Texas Attorney General Opinion: JM-1003 Page: 4 of 6
This text is part of the collection entitled: Texas Attorney General Opinions and was provided to The Portal to Texas History by the UNT Libraries Government Documents Department.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
Honorable Bob Bullock - Page 4 (JM-1003)
New Enerav, suprA at 1807. The Court concluded that there
was no such valid factor in this instance:
Our cases leave open the possibility that
a State may validate a statute that discrim-
inates against interstate commerce by showing
that it advances a legitimate local purpose
that cannot be adequately served by reason-
able nondiscriminatory alternatives. This is
perhaps just another way of saying that what
may appear to be a "discriminatory" provision
in the constitutionally prohibited sense --
that is, a protectionist enactment -- may on
closer analysis not be so. However it be
put, the standards for such justification are
high.1
Id. at 1810. The United States Supreme Court decision in
New Enerov was both anticipated, see. e.g., Miller V.
Publisher Indus.. Inc., 457. So.2d 1374 (Fla. 1984); Archer
Daniels Midland Co . . State ex rel. Allen, 315 N.W.2d 597
(Minn. 1982), and, of course, has been followed. See, e.g.,
Russell Stewart Oil Co. v, State of Illingis, 529 N.E.2d 484
(Ill. 1988).
We conclude that, on the basis of New Enery, a court
presented with the issue would conclude that the Texas
reciprocity provision of subsection (b) (4) of section
153.123 of the Tax Code unconstitutionally violates the
interstate commerce clause of the United States Constitu-
tion. Because of a 1983 amendment including a specific
non-severability provision which has the effect of
invalidating the entire statute if any part thereof is
declared unconstitutional,2 we need not address your first
question.
1. The Court relied upon two fairly recent cases as
precedent: Philadelphia .. New Jersevy, 437 U.S. 617, 624
(1978) ("[W]here simple economic protectionism is effected
by state legislation, a virtually per se rule of invalidity
has been erected.") and Hughes v. Oklahoma, 441 U.S. 322,
337 (1979)("[F]acial discrimination by itself may be a fatal
defect [and] [a]t a minimum . . . invokes the strictest
scrutiny.")
2. Subsection (b)(5) of section 153.123 declares:
(Footnote Continued)p. 5154
Upcoming Pages
Here’s what’s next.
Search Inside
This text can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Text.
Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-1003, text, January 9, 1989; (https://texashistory.unt.edu/ark:/67531/metapth273441/m1/4/: accessed April 22, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.