Case Information
*1 A-N ii.. * I Hon. C. B. Belk, Administrator : i,~‘,
.Bcerd Plumbing Bxamlners Austin, Texas ,Opinion No.~ V+28. .:
., He :. Whether then licenser r r9e iixed.;by., the, P&umb- ing ticenae Iaw Oi‘1917, ~. :&B. ;188,, ;,Acts 50th Leg- islature,. is a license ree .or,anoccupation tax; and. related ques- .,iti.ons. .,;.. .- ,i .: ?; > : Dear Sir: ~ Your request ror.. an. opinion reads as ‘&ows: . ..~ .*This Board has received sevaral’ communica- tlons rrom;plumbers~ complaining that some of the smaller cities require the payment of a prohibi- tive occupation t.ax or ,l%censa fee ~of plumbers.
Therefore, we -..submit the hollowing questions rsr answer:
“1.
charging ‘an occupation tax of more than tax, ap- one-halr 0r the state occupation pllcable: to a part.icular.~~occu~tiidn, plsaae advise ua whether the.-~license fee as riied in the Plumbing .License .Law or 1947 .would. const$tute an oc’cupation tax under the. provision ,o? the .const:,tut$oh? &uestion: If such rees w0Q.d constitu’te
“2. an .odcupation unqer the ;provision. of the constitution,. v&at would be the, ,max- imum amount that could be charged ,by clt- las o$ t,h6 State,. ror occupati~on tax .,or, ll- censa fee of plumbers?
“3.
&on.. c. E. Belk, Page 2, V-428.
citks citks under 5,000 under 5,000 inhabitants inhabitants charge an charge an occu occu tion tax or 1lcense tion tax or 1lcense ree ot plumb- ree ot plumb- ers ers r r II OXC~SS~ or one-hali Or the State Li- II ~xcess~ or one-half or the State Li- COMI rwv.. rwv.. COMI , ,
In your rlrst question you ask whether the ll- tense roe provided by the Plumbing License Law or 1947, S. B. 188 is an occupetlon tax, cornin& within Section 1, Artiole VIII, or the Texas 0oristitution. In the csse dr City 0r Fort worth V. wr w- Conpeny, 125 Ter. 83 8. W, (2d) 610, the Sa- flnily 0ourt distinguishes between an occupation tax and prem
.a lloumr ?a0 a8 r0ii0w8:
WAn’ oooupation is levied primrilp ror the p.urpom of .ralslng revenue, and unless the mat+rq before ud Is primarily a revenue ma&~ur:(,~ it is not an ,oocupation tex, . . A &lcense 1$w IS one whloh tourers upon those “ho ~oomply ‘thonwith a right denied all, others, and it is ima.t+rial whether or not it provides a tee theretor a . ; An orrioiai ii0~13e may be said to br a. permission granted by pub110 au- thority to oarry on a business or trade or~prr- ronn other aots whioh are rorbldden by law ex- ~oept to persoy suoh permlsslon . . .I ‘obtalnlng An oocupation tax la thus dletinguishable irOn a licemite fee or tax imposed under the police’ power, In that an occupatlofi tax Is primarily Intended to ralue re?e- MI, uhlle a lioenm tee or tax is priemlly intended as a man.~ or, or ald to, re&alatlon.
A ply-, this yardstick t0 .tho Plumbin& Lloense LOW 0r 194? , we tee1 that them is little doubt that the primary purpose of the Aot Is the re ulatlon or ‘the plumb- ing trade. This Is clear rran the pr no pa provisions or --h-T the Aot which provide for the lssuanoe and ‘nnevml or li- to varying types of plumbers and plumbing Inspectors oenaas and rOr ‘qualifying examinations to detanine the tltnere or applicants. Also tha exoluslon t& purpose or raising revenue as ‘the solo 0~ as even a primary purpose of the Pot IS left beyond ,quesflOp bi the provision ‘or the Bat that the lloense fees provided for therein shall be Teduoed if then fw&ds rema lning in the hands of the Board at the end of any oalendar year are in excess of the expenses of the Board (See Section 7). We, therefore, advise you as to your rimat question that the license leas provided for In *3 Hon. C. E. Belk, Page 3, v-4.28.
the Plumbing License Law of 1947 are not occupation taxes, but arr license fees.
Your second and third, questions ask whether muni- cipalities may charge an occupation tax or license fee or plumbers, and if so, in what amount,
We quote Section 1,.Article VIJI, of the Texas Constitution, on the question of whether a mmicipality may levy an occupation tax on plumbers: ". 0 . It (The Legislnture) may also
impose occupation taxes, both upon natural persons and upon corporations, other than municipal, doing any business in this State . except that persons engaged in mechan- i&l and agricultural pursuits shall never be required to pay an occupation tax; . . . and provided rurther that the occupation tax levied by any county, city or town for any year on persons or corporations pursu- ing any profession or business, shall not exceed one half of the tax levied by the State ror the same period on such prorossion or business. n (Parenthetical addition ours). In the light of the for8gOing constitutional provision, a municipality may not levy an occupation tax on plumbers for two reasons:
First, because plumbing is a mechanical pursuit aud as such is not subject to an occupation tax. wsstrrn Company v. Sheppard, 181 S. W. (2d) 850, error refused.
Second, because a plunicipality may not tax an occupation which is not taxed by the Legislature for the benefit or the State. Hoefling v. City Of San Antonio, 20 S. Wi 85; Ex Part8 Stevenson, 169 S. W. (2d) 175; 27 Tex. Jur. 901, Section 54-.
This answers your second and third questions with respect to the levying of an occupation tax.
As to whether municipalities may charge a license fee of plumbers, we interpret the statute as ,establishing the Texas State Board of Plumbing Exa.tiners as the sole ll- tensing agency ror plumbers, fron and after the erfective date of the statute, to the exclusion of all municipalities.
Hon. C. E. Belk, Page 4, V-L28 *
This Interpretation follows from the provis- ions of the Plumbing License Law of 1947 repealing the previous statutory authority for municipal licensing of plumbers (Arts. 1078, 1079, 1080, and 1081, R. C. S.), from the provisions throughout the Aot establishing a uniform State licensing system to beg initiated and ad- administered by the Texas State Board of Plumbing Exam- iners, and from the provisions of the Act to the effect that no city or town shall prescribe any ordinance, by- law, rule or regulation inconsistent with the Act.
In this holding,~ we follow Opinion No. V-333 of this department, a copy of, which opinion we enclose herewith.
The license fee provided for in the Plumbing License Law oi 9. B. 188, is not an occupation tax. City or Fort Worth v. Gulf Retining Co., 83 5. WV.. (2d) 610.
Municipalities may not levy an occu- pation tax on the plumbing trade. Sec. 1, Art.,VIII, Texas Constitution; Hoefling v.
City or San Antonio,'20 8.. W. 85; Ex Parte Stevenson, 169 S, W. (2d) 175; Western Co.
v. Sheppard, 181 9. W, (26) 850.'
The Texas State Board of Plumbing Ex- aminers is the exclusive licensing agency for plumbers, and municipalities are pre- cluded iron issuing licenses to plumbers after the efrective date.of the Plumbing License Law.~
Yours very truly ATTGRNEYGENERALOFTElL4S
APPROVWD:
BY
RNEYGENERAL
DJC:jmc