The Honorable Robert S. Calvert Opinion No. M-300 

Comptroller of Public Accounts 

Austin, Texas Re: Constitutionality 

of deletion of SubSections (l), (2), 

and (3) from Texas 

Taxation-General 

Art. 20.01(T) by 

Texas Acts 60th 

Legislature, 1st 

Called Session, 1968, 

Chapter 2, Section 12 

Dear Mr. Calvert: at 9. 

you have requested our opinion concerning the,constitutionality of the deletion of Sub-Sections (1) 

(3) from Texas Taxation-General Article 20.01(T) t 

2), and 

hereinafter referred to as the original act) by,Texas Acts 60th 

Legislature, 1st Called Session, 1968, Chapter 2, Section 12 

at 9 (hereinafter referred to as the amendment). It Is the 

opinion of this office that the amendment, as it relates to 

the exclusion of Sub-Sections (l), (2), and (3) without' 

proper notice in the title is invalid. 

Section 

b 

T) of Article 20.01, Texas Taxation-General, 

prior to the 19 8 amendment provided: 

"Contractor or Repairman. 'Contractor' 

or 'Repairman' shall mean any person who performs any repair services upon tangible personal property or who performs any improvement 

upon real estate, and who, as a necessary and 

incidental part of performing such services, 

incorporates tangible personal property belonging to him into the property being so repaired 

or improved. Contractor or repairman shall be 

considered to be the consumer of such tangible 

personal property furnished by him and incorporated Into the property of his customer, for all 

of the purposes of this Chapter. 

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The Honorable Robert S% Calvert, Page 2 of- 300) 

c The numbered sub-sections deleted from the. 

1968 amendment read as follows:7 

"(1) The above provision shall apply 

only If the contract between the person 

performing the services and the person 

receiving them contains a lump sum price 

covering both the performance of the services and the furnishing of the necessary 

incidental material. 

"(2) If the contract between the 

person providing the services and the 

person receiving them contains separate 

amounts applicable to the performance of 

the services and the furnishing of the 

materlal then the above Section shall not 

apply, and the person furnishing the 

materials shall be liable for the limited 

sales tax upon the agreed price of~the 

materials as thus set forth In the.contract. 

Provided, however, that the agreed price of. 

the materials shall not be less than the 

actual cost of such materials to the person 

so providing them. 

"(3). In any case where the persbn 

so providing such materials has paid the 

limited sales tax to his supplier when 

purchasing the tangible personal property, 

he shall be entitled to credit the tax so 

paid to his supplier against any tax imposed by this Chapter with respect to his 

subsequent sale of that tangible personal 

property.' 

The 1968 Amendment reads as follows: 

"Sec. 12. Section (T) of 

Article 20.01, Chapter 20, Title 122A, 

Taxation-General. Revised Civil Statutes of 

Texas, 1925, as amended, Is amended to read 

as follows: 

"20,01(T) Contractor or Repairman. 

'Contractor or Repairman' shall mean any 

person who performs any repair services upon 

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The Honorable Robert S. Calvert, Page 3 (M-300) 

tangible personal property or who performs 

any improvement upon real estate and who, 

as a necessary and incidental part of performing such services, incorporates tanglble 

personal property belonging to him into the 

property being so repaired or improved. 

Contractor or repairman shall be considered 

to be the consumer of such tangible personal 

property furnished by him and incorporated 

into the property of his customer, for all 

the purposes of this Chapter. 

"There are exempted from the computation 

of the amount of taxes imposed by this Chapter, 

the receipts from the sale, lease or rental of 

any tangible personal.property to, or the 

storage, use or other consumption of tangible 

personal property by any contractor for the 

performance of a contract for the improvement 

of realty for an exempt or anization as 

defined in Section 20.04(F 7 of this Chapter 

or otherwise exempt from the taxes imposed 

by this Chapter to, the extent of the value of 

the tangible personal property so used and/or 

consumed in the performance of such contract. 

Any such contractor may purchase; rent or 

lease all materials, supplies, equipment and 

other items incorporated into the, project or 

any such item used and/or consumed by the 

contractor in performing said contract by 

issuing to the retailer from whom the materials, 

supplies, equipment or other Items were purchased, rented or leased an exemption certificate in lieu of any tax imposed by this Chapter." 

Considerable doubt has been raised as to exactly what 

the intent of the legislature was in amending Article 20.01(T); 

that is, whether Section 12 of the Session Laws completely 

replaced the original act or whether It merely added an 

additional provision. Without a proper record or historical 

note having been developed by the committee which passed 

upon this section as well as the whole amendment, this 

office is constrained to conclude that the true intention 

of the Legislature was ambiguous. However, it Is well 

settled that a statute will be c,onstrued in such a manner 

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The Honorable Robert S. Calvert, Page 4 (M-300) 

as to make all of its components effective and operative. 

See, e.g., Inde 

124 Tex. 281 7 

16 Tex. 382 [18 

be regarded as merely an additional provision since 

repeals by implication are not favored and laws relating 

to the same subjects should be considered as though 

incorporated in-the same act. Gordon v. Lake, 

163 Tex. 392, 356 S.W.2d 153 (1962). 

However, this leaves the enigma of the deletion 

of sub-sections one, two, and three from the original 

act. This deletion is of prime concern for among other 

things, it removes the previously existing exclusion 

afforded to parties who segregate the materials from 

the services performed in their contracts. Of course, 

such an action is within the province of the legislature 

so long as ample notice is given in the title pursuant 

to Texas Constitution, Article III, Section 35: 

"No bill, (except general approprlation bills, which may embrace the various 

subjects and accounts, for and on account . 

of which moneys are appropriated) shall 

contain more than one subject, which shall 

be expressed in its title. Rut if any 

subject shall be embraced in an act, which 

shall not be expressed in the title, such 

act shall be void only as to so much 

thereof, as shall not be so expressed." 

The Title of the amendment states: 

“An Act raising revenue for the 

operation of state government; amending 

Chapter 20, Title 122A, Taxation-General, 

Revised Civil Statutes of Texas, 1925, 

as amended, to Increase the limited sales, 

excise and use tax, provide certain exemptions; and provide for the exclusion of 

certain transoortation charnes from the 

tax base unde; certain conditions; making 

temporary saving provisions for certain 

written contracts and bids; making the 

necessary conforming amendments to the 

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The Honorable Robert S. Calvert, Page 5 (M-300) 

Local Sales, Excise and Use Tax Act 

(Article 1066c, Vernon's Texas Civil 

Statutes); amending Chapter 6, Title 122A, 

Taxation-General, Revised Civil Statutes 

of Texas, 1925, as amended, to increase 

the sales and use tax on motor vehicles 

and to amend the definition of retail sale; 

amending Chapter 12, Title 122A, TaxationGeneral, Revised Civil Statutes of Texas, 

1925, as amended, to increase the corporate 

franchise taxes; providing an effzctive 

date; and declaring an emergency. (Emphasis 

added.) 

Even though the title of the amendment may refer to the 

new exemptive language added to Article 20,01(T) by the 

use of the words. 'provide certain exemptions"; the title 

is fatally defective to the extent it fails to mention 

the deletion of sub-sections one, two, and three from 

the original act, which are not termed exemptions but 

are separate exclusions from the coverage of the law. 

We find the following pertinent statement of the law to 

be as follows: 

"DJ title that expresses a 

purpose to change a prior law by adding or extending a provision or conferring a right-does not warrant an -- 

amendment that omits . . . a provsion 

of the ori inal act or destFo s a -- 

~-w;;o;J? TFbEhasis 

foo no e de e ed.) 53 Tex.Jur.2d 

Statutes, Section 61 at 112; see, e.g., 

Furthermore, the title to an amendment must more 

strictly conform to the body than to the title of an 

original act (Praetorians v. State, 184 S.W.2d 299, aff'd. 

143 Tex. 596, T56-S.W.2d 971 (1944) ), notwithstanding 

the rule that a liberal construction will be indulned ~to 

uphold the title of a legislative act. Harris Co&y Fresh 

Water Supply District No. 55 v. Carr, 37’2 S.W.2d 523 525 

‘(Tex. Sup. Ct. 1963). The purposes of Article 3 Section 35 

of the Constitution of Texas have been well stated as follows: 

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The Honorable Robert S. Calvert, Page 6 (M-300) 

"The purpose of the title-subject 

provision 

f 

of Texas Constitution Article 3,. 

Se~ction 35 Is threefold: First, it Is 

designed to prevent log-rolling legislation, 

to prevent the writing of several 

%i&ts having no connection with each 

other in one bill for the purpose of comblning various interests in support of the whole. 

Second, it prevents surprise or fraud upon 

legislators by means of provisions in bills 

of which the titles give no intimation, and 

which might therefore be overlooked and 

carelessly and unintentionally adopted. 

Third, it permits the people to be fairly 

apprised of the subjects of legislation 

under consideration, so that they may have 

an opportunity of being heard, if they so 

desire." Texas Constitution. Article 3. 

Section 35, interpretive commentary at-609 

. see Shannon v. Rogers, 159 Tex. 29, 

$i5h 2d 817 enschmidt v. 

International & G. N.'R Company, 100 Tex. 532, 

] 

Today these purposes especially pertaining to the 

s~econdfold, are even more important with the increased 

volume of bills that Is handled by the legislature. 

"Obviously this purpose is not accomplished, if the caption, 

for lack of sufficient provision therein or by the mlsleadina character of its orovlsions does not convex to the 

reader the necessary information." Schlichting v Texas 

State Board of Medical Examiners, 158 Tex. 279 310 S . W .2d 

, 5bl (1958). When a title to an smendment'describes 

part of then amendment's purpose, but fails to describe 

another which substantially changes the original version, 

our courts have characterized the action as surreptitious 

in nature and in violation of the Constitution. See, 

Consolidated Underwriters v. Kirby Lumber Company, 

f(Tex.-Comm'n.; 

Holman v. C;wden & Sutherlan%T'i58 S.h. 571 (Tex. civ. 

App. 1913, error ref'd). 

In Holman, supra, the court was confronted with an 

analogous mm involving the Thirty-second Legislature 

amending the act of a previous legislature and excluding 

from the application of the amendment three counties, one of 

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The Honorable Robert S. Calvert, Page 7 (M- 300) 

which was included in the previous act and was not 

mentioned in the title of the amendment as an excluded 

county as the two other counties had been. The court at 

page 573 of its opinion, held that "so much of the act 

of the Thirty-second Legislature as excludes Matagorda 

County from the operation of the stock law referred to is 

inoperative and void, for the reasons indicated,'and that 

therefore Matagorda County remains where the act of the 

Thirty-first Legislature places it." 

Therefore, we must necessarily conclude that by 

the Sixtieth Legislature failing to include in the title 

of the amendment the notice that sections one, two, and 

three of the original act were to be deleted, in derogation 

of Article III, Section 35 of the Constitution of Texas, 

those sections still stand as they did prior to the amendment. Consequently, Texas Comptroller of Public Account's 

Ruling Nun?berg5-C.O9A is incorrect to the extent that it 

interprets Article 20.01(T) as not including sub-sections 

one,, two, and three. 

SUMMARY 

Texas Acts 60th Legislature, 1st 

Called Session, 1968, Chapter 2, Section 12 

did not eliminate Sub-Sections (1),.(2),~and 

(3) of the original act, Texas TaxationGeneral Art. 20.01(T). 

s very truly, 

rney. General of Texas 

Prepared by Alvin Louis Zimmerman 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

Kerns Taylor, Co-Chairman 

Charles Aycock 

Ralph Rash 

John Grace 

Alfred Walker 

A. J. Carubbi, Jr. 

Executive Assistant 

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