October 26, 1988
Honorable James A. Adkins opinion No. al-972
Commissioner
Texas Department of Mental Health Re: Whether a state official
and Mental Retardation or employee traveling at
P. 0. Box 12668 state expense on official
Austin, Texas 78711-2668 state business is exempt
from the hotel occupancy tax
imposed by chapter 156 of
the Tax Code (RQ-1470)
Dear Mr.- Adkins:
You ask whether a state official or employee traveling
at state expense on official business for a state agency is
exempt from the hotel occupancy taxes provided for in
chapters 156, 351 and 352 of the Tax Code.‘
Chapter 156 of the Tax Code imposes a state tax
on a person who, under a lease, concession,
permit, right of access, license, contract,
or agreement, pays for the use or possession
or for the right to the use or possession of
a room or space in a hotel costing $2 or more
each day.
Tax Code g 156.051. Additionally, chapters 351 and 352 of
the Tax Code in similar language authorize a municipality
and the commissioners courts of certain counties,
respectively, to impose hotel occupancy taxes.
This office was asked this question with respect to the
chapter 156 state hotel occupancy tax six years ago. In
Attorney General Opinion RR-528 (1982), this office ruled
that "no such exemption exists" from the chapter 156 state
hotel occupancy tax. On May 16, 1988, however, this office
issued Letter Opinion No. LO-88-58, withdrawing MW-528 for
further study and consideration. Having carefully consid-
ered the question, we now reaffirm the conclusion of MW-528
that state officials or employees traveling at state expense
on official business for a state agency are not exempt from
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Honorable James A. Adkins - Page 2 (JM-972)
the state hotel occupancy tax under chapter 156 of the Tax
Code. We also conclude that there is no such exemption to
the local hotel occupancy taxes provided for in chapters 351
and 352 of the Tax Code.
Attorney General Opinion WW-528 based its conclusion in
part on the ruling in Attorney General Opinion WW-738
(1959) I that officers and employees of the Federal Reserve
Bank traveling on official business are not exempt from the
state hotel occupancy tax. The situation addressed in
WW-738 may not have been the best analogy in support df the
result of WW-528, involving as it did possible issues with
respect to taxation of federal instrumentalities not
relevant to the question in MW-528. See. e a.
?Pg+&
State of Marvland, 17 U.S. (4 Wheat.) 316 (i819).
ample support elsewhere, however, for the conclusion reached
in MW-528.
We would note at the outset, the well settled rule that
claims for tax exemptions are strictly and narrowly
construed. See. e.a Davies v. Mever 541 S.W.2d 827 (Tex.
1976). Also, we &e that the e&ess exemptions '
chapters 156, 351 and 352 for persons using a room thir:;
days or more, and in chapter 156 for religious, charitable
or educational organizations, indicate, under the exoressio
unius rule of statutory construction, that any exemptions
not expressly provided for are to be deemed as expressly
excluded by the legislature from the statutory scheme. See
Tax Code 55 156.101, 156.102, 351.002(c), 352.002(c).
In Attorney General.Opinion JM-865 (1988), we concluded
that counties and home rule cities were without authority to
grant hotel occupancy tax exemptions to certain religious,
charitable, and educational organizations. That opinion
quoted the court in Citv of Wichita Falls v. CooDey, 170
S.W.2d 777 (Tex. Civ. App. - Fort Worth 1943, writ ref'd),
which held that cities could not by ordinance provide for
tax exemptions on homesteads beyond those authorized by
state law or constitutional provision.
It is clear to us that it was intended by
the framers of our Constitution that all
property should be subject to taxation, upon
1. We do not mean here to reconsider Attorney General
Opinion WW-738. But see Attorney General Opinion H-380
(1974) (Motor Vehicle Retail Sales and Use Tax not
applicable to federal employee renting vehicle on official
business).
P. 4948
Honorable James A. Adkins - Page 3 (JM-972)
an equal and uniform basis for the purpose of
defraying the governmental expense,
excention onlv of SW nronertv ?s%
document soecificallv exemnts therefrom a
such as the Leaislature shall. under
Constitutional restrictions, bv XDllC
lancuaae. declare to be exemnt. (HmpEasis ii
added in Attorney General Opinion JM-865
(1988), at 3.)
Cooner, 170 S.W.2d 777, 780.
Though JM-865 did not deal with pronertv taxation
exemptions as did the Coooer case, it reached its conclusion
based on the general rule enunciated there that, under Texas
law, tax exemptions exist only if specifically provided for
in the constitution or by statute. We follow here the rule
followed in JM-865. We find no specific provision in chapt-
ers 156, 351, 352, or elsewhere in state law or in the
constitution to the effect that state officials or employees
traveling on state business are exempt from the hotel
occupancy taxes provided for in those chapters. Hence, we
conclude, as did- Attorney General Opinion- MW-528 , that no
such exemption exists.
SUMMARY
State officials or employees travel ing
at state expense on state business are not
exempt from the hotel occupancy tax provided
for in chapters 156, 351 and 352 of the Tax
Code.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEANLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
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