# The Attorney General ofTexas

December 14, 1978 JOHN L.HILL Attorney General

Honorable BobBullock Comptroller ofPublic Accounts L.B.J. Building Austin, Texas 78774 Opinion No. H- 1282
Re: Whether a city adopting the local sales and use tax after October 1,1979, may impose that tax on the residential use of gas and electricity. Dear Mr. Bullock:
You have asked for an interpretation of article 1066q section 4A, V.T.C.S., which governs the exemption from the local sales and use tax ofgas and electricity for residential use. Article 1066~permits cities to adopt aone percent local sales and use tax by holding an election for that purpose. As originally enacted, article 1066c, V.T.C.S., imposed atax on sales ofgas and electricity for residential use. V.T.C.S. art. 1066c, 52B; see Tax.-Gen. art. 20.04(R). The sixty-fifth legislature amended article 1066sy adding section 4A, which reads inpart:

Sec. 4A. Effective October 1, 1979, there are exempted from the taxes imposed by this Act the receipts from the sale, production, distribution, lease or rental of, and the use, storage, or other consumption within the city of gas and electricity for residential use within a city adopting the taxes imposed by this Act unless prior to May 1,1979, the governing body of the city, by a majority vote of the membership of the governing body, votes to continue the taxes authorized by this Act on the sale, production, distribution, lease or rental of, and the use, storage, or other consumption of gas and electricity for residential use. At any time before or after October 1,1979, the governing body of acity that has adopted the tax authorized by this Act may, by a majority vote of the membership of the governing body, exempt from the taxes imposed by this Act the receipts from the sale, production, distribution, lease or rental of, and the use, storage, or other consumption within the city of gas and electricity for

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residential use. The governing body of a city that has adopted the tax authorized bythis Act and provided for the exemption authorized or required by this section may, by a majority vote of the governing body, reimpose the taxes on the sale, production, distribution, lease orrental of, and the use, storage, or other consumption in the city of gas and electricity for residential use. H.B. No. 1,Acts 1978, 65th Leg., 2dC.S., ch. 2,S6,at 6-7. You ask whether acity which first adopts the local sales and use tax after October 1,1979, may impose that tax on the residential use ofgas and electricity.
As ofOctober 1,1979,the amendment exempts the residential use ofgas and electricity from the tax imposed under article 1066~unless the city fits within one of the exceptions provided insection 4A. These exceptions are asfollows: (1)Prior to May 1,1979,its governing body votes to continue the tax. (2)The governing body ofacity which has adopted thelocal sales and use tax and exempted theresidential use ofgas and electricity reimposes the tax by majority vote. Acity which does not adopt the local sales and use tax until after October 1,1979,cannot fit within the first exception. Nor can it in our opinion fit within the second exception. After October 1,1979, the residential use ofgas and electricity will be “exempted from the taxes imposed bythis Act,”i.e. article 1066c, V.T.C.S. Cities adopting the provisions ofarticle 1066~ after October 1,1979, will not be able to impose the tax on sales of gas and electricity for residential use. Thus they cannot become cities which have adopted the local sales and use tax and then exempted the residential use of gas and electricity. Their exemption will come about by operation of law rather than the city’s action. Moreover, cities which have never had the tax cannot be said to reimpose it, since “reimpose” means “to impose again.” Webster’s Third International Dictionary (emphasis added). Cf. Lowr v. Aetna Life Ins. Co., 120 S.W.2d 505 (Tex. Civ. App. - Dallas 1938,-.+ writ dmm’d (definition of reinstate). ln our opinion, section 4A of article 1066~gives cities a limited time in which to impose atax on the residential use ofgas and electricity. Cf. Attorney General Opinion H-loll (1977) (time limit for counties to qualify for Eefits ofNational Flood Insurance Program). SUMMARY Cities that first adopt the local sales and use tax after October 1,1979, may not impose the tax on the residential use ofgas and electricity.

Attorney General ofTexas

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APPROVED:

C. ROBERT HEATH, Chairman Opinion Committee jsn

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