Hon. Franklin Perry, Chairman 

Committee on Constitutional Amendments 

House of Representatives 

52nd Legislature 

Austin, Texas Opinion,No. V-1155. 

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Re: ,Effect of the proposed conatitutional prohibition against - 

levying a general sales tax 

upon existing sales taxes and 

Dear Mr. Perr.y: future specific sales taxes. 

You have requested our opinionon that por~tion :of’-Committee Amendment No. 1 to Rouse Joint Resolution No. 1, Acts 52nd 

Leg.,, R.S. 1951, proposing an amendment to Section 1 of Article,VIII 

of the Constitution of Texas, reading as follows: : 

1. 

. ~. . the Legislature shall never levy d’geksral 

sales tax upon the, people of this State; . . . ” 

Your request presents two questions.: first, the effect 

of the, proposed constitutional amendment upon the validity of the 

existing “sales taxes” of~this State; and s,econd, its effect ,upon any 

“sales taxes “~ that may be enacted in the future.. 

A review of “sales tax”. legislation in the different States 

during recent-years re’flects a great variation in the types of sales 

taxes which have been ‘imposed. The decisions as to the exact nature of the taxes which have been ter,med “sales taxes” are not in 

harmony. Such taxes have been &scribed by the. cpurts.,as ,occupation taxe,s, privilege taxes, income ‘taxes,~ excise taxes, and, in rare 

instances, as property taxes.. It has. been said that “the difficulties 

in attempting to reduce the term ‘sales tax,:’ to a.ny ,single all-inclusive formula appear to be insurmountable.” 47 Am. Jur. 194, Sales 

Tax, Sec. 1. 

Thus, it kapparent that the difficulty in answering your 

first question lies in a determinqtioqof what, existing taxes ,in this 

State are in fact “sales taxes.” Certainly the motor fuel taxes 1 and 

1 In State v. City of El Paso, 135 Tex. 359, 143 S.W.Zd 366 (1940), 

it was held that the motor fuel tax levied by Article 7065a-2, V.C.S., 

(repealed in 1941 but similar to that now levied under Article 7065b2) was a “use” tax and not an occupation tax. 
259 Hon. Franklin Perry, Page 2 (V-l 155) 

many of the occupation taxes, such as the gross production taxes 

levied on the occupations of producing gas, oil, or sulphur, (Arts. 

7047b, 7057a, and 7047b(40b), V.C.S.) would not be considered as 

being within the prohibition of the proposed amzndment, even though 

such taxes may be pass d on to the consumer. The Le islature 

has imposed use taxes; 5 stamp taxes;4 and license fees under the ! 

police power of the State for regulatory purposes. In our opinion 

taxes of this nature would not be repugnant to a constitutional prohibition against a general sales tax. 

2 It was held in Att’y Gen. Op. V-1027 (1950) that the taxes levied 

byH;B.‘3, Acts 51st Leg.; 1st C.S. 1950, ch. 2, p. 10, on oil production, gas production, sulphur production, telephone gross receipts, gas, electric, and water company gross receipts, carbon 

black production, cement distributors, motor carrier gross receipts, 

oil well servicing, insurances gross receipts, and chain stores are 

occupation taxes within the meaning of Sec. 3, Art. VII of the Constitution of Texas. This’ opinion was based on the authority of Producers’ Oil Co. v. Stephens, 99 S.W. 157 (Tex. Civ. App. 1906)~; 

State v. Humphrey, 159 S.W.2d 162 (Tex. Civ. App. 1941); W. R. 

Davis, Inc. v. State, 142 Tex. 637, 180 S.W.Zd 429 (1944); Oliver 

Iron Mining Co. v. Lord, 262 U.S. 172, 43 S.Ct. 526 (1922); Dallas 

Gas Co. v. State, 261 S.W. 1063 (1924); State Tax Commission v. 

Hughes Drug Co., 293 S.W. 944 (KY. Civ. App. 1927); United North 

& South Dev. Co. v. Heath, 78 S.W.2d 650 (Tex. Civ. App. 1934); 

Gaar, Scott & Co. TV. Shannon, 115 S.W. 361 (Tex. Civ. App. 1909); 

Philtex Chemical Co. v. Sheppard, 219 S.W.2d 1010 (Tex. Civ. App. 

1949); Trinity Portland Cement Co. v. State, 144 SW.2d 329 (Tex. 

Civ. App. 1940); Texas Consolidated Transp. Co,. v.:State, 210 S.W. 

2d 891 (Tex. Civ. App. 1948); Cobb v. Harrington, 144 Tex. 360, 190 

S.W.Zd 790 (1945); Southern Realty Corp. v. McCallum, 65 F.2d 934 

(1933); Western Co. v. Sheppard, 181 S.W.2d 850 (Tex. Civ. App. 

1944); Sheppard v. Rotary Engineering Co., 208 S.W.2d 656 (Tex. 

Civ. App. 1948); Kansas City Life Ins. Co. v. Love, 101 Tex. 531, 

109 SW. 863 (.1908); Hurt v. Cooper, 113 S.W.2d 929 (Tex. Civ. App. 

1938); Hurt v. Cooper, 130 Tex. 433, 110 SW.2d 896 (1937); Sec. 

30-002, C.C.H.; Attorney General’s Opinions O-4731 and O-4847; 

Edward Brown h Sons v. McColgan, 128 P.2d 1,86, 53 Cal. App.2d. 

504. 

3 Article 7065b-2, V.C.S., is an example. 

4,Article 7047c-l,,V.C.S., is an example. 

5 Article 7047d, V.C.S.. is an example, 
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Hon. Franklin Perry, Page 3 (V-1155) ~,: ;/ ; 

The most familiar and ~~generally recognized retail 

sales taxes in Texas are the “luxury excise? taxes le&ed.by Article 70475 V.C.S., on the sale of new cosmetics, radios, television sets, and playing cards, and the “motor vehicle retail sales” 

tax levied by Article 7047k, V.C.S. It was held in Att’y Gen. Op. 

0-4403-A (1942) on the authority of Lash’s Products Company v. 

United States, 278 U.S. i75 (1928) that the tax imposed by Article 

m471 was a “gross receipts” tax and not a sales tax. The motor 

vehicle sales tax levied by Article 7047k combines the features of 

both a retail sales tax and a use tax. As has been previously 

pointed out, there. is doubt as to the exact classificatiorrof these 

and similar taxes, ,but it is clear that such taxes are at the most 

“selective ~sale taxes” and not u eneral ” and would not.fall within 

the proposed constitutional proh 7m---! t on against a general sales tax. 

The proposed amendment would be adopted. in contern* ’ 

elation of existing tax statutes and such statutes therefore would 

not be held invalid unless clearly inconsistent with the provisions 

of the proposed amendment. 11 Am. Jur. 642, Constitutional Law., 

Sec. 36; 9 Tex. Jur. 420, Constitutional Law, Sec. 9. Great weight 

is attached to the opinion of the Legislature as to its own powers 

and as to the legislative interpretation of a constitutional provision. 11 Am. Jur. 699, 790, Constitutional Law, Sets. 79, 129; 9 

Tex. Jur. 439, 480, 482, Constitutional Law, Sets. 27, 61, 62. It is 

to be assumed that the Legislature in adopting H.J.R. No. 1, as amended, would not expect it to result in the repeal of any present 

tax statute. 

It is, therefore, our opinion that the passage by the Legislature and adoption by the people of H.J.R. No. 1, as amended, 

would not affect the validity of the existing tax statutes above referred to. 

With regard to yonr second question, we must advise 

that we are unable to answer it categorically. It would be speculation on our part to attempt to anticipate the types of taxes that may 

be imposed by future Texas Legislatures. It is not unreasonable 

to observe that the courts of this State may find, after a period of 

years, that numerous so-called “selective taxes” would have the 

cumulative effect of a general sales tax and thus hold that some or 

all of such taxes are invalid under the proposed constitutional amendment. This is a matter, however, upon which we do not pass 

at the present time for the reasons herein stated. 

SUMMARY 

f 

The adoption of the proposed amendment to Section, 1 of Article VIII of the Constitution of Texas pro- 
Hon. Franklin Perry, Page 4 (V-1155)- / 

hibiting the levy of a general sales, tax would not 

affect the validitvof the existing tax statutes in this 

State. 

APPROVED: 

W. V. Geppert ,.. Assistant 

Taxa,tion Division .’ 

.Charles D. Mathews 

First,Assistant 

Price Daniel 

Attorney General 

FL:b:mwb 

Yours very truly, 

PRICE DANIEL