December 13, 1951 

Hon. Bill TiDDen Oninion No. V-1375 

County Attorney 

Taylor County 

Abilene. Texas 

Re: 

Dear Mr. Tippen: 

Constitutionality of subsection (c) of Sec. 5a, Art. 7047k, 

V.C.S., as amended, requiring seller and purchaser to 

make a joint affidavit of the 

true consideration and rcquiring the tax assessor-collector 

to refuse mot& vehicle registration applications from 

any seller who owes ‘affidavit 

error fees.” 

You submit for the opinion of this office the question 

of the constitutionality of Subsection 4 of Section VII (Motor Vehicle Sales Tax) of House Bill 285, Acts 52nd Leg., R,S. 1951, ch. 

402, p, 695. Subsection 4 of this act amends Section 5a of Article 

7047k, V.C.S., to read in part as follows: 

“Section 4a, The purchaser and seller shall 

make a joint affidavit setting forth the then value in 

dollars of the total consideration, whether in money 

or other things of value, received or to be received 

by the seller or his nominee in a retail sale, . . . 

. . 

. . . 

“(b) Where the joint affidavit incorrectly states 

the amount of the consideration actually received by 

the seller so that the tax actually paid is less than 

that which was actually due, the seller shall pay an 

affidavit error fee as follows: 

“(i) Twenty-five Dollars ($25) if the actual 

consideration received by the seller was from five 

per cent (5%) through 10 per cent (10%) greater than 

the consideration upon which the tax was paid, and 

“(ii) One Hundred Dollars ($100) if the actual 

consideration received by the seller was in excess of 

ten per cent (10%) greater than the consideration upon which the tax was paid. 
. 

Hon. Bill Tippen, Page 2 (V-1375) 

“(c) The seller shall pay the affidavit error 

fee to the Tax Collector and Assessor. One half of 

the affidavit error fee shall be retained by the county as a fee of office or paid into the officers salary 

fund of the county, as is provided by general law. 

The remainder of the affidavit error fee shall be 

paid over to the State. The Tax Collector and Assessor shall refuse to accept an application for registration or for transfer of title of any motor vehicle 

from any seller who owes the Tax Collector and Assessor an affidavit error fee.” 

You specifically ask the following three questions: 

” 1. Is this method of exacting a fine or penalty 

constitutional, since it does not afford any type of 

hearing or right of appeal to any administrative tribunal or to the courts? Does it afford due process 

of law? 

“2. Does the Tax Assessor and Collector have 

the authority to accept an applicdtion for registration 

or for transfer of title which is presented to him by 

the purchaser of an automobile from a dealer who 

owes an affidavit error fee? (Section C of the Act 

herein referred to, clearly states that the Tax Assessor and Collector shall not accebt an application 

from a seller who owes an affidavit error fee.) 

“3. Is the refusal to accept applications constitutional as a method of enforcing a penal provision 

or of collecting a deficiency? ‘* 

Your first question calls for ‘a consideration of that 

portion of the statute which requires the seller and purchaser to 

make a joint affidavit disclosing the true consideration upon 

which the tax of 1.1% is assessed by Section l(a) and (b) of the 

act. The statute provides in explicit terms for payment by the 

seller of an “affidavit error fee” in the event the joint affidavit 

incorrectly states the consideration paid. 

You ask specifically if this portion of the statute accords due process. We think it does. That this is a part of a 

revenue statute is apparent, and has for its purpose,the prevention of fraud and evasion of a valid revenue measure and is in 

our opinion an appropriate and proper provision upon the subject 

of revenue ~ We think the portion of the statute here considered 

does nothing more than subject a dealer who fails or refuses to 

comply with the statute to a right of action in favor of the State 
. 

Hon. Bill Tippen, Page 3 (V-1375) 

for the ‘affidavit error fees” prescribed by the statute. The 

fact that it will subject dealers to litigatiqn by the State to enforce the collection of the fees thus incurred is not sufficient 

to condemn this part of thk statute as a denial of due process. 

It is but giving a right of action in favor ,of the State for the enforcement of the statutory lien provided by Article 7083a, V. 

C.S., against a dealer who fails to comply with its provisions. 

The fact that the State must bring suit in a court of Isw guarantees to the dealer a hearing and a r’ight of appeal. *his action 

preserves to the dealer a’ll of the fundamental rights characterized as due .process. Hagar v. $ecla&$ion District No. 108,, 

111 U.S. 701 (1894); Ivfexis IndePendent Schbol Dist. v. City of 

Mexia, 134 Tex. 95,133 S.W.2d 118 (1939). 

This portion of the statute does not by its terms deprive a dealer of any right. Itsdoes not impose an arbitrary or 

oppressive burden. It simply require6 that the true considcration be stated. It is within the lagi6lative power to inake rersoaable provisions to in6ure the pe,rformance bf *ties 60 closely 

interwoven with th6 public welfare in collection of tax66 legrlly~ 

imposed and to render~dealere 6ubject to rer6b&abls penalties 

incurred by reason of their ne.gli&ncc or refuosl t$ comply with 

the statute. United Slz+tei v. Stowcll, 133 U.S. 1 (1890); Ipterst@a 

Forwarding Co. v. Vinyard, 121 Tex. 289, 49 S.W.Zd 403-0; 

%‘lrst Nat. Bdnk v. Hughes, 6 Fed. 737 (cx.N.D. Ohio, 1881). 

In answer to your first q&&ion, we hold that this 

part of the statute deep not v,iotate due‘process under either the 

Federal or State Con6titutioa, or rny ot$ar provision of the Coastitutidn, but is a valid exercise of comtitutional legislative pow6r in the enforcement of the revenue laws of this State. 

We ~466 next to the coasideration of your eecond 

question which calls for an opinion 66 to the constitutionality of 

the following provisioh of the statutb: 

“The Tax Collector snd A66es6or shall refuse 

to accept an application for redistration or for tranrf6r of tiile of any motor vehicle from any seller who 

owe6 the Tax Collector and h66666Or an affidavit error fQe.” 

There is nothing inherently unlawful in the sale of 

automobiles. The right to engage in:&y lawful business without 

4x1~ unreasonab,le rtstraiut and tegulotioa ib inherent in our democratic system of governrrient. Whether (L statute erhanates from 

tke police powar or the taxing power of the State, it,is clear that 

the State cannet prohibit thl ordinary buaitiess of buying or selling rrew or used motor vehicles by vestin& absolute or arbitrary 
Hon. Bill Tippen, Page 4 (V-1375) 

power in the tax assessor-collector to refuse to register cars 

sold by dealers delinquent in the payment of *affidavit error 

fees.” The seller must be given an appvopriate hearing and an 

opportunity to exonerate himself before the denial of such a valuable right as the pursuit of a lawful busineea. We think this 

portlon of the statute ia a denial of due procesr and subjects 

such a dealer to arbitrary restraint, freedom from wkich ia 

guaranteed by the Constitution of the United States and the Bill 

of Rights embodied in the Constitution of this State. 

I,f this statute conferred discretionary power upon 

the tax assessor-collector safeguarded by reasonable rules or 

regulations for his guidance in the performance of his duties 

thereunder, and provided a method of appeal, this provision of 

the statute might be susthined, but this it does not do, Instead 

it vests in the tax assessor-collector unqualified end unrastraiaed power to refuse the registration of motor .vehiclea purchased 

from a delinquent dealer, The cQoduct of a lawful business and 

the right to earn a fkelihood therefrom may not be thus stifled. 

ge Corporation v, SamuelI, 130 

Tex. 107, 1 thesu preme c 

ing Article 6g54,N.C.S.. readi a8 followl? 

ou*t In coastru- 

*If the property tendered back by the defendnat 

has beam injured or &ma-d while in hi,s posaess~on 

under 8och bond, tke l beriff or conmtable to whom the 

same is tendered aball not receive the same, unless 

the defendant l Z kke *ime t&me bnderr the reasonsbte 

amount d suph iqjury m damage, ta be judged of by 

8och ofitcbr. (Emphamla add e d . ) 

said: 

“Tht part of ertHe 68% eatboriatag the sheriff 01 coamtable to &termlue tke amount of damages 

te the property repCsvled baa tiea nullified, because 

it undertake@ to confer upoo #ucch offlcer judicial 

power, aad it has been bell timt such power cannot 

be conferred upon rerb aa efficer. Morgan v. Coleman (Tex. ($1~. App,) 281 SW. 670~ Dupree v. State, 

102 Tex. 455, 119 S.W. 301.” 

The Legislature in the exercise of the sovereign 

power of taxatton haa the iacldeatal rllht to make reasrolrble 

provisions fot the collection of taxes and the enforcement of 

payment thereof, and what we kave said above LB O& to be conrtcued to tke comtrmtp. We hmid. km mml~lcc to Ilrt l *64 q-ntia, that the mstbod here a&ptedd. for the rubsem we have 

p&it& oat above, is uncoaatitutisul. 
APPROVED: 

W. V. Geppert 

Taxation Diviaioa 

. , 

Hon. Bill Tippen, Page 5 (V-1375) 

We may hold that part of the statute first considered 

constitutional and hold that part which we have considered in connection with your second question unconstitutional, as they may 

be separated and are not so dependent upon each other as to preclude-the application of this ruie. City if Taylor v. Taylor B‘eddKng Mfg. Co., 215 S.W.Zd 215 (Tex. Citi. App. 194g, arrds ref.j. 

Olu answer to your eecoad qkstioa necessarily answers your third question. 

Subsection 4 of Section VII (M&r Vehicle Sales 

Tax) of Home@ Bill 285, Acts S2nd Leg., eh. 402, p. 695 

(Sec. 5a, Art. 7047k, V.C.S.) requiring the seller and 

purchaser of m&e@ vehlclee to eicecuto 8 hint affidavit 

gibing the true conrideratien w w#ch the metor vehicle aales, tax is aaaessed, prawiding for payment by 

the dealer of an “affidavit err’or fee,” ia a valid proviaiee of a t&ng ,statute and does not violate the due 

process clause of the 14th Amendment of the Constititibn of the United States or the 3rd and 19th Sections 

of Article I of the Constitution ef this State. 

That portion of Article 7047k. bowever, wh6eh 

vests arbitrary pewer in the taco asaeoeor-collector tt# 

refuse to register mstcpr vehic,lee purchased from delinquent dealsra is uncenrtitptieaal aad void beeauaa 

it denies d&e pocera under the 14th Amendment Ot 

the Federal Constitutim aud Settionr 3 and 19 of Article I od the Coa#titrtlw of the State of Texas and 

vista judicial pawer in aa &miai&trativc OJiice, of the 

State in violation of w&ton 1, Article II Ot w Cmnmtitutioa of the State of Texar. 

Your8 very truly, 

P-E ,ANIEL 

Attsraey General 

Charles D. Mathews 

First Assistant 

LPL/mwb