JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12548 

Aus!in. TX. 78711. 2548 

5121475.2501 

Telex 9101874.13S7 

Telecopier 5121475.0266 

714 Jackson, Suite 700 

Dallas, TX. 75202.4506 

214l742.8944 

4824 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

915/533-3464 

1001 Texas. Suite 700 

Houston, TX. 77002~3111 

713/2235&W 

906 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

8061747.5238 

43G3 N. Tenth, Suite S 

McAllen, TX. 78501-1685 

512M2.4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 78205.2797 

512m54191 

An Equal Opportunity/ 

Affirmative Action EmplOYer 

The Attorney General of Texas 

Iecember 30, 1985 

Honorable Lloyd Cr,iss Opinion No. JM-411 

chairmen 

Committee on Labor, and Re: Whether a neighboring state is 

Employment Rela.tions prohibited from withholding state 

Texas House of Representatives income tax payments from the salary 

P. 0. Box 2910 of an employee who is a permanent 

Austin, Texas 7f769 resident of Texas but who works 

partially or temporarily in the 

neighboring state 

Dear Representatiw Criss: 

You have submitted the following request regarding the 

withholding of state income tax from,the pay of certain railroad 

employees who are Texas residents: 

Individuals living in Texas and working for 

railroad,8 are often required to travel through 

several states in the course of their daily 

employmsnt. Some of these states, notably the 

neighboring states of Oklahoma and New Mexico, 

require the railroad to withhold state income 

taxes from the pay of these workers, despite the 

fact t'iat these individuals maintain their 

permaner,t residence in Texas. 

This practice seems to be inherently unfair. I 

would s,ppreciate your offering an opinion on 

whether any laws of this state or of the United 

States prevent this practice of withholding state 

income tax from the pay of an employee whose 

permanert residence is sot in that state, but who 

is mere1.y working for some period of time in the 

state ir. the course of his/her employment. 

We are compelled to conclude that the railroad carriers in question 

are required to wl.thhold such taxes from the pay of certain workers. 

49 U.S.C., sc.ction 11504, provides, in part, as follows: 

p. 1881 
Honorable Lloyd Criss - Pa(:e 2 (JM-411) 

(a)(l) In this subsection, an employee is deemed 

to have earned nor+ than 50 percent of pay in a 

State or subdivilij.on of a State if the employee -- 

(A) performs regularly assigned duties on a. 

locomotive, CIU: or other track-borne vehicle in 

at least 2 St:ates and the mileage traveled in 

one State or subdivision of that State is more 

than 50 percent of the total mileage traveled 

by the employee while employed during the 

calendar year; 

. . . . 

(2) A rail, express, or sleeping car carrier 

providing transportation subject the 

jurisdiction of the Interstate Commerce C~ission 

under subchapter I of chapter 105 of this title 

[49 USCS 1510501 et seq.] shall withhold from the 

pay of an employee referred to in paragraph (1) of 

this subsection <only income tax required to be 

withheld by the laws of a State, or subdivision of 

that State - 

(A) in which th e employee earns more than 50 

percent of the pay received by the employee 

from the carrLer; or 

(B) that is the residence of the employee (as 

shown on thme employment records of the 

carrier), if t:he employee did not earn in one 

State or sub3:Lvision more than 50 percent of 

the pay reorived by the employee from the 

carrier during the preceding calendar year. 

Thus. federal law ex~~licitly establishes the standard upon which 

the requirements of withholding state taxes by rail carriers are 

based. So long as thg! railroads comply with the legislative 

determination regarding w'v~re "an employee is deemed to have earned 

more than 50 percent of p,yr," it is apparent that the withholding by 

the railroad of state income taxes is authorized by the state in which 

an employee is deemed to have earned withholding. 

SUMMARY 

Rail carrier:! are required to withhold income 

taxes from the pay of an employee whose residence 

is Texas if scch employee is correctly deemed 

p. 1882 
Honorable Lloyd Criss - Page 3 (JM-411) 

under federal law to have earned more than 50 

percent of pay in a state which imposes such 

taxes. 

JIM MATTOX 

Attorney General of Texas 

JACXHIGRTOWBR 

First Assistant Attorney Gmeral 

MARY KELLER 

Executive Assistant Attornsy General 

ROBERT GRAY 

Special Assistant lfttorney (General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Colin Carl 

Assistant Attorney General 

p. 1883