March 9, 

### 1967

Honorable Jack N. Fant County Attorney El Paso County El Paso, Texas

Dear Mr. Fant: Opinion No. M-35
Re: What taxmay the County and City of El Paso each levy on each coin-operated billiard table in its area, and related question.
You have requested the opinion of this office as to what occupation tax, If any, the City and County of El Paso may each levy on each coin-operatedbilliard table in its area. In addition,you inquire as to what power and authority the County and City have to levy and collect an occupation tax on each not-coin-operatedbilliard table. Article 7048, Vernon's Civil Statutes, in pertinent parts, provides as follows:

"Each commissionerscourt
. shall have the right to levy one-half of the occuvation tax levied bv the State won all oc&pations not herein otherwise specially exempted;

. . . "Thegoverningbody of any lncorporated town or city shall in no case levy a greater tax on any occupation than that authorized by this Chagter to be levied by the commissionerscourt. throughout.) (Emphasissupplied

In 1959, the Legislature enactedTitle 122A, TaxationGeneral, by which it provided a comprehensive enactmentby rearranging,revisingby amendment, and repealing certain statutes. In Section 7(b) thereof,a list of statutes is expressly repealed, among which are a number of sections of Article 7047 and in particular,Articles 7047a-2 through 7047a-18, the Coin-OperatedMachines Tax. There was no authority to tax not-coin-operatedmachines in Article 7047 at the time of its repeal in 1959.

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shouldTitle 122Aprovide@ in Section 3 that the enactment be construed as follows: "With respect to the provisions of this Act which tax transactions subject to taxationby the State prior to the effective date of thisAct, this Act shall be considered to be the equivalentof a revision by amendment even though it is in the form of an enactment of new law and repeal of the old law. This Act shallbe construed tomake a substantive change in the prior law only where the language of thisAct manifests a clear intent tomake such a change." vising The caption of the Bill states that it is 'AnAct re- _-

and rearranging certain statutes of Title 122 'Taxation'" and the emergency clause states, "Thenecessity for revising and rearranging the taxes referred to in this Act
. . ."

From the above guides to constructionand from the canons of constructionunder the general law, it is abundantly clear that the controlling factor in interpreting the statutes in questionmust be the legislative intent as evidenced from the entireAct, including those statutesbrought forward and amended or rearranged in Title 122A. 53 Tex.Jur.2d 191, Statutes; also, Sec. 130;p. 229, Sec. 1.60, Statutes.

It Is, therefore,necessary to examine the wording of the particular statute in Title 122A to see if its language "manifestsa clear intent tomake

. . .a change" in regard to the authority of counties and cities to tax coin-operated and not-coin-operat,ed machines.
In Chapter 1 of T,itle122A, entitled "GeneralProvisions," the Legislature set up provisions which govern all of the specific kinds of taxeswith which the Legislature,dealt in the following Chapters 2 through 23. In Article 1.09,being a part of Chapter 1, the Legislature specifically spoke as to the taxing authority of counties and cities, as follows:

"No city, county or other political subdivisionmay levy an occupation tax levied~bythisAct ,unlessspecificallypermitted to do so by the Legislature of the State of Texas."

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Honorable Jack N. Fsnt, page 

### ,,3. (M-35)

It Is thus evident that this limitationwas intended to operate on or govern the kinds of taxes ,speciflcally dealtwith in the other Chapters of Title 122A.

In Chapter 

### 13,Article 13.02 (1), the Legislature specificallydealt with coin-operatedmachines and billiard tables, levying a $10.00 tax thereon and specificallypermitting both counties and cities to levy an occupation tax thereon as follows:

11

. . .Provided.thatall counties and cities within this State may levy an occupation tax on coin-operatedmachines in this State in an amount not to exceed onehalf (3) of the State tax leviedherein."
In Chapter 19,Article 19.01, the Legislature specifically dealt with and levied an annual occupation tax on certainmiscellaneous occupations,and in subdivision (lo), not-coin-operated,BilliardTables, a tax of $5.00 for each billiard table was levied, speciallypermitting or authorizing cities and towns, but omitting counties, as follows:

"All cities and towns
. . . shallhave the power and authority to levy and collect a tax, equal to one-half (a) of the amount herein levied a . 9fl
It is thus seen that the legislative intent is evidenced by failing to permit or authorize counties to tax not-coinoperated billiard tables or machines. Under Article 1.09, Taxation-General,before countiesmay levy an occupation tax on same, such specificpermissionmust be authorizedby the Legislature.

Giving the legislative intent controlling effect from the above statutes,we find that such clear intentwas manifested by the Legislature in failing to grant to counties the authority to levy an occupation tax on not-coin-operated machines. SUMMARY

Under Article 7048 and Articles 1..09, 13.02(l) and 13.14,Title 122A,TaxationGeneral,Vernon's Civil Statutes,both cities

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### 35)

and countiesmay~each levy an annual occupation tax in an amount not to,exceed $5.00 on each coin-operatedbilliard table in their areas. Under Article 7048,Articles 1.09 and lg.Ol(lO),Title 122A,Taxation-General, Vernon's Civil Statutes, the cities do have the power and authority to levy and collect an annual occupation tax of $2.50 on each not-coin-operatedbilliard table in their areas. Under Article 7048,Articles 1.09 and 19.01(10),~~counties have no power to levy and collect a tax on each not coin operated billiard table in their areas.

ney General of Texas Prepared by:Kerns B. Taylor As~s.i'stantAttorney General KBT/lr APPROVED: OPINION COMMITTEE ,." Hawthorne Phillips, Chairman W. V. Geppert, Co-Chairman W. E. Allen Arthur Sandlin Gordon Cass Wade Anderson STAFF LEGAL ASSISTANT: A. J. Carubbi, Jr.

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