THEAYTOFXNEY GENERAL OFTEXAS

AUSTIN ~~.TExAs WILL WILSON **ATFORNEY C4ENERAI.**  June 15, 1960

Honorable Robert S. Calvert OpinionNo. WW-855 Comptroller of PublicAccounts Capitol Station Re: Interpretationand Austin, Texas administrationof Art. 19.01(T), Title 122A, R.C.S.,,imposingan occupation tax and other duties Dear Mr. Calvert: upon dealers inpistols.
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 inpart:

"(7) Tax on Dealers in Pistols. There shall be collected from every person, firm or corporationengaging 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 issuedby the County Tax Collector of each county inwhich the applicanthas 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 thereforediscuss them together. We set them out as follows:

"(a) Do you interpret this article as requiring a dealer in pistols to firstpay to the Comptroller of PublicAccounts an annual occupation tax of Ten Dollars? "(b) Before engaging in saidbusiness, must a dealer inpistols obtain a license from the County Tax Collector to engage in thatbusiness?Honorable Robert S. Calvert, Page 2 OpinionNO. ~~-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 dealermust (a)pay the $10.00 occupation tax and (b)obtain a license from the County Tax Collectorbefore 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 subdivisionof Art. lg.01 is rather obscure,probably due in part to itshaving 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 (coupledwith thephrase within thirty (30) days from the effective date hereof"j to' insure its application to those dealerswho were engaged in the business at the time of itspassage, and hence would appear to bemere surplusage in thepresent Art. lg.Ol(7). The first paragraph of the subdivisiondoes two things:
Erenue purposes it levies an occupation taxpayable to the State for

and (2) it imposesa licensingrequirement, presumably to asiist regulation and supervisionofa potential~ly dangerous enterprise. See 27 Tex.Jur., Licenses, Sets. 45, 48. The occupation tax is leviedby the first sentence of the subdivision. The second sentence imposes the 'licenserequirement 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 imposedby 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 taxhereby imposed is paid. The receipt of the State Treasurer shallbe evidence of the payment of such tax, and such receipt shall be construed as a permit to do businesswhen a separatepermit isnot otherwise required by law."
We believe that the "license"requiredby Art. lg.Ol(7) is a "permitto do business"within themeaning of Art. 19.04. See 27 Tex.Jur., Licenses, sees. 1, 10, 48. Since issuance of the license is specificallymade a conditionprecedent toHonorable Robert S. Calvert, Page 3 OpinionNo. 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 taxmust be paid before pursuing the occupation.
No feemay be collectedby the Tax Collector for issuing theprescribed license, sincenone 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: "Thequestion 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'pistolsunder this law: "When it is an instrumentthat 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 pressurewhere it is compressedby repeated strokes of thepump. "(e) By power exerted by a cartridgeof air or gasI commonlyreferred to as a Co2 gun." It is our opinion that none of these items are "pistols" w~ithinthemeaning of the Article.
We refer you to the definition of a pistol providedby Art. lg.Cl('i')(c), as follows: us~~cj,er~.sntol

defined. 'Pistol,' as > shall include every kind ofI

. -- -

HonorableRobert S. Calvert, Page 4 OpinionNo. W-855

pistol, revolver, automatic, semiautomatic, magazine pistol, and every other short firearm intendedor designed to be aimed or fired from one hand."
Note that following the en$meration of specific types of pistols there is thephrase
.and every other short firearm." The word "firearm"necessarilymodifies the term "pistol". A firearm is ordinarily,definedas 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'definedabove, thereby excluding all the itemswhich you listed in your request from the operation of theArticle.

SUMMARY
Art. 19.01(7),Title 122A, a dealer inpistols to pay tax levied and procure therequires the occupation license required -. - before engaging Inbusiness. The County Tax Collectormay not chargea 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 ATTORNEYGENERAL By: Leonard Passmore