### HE ATTCBWNEW GENERAL XAS

Honorable Robert S. Calvert Comptroller of Public Accounts Capitol Station Austin, Texas

Dear Mr. Calvert: Opinion No.M-418 Re: Construction of H.B. 1158,Acts of the 61st Legislature amending Section (9),Article 7.08, Title 122A,TaxationGeneral, relating to payment for cigarette stamps.

You have requested our opinion concerning the effect of H.B. 1158on the availability of money received inpayment for cigarette stamps and meter settings during themonth ofAugust. Section (9),Article 7.08, Title 122A, Taxation-General, as amended by H.B. 1158,provides inpart as follows:

"The State Treasurer shall require that payment in full for stamps ormeter settings be made within fifteen (15)days from the date the stamps or the setmeter 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 orbefore Auqust 31no matter when purchased or received by the distributor durinq that month." (Emphasis added.)
InMuldrow v. Texas Frozen Foods, Inc., 157Tex. 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.



### -2088-Honorable Robert S. Calvert, page 2 (M-418)

Section (9)ofArticle 7.08 requires ineach fiscal year that payment for cigarette stamps and meter settings received inAugust of that year tobe paid in full on orbefore August 31 regardless when purchased or received by the distributor during that month. These provisions are mandatory. Inview of the holding inMuldrow v. Texas Frozen Foods, Inc., supra, money due the State must become available to the State during the fiscal year inwhich 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 ofArticle III of the Constitution of Texas provides:

"From and after January 1, 1945, nobill containing an appropriation shall be considered aspassed orbe sent to the Governor for consideration until and unless the Comptroller of Public Accounts endorses his certificate thereon showing that the amount appropriated iswithin the amount estimated tobe available in the affected funds." (Emphasis added.) Therefore, theprovisions of Section (9)ofArticle 7.08 above quoted, requires all revenue tobe 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)ofArticle 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 andmeters received by the distributor during themonth ofAugust shall be paid in full to the State Treasurer before the end of the fiscal year.

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Honorable Robert S. Calvert, .page3 (M-418)

Article 1.13, Title 122A, Taxation-General, referred to in your request has no application tomonies due under the provisions of Section (9)ofArticle 7.08 for the reason thatArticle 1.13 applies to reports and paymenisto be remitted to the Comptroller of Public Accounts, while Section (9)ofArticle 7.08 applies tomonies tobe 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 ofArticle III of the Constitution of Texas during that fiscal year for the reason that suchmonies are required to be paid in fullbefore the end of the fiscal year. SUMMARY Section (9)ofArticle 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 received during themonth ofAugust shall be paid in fullbefore the end of the fiscal year and allmonies due for cigarette tax stamps must be considered as revenue available to the State during the fiscal year.

., Attorney General ofTexas Prepared by John Reeves Assistant Attorney General

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### 2090 -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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