THEA~~~ORNEY GENEKAL 

OF%.-EXAS 

Honorable Geo. H. Sheppard 

Comptroller ofPublic Accounts 

Austin, Texas 

Dear Sir: Opinion No. O-762 

Re: pCiFt$nc;s under A,,ticle 7047, 

. . . , where the State of 

Texas levies an annual occupation 

tax at a certain rate, due and 

payable in each and every county 

in which the occupation is 

pursued, in what amount and manner 

should the County.tax of such 

occupation be luvied and collected? 

In answering the above question embodied in your letter of May 

8, 1939, cave quote from said letter as follows: 

"Chapter 212, Acts of the Regular Session of the 42nd Legislature, provides that all occupation taxes are payable in advance 

unless otherwise provided by law, and establishes an uniform 

expiration date as of December 31st of each year, thereby 

making it necessary to pro rate the'collection of such taxes 

from the time the occupation commences to the end of the 

calendar year. 

"In opinions written by Grady Chandler January 5, 1928, 

Clark C. Wren June 29, 1936, John McKay February 27, 1937, 

and a joint opinion by John McKay and ,J..H. Broadhurst 

March 23, 1937, it was held that Article 7047, R.C.S., must 

be read in connection with Article 7048, R.C.S., the last 

named Article providing that State occupation taxes cannot be 

collected for less than one quarter. These opinions consequently hold that the occupation tax must be collected from 

the beginning of the calendar quarter in which such business 

commences to th? end of the calendar yearand not from the day 

the occupation commences. 

"We have recently had severalirequests from County TsXAssessor 

Collectors for a ruling as to the proper procedure in collecting 

the counties' part of such occupation taxes. 
. . . 

Hon. Geo. H. Sheppard, Page 2, O-782 

"The Constitution of Texas provides that counties and cities 

may levy and collect one-half the anount of the occupation 

taxes levied by the State. The county commissioners of the 

various counties usually enact a blanket levy imposing a ccunty 

tax one-half of the State tax upon all occupations on which the 

State has ,imposed a tax. 

The first question, however, must pertain to the State tax. 

The Statutes provide that some of the State occupation taxes are 

due and payable in each county where the occupation is pursued. 

As an example the Occupation Tax on carnivals (Art. 7047, 

Subdivision 2sb) reads as follows: 

"(b) Carnivals -- From every carnival, an annual tax of One 

Hundred Dollars ($lOO.OO), which State tax shall be due and 

payable in each and every county in which such carnival shows or 

exhibits.' ,,, 

"A carnival rarely ever shows longer than a week ortwo weeks 

in any one county, yet if the tax is to be prorated (as 

provided in Subdivision 42, Art. 7C47), it must pay $100.00 

per county.in the counties it shows during January;* February 

and March, but in April, May and June, it would only be required to pay $75.00 for each ccuntg in which it performs. 

In the next qarter the tax would be $50.00 per county and in the 

last quarter f25.00 per county. It appears that the Legislature 

merely intended to establish a uniform expiration date for 

occupation taxes but in a case ofthis kind, it has the effect 

of reducing the tax. 

"The first question therefore is as follows: 

Where the Statute fixes an annual tax and then provides it is 

due sandpayable in each and every county where the occupation is 

pursued, was it the intent pf the Legislature that the full 

amount of the State annual.tax be collected in each county, or 

was it intended that the tax be prorated from the quarter the 

occupation commences in each county to the end of the calendar 

year? 

"If you hold that the State tax on a carnival and other occupations payable in eachcounty separately is not subject to proration, will the counties collect onehalf of the full levy, or 

will such cmilties b$.~com ell.ed ,to cof'fect fOF'Une~quart& only 

as provided in Article'70 E 8,::,R.C.S.? ._ . .. ,, 

> ~~* 

"Conversely, if you hold that the State tax on such carnival or 

other occupations which pay separately in each county may be 

prorated as other occupations taxe$#,will the counties collect 
Eon. Geo. H. Sheppard, Page 3, O-782 

one-fourth of one-half of the amount lev'ied for a full year, 

or will such counties collect one-fourth of one-half of the prcrated amount the Sttte collects. In other words, let us say ,I 

the occupation commences in July and the State collects $50.00 

the pro rata psrt of the last two quarters of the calendar 

year. v/ill the counties collect one-fourth of one-half of 

$>'O.OO or onerfourth of one-half of $lOO.OO?" 

;ie find no authorities to assist us in arriving at a correct 

interpretation of the tax measure involved in your inquiry, 

but from the opinions adverted to in your letter and the 

pertinent constitutional and statutory provisions, we are 

of the opinion that it was not the intent of the Legislature 

that the full amount of the State annual occupation tax be 

collected in eachcounty @here the oc~cupation is ~pursued, 

regardless of the time during the calendar year when~the 

occupation commenced, but, on the contrary, suchtax should be 

prorated from the quiirter the occupation actually~ commences in 

each county to the end of the calenda: year. This has been 

the consistent ruling of this Department in the opinions.cited 

by you where the occppation tax is levied by Article 7047, 

Revised Civil Statutes, annually, on a state-wide basis only, 

and we find nothing in this tax statute or any of the other 

pertinent statutes whichnould disallow the benefits of a proration on the basis of the time the occupation was actually 

pursued during any calendar 

Article 7047, Revised Civil 

ye%;,:", those instances under 

, where a more burdensome 

occupation tax is levied by the State, due and payable in each 

and every county where such occupation isfollowed. 

Our answer to your first westion renders unnecessary an answer 

to your second, and we accordingly pass to a consideration of 

your third and last question, involving the amount and manner 

of the collection by counties of occupation taxes in those 

instances where the annual occuaption tax levied by Article 

7047, Revised Civil Statutes, is due and payable in each county 

on a pro rata basis from theb eginning of any quarter in which 

the occupation commences to the end of the c alendar year. 

In this connection, Section 1, Article 8, Constitution of Texas 

provides, in part, as follows: 

"And provided further that the occupationtax levied by 

any county, city or town for any year on persons or corporations 

pursuing any profession or business, shall not exceed one-half 

of the tax levied by the State for the same period on such profession or business," 
Hon. Geo. H. Sheppard, Page 4, o-782 

From the foregoing constitutional limitation upon the amount 

of occupation taxes which maybe levied by.the counties of this 

State, it is our conclusion that the .amount'of the annual OCcupation tax levied by Article 7047, hevised Civil Statutes, 

rather than the amount actually collected by the State fromany 

given occupaticn, isde%erminative of the amount of occupation 

tax which maybe constituticnally levied upon such occupation 

by any county. 

Civil Statutes, 

Us!ng subdivison 2.5b, Article .7047, Revised 

of this point, 

mentioned in your letter, as an illustration 

we believe that the amount of county occupation 

tax fixed and allowed by the Constitution of Texas would be 

one-half of the annual tax rate cf $100.00 on carnivals, rather 

than one-half of such amount as might actually be collected 

from any givenc arnival in any certain year byreason of its 

exhibition in several counties of Texas. The latter figure 

would be variable withe ach year and each carnival, sndthe 

conwissionersl court, in levying the county occupation tax, 

would be unable ther~efrom to levy suchtax at the beginning 

of the calendar year in any definite sum. For these reasons 

we believe the basic annual tax fixed by the Legislature in the 

various subdivisions of Article 7047, Revised Civil btatutes, 

is controlling in calculating the allowable county' occupation 

tax rate cn any particular occupation. 

Inasmuch as, under the statutes governing the collection of 

county occupation taxes, and the opinions of t'nis Department 

constraing same, such taxes maybe paid quarterly basis, it 

would follow,fkom the loregoing, that counties would, on a 

quarterly basis, collect an occupation tax of one-fourth of 

one-half of the amount levied by the State for a full year'on 

any given occupation. Using the illustration given by you in 

your last question, and assuming that a certain occupation 

commences in July and the State of Texas collects $SO.CO, the 

pro rata part of annual tax of $100.00 for the last two quarters 

of the calendar year, it is our answer that the county 

occupation tax upon the same occupation for one quarter of the 

calendar year would be one-fourth of one-hal~f of $100.00 rather 

than one-fourth of one-half of $50.00. 

Trusting that the foregoing fully answers your inquiries, 

we are 

ATTORNEYGENF& OF TEXAS 

Yours ver truly 

~/!..pc&hI. Nef'f,~ Jr. 

PMN:N/cg 

BY 

Pat M. Neff, Jr. 

Assistant 

APPROVED JUNE 23, 1939 

S. Gerald~C. Mann 

ATTORNEY GENERAL OF TEXAS Approved Opinion Committee 

By BW, Chairman