. 

The Honorable Bob Bullock 

Comptroller of Public Accounts 

L.B.J. Building 

Austin, Texas 787-74 

Opinion No. H-1068 

Re: Constitutionality of 

article 1118x, V.T.C.S. 

Dear,&. l+lloc+: 

You have asked several questions regarding article,ll18x, 

V.T.C.S., which was recently amended by Acts 1977, 65th Legislature, -chapter 863, at 2168. The legislation authorizes 

creation of metropolitan'rapid transit'authorities and in most 

respects is identical to Acts 1973, 63ra Legislature, chapter 

141, ,at'302 which was the subject of Attorney General OpinionH7119 0q73.1. "_' 

'.. 

Your first.question is: .a.- 

: 

Is section 11B of Tex. Rev. Civ. Stat. 

Ann. art. 1118x which creates a.local 

sales and use tax void pursuant to Tex. . 

Const. art. III 5 35 since the title 

(caption) of H.B. 657 contains no mention of.the creation of a tax? 

Article 3, section 35 of the Texas Constitution requires 

that the subject~of a bill be expressed in its title. The 

title of the legislation which forms the basis of your inquiry 

is: 

i' 

An Act relating to the creation, administration, and powers of metropolitan rapid transit authorities; amending 

Sections 1 through 17A of, and adding 

Sections 6C and 11B to, Chapter 141, 

Acts of the 63ra Legislature, Regular 

Session, 1973, as amended (Article 

1118x, Vernon's Texas Civil Statutes). 

It is well established that article 3, section 35 does 

not require every detail of a bill to be recited in its 

caption. It is sufficient if the general object is'expressed 

and the provisions of the bill are related or germane to the 

p. 4576 
The Honorable Bob Bullock - Page 2 (~-1068) 

general object expressed in the caption. Robinson v. 

H&, 507'S.W.2d 521 (Tex. 1974); State v. 

xqr, 

Inc., 447 S.W.2d 407 (Te%. 1969) 

--- Spartan's Industries, 

app eal dismissed 397 U.S. 590 

(1970); King v. Carlton ,Independent School Dist., 295 S.W.2d 

408 (Tex. 1956). Here the title gives notice that the bill 

relates to the powers of 'a 'metropolitan rapid transit authority 

which we believe is more than sufficient under the constitutional 

te\st to include powers of taxation.- 

Another question you pose is: 

:Does H.B. 657 violate Tex. Const. art. III 

S56?. 

..(, ‘. ; ‘. ~. 

the 

Article '3, ,section 56 of the T&as Constitution prohibits 

enactment of certain local and special laws. -. 

This question was.discusied in great detail in Attorney 

General.Dpinion'H-119 (1973) where it was determined that the 

Act involved there was not a local or special.law. The present 

statute is identical to'the one considered in Attorneys General 

Opinion H-119 except,that the population classification in the 

1977 statute is substantially broader than the one in the 1973 

Act.:? Accordingly, we believe Attorney General.Opinion H-119 

requires a finding that this.statute is not a prohibited 

local or special law. 

., 

You,also~ask: : 

:-Does Section &.of H.B. $57 violate Tex. 

Const, art. .I.S 28, art. II S 1, art.. 

III S 1 since the section reenacts Section 

-.13 .of.Tex. Rev. Civ. .Stat. Ann.. art. 1118x 

which Tex. Att'y Gen. Op. No. H-119 (1973) 

declared unconstitutional? 

The provision you challenge here permits the authority 

to promulgate rules and-regulations and to.make violation of 

those rules and regulations punishable by fine or imprisonment. The language oE.this provision is identical to that 

found in section 13'of the statute considered in Attorney 

General Opinion H-119. The provision was found to be unconstitutional in that opinion, and since the same language 

appears in the 1977 Act.we believe it is invalid here as well. 

We.note, however, that you pose your question in terms of the 

constitutionality of section 1 of Acts 1977, 65th Legislature, 

chapter 863, at 2168 (House Bill 657) and suggest that the 

entire section .is invalid. Section 1 contains and incorporates 

quoted sections 1 through 17A of article 1118x, V.T.C.S.- The 

section includes all of the substantive provisions of the bill, 

and if it is unconstitutional, the entire bill is invalid. 

The quoted section 13, which is the portion of &he legislation 

found unconstitutional in Attorney General Opinion H-119, is. 
The Honorable Bob Bullock. -: Page 3 (D&1668) 

.: 

only a small part of the statute'and does not affect the 1 

basic powers and responsibilities of the authority. The 

Legislature has specifically provided that all statutes are 

severable and.that an unconstitutional portion of a statute 

will not affect theremainder qf.the Act. _ V.T.C.S..art. lla. 

Here, it is our opinion the quoted section 13 of section 1 

of the Act is invalid, butits invalidity-does not affect any 

of the remainder of-the Act or the basic powers or responsigilities 

YOU 

of-*the rapid transit authority. 

ask: 

-Does the creation of the local sales and,, 

use-tax for the purpose of funding metro-. 

politan rapid transitauthorities violate 

'Tex. Const. art.:VIII S 3 %ince.it is a ..: 

1tax for reveiure.purposes.iinlike:the 

.'emission taxiwhich-Tex .Att'y Gen. Op.. -. 

-No. ET119 (1973) found to beregulatory . 

in,:nature? ' 

:.. 

Article 8, section a3 of the Texas;Con&t&ion provi&s:.~' 

Taxes-shall be.levied and.collected:by 

.general laws+and for publitzpurposes only. 

. .. : 

The issue~presented in Attorney GeneralDpinion H-119 was 

whether the emissions.tax suffered the same constitutional 

defect under article 8, section 3 of the Texas Constitution 

as aid the *wheel tax" in County of Harris v. Shepperd, 291 

S.W.2d 721 (Tex.,l956)r The Supreme Court found that-tax to ~: 

be unconstitutional sincethe Act was a local law and the'fee 

aufhorized:by the statute was a tax:rather than a regulatory 

device. If.either the statute had been a general law or the 

fee had.been a regulatory measure, the requirements of article 

8, section.3 would have been satisfied. .Although either finding would have,been sufficient to save the statute, neither 

finding.was:possible in County of Harris'v.,Shepperd. In 

Attorney General Opinionpgs Were 

made. Since we have determined that article 1118x is a general 

law, it is irrelevant that the sales and use tax is.a revenue 

rather than a regulatory measure. 

We note that the.zjistinction between revenue .measures and 

regulatory measures..has been important in.the context of constitutional provisions.relating to ad valorem taxes, Atkins V. 

State Highway Dep't, 201 S-W. 226 (Tex. Civ. App; -- Austin 

i918, no writ), but since your question involves a sales tax 

rather than a property tax we need not consider those provisions. 

p. 4578 
_. i 

. . 

The Honorable Bob.Bullock.' .:..i Page 4 '(H'&lO68j 

You.also ask:: ..' 

*Does .the".Legi'slature.have the' constitu-:.. 

tional'authority to create 'a metropolitan 

rapid transitauthority with taxing power 

.s.inc&:,such a%r.eation is not*specifically 

constitutionally authorized'as are other 

special .districts such as hospital~districts Tex. Const: art: IX 9,>9, navigation " 

districts Tex. Const. art. XVI 9 59, and 

road districts Tex. Const; a~rt. III 9 52?., . 

~;'. :;, 

The Supreme Court of Texas has &ecifically rejected 

arguments that.only.those'bodies .politic.authorised:in the 

constitution.maybe created:.Davis 'v. City,..of. Lubbock, 326. 

S.W.2d 699 (Tex...l959)::-Texas Turnpike Authority vI Shepperd, 

279 S.W.2d 302 (Tex.L:1955),. Unlike.the federal constitution, 

the state constitution.is a 'limitation rather .than.a:.grant of 

power. An act of.the.Legislature-is valid unless a'.specific 

provision of the constitution prohibits it:"Shepperd v. San 

Jacinto Junior College Dist., 363 S.W.2d 742 (Tex. 1962). In 

San Jacinto Junior College District;~theSupreme.Court said: 

:. 

It'follows that.if.there be no limitation found in-the Constitution, the legislature would be fully empowered to create 

..;orauthorize the creation of ;~ ;~ -*districts 

: and:authorize.them to levy .an ad:valorem 

' ,tax; .: ._ 

Id. .at-*743;-'The coGrt:uitimately'deciaed the.case on a'dif-9 

ferentground since it'.foundindependent.constitutional.authority.for the~'creation of: junior college districtswith the power 

to levyian -ad valorem tax. -'However,~the arguments presented as 

potentially limiting.the Legislature'spower.all related to 

ad valorentaxation and are not relevant hereywhere a salesand 

use tax is.involved. :Tex; Const. 'art. 8, S 17;'American Transfer 

and Storage.Co,. v.' Bullock; ,525 S.W.2d.918 .(Te~.:Civ::App. .&- 

Austin 1975,.writ ref:'.d);> ~. 

. .~ 

S%IJ M &A D Y " 

Article 1.118x, V.T.C.S., as amended by 

Acts.1977, 65th Legislature, chapfer.863, 

at 2168 is constitutional with the exception of:section 13 which permits the 

rapid transit authority to establish 

penalties for violation of itsrules'anh 

regulations. 

p. 4579 : 
The'H&&&ie Bob Bull& - Page S (H-1068) 

Very truly yours; 

Attorney General of Texas 

Opinion.Conmittee Opinion.Conmitt&e 

jst' 

p. 4580