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. **0wlcE OF**  **THE ATTORNEY**  **GENERAL 0F**  **TEXAS**

**. .,**  **;. _~**  **‘ I**  **AUSTIN ,**  **u**

: Hr. c. J. iYllde CouutyAuditor Corpus Christi, TeAa&

~‘
.. Dear Mr. Kilde:

; $./ ‘,. ..~ . You requeet’ the 0 $: .letter of .September 22, 194 :_~ quote your letter as follow

to the status ing companlee NueaeeaCouqt ou ~advise us a8 taxes for truckoperating in uation wherein.

.’ ny; which is d Company, op- -Nueces County exoluslvely, ed .by the railroad comlso pioking updeliveries nea of%NuecesCounty. red .for personal proper-ty ‘

. alorem tax in Nueaes tuation is the.various automobilas beings operated by the Central Power

. ,’In thie case, there are a number or vehicles’ throughout ‘several COWLAre.we to coneider only the ng in Nueoes County,,or, shall we consider all vehicles as being. aseeasab&e in Nueoee Comty? Another iriatanoe, ia the Transport Company of Texa8 whioh owns and operates a number of gasoline trucks oarryiny, gasoline to ,mny of.the Armyand.Navy Campsthroughout the oouhty, said oompauybeing do-- mioiled in Hueoes County.~"

.*: Replying to our request for additional information,

you stated in your letter of October 14, 1943:

. _-.
“Referring to your letter of September 30th, Re: Opinion Request No. O-5632, please be advised that the Transport Company

### ofTexas is domioiled in Muecea Ccuuty; the Southern Pacifio Transport Compsuy, Xaaaune+,i’a donioiled in Houston as it ia a subsidiary of the Southern Pacifio Railroad Couhty,~ 1 ~however, thetrucks used by this conoern are houaed andused entirely, to the beat of ‘myknowledge, in Nuecea Couutynaking dellverlea of freight shipped .over the Southern Paoifio Lines. I, also, ,believe that all thr6e oompeniea are oorporetIona.* Wedeemit desirable to treat these:corporatlons !C:, separately. ?la, therefore, take ‘upthe Southeyii Pacific TtianaF<, port Cotipanyfirat t

SOUT%RN

PACIFICTRAKSPORT COXPAhY

. . c$T,n ;;r;: p: ~. F#.i ‘

. Therecords in the office of the Secretary of State ${.reveal that the Southern Paolfio Transport Oompahyis aTexas ?p odr %.;. ih r ration, donioiled in Harris Couuty, for the purpose stated ta:Charter: “to tranaport goods‘ wares andnerohandiae, 5%or any.~vsluable thing.” It is apparent that the Southern Pa-

~‘clfio Transport Compaxiyla riot a railroad conpanyi even though- $ it my be affiliated with the southern Paoifio Railroad Company, ;;; henoeit la of.no aIdi but would only serve to oonfuae if we, F.,,ahould att,empt to apply the Conat1tutional andStatutory pro- &-.viaiona ap lloable to the organization, operation,~ andtaxa- ;, tion,of raP

lroad oornpanlea in an itfrort to arrive at a oorreot :.- answerto your queatiofii Weshall revert to this later merely :t- for the purpose of distinguishing the railroad oases from the I:::~, truok andbus oases, ;‘I It is observed that your opinion request aasmos as afact, addwemust as 

### ofneoesalty asauae the aamcstate of Saota that the Southern Paoifio Transport Company*operates :~.~ atruok or truoka, in Mecca Couuty excluaivele receiving thematerial shipped by the railroad company, &king deliveries andalso picking up deliveries for a transfer within the oonfines of 14uec;lsCounty.” This addtted state of fects fixes

,, abusiness situs as to the truoks inquired obout in Kueoea. ,

County, as distinguished from the homeoffice or domicile of the corporation in Harris County.

As an abstract proposition of law, personal property is taxable at the domicile of the owner, but where the owner by h,ia ownvoluntary tact fixes a definite and permanent aitus of personal property ownedby himfor business purposes in another oounty other than his residence or domicile, and we think that the 3outhern Pacifio Transport

‘Companyhas done that in this instance, thus aubjeotlng said trucks to advalorem taxes by Nueoea County. This rule is vory well stated in tha case of John Rancook ~~utual Life Inauranoe Co. v. Davis, (writ? of error denied) 162 S. W. (2d) 433, in the following language:

‘We overrule appellants osaignmenta of error numbered 1, 8, 30, 31, 32, 37, 38 and 39, bottomed on the propoa,ition that notes and other personal property are legally taxable only at the domicile of the 

### owner. This is a correot statement of an abstract proposition of law; but wefail to see howthe same 1s here involved, Thenotes have never been taxed in the State of Texas, andno attempt is shownto have been madeto tax the 3-9 The owner of the notes, at its ontioh oould establish a situs for taxation of the notes nWaoo. MoLennenCounty, in whioh event the makers of the notes, by reason of the above quoted provisions of said deeds of trust, would be obligeteU to pay the’taxea assessed against the same.” TheConstitution of Texas, Article 8, Seotlon 11 provides as follows:

“All property, whether oyned by pereona or oorporations, shall be assessed for taxation, and the taxes paid in the oountica where situated.

. ,” .Artiole 7153 of Vernon’s Annotated Civil Statutes of 1925 provides as follows:

“All property, real and personal, except auoh es is required to be listed and assessed otherwise, shall be listed and assessed in the oounty where it is situated;andall persons1 property, subject to taxation and

temporarily removed from tho State or oounty, shall be listed andassessed in the oounty of the residenoe of the owner theroof, or in the county whero the principal office of suoh owner is <uated.” The truoks referred to in your letter are obviously tangible personal property.

We think the rule has been well settled in this State ns to the oounty In which tangible personal propertjr is subject to tsxntion. It is stated as olearly in our opinion No. G-3702,from whfoh we quotd,as follows, as we shall be able to restate it:

“The rule or law appllaable in Texas is, therefore, thab tangible personal property is taxable in the oounty of Bhe domialle of the owder Unless the property has acquired a permanent fixed situs of Its ownseparate andapart from that of the,aounty of the owner’s domialle. Mere temporary absenoe from the aounty of the owner’s aomlolle does not give tangible personal property a taxable situs In another oounty end remove it from taxation in suah county of the owner’p domicile. :
. . *However, in e aase where taxglble personal property does aoquire a permanent sltus in a aountg other than the oounty of the owner’s dcimloile in relation to the tar year in question such property ‘is taxable **la** the oounty where%he sane is actually looated.

. . .” The dlatino.tlon wehave madeis reoognlzed in the 6aaeof Great Southern Life Insuranoe Co. v. City of Austin, 43S. W. 778, (Supreme Court of Texa6, opinion by Chleif ustloe Cureton) from which we quote as followsr

“It Is true that the aotual situs of oertaln classes of visible andtwible personal property, as well as intangible property having similar oharacteristlas, as, for example, money, State aa mun~oip+ bonds, airaulating banknotes, and shares of stock in private corporations, mayhave a situs for taxation where they are permanently

. m separate and apart from the domloile of the owner.*’

.

.&ir. C. J. I'Xlae, page 5

Viedo not deeri it neaessary to lengthen thla opinion by tho citation of auuulatlve authorities, andwe maywell let It rest upon the ease of Great Southern Ll.fe Insurance Companyv. City of Austin, supra, by that enlnent jurist, the late Chief Juatlae Cureton, but wenote briefly ~afew other deoisions. In the case of City of Galveston v. J. hi. Guffey Petroleum Company, (writ of errors refused) 1138. W. 585, from whioh wequote as follows:

"The Legislature may, in oertaln lnstanoes, give to property an artlflolal situs for the purposes of taxation; but when the property is physloal in oharaater, or of a nature that oan aaqulre an aotual situs, it must underhourConstitution be taxed in the oounty where, aotually situated or located. The finding of the court Is to the effect that these vessels so taxed have an actual sltus at Port Arthur, in the oounty ofmson, andnre not andhave never been wlth.ln waters looated wlthlu the territorial jurlsdlation of the oity,of Galveston. ."That vessels mayaoqulre an aotual sltus is a proposition too well settled to be questioned, .and that the place of enrollment and registration Is not oontrolllng, if the aotual situs 1s elsewhere.

. . ~.W (3mphasl.s added) Uooley on Taxation, Vol. ~2,4th edition, page 975, Fli'~~.. appears the following: ; "The situa of tangfble personal&W perty,

purposes of taxation maybe where the i for oner is Uomlolled but is not neoessarily a. Unlike IntangIble personal property, it mayaoqulra:a taxablesltua In the state other than the one where the owner is &omIailed, merely beoause It Is located there. Its taxable lsitus is where It Is more or less permanently looated. regamess of the domiolle of the owner.? (Emphasis added-

- !7emust not be misled by the aonfusloqwhloh may arise by the loose language used in some of the dealsions with respect to the rule that prevails as to the taxation of rolling stook of railroads in an effort to apply an analogy in aonslderlng the taxability of truoks andbuses ovned andMr. C. J. zilae, page 6

operated by corporations or individuals, This distinction is apparent, andmadeso byJudge Leddy in the oase of Gulf ’ c0+aa0 k s, F. RY.CO; v! Clty~of Dallas, 3.6s.‘;!. (al) 292, 

### (Coraalsslon

of. Appeals 1in the following language, from whichwe quote:

“The Legislature or1 inally (Aot Aug. 21 1876 (Laws 1879, o. 157,, 0l.9)? subjected rolling &oak of railway aompanias to taxation by aities and towns by the apportionment method, and subsequently repealed the samein the adoption of the Revised Statutes of 1879, andlater, by the passage of the Aot of Alaroh28, 1885 (Laws 1885, a. 631, expressly exempted railway companies from the necessity of making rendition of its rolling stock to Incorporated oitles and towns, We think suah aatlon negatives the grant of authority to the alty. of Dallas whloh is alaimed to exist In this case to tax the rolling stock of 

### a.rallwayaompanp, even thou& the samewas situatad within the aity on Sanuary 1st. and so remained for a definite tine.

“The Legislature no doubt concluded that it would not be tho exercise of a sound poliay to subjeat rolling stook of a railway companyto taxation by 

### oltlesand, towns.along their lines because of the oonfusion whioh would result from efforts of different mun1alpalltles to determine the sibus ,of suoh property due to its transitory nature. While switch engines mayhave more permanenoy in thelr~ looatlon than other rolling stock, yet all locomotives belonging to a railway aompany are of neoessitg a part of its rolling stook, the looation of whloh 

### Issubjeot to ,bechanged from time to 

### time. The aitus of so muak of rolling aboak belonging to railway companies was lndefl~nlte ,and unoertain that the 

### Legislature

was justified in olaselng It all as a unit for purposes of taxation, It unquestionably had the authority to determine the situ5 of rolling stook for purposes of municipal taxation. The faot that isolated rolling stook might in someinstonoee appear to have a fixed location Is not sufflalent to Invalidate the alasslfioatlon thus made. *In the absenoe of .astatute defining the taxable situs of this property otherwisegY it was only taxable at the domlolle of the railway oompahy.” (Emphasis added)Mr. C. J. Wilde, page 7 .%, :

. _i ii !.:$T,’ 1;:: Briefly, Judge Leddy haa said: ,: 2~ ~. “The Legislature unqueetionably had the authority \.~. Ltr to determine the altus of rolling atook Por purposes ‘1, of muniolpal taxation, but having by legislative aotion L!. exoepted railroad oompaniee frcm rendering any part of i: *:I” their rolling atook to lnoorporated cities or towns &- .through whloh their lines mayextend, thus preoludlng ;&c the olty of Dallas or any other munioipallty from taxing >Y,,’ the rolling stook of railroads. This acxoeptlon is L,~ ‘) ,.~_ ; I:: manliest by Artlole 7168, Revised Civil Statutes, whloh -.-, . ::.- provides:

‘I z.7 i:~7 WIAILpersonal property of whatsoover kind or ‘+: .I:‘& oharaotsr, exoept the rollinS atook belonging to the

companyor in their possession in eaoh respaotlve oounty, $,., listing and desorlblng the said personal property in the &i;~ samemanner as is no# required of oltlzens of this State.‘*

‘g&:, @ Aocordingly, wehold under the Taots submitted by ?.~~ you that the truoks of the Southern Paolflo Transport Company J*,~ have aoqulrad a business situe in Nueoes County, thus subjeoting themto adviLl.oremtaxes by said oounty. Transport Companyof Texas According to the reoords of the Railroad Commission, the above namedoompany 1s lndlvldually ownedand 1s domlolled in Nueoes County. Thegeneral oommonlaw rulsethat the sltus for taxation of personal property Is the domiolle or the owner

,‘:...,applles to individuals as well as oorporatlons, unless a buslness ,situs has been aoqulred elsewhere, and slnoe under the facts submitted the truoks of the Transport Companyof ’ Texas havenot aoqulred a business situs outside of Nueoes County, the domiolle of the owner weaooordingly hold that, iis::totthe truoks of the Transport C&npanyot Texas, they are taxable in Nueoes County, ,&’ y@;,yTMr. C. J. Wilde, page 8

Central Power andLlp,ht Conpane Records of the Secretary of State reveal that the above namedooapany is a Massaohusetts oorporation, with its prlnolpal office in Boston, Masaaohusetts, operntlng in Texas under a permit. Its applloatlon Sor permission to dobusiness in this State, filed in 1936, states: “Buslness ~lnthe State of Texas is to be transacted at Corpus Christi,, Nueoes County, Texas, and all other oountlea in Texas. The nameof the manager or person in oharge of said Texas business or agenoy will be %r. James0. Kennedy, Corpus Christl, Texas, 714Nixon Building. 1V

Article 8, Seotlon 11 of the Texas Constitution provides as quoted above. Artiole 7153,, R. C. S. prbvldes:

“All proporty; real andpersonal, exoept suoh as is required to b.elisted and assessed otherwise, shell be listed and assessed in the oounty where it la situated; andall personal propeirty, subjeot to taxation end ten-

.’ porarlly removed rrom the State or oounty, ehall be listed and assessed in the county of the residence of the owner thereof, or in the oounty where the prinoipal offloe of such owner is e&tuated.* In Guaranty Life Insuranoe Companyv. City of Austin, 190S. w. 189,Chlef Justloe Phillips; speaking for the Supreme Court, said:

“This artiole olearly oontemplates that any property classified as personal property by artlole 7505,and having a oonorete form mayaoquire a sltus distinct from the plaoe of the owner’s residenoen provides that personal property *temporarily removed from the state or oounty’ shall be taxed in the oounty of the owner’s residenoe. This is a provision with reapeot only to personalI{r;c+rty Ftemporarily removed from the county or state.’ no applleation to personal property whose removal is not temporary, but whioh has aoquired a sltus in a different oounty. If the removal from the oom-f the owner*s reaidenoe be only temporary, it could not under the artlole acquire a situs elsewhere; it Is to be regarded as still *situatedV-%i?&e county of the owner’s residenoe and is therefore taxable there. Theartiole makes it plain,.

### a-* c. IT.‘Zilde, page 9

’ havcve,r, that if the removal be not of a temporary oharacter snd the property has aoqulred a situs in a different county, it is taxable in suoh ay, unless within the exoeption of the article and therefore expressly madetaxable elsewhere.”
The faot that person~al property of a foreign corporotlon physicaLly located in this State is aubjeot to taxation in this State appears to be well settled. Texas Landand Cattle Co. v. City of Fort-Worth, 73 5. Yi. (Zd) 860, error refused; Jesse French Piano and Organ Co.

~‘v.~Ci;; or Dallas, 61 S. ‘f!. 942, error refused; 40Tex.

. . Fromthe foregoing it is apparent that under the weight of authority, personal tangible property of a foreign oorporaflon doing business in this State Is taxable’where the property is aotually physically looated ~a& used in-the business of the oor$osation, andwhere it has ItsTexas olfloe andplaoe of business if its removal therefrombe only of a temporary nature. Therefore, if the trucks of the Central Power andLight Companyoperate from the garage or storage base in aorpus Chrlsti, Nueoes County, Texas, upona temporary basis, fromwhloh the operations initiate andto whioh they return, in suoh wayas not to acquire a business situs elsewhere, said trucks are. aooordlngly taxable in Nueoes County. ,~ However, if any of the’ truoka and automobilea of this oonoern are kept outside of Nueoes County upon a permanent basis, as distinguished from a temporary,basls, they would not be taxable in NueCes Cotity. Yours very truly