.W. at 781.)
Hon. Drew S. Davis, Page 3 (V-1202)



              We think it now clearly established in this State that
“actual situs” of property for the purpose of taxation is controlling
over the residence of the owner if the property is used in the non-
resident county permanently and not merely temporarily and inci-
dentally. In the case of City of Ft. Worth v. Southland Greyhound
Lines, Inc., 67 S.W.2d 354 (T       Civ. App. 1931). approved b th
Supreme Court in answer to :zitified questions in 123 Tex. 1’3. 6’1
S.W.2d 361 (1933), there was no special statutory provision or leg-
islative history affecting taxable situs. as is present in cases deal-
ing with rolling stock of railroads.   But the Court looked only to
Section 11 of Article VIII of the Constitutionand Article 7153. quoted
above, which require taxation of personal property ‘where situated”
or “in the county where it is situated.” Plaintiff’s principal office
and domicile was at San Antonio, where it rendered its buses for
taxation. The taxpayer admitted a taxable situs in Fort Worth of
certain personal property as of January 1, 1930, including tools and
supplies used in its Fort Worth garage and repair shop, office fur-
niture, and certain moneys on hand as of that date, and tendered in-
to court the taxes due on these items.     The plaintiff sought in this
suit an injunction against the tax collector of the City of Fort Worth
to prevent the city from taxing or collecting taxes’on certain motor
buses~placed upon the city tax rolls. The Court held in effect that
the’buses were only temporarily rather than permanently employed
in the City of Port Worth and sustained the taxpayer’s contention
that they were taxable in San Antonio, Bexar County, where it had
its main office. The taxpayer conceded that the portion of its prop-
erty permanently located in Fort Worth had a taxable situs there
and was properly taxable there, and tendered the appropriate amount
of taxes. No question was raised before the court as to this prop-
 erty. But since it had its actual s.itus by reason of the permanency
of its location and the purpose for which it was used at that location
 by the taxpayer, the actual situs prevailed over the residence of
 the taxpayer as to this property.

               The case of Clampett, Sheriff v. Johnson, 42 S.W. 866
(Tex. Civ. App. 1897), deals exclusively with the taxable situs of
livestock in a county not the residence of the owner. In this case,
I resident of Runnels County owned some 1400 head of cattle. On
3r about November 2. 1893, by virtue of a pasturage contract, he
moved the cattle to Sterling County and there pastured them until
ibout April 1, 1894. Under his contract he had the privilege of pas-
:uring the cattle until May 1 but returned the cattle to Runnels Coun-
:y about April 1. prior to the expiration of the time allowed under
:he contract. Both Runnels County and Sterling. County asserted the
Tight to tax the cattle. The Court held that the cattle had acquired
 i taxable situs as of January 1 in Sterling County. The Court pred-
 ‘.cated its decision upon the authority of Section 11, of Article VIII
 ,f the Constitution and Article 7153, V.C.S., both of which require
:he payment of taxes where situated. Therefore, the correct rule
Hon. Drew S. Davis, Page 4 (V-1202)



seems to be that where tangible personal property has an actual
physical location in a county and is there dedicated and used in
the county in the furtherance of the taxpayer’s business operations,
it there acquires a taxable situs distinct from the domicile of the
owner. Waggoner v. Whaley. 50 S.W. 153 (Tex. Civ. App. 1899,
error ref.)

             We have assumed from your opinion request that there
is not involved the question of inter-county pasturage which is gov-
erned by Article 7155, V.C.S.. and have treated the matter in so far
as livestock is concerned by the rules established for other tangi-
ble personal property. Of cours~e, if county line pasturage is in-
volved, the taxable situs is governed by Article 7155, which provides
for an apportionment between the counties as the acreage of the re-
spective counties bears to the total acreage in all the counties.


                          SUMMARY

             Personal property may acquire a taxable situs
      in a county distinct from the residence of the owner if
      it is permanently kept, used. and dedicated by the owner
      as of January 1 of the taxable year to uses in connection
      with the operation of his business in that county, as dis-
      tinguished from a temporary or mere incidental use;
      and this is true as to all tangible personal property, in-
      cluding livestock. Article 7155 provides an exception
      in cases of county-line pasturage.

                                              Yours   very truly,

                                              PRICE. DANIEL
                                              Attorney General


APPROVED:                                     BY
                                                   L. P. Lollar
W. V. Geppert                                          Assistant
Taxation Division

Jesse P. Luton, Jr.
Reviewing Assistant

Charles D. Mathews
First Assistant



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