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Click here for the full text of this decision FACTS:The City of Houston, in an effort to protect the public sanitary sewer system from unauthorized waste releases and to deter the discharge of waste into storm sewers and other unauthorized places, passed a series of ordinances to regulate the transportation and treatment of certain non-hazardous wastes. The ordinances required waste transporters to get permits that cost $50, and then pay $400 for each class C vehicle requiring a registration decal. Craig D. Shannon was convicted in municipal court of failing to get a transporter permit and operating a vehicle transporting waste that was not properly designated. On appeal, Shannon argues that the permit and registration fees are unconstitutional under the Commerce Clause because they create a “flat tax” that unduly burdens interstate commerce. HOLDING:Reversed and rendered. The court points out that a state tax will be upheld under the commerce clause if it is applied to activity with a substantial nexus with the state, is fairly apportioned, does not discriminate against interstate commerce and is fairly related to the services provided by the state. Whether a tax is fairly apportioned depends on whether it is internally consistent, the court continues. In American Trucking Associations v. Scheiner, 483 U.S. 266 (1987), the U.S. Supreme Court held that flat taxes were internally inconsistent because if each state imposed one on the privilege of making commercial entrances into its territory, there is no doubt that commerce among the states would be deterred. The tax at issue in this case is similar to the one that was struck down in Scheiner. It unfairly charges the out-of-state transporter the same fee, even if he makes only one trip into Houston, as the fee a local hauler would pay for daily use. And even though the fee is imposed only on transporters of waste originating in Houston, if every state enacted similar fees, transporters would be discouraged from crossing their own local lines for fear of having to pay multiple registration fees. OPINION:Radack, C.J.; Radack, C.J., Nuchia and Hanks, JJ.

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