Continental Leasing Corp. v. State

Decision Date16 November 1966
Docket NumberNo. 11433,11433
Citation408 S.W.2d 786
PartiesCONTINENTAL LEASING CORPORATION, Appellant, v. The STATE of Texas, Appellee. . Austin
CourtTexas Court of Appeals

Locke, Purnell, Boren, Laney & Neely, John D. Crawford and J. L. Shook, Daugherty, Bruner & Lastelick, Jerry Lastelick, Dallas, for appellant.

Waggoner Carr, Atty. Gen., Hawthorne Phillips, 1st Asst. Atty. Gen ., T. B. Wright, Executive Asst. Atty. Gen., H. Grady Chandler, Marietta McGregor Payne, Mario Obledo, Terry Reed Goodman, Asst. Attys. Gen., Austin, for appellee.

ARCHER, Chief Justice.

This is a venue suit. The State of Texas, acting by and through Robert S. Calvert, Comptroller of Public Accounts of the State of Texas, brought suit against the defendants, U.S. Equipment Corporation and Earl W. Nunnally, for the purpose of collecting a debt for tax, penalty and interest owing to the State of Texas and joined in the appellant, alleging that it had acquired property from U.S. Equipment Corporation and Earl W. Nunnally by a purchase transaction and that appellant's claim of right, title or interest in or to said property is subordinate to the State's lien alleged to be first and prior to any and all liens or contracts, statutory, legal or equitable, regardless of the time such liens originated by virtue of the provisions of Articles 1.07, 1.07A and 1.07B, Chapter 1, Title 122A, Taxation-General, Revised Civil Statutes, V.A.T.S., as amended. Appellant's amended plea of privilege which specifically pointed out to the trial court the unconstitutionality of the articles upon which the State relied was overruled and appellant has duly, timely and properly perfected its appeal.

The appeal is predicated on two points and are as follows:

'First Point: The trial court erred in overruling appellant's plea of privilege for the reason that Article 20.09(G), Chapter 20, Title 122A, R.C.S., Acts of the 58th Legislature, Chap. 138, p. 371, H.B. No. 106, and the Act which it amended viz. Acts of the 57th Legislature, 1st Called Session, Chap. 24, p. 71, H.B. No. 20, and Article 1.04, Chap. 1, Title 122A, Acts of the 56th Legislature, Third Called Session, Chap. 1, p. 187, H.B. No. 11 are unconstitutional in that the captions thereof fail to contain any reference to venue in Travis County or anywhere else and such failure to contain such reference of fixing venue in Travis County, Texas, in said captions is in violation of Art. 3, Sec. 35 of the Constitution of the State of Texas. Second Point: The trial court erred in overruling appellant's plea of privilege for the reason that Article 1.07, Title 122A, Taxation-General, R.C.S., Acts of the 57th Legislature, First Called Session (Regular Session), 1961, Chapter 104, p. 201, H .B. No. 104 (122) is unconstitutional as to all provisions dealing with 'liens' on personal property because the caption thereof contains no reference to liens on personal property or the method of creating liens on personal property, or the sequence, priority or any other reference to liens on personal property, and such failure to contain such reference of creating a preferred lien on personal property in favor of the State was in violation of Article III, Section 35 of the Constitution of the State of Texas.'

Appellant raised the unconstitutionality of the various statutes involved in its amended plea of privilege.

Appellee takes the position that the question of the constitutionality of the lien established by the Acts could not be determined on a plea of privilege hearing, and that after the proper venue has been ascertained, a trial will determine the issue of the constitutionality of the lien on the trial on the merits.

The want of jurisdiction of the trial court is not to be considered in a plea of privilege hearing.

Downing v. Slattery, Tex.Civ.App., 144 S.W.2d 371, error dism.

Magnolia Petroleum Co. v. State, Tex.Civ.App., 190 S.W.2d 581, n.w .h.

We believe that the trial court properly overruled appellant's plea of privilege and that the captions of H.B. 106, Acts of the 58th Legislature, Regular Session 1963; and H.B. No. 20, Acts of the 57th Legislature, First Called Session 1961; and H.B. No. 11, Acts of the 56th Legislature, Third Called Session 1959, complied with the provisions of Article III, Section 35, of the Vernon's Ann.St. Texas Constitution and gave sufficient notice that the venue of the tax suits provided for therein is in Travis County.

Article 1.04, Chapter 1, Title 122A, Taxation-General, R.C.S., provides, without copying in full, that all taxes except and valorem, shall be recovered by the Attorney General in a suit brought by him in the name of the State of Texas,--venue--of all suits--is conferred upon the courts of Travis County.

This Article was enacted as a part of H.B. 11, p. 187, Acts of the 56th Legislature, Third Called Session, 1959. The caption reads, in part:

'An Act revising and rearranging certain Statutes of Title 122 * * *; providing procedures for the administration and enforcement of such taxes and penalties for violations thereof; * * * providing for rules and regulations for administration; * * *'

Article 20.09(G)(1) Chapter 20, Title 122A, Taxation-General, Revised Civil Statutes of Texas, reads in part as follows:

'(G) Judgment for Taxes.

(1) Comptroller May Sue. * * * in a court of competent jurisdiction in Travis County, Texas, * * *'

This Article was enacted as a part of H.B. No. 20, Chapter 24, p. 71, Acts of the 57th Legislature, First Called Session, 1961, the caption to which bill reads in part as follows:

'An Act to raise revenue * * * so as to impose a limited sales, * * * providing for the administration and enforcement of such tax * * *'

The language of 20.09(G)(1) remained unchanged when the Legislature amended the Limited Sales, Excise and Use Tax Act by H.B. No. 106, Chapter 138, p. 371, Acts of the 58th Legislature, Regular Session 1963.

The generally accepted...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT