.

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 byActs 1977, 65th Legislature,-chapter 863, at 2168. The legislation authorizes creation ofmetropolitan'rapid transit'authorities and inmost respects is identical toActs 1973, 63ra Legislature, chapter 141, ,at'302which was the subject ofAttorney General OpinionH7119 0q73.1. "_' '.. Your first.question is: .a.- : Is section 11B of Tex. Rev. Civ. Stat. Ann. art. 1118xwhich 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 nomention of.the creation of a tax?
Article 3, section 35of the Texas Constitution requires that the subject~of abill be expressed in its title. The title of the legislation which forms thebasis of your inquiry is:

i'An Act relating to the creation, administration, and powers ofmetropolitan rapid transit authorities; amending Sections 1 through 17A of, and adding Sections 6Cand 11B to, Chapter 141, Acts of the 63ra Legislature, Regular Session, 1973, as amended (Article 1118x, Vernon's Texas Civil Statutes).

It iswell established that article 3, section 35does not require every detail of abill 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. 4576The 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, appeal dismissed 397 U.S. 590 (1970); King v. Carlton ,IndependentSchool Dist., 295 S.W.2d 408 (Tex. 1956). Here the title gives notice that the bill relates to the powers of 'a'metropolitanrapid transit authority which we believe ismore than sufficient under the constitutional te\stto include powers of taxation.-

Another question you pose is:

:Does H.B. 657violate Tex. Const. art. III S56?.

..(, ‘

. ; ‘

. ~.
the Article '3,,section56of the T&as Constitution prohibits enactment of certain local and special laws. -.
This question was.discusied ingreat detail inAttorney General.Dpinion'H-119 (1973)where itwas determined that the Act involved there was not a local or special.law. The present statute is identical to'the one considered inAttorneysGeneral 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: :

:-DoesSection &.of H.B. $57violate Tex. Const, art..I.S28, 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 inAttorney General Opinion H-119. The provision was found to be unconstitutional in that opinion, and since the same language appears in the 1977Act.we believe it is invalid here aswell. We.note, however, that you pose your question in terms of the constitutionality of section 1ofActs 1977, 65th Legislature, chapter 863, at 2168 (HouseBill 657) and suggest that the entire section .isinvalid. 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 thebill, and if it is unconstitutional, the entire bill is invalid. The quoted section 13,which is the portion of &he legislation found unconstitutional inAttorney 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 theAct is invalid, butits invalidity-does not affect any of the remainder of-the Act or the basic powers or responsigilities

YOU of-*therapid transit authority.

ask:

-Doesthe 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 ..: 1taxfor reveiure.purposes.iinlike:the .'emissiontaxiwhich-Tex .Att'yGen. Op.. -. -No.ET119 (1973) found to beregulatory . in,:nature? '
:.. Article 8, sectiona3of the Texas;Con&t&ion provi&s:.~'

Taxes-shall be.levied and.collected:by .generallaws+and for publitzpurposes only.

. .. : The issue~presented inAttorney GeneralDpinion H-119 was whether the emissions.tax suffered the same constitutional defect under article 8, section 3of the Texas Constitution as aid the *wheel tax" inCounty 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 ageneral law or the fee had.been a regulatory measure, the requirements of article 8, section.3 would have been satisfied. .Although either findingwould 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.zjistinctionbetween revenue .measuresand regulatory measures..hasbeen important in.the context of constitutional provisions.relating to advalorem 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 taxwe 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 'ametropolitan rapid transitauthority with taxing power .s.inc&:,such

a%r.eation isnot*specifically constitutionally authorized'as are other special .districtssuch 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 federalconstitution, the state constitution.is a'limitation rather .than.a:.grantof 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 .anad:valorem ' ,tax; .: ._ Id. .at-*743;-'The coGrt:uitimately'deciaed the.case on a'dif-9 ferentground since it'.foundindependent.constitutional.authority.for the~'creationof:junior college districtswith the power to levyian -advalorem tax. -'However,~thearguments presented as potentially limiting.the Legislature'spower.all related to 

### advalorentaxation and are not relevant hereywhere a salesand use tax is.involved. :Tex;Const. 'art.8, S 17;'American Transfer and Storage.Co,.v.'Bullock; ,525S.W.2d.918 .(Te~.:Civ::App. .&- Austin 1975,.writ ref:'.d);> ~.

. .~ S%IJM &A DY "

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 13which 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