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 asfollowsr~ / 9knownas 

### Eouse tion 7of AttAcle

MBroker an for hinTelf or dnb&alVoof Fromevery person, aoting enaas.ed in the Broker or F%or, whether such business or not, TenDollars ($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

### ~erahandiseofany kind; whether or not hereceives 

### anddelivers possession thereof, provided that this subseotion sMl1 not apply to a salesman whois employed on a salary or commission 

### basisbynot more than one retailer, v?holesaler, jobber, 

### ormanufaoturer, nor shall this subsection apply to orRon. 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 anyperson whois inoluded within the definition of anyother ocaupation andis paying or subject to the payment of a tax under anyother 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 aletter reoeived tramRr. **W.** C. Perkins, keautive ;eeretery of the Texas Real izstate Association, in..>nhiahhe 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 andreal 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 andnot to a salesnan whois a&uployedon 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.

. . anoffioial ruling be obtained iraPethe Attorney Caneral on the question of real ostate salemen, holding salesnuin*s license, andxorhing 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 wehave deoided that Seotion 2of B. B. 677 1s unoonstitutional insofar as it attempts to levy ahoooupation tax upon brokers andfactors of real estate beoause of a defect in it’s caption, weshall net attempt to give speoifio answers to the questions stated in your letser andin that of Ix. Perkins6

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

### follows:

*AnAot

. . . to amend&bee&ion 7of 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 andfactors of all classes, end exempting certain salesmen, and certain ot?.er persons;
. . . providing that this Act or anyportioh of this Act shall not levy or be construed as levying any tax on anynew oooupation or oocupations or be construed as levying any inoreased and/or additional tax of anykind or oharacter whatsoever upon anyperson, and/or corporation;

. . .* f%rm, partnership, association Immediately prior to the effective date of R. 2. 677 no occupation tax was levied upon brokers andfactors of real estate unless suah tax waslevied 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 andBonds. - Fromevery person, 

## rim, association of persons, or corporationa, dealing in bonds, and/or stocks, either exclusively or ia connection with other business, the sumof 

## Piftg dollars (:@O.OO) for each town or city in nbic?:. suah peruon, firm, association or oorporation mintaim arioffice. For 

### thepurjione 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, banknotes , promissory notes, produce or nerohandise, or anything else for sale, for30thers, shall be regarded as abroker. Acts 1E.97,‘1st C.3., p. 49; Aots 1951, 42nd Leg.* p. 355, ch. 212, 01.”Eon. Oeo. H. Sheppard, page 4

In our Opinion No. O-4287 weheld that this Section 

### leviedanoccupation tax only upon stock md bond brokers of the type therein described andthat the seoond sontenoe of aald Section IOnowayauthorized the levying of anoocupation tax upon brokers of drugs, food products andother merchandise. In the course of t-his opinion weaaid 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 uDonreal estate brokers andfactors prior to tile passage of EI.B. 677, and thue that K. B. 677 doe8 purport to levy a tar upon anoccupation not heretofore subjeat to.Asuohtax.

section 35 OSkticle XII of the Texas Constitution provides: -0 bill, (except General aprzoprintlon bills, whloh mayeubmce 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 anaot, which shall not be expreo3ed In the title, such sot ,shall be void only as to so muohthereof, as shall not be 80 

### expressed.

* A3we3 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 maybe 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 wussaid In @iM v. E. 0. L. C., 125 S, Yi+. (2d) 1063 (dismissed), If the aaption epecifles the nature of a propo&d amendmentto an existing 1 statute, the body of the amendmentmust conform thereto, and ‘-~. any ohange attempted in any other reapcct is void.

Insofar a3H, B. 677 attempts to levy an ocoupation tax upon brokers andi’aotors of real estate wefeel that It runa oounter to all of these principles. Aperusal ot theHon. Geo. E. Sheppard, page 5



### oaptionof this act would serve to lull a legislator or any other Interested person into the belief that the act Imposed nonewtaxes andwould in nowayapprise such person of the atte.apt to levy a tax upon anoccupstion 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 35of Artiole III of out Constitution, acd that auoh tax ia void. This opinion in nowaypasses uponthe validity of those portions of 11.B. 677whioh purport to tax ooaupations other than that of areal estate broker oz factor,

Trusting that theforegoing 

### ruiiy answers your Inquiries, weare **Yours** very truly

R. DeanMoorhead

Assistant