Hon. Drew S. Davis County Attorney SanAugustine Cou,nty SanAugustine, Texas Dear Mr. Davis: July 9, 1951 Opinion No. V-1202 Re: The tax situs of personal property owned by a resident of SanAugustine Countyand located in an adjoining county. You request the opinion of this office as to thetaxable situs of personal property, including livestock, where the taxpayer owns such property not only in the county of his residence, butalso in an adjoining county.

There is no question as to the taxable situs ofthe property which he owns andwhich is situated in thecounty of his residence. To. Con&, Art. VIII, Sec. 11. Hence it is not necessary to notice thisthher.

This leaves only the question of the taxable situs of the personal property in the adjoining county inwhich the taxpayer does not reside, We are not able to say categorically, in the absence of more detailed and specific facts, that all of the parsonal.property of the taxpayer, including that owned in the adjoining county, should be rendered andthe taxes paid thereon in the county of his residence, or thata part should be rendered and paid in the adjoining county. We should keep in mind thatunder the law of this State taxable situs for the purpose of advalorem taxation is determined as of January 1.

Inthe determination of the tax situs of.tax.situs of twable personal property in general, the following constitutional and statutory provisions require consideration:

“All proper.ty, whether owned by persons or corporations shall be assessed for taxatitn, and the taxes paid in the county where situated

. . . (Tex. Const., Art, VIII, Sec. 11) “All property, real and personal, except such as is required tobe listed andassessed otherwise, shall be listed and assessed in the county where it is situated; and all personal property, subject to taxation and temporarily r,emoved from the State or county, shall be listed and assessed inthe county of the residence of the owner thereof, or in the county where the principal office of such owner is situated.” (Art. 7153, V.C.S.)Hon. Drew S. Davis, Page 2 (V-1202)

Itis observed thatthe term “in the countywhere situated” appears in the Constitution, andthe term “in thecountywhere it is situated” appears in the statute; thus the same terms are employed. Ajudicial construction of the term “where situated” appears in the case ofGreat Southern Life Insurance Co. v. City ofAustin, 112 Tex. 1, 243 S.W. -5 )

. Inthis case the Court said:

“Our ‘Constitution, therefore, in declaring that property shall be taxed where situated, has done no more thandeclare the commod-lsare. The purpose of theConstitution indeclaring that property should be taxed in the countywhere situated, was merely to define the general jurisdictional unit for the exercise of the taxing power, and to confine the exercise of that power tothe subjects of taxation within that unit. It did notdefine whatwas meant by the words ‘where situated’

. . . it evidently meant property where situated for the purpose of taxation under,the general prinms of law as thenunderstood.” (243 S.W. at 780.) Inthis case theCourt further said, “no sovereignty or taxing district could exercise thepower of taxation except as to property actually or constructively within itsjurisdiction. This rule applies to counties andmunicipalities, as well as states. ~;.” (243 S.W. at 780.)

We are aware of the often referred to maxim of “mobilia sequuntur personam, ” **meaning** thatpersonal property, thatis, movables, follow the person.. Inthe early economic life, personal property occupied a position of minor importance. for the simple

‘reason that personal property played an insignificant part in the economic life of the owner. Inbrief., it had little to dowith profits or advancement of the economic condition of theowner. Such protection as was afforded the owner in the possession and enjoyment of such property was rendered by organized society at the owner’s domicile, hence there originated the rule of “mobilia sequuntur personam. ” The ownership and use of personal property in the economic life of the country and its citisens has, in modern times, become increasingly important andhas given rise to a relaxation of the dogmatic rule embodied in the maxim, and the Supreme Court of Texas has recognized this relaxation. This~is apparent from the statement in theGreat Southern Life Insurance Company case:

“It is **true** thatthe actual situs of certain classes ofvisible and tangible personal property

. e. may have a situs for taxation where they **are** permanently kept, separate and apart from the domicile of the owner. . . .” (243 S.W. at 781.)Hon. Drew S. Davis, Page 3 (V-1202)

We thinkit nowclearly established inthis State that

“actual situs” of property for the purpose of taxation is controlling over the residence of the owner ifthe property is used inthe nonresident county permanently andnot merely temporarily and incidentally. In the case of City of Ft. Worth v. SouthlandGreyhound Lines, Inc., 67 S.W.2d 354 (T Civ. App. 1931). approved b th Supreme Court in answer to :zitified questions in 123 Tex. 1’3. 6’1 S.W.2d 361 (1933), there was no special statutory provision or legislative history affecting taxable situs. as is present in cases dealingwith rolling stock of railroads. But the **Court** looked only to Section 11 ofArticle VIII of the Constitutionand Article 7153. quoted above, which require taxation of personal property ‘where situated” or “in the countywhere it is situated.” Plaintiff’s principal office anddomicile was at SanAntonio, where it rendered its buses for taxation. The taxpayer admitted a taxable situs inFort Worth of certain personal property as of January 1, 1930, including tools and supplies used in its Fort Worth garage and repair shop, office furniture, and certain moneys onhand as of thatdate, and tendered in**to court**  the taxes due on these items. The plaintiff sought in this suit an injunction against the tax collector of the City ofFort Worth to prevent the city from taxing or collecting taxes’on certain motor buses~placed uponthe city tax rolls. The **Court** held in effect that the’buses were only temporarily rather thanpermanently employed in the City **of** Port Worth and sustained the taxpayer’s contention thatthey were taxable in SanAntonio, Bexar County, where it had its main office. The taxpayer conceded that the portion of its property permanently located in Fort Worth had a taxable situs there andwas properly taxable there, andtendered the appropriate amount oftaxes. No question was raised before the **court as**  to this property. But since it had its actual s.itusby reason of the permanency ofits location andthe purpose for which it was used at thatlocation **by** the taxpayer, the actual situs prevailed over the residence of thetaxpayer as to this property.

The case of Clampett, Sheriff v. Johnson, 42 S.W. 866 (Tex. Civ. App. 1897), deals exclusively with the taxable situs of livestock in a county not the residence of the owner. Inthis case, I resident ofRunnels County owned some 1400 head of cattle. On 3r aboutNovember 2. 1893, byvirtue of a pasturage contract, he moved the cattle to Sterling County and there pastured them until ibout April 1, 1894. Under his contract he had the privilege of pas- :uring the cattle until May 1but returned the cattle toRunnels Coun- :y aboutApril 1. prior to the expiration of the time allowed under :he contract. Both Runnels County and Sterling. County asserted the Tightto tax the cattle. The **Court** held thatthe cattle had acquired i taxable situs as of January 1in Sterling County. The Court pred-

‘.catedits decision uponthe authority of Section 11,ofArticle VIII ,f the Constitution andArticle 7153, V.C.S., both ofwhich require :he payment of taxes where situated. Therefore, the correct ruleHon. Drew S. Davis, Page 4 (V-1202)

seems tobe thatwhere tangible personal property has an actual physical location in a county andis there dedicated andused in the county in the furtherance of the taxpayer’s business operations, it there acquires a taxable situs distinct from the domicile of the owner. Waggoner v. Whaley. 50 S.W. 153 (Tex. Civ. App. 1899, error ref.) We have assumed from **your** opinion request thatthere is not involved the question of inter-county pasturage which is governed by Article 7155, V.C.S.. and have treated thematter in so far as livestock is concerned by the rules established for other tangible personal property. Of cours~e,if county line pasturage is involved, the taxable situs is governed by Article 7155, which provides for an apportionment between the counties as the acreage of the respective counties bears to thetotal acreage in all the counties.

SUMMARY Personal property may acquire a taxable situs in a county distinct from the residence of the owner if it is permanently kept, used. and dedicated by the owner as ofJanuary 1of the taxable year to uses in connection with the operation of his business inthat county, as distinguished from a temporary or mere incidental use; and this is true as to all tangible personal property, including livestock. Article 7155 provides an exception in cases of county-line **pasturage.**
**Yours** very truly, PRICE. DANIEL Attorney General

APPROVED: W. V. Geppert Taxation Division Jesse P. Luton, Jr. Reviewing Assistant Charles D. Mathews First Assistant **BY** L. P. Lollar Assistant

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