THEAYTOFXNEY GENERAL 

OFTEXAS 

AUSTIN ~~.TExAs 

WILL WILSON 

ATFORNEY C4ENERAI. 

June 15, 1960 

Honorable Robert S. Calvert Opinion No. WW-855 

Comptroller of Public Accounts 

Capitol Station Re: Interpretation and 

Austin, Texas administration of Art. 

19.01(T), Title 122A, 

R.C.S.,, imposing an occupation tax and other duties 

Dear Mr. Calvert: upon dealers in pistols. 

Your recent request for an opinion of this Offices contains 

several questionsrelating to Article 19.01(T), Title 122A, 

R.C.S., which we here set out in part: 

"(7) Tax on Dealers in Pistols. There 

shall be collected from every person, 

firm or corporation engaging in the 

business of bartering, leasing, selling, 

exchanging, or otherwise dealing in 

pistols for profit, whether by wholesale 

or retail, an annual occupation tax of 

Ten Dollars ($10) to be paid on or before 

January 1st of each year, and to be paid 

before continuing said business. Before 

engaging in said business, each such 

dealer shall obtain a license therefor, 

to be issued by the County Tax Collector 

of each county in which the applicant has 

a place of business, and for each separate 

place of business. The Comptroller of 

Public Accounts shall furnish said forms 

to the Tax Collectors." 

The three questions under paragraph 1 of your letter are 

interrelated, and we will therefore discuss them together. 

We set them out as follows: 

"(a) Do you interpret this article as 

requiring a dealer in pistols to first pay 

to the Comptroller of Public Accounts an 

annual occupation tax of Ten Dollars? 

"(b) Before engaging in said business, 

must a dealer in pistols obtain a license 

from the County Tax Collector to engage in 

that business? 
Honorable Robert S. Calvert, Page 2 Opinion NO. ~~-855 

"(c) If the answer to (a) and (b) above 

is in the affirmative, what fee, if any, is 

due the Count! Tax Collector for issuing 

such license? 

It is our opinion that a dealer must (a) pay the $10.00 

occupation tax and (b) obtain a license from the County Tax 

Collector before engaging in this business. It is our further 

opinion that (c) no fee is due the County Tax Collector for 

issuing such license. 

Some of the wording of this subdivision of Art. lg.01 is 

rather obscure, probably due in part to its having been taken, 

with minor change, from the previously existing Art. 70478, 

V.C.S., which assessed the same tax and imposed the same 

duties upon dealers in pistols. The phrase ". . . and to be 

paid before continuing said business,,. . . ." was doub,tlessly 

inserted in the original act (coupled with the phrase 

within thirty (30) days from the effective date hereof"j to' 

insure its application to those dealers who were engaged in the 

business at the time of its passage, and hence would appear to 

be mere surplusage in the present Art. lg.Ol(7). 

The first paragraph of the subdivision does two things: 

Erenue purposes 

it levies an occupation tax payable to the State for 

and (2) it imposes a licensing requirement, 

presumably to asiist regulation and supervision of a potential~ly 

dangerous enterprise. See 27 Tex.Jur., Licenses, Sets. 45, 48. 

The occupation tax is levied by the first sentence of the 

subdivision. The second sentence imposes the 'license requirement as a prerequisite to engaging in the business. However, 

Art. lg.04 of the same chapter specifies that 

"No individual,' company, corporation 

or association, failing to pay all taxes 

imposed by this Chapter, shall receive 

a permit, when such is required, to do 

business in this State, or continue to do 

business in the State, until the tax hereby 

imposed is paid. The receipt of the State 

Treasurer shall be evidence of the payment 

of such tax, and such receipt shall be 

construed as a permit to do business when 

a separate permit is not otherwise required 

by law." 

We believe that the "license" required by Art. lg.Ol(7) 

is a "permit to do business" within the meaning of Art. 19.04. 

See 27 Tex.Jur., Licenses, sees. 1, 10, 48. Since issuance 

of the license is specifically made a condition precedent to 
Honorable Robert S. Calvert, Page 3 Opinion No. W-855 

engaging in the business of dealing in pistols, and since, 

under 19.04, no license can issue until the occupation tax is 

paid, it necessarily follows that the tax must be paid before 

pursuing the occupation. 

No fee may be collected by the Tax Collector for issuing 

the prescribed license, since none is provided by the Article. 

McCalla v. City of Rockdale, 112 Tex. 209, 246 S.W. 654 (1922); 

Nueces County v. Currinnton 139 Tex. 299, 162 S.W.2d 687 (Tex. 

Comm.App. 1942; Op. Adopted). 

Part 2 of your request reads as follows: 

"The question also has arisen as to the 

definition of a (pistol). Will you please 

give us a definition that we may use in 

administering this tax. Specifically, we 

would like to know if the following are 

classed as'pistols under this law: 

"When it is an instrument that is 

intended or designed to be aimed or fired 

from one hand ,from whjch a missile, dart, 

pellet or shot is expelled or discharged 

from; 

"(a) By power exerted by a rubber band. 

"(b) By power exerted by a spring. 

"(c) By power exerted by air pr,essure 

where one stroke of pump creates the 

maximum pressure. 

"(d) By power exerted by air pressure where 

it is compressed by repeated strokes 

of the pump. 

"(e) By power exerted by a cartridge of air 

or gasI commonly referred to as a Co2 

gun." 

It is our opinion that none of these items are "pistols" 

w~ithin the meaning of the Article. 

We refer you to the definition of a pistol provided by 

Art. lg.Cl('i')(c), as follows: 

us~~cj,er~.sntol defined. 'Pistol,' as 

> shall include every kind of 
I . 

-- - 

Honorable Robert S. Calvert, Page 4 Opinion No. W-855 

pistol, revolver, automatic, semiautomatic, 

magazine pistol, and every other short 

firearm intended or designed to be aimed 

or fired from one hand." 

Note that following the en$meration of specific types 

of pistols there is the phrase . and every other short 

firearm." The word "firearm" necessarily modifies the term 

"pistol". A firearm is ordinarily,defined as any weapon 

which discharges a shot by force of gunpowder. Harris v. 

Cameron, 81 Wis. 239; 51 N.W. 437; Atwood v. State, 53 Ala. 

508. This would limit the scope of Art. 19.01(T) to include 

only "pistols" which are "firearms," as'defined above, thereby 

excluding all the items which you listed in your request 

from the operation of the Article. 

SUMMARY 

Art. 19.01(7), Title 122A, 

a dealer in pistols to pay 

tax levied and procure the 

requires 

the occupation 

license required -. - 

before engaging In business. The County 

Tax Collector may not charge a fee for 

issuing the license. The term "pistol" 

used in the Article refers only to "firearms" 

and items other than firearms are not included 

therein. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

JRI:ctn 

APPROVED: 

OPlNION COMMITTEE: 

W. V. Geppert, Chairman 

Wallace Finfrock 

J. Arthur Sandlin 

Fred B. Werkenthin 

Marietta McGregor Payne 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Leonard Passmore