OFFICE oFmE A~ORNEY OENERALOFTEXAS 

'0 AUSTIN 

Honorable Gee. B. ShepparU 

Comptroller of Public Aooounts 

Austin, Texas 

Dear sir: 

883 

real estate. 

Your opinion revue er 2, 1043, reads 

as followsr~ 

/ 

9 known as Eouse 

tion 7 of AttAcle 

MBroker an 

for hinTelf or dn b&alVoof 

From every person, aoting 

enaas.ed in the 

Broker or F%or, whether 

such business or not, 

Ten Dollars ($10) per year. 

or the purpose or this subper& who, for another and for a 

other valuable consideration, rents, 

ansfers, for aotual spot or future 

iates purchases or sales or transfers 

, bills of exohange,~neSotlable paper, 

, bank notes, exchange, bullion, coin, 

money, real estate, lumber, coal, cotton, grain, horses, 

cattlei hogs, sheep,. produoe and ~erahandise of any 

kind; whether or not he receives and delivers possession 

thereof, provided that this subseotion sMl1 not apply 

to a salesman who is employed on a salary or commission 

basis by not more than one retailer, v?holesaler, jobber, 

or manufaoturer, nor shall this subsection apply to or 
Ron. Cao. B. Sheppard, page 2 

890 

1 

be aonatrued to lnolude persons selling property only 

as reaeivers, trustees in bankruptcy, exeoutors, admlnistrators, or persons selling under the order of any Court, 

or any person who is inoluded within the definition of 

any other ocaupation and is paying or subject to the 

payment of a tax under any other subsection of this Aot; 

however, this exemption shall not apply to any individual 

engaged in more than one occustion as defined by the 

other aubseotion of this Act. 1 

l Attaahed herewith is a oopy of a letter reoeived 

tram Rr. W. C. Perkins, keautive ;eeretery of the Texas 

Real izstate Association, in..>nhiah he erpreases his doubt 

as to the constitutionality of t:?e above quoted Act, and 

raises the question of disorimination beoause salesnen 

employed by a retailer, whDleoaler, jobber or xanufaaturer 

are exempt from payment of the tax and real estate salesmen 

employed on a salary or commission, are not. 

Tour opinion is respectfully requested with referenoe 

to the following questions: 

*l. fs the above quoted Act unconstitutional beoause 

it apparently applies to all real estate salesmen employed 

on a salary or conmission and not to a salesnan who is 

a&uployed on a salary or conmission basis by not more than 

ona retailer, wholesaler, jobber or msnufaoturer? 

-2. Should the application of the Aot be sorerned by 

taots pertaining to the actual duties _rerformed by a real 

estate salesman, rather than whether he is employed on a 

salary or conmission bnsls?* 

Mr. Perkins,’ letter requests that: 

0. . . an offioial ruling be obtained iraPe the Attorney 

Caneral on the question of real ostate salemen, holding 

salesnuin*s license, and xorhing only out of one dealer *s 

oifice, either on a salary or cormnission basti , not being 

exempt from pyaent of the occupation tax under this Aot." 

. 

\ 
Hon. Ceo. H.. Sheppard, page 3 

I” ~... 891 

Sinoe we have deoided that Seotion 2 of B. B. 677 

1s unoonstitutional insofar as it attempts to levy ah oooupation tax upon brokers and factors of real estate beoause of 

a defect in it’s caption, we shall net attempt to give speoifio 

answers to the questions stated in your letser and in that of 

Ix. Perkins6 

Pertinent portions of the caption of Ii. 8. 677’are 

as follows: 

*An Aot . . . to amend &bee&ion 7 of Article 7047, 

as heretofore amended, so as to provide for an annual 

Oocupation Tax of Ten Dollars (.“:lO) per year to be collected l’roie every ‘broker’ or ‘factor, * defining aaxe, 

inclLudlng brokers and factors of all classes, end exempting certain salesmen, and certain ot?.er persons; . . . 

providing that this Act or any portioh of this Act shall 

not levy or be construed as levying any tax on any new 

oooupation or oocupations or be construed as levying any 

inoreased and/or additional tax of any kind or oharacter 

whatsoever upon any person, 

and/or corporation; . . .* 

f%rm, partnership, association 

Immediately prior to the effective date of R. 2. 677 

no occupation tax was levied upon brokers and factors of real 

estate unless suah tax was levied by Section 7 of Article 7047, 

V. A. C. S which Set ion read as foll.ows prior to the act 

uuder dism*%ion 7 : 

*7. Prokers.- Stocks and Bonds. - From every person, 

rim, association of persons, or corporationa, dealing in 

bonds, and/or stocks, either exclusively or ia connection 

with other business, the sum of Piftg dollars (:@O.OO) for 

each town or city in nbic?:. suah peruon, firm, association 

or oorporation mintaim ari office. For the purjione of 

this Act, every person, fira, association. of pereons, or 

oorporation whose business it is to negotiate purchases 

or sales of stocks, bonds, excchan~e, bullion, coin, znoney, 

bank notes , promissory notes, produce or nerohandise, or 

anything else for sale, for30thers, shall be regarded as 

a broker. Acts 1E.97, ‘1st C.3., p. 49; Aots 1951, 42nd 

Leg .* p. 355, ch. 212, 0 1.” 
Eon. Oeo. H. Sheppard, page 4 

In our Opinion No. O-4287 we held that this Section 

levied an occupation tax only upon stock md bond brokers of 

the type therein described and that the seoond sontenoe of 

aald Section IO no way authorized the levying of an oocupation 

tax upon brokers of drugs, food products and other merchandise. 

In the course of t-his opinion we aaid with raspeot to the 

seoond sentence of this Section: “It was not intended to 

extend the subjects tared in the first sentence of Seotion 7.* 

In conformity with this opinion we are oo:~at:aineU to hold that 

no oocupation tax was levied uDon real estate brokers and factors 

prior to tile passage of EI. B. 677, and thue that K. B. 677 doe8 

purport to levy a tar upon an occupation not heretofore subjeat 

to.Asuoh tax. 

section 35 OS kticle XII of the Texas Constitution 

provides: 

-0 bill, (except General aprzoprintlon bills, whloh 

may eubmce the various subjects and accounte, for and on 

aooount or whioh moneys are appropriated) shall aontain 

nofe than one subject, whloh shall be expressed In Its 

title. But If any subject shell be embraped In an aot, 

which shall not be expreo3ed In the title, such sot ,shall 

be void only as to so muoh thereof, as shall not be 80 

expressed. * 

A3 we3 said In Donaldson v. State ex rel. Janes, 

161 3. $. (2d) 324 (error refused), the purpose of this seation Is to ap-grise legislators of the contents of bills, to 

the end that surprise and fraud Iu legislation may be prevented. 

Moreover, as was held by the Co*lrt of Criminal qppesla In De 

Silvia v. State, 22a 3. %. 542, a statute is violative of this 

seotion if the title is misladlng; and, as wus said In @iM 

v. E. 0. L. C., 125 S, Yi+. (2d) 1063 (dismissed), If the aaption 

epecifles the nature of a propo&d amendment to an existing 1 

statute, the body of the amendment must conform thereto, and ‘-~. 

any ohange attempted in any other reapcct is void. 

Insofar a3 H, B. 677 attempts to levy an ocoupation 

tax upon brokers and i’aotors of real estate we feel that It 

runa oounter to all of these principles. A perusal ot the 
Hon. Geo. E. Sheppard, page 5 

oaption of this act would serve to lull a legislator or any 

other Interested person into the belief that the act Imposed 

no new taxes and would in no way apprise such person of the 

atte.apt to levy a tax upon an occupstion not heretofore subjeot to an oocu::ation tax. The csption is nisleading; 

patently the body of the act varies fraa the natuze of the 

aot as stated ir, Its caption. 

Gouseguehtly, you are respeatfully advised that 

insofar a8 I?. 3. 677 attempts to levy an occn~ation tax upon 

brokers and factors of real estate mid act is violative of 

Seation 35 of Artiole III of out Constitution, acd that auoh 

tax ia void. This opinion in no way passes upon the validity 

of those portions of 11. B. 677 whioh purport to tax ooaupations 

other than that of a real estate broker oz factor, 

Trusting that the foregoing ruiiy answers your 

Inquiries, we are 

Yours very truly 

R. Dean Moorhead 

Assistant