Marathon Ashland Petroleum LLC v. Galveston Central Appraisal District

Opinion issued July 6, 2007

Opinion

issued July 6, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00531-CV

MARATHON ASHLAND PETROLEUM L.L.C., NOW KNOWN AS,

MARATHON PETROLEUM COMPANY LLC, Appellant

V.

GALVESTON CENTRAL APPRAISAL DISTRICT, Appellee

On Appeal from the 10th District Court

Galveston

County , Texas

Trial Court Cause No. 04CV0841

O P I N I O N

In

this ad valorem tax case resolved on cross motions for summary judgment,

Marathon Ashland Petroleum L.L.C. (Marathon) [1] appeals

the trial court’s judgment in favor of Galveston Central Appraisal District

(GCAD). Marathon contends the trial

court erred because GCAD’s taxation of Marathon’s petroleum products awaiting

transportation to out-of-state customers violates the Commerce Clause of the

United States Constitution. See U.S. Const . art. I, § 8, cl. 3. We conclude that the

petroleum products GCAD seeks to tax had not entered the stream of interstate

commerce on the date of assessment.

Thus, the Commerce Clause does not shield these goods from the state

property tax. We therefore affirm.

Background

Marathon owns an oil and

gas refinery in Texas City,

and it produces petroleum products for its customers. Upon completion of the refining process, Marathon segregates petroleum products destined

exclusively for out-of-state customers from its processing units into refinery

tanks it designates to hold solely those products it intends

to later ship out-of-state. The refined

products remain in the tanks for three to eight days before leaving the

refinery.

Independent common carriers take the

petroleum products from Marathon’s

tanks, either by barge or through one of two pipelines. The pipeline carriers require the products to

meet certain regulatory requirements and specifications before they will

transport them. Marathon

tests the products in its tanks during the three to eight-day interval to

ensure compliance with the regulatory requirements and specifications.

The pipelines connect to Marathon’s

tanks at a manifold containing two valves.

Marathon

controls one of the valves and the pipeline carriers control the other

valve. Marathon must ensure that its valve is

open at the time specified by the pipeline carriers so that the pipeline

carriers can take the products. When the

pipeline carriers are ready to take the products, they open their valve and the

manifold pumps the products into the pipeline.

The

nature of the petroleum refining business dictates that Marathon participate in

a “nomination” process with various pipeline and barge companies to arrange for

the transportation of its products. The

nomination process requires Marathon

to bid for space with the pipeline carriers.

Once the pipeline carriers accept a nomination, they set a date for the

transportation of the product. Marathon often

must nominate its products for transportation before refining begins. Marathon can

change the final destination of nominated products, but this occurs rarely, and

did not occur in this instance.

Marathon

elected to have its inventory appraised as of September 1, 2003 for the 2004

tax year. See Tex. Tax Code Ann .

§ 23.12(f) (Vernon 2001). GCAD valued Marathon’s

inventory at $41,437,170. Of this

figure, $13,991,393 represents the value of petroleum products in Marathon’s

tanks then awaiting transportation to out-of-state customers. After the appraisal review board rejected

Marathon’s tax protest as to its out-of-state products, Marathon sued GCAD, asserting that the

tax violates the Commerce Clause of the United States Constitution. GCAD and Marathon both moved for summary

judgment. The trial court granted GCAD’s

summary judgment, denied Marathon’s summary judgment, and concluded that the

products in Marathon’s

tanks had not entered the stream of interstate commerce on September 1, 2003,

and thus are not exempt from local ad valorem taxation. See

id. § 11.12 (Vernon 2001) (“ Property

exempt from ad valorem taxation by federal law is exempt from taxation.”) .

Interstate Commerce

In

its first and second issues, Marathon contends that the trial court erred in

denying its summary judgment and granting summary judgment in favor of GCAD

because the ad valorem taxation of Marathon’s

petroleum products awaiting transportation to out-of-state customers violates

the Commerce Clause of the United States Constitution. See

U.S. Const . art. I, § 8, cl. 3. GCAD responds that the Commerce Clause does

not protect Marathon’s

petroleum products from ad valorem taxation because the products awaiting

transportation to out-of-state customers have not entered the stream of

interstate commerce.

A. Standard of Review

We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett , 164 S.W.3d 656 ,

661 ( Tex. 2005); Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex.

2003). When reviewing a summary

judgment, we take as true all evidence favorable to the nonmovant, and indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor. Dorsett , 164

S.W.3d at 661; Knott , 128 S.W.3d at 215 ; Sci. Spectrum,

Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex.

1997). Under Texas

Rule of Civil Procedure 166a(c), the party moving for summary judgment bears

the burden of showing that no genuine issue of material fact exists and that it

is entitled to judgment as a matter of law.

Tex. R. Civ. P . 166a(c); Knott ,

128 S.W.3d at 215–16. When both parties

move for summary judgment and the trial court grants one motion and denies the

other, the reviewing court considers the summary judgment evidence presented by

both sides, determines all questions presented, and if the reviewing court

determines that the trial court erred, renders the judgment the trial court

should have rendered. See Dorsett , 164 S.W.3d at 661;

FM Props. Operating Co. v. City of Austin , 22 S.W.3d 868, 872 (Tex.

2000) .

B. Dormant Commerce Clause

The Commerce Clause of the United States

Constitution expressly grants Congress the power “[t]o regulate Commerce with

foreign Nations, and among the several States, and with the Indian

Tribes.” U.S. Const . art. I, § 8, cl. 3 .

T he United States Supreme Court has held that the Commerce Clause prohibits

certain state regulation of interstate commercial activity. Okla.

Tax Comm’n v. Jefferson Lines, Inc. ,

514 U.S.

175 , 179–80, 115 S. Ct. 1331 , 1335–36 (1995); Quill Corp. v. North Dakota , 504 U.S. 298, 309 , 112 S. Ct. 1904,

1911 (1992) . This implicit principle is known as the “dormant

Commerce Clause.” Okla. Tax Comm’n , 514 U.S. at 179 , 115 S. Ct. at

1335 .

The Supreme Court’s decision in Complete Auto

Transit, Inc. v. Brady governs the modern analysis of state taxes on

interstate commerce under the Commerce Clause . 430 U.S. 274, 288 , 97 S. Ct. 1076, 1083 (1977); Vinmar, Inc. v. Harris County Appraisal

Dist. , 947 S.W.2d 554, 555 (Tex. 1997); Diamond Shamrock Ref.

& Mktg. Co. v. Nueces County Appraisal Dist. , 876 S.W.2d 298, 301 (Tex. 1994) .

In Brady , the Court abandoned

the abstract notion that the states cannot tax interstate commerce “itself.” See D.H. Holmes Co. v. McNamara , 486 U.S. 24, 30 , 108 S. Ct. 1619,

1623 (1988) ; Diamond

Shamrock , 876 S.W.2d at 301 . Rather,

t he Court held

that, to be valid, a state tax must: (1) apply to an activity with a

substantial nexus with the taxing state; (2) be fairly apportioned; (3) not

discriminate against interstate commerce; and (4) be fairly related to the

services provided by the state. Brady , 430 U.S. at 279, 287 , 97 S. Ct.

at 1079, 1083 ; see also Japan Line, Ltd. v. County of Los

Angeles , 441 U.S. 434 , 444–45, 99 S. Ct.

1813, 1819 (1979); Diamond

Shamrock , 876 S.W.2d at 301 ; Harris County Appraisal Dist.

v. Transamerica Container Leasing Inc. , 9 20 S.W.2d 678, 682 (Tex. App.—Houston [1st Dist.] 1995, writ

denied).

Goods that have not yet entered the

stream of interstate commerce, however, are part of the general mass of property

in a state and are subject to state taxation in the usual way. Coe v.

Town of Errol ,

116 U.S.

517, 527 , 6 S. Ct.

475, 478 (1886). Under these

circumstances, the Brady test does

not apply. See id. ; see also Brady , 430 U.S.

at 279, 287 , 97 S. Ct.

at 1079, 1083 . In Coe v. Town of Errol , the Supreme Court

held that goods do not enter the stream of interstate commerce “until they have been shipped, or entered with a common carrier

for transportation, to another state, or have been started upon such

transportation in a continuous route or journey.” 116 U.S. at 527 , 6 S. Ct. at 478 ; see also Kosydar

v. Nat’l Cash Register Co. , 417 U.S.

62 , 66–67, 94 S. Ct. 2108, 2111

(1974) (applying same test in case involving Import-Export Clause). For goods to be in interstate commerce, “[i]t

must appear that the movement for another state has

actually begun and is going on.” Hughes

Bros. Timber Co. v. Minnesota ,

272 U.S.

469, 475 , 47 S. Ct.

170, 172 (1926). The mere intention to

send goods out-of-state does not place them in interstate commerce, nor does

preparatory gathering for that purpose at a depot or entrepot. Id. ; Coe , 116 U.S.

at 527 , 6 S. Ct.

at 478 .

The United State Supreme Court has

applied the Coe test in its

construction of the Commerce Clause, [2] the

Import-Export Clause, [3] and the

Export Clause. [4] See

Kosydar , 417 U.S.

at 66–67, 94 S. Ct. at 2111 (Import-Export Clause); Cornell v. Coyne ,

192 U.S.

418 , 427–28, 24 S. Ct. 383 , 384–85

(1904) (Export Clause) ; Coe ,

116 U.S.

at 527 , 6 S. Ct.

at 478 (Commerce Clause) . In each line of cases, the Court has

held that the three clauses do not apply until goods become exports or enter

the stream of interstate commerce under the Coe

test. See Kosydar , 417 U.S.

at 66–67, 94 S. Ct. at 2111 ; Cornell , 192 U.S.

at 427–28, 24 S. Ct. at 384–85 ; Coe ,

116 U.S.

at 527 , 6 S. Ct. at 478 . Cases

involving all three clauses are therefore instructive in our application of the

Coe test to the facts of this case.

In Coe , the Court upheld a tax on logs placed on the bank of a river

although it was undisputed that the owner intended to ship the logs out of the

state. 116 U.S. at 527 , 6 S. Ct. at

478 . Coe placed some logs on the bank of

Clear Stream in the Town of Errol,

New

Hampshire. Id. at

518 , 6 S. Ct.

at 475 . Coe had cut the logs the winter

before and intended to float them down the Androscoggin River to Maine. Id. The Town of Errol

assessed a tax on the logs. Id. Coe sued, challenging the tax under the

Commerce Clause. Id.

at 520 , 6 S. Ct.

at 476 . The Court upheld the tax,

holding that goods intended for exportation do not cease to be part of the

general mass of property in a state, and as such, are subject to taxation in

the usual way. Id.

at 527 , 6 S. Ct.

at 478 . The Court reasoned that Coe

could change his mind with regard to his plans for exportation, and the logs

might never be exported. Id.

at 526 , 6 S. Ct.

at 478 . The Court observed that it would

be “ untenable to hold that a crop or a herd is exempt

from taxation merely because it is, by its owner, intended for

exportation.” Id.

at 527 , 6 S. Ct.

at 478 . The Court recognized:

There must be a point of time when [goods]

cease to be governed exclusively by the domestic law, and begin to be governed

and protected by the national law of commercial regulation, and that moment

seems to us to be a legitimate one for this purpose, in which they commence

their final movement for transportation from the state of their origin to that

of their destination. When the products

of the farm or the forest are collected, and brought in from the surrounding

country to a town or station serving as an entrepot for that particular

region, whether on a river or a line of railroad, such products are not yet

exports; nor are they in process of exportation; nor is exportation begun until

they are committed to the common carrier for transportation out of the state to

the state of their destination, or have started on their ultimate passage to

that state.

Id. at 525, 6 S. Ct. at 477 . The Court held that b ecause the

logs had not begun a “final movement for transportation from the state of their

origin to that of their destination,” the Constitution provided no immunity

from local taxation. Id.

Similarly,

in Kosydar v. National Cash Register Co. , the Court upheld a tax on cash registers awaiting

shipment to foreign countries. 417

U.S.

at 69 , 94 S. Ct.

at 2112–13. National Cash Register Co.

(NCR) manufactured cash registers and sold them in foreign

countries. Id.

at 63 , 94 S. Ct.

at 2109–10. NCR did not maintain an

inventory of registers; it built each register after the customer ordered

it. Id.

at 63 , 94 S. Ct.

at 2110 . After manufacture, NCR

inspected, packed, and crated the registers for shipment abroad. Id. NCR then sent the registers to its warehouse

to await shipment. Id. The tax commissioner assessed an ad valorem

tax on the registers at the warehouse, and NCR sued, challenging the tax as

violative of the Import-Export Clause. Id.

at 63–65, 94 S. Ct.

at 2110–11. Using the test from Coe , the Court upheld the tax on the

ground that the registers at the warehouse were not yet exports. Id. at

69, 94 S. Ct.

at 2112–13. At the time the tax was

assessed, the registers were in NCR’s warehouse awaiting shipment. Id. at

69, 94 S. Ct.

at 2112 . NCR had title and possession of

the registers, and the process of exportation and shipment had not yet

begun. Id.

at 69 , 94 S. Ct.

at 2112–13. The court disregarded the

fact that NCR designed the registers for use in foreign countries, and there

was almost no possibility they could be sold in the United States. Id. at 70 , 94 S. Ct. at 2113 ; see

also Empresa Siderurgica v. County of Merced , 337 U.S. 154,

157 , 69 S. Ct. 995, 997 (1949) (holding that prospect of export, no matter how

bright, does not start process of exportation).

In contrast, in Richfield Oil Corp. v. State Board of Equalization , the Court

struck down a tax on oil that had been loaded onto a ship bound for New Zealand. 329 U.S. 69 , 71–72, 86, 67 S. Ct. 156,

158, 165 (1946). Richfield sold some oil to the New Zealand

government and pumped the oil from a storage tank in California onto a ship bound for New Zealand. Id. at

71 , 67 S. Ct.

at 158 . California assessed a sales tax against

Richfield

measured by the gross receipts from the transaction. Id. at

71–72, 67 S. Ct.

at 158 . Richfield

challenged the tax as violative of the Import-Export Clause of the Constitution. Id. at

72 , 67 S. Ct.

at 158 . Using the test from Coe , the Court held that the oil on the

ship was in the process of exportation, and that a tax on the oil violated the

Import-Export Clause. Id.

at 79, 67 S. Ct.

at 161–62. The Court reasoned that “ [t]he certainty that the

goods are headed to sea and that the process of exportation has started may normally be best evidenced by the

fact that they have been delivered to a common carrier for that purpose.” Id. at

82, 67 S. Ct.

at 163 (footnote omitted). The Court stated:

The foreign purchaser furnished the ship

to carry the oil abroad. Delivery was

made into the hold of the vessel from

the vendor’s tanks located at the dock.

That delivery marked the commencement of the movement of the oil

abroad. It is true, as the Supreme Court

of California observed, that at the time of the delivery the vessel was in California

waters and was not bound for its destination until it started to move from the

port. But when the oil was pumped into

the hold of the vessel, it passed into the control of a foreign purchaser and

there was nothing equivocal in the transaction which created even a probability

that the oil would be diverted to domestic use.

It would not be clearer that the oil had started upon its export journey

had it been delivered to a common carrier at an inland point. The means of shipment are unimportant so long

as the certainty of the foreign destination is plain.

Id. at 82–83, 67 S. Ct. at 163–64. The Court held that because the oil on the

ship had begun the process of exportation under the Coe test, the Import-Export Clause applied to the transaction and

invalidated the tax. Id.

at 82–83, 86, 67 S. Ct.

at 163–65.

In

Coe and Kosydar , the goods sought to be taxed were intended for exportation

out-of-state, but had not yet been shipped, entered

with a common carrier for transportation to another state, or started upon such

transportation in a continuous route or journey . See Kosydar , 417 U.S.

at 66–67, 94 S. Ct. at 2111 ; Coe ,

116 U.S.

at 527 , 6 S. Ct.

at 478 . Thus, Marathon’s intention to ship its

products out-of-state does not place them into the stream of interstate

commerce. See Hughes

Bros. Timber Co. , 272 U.S. at 475 , 47 S. Ct. at 172 (“Mere intention by

the owner ultimately to send the logs out of the state does not put them in

interstate commerce, nor does preparatory gathering for that purpose at a

depot.”); Coe , 116 U.S. at

527 , 6 S. Ct. at 478 .

The nomination process also does not place

Marathon’s

products into the stream of interstate commerce. See

Empresa Siderurgica , 337 U.S. at 157 , 69 S. Ct. at 997 .

In Empresa

Siderurgica v. County of Merced , the Court

expressly held that the prospect of export, no matter how bright, does not

start the process of exportation. Id. ;

see also Kosydar , 417 U.S.

at 69–70, 94 S. Ct.

at 2113 (holding that registers specifically designed for foreign countries had

not begun process of exportation when they were waiting in warehouse to be

shipped). Earmarking products for

transportation on a certain day with a common carrier is not the same as

actually delivering the products to the common carrier for transportation. Compare

Mich.-Wis.

Pipe Line Co. v. Calvert , 347 U.S. 157 , 167–68, 74 S. Ct. 396 ,

401–02 (1954) (holding that taking of gas into common carrier’s pipeline placed

gas into stream of interstate commerce), and

Richfield Oil Corp. , 329 U.S. at

82–83, 67 S. Ct. at 163–64 (holding that oil on ship bound for New Zealand had

begun process of exportation), with Kosydar , 417 U.S. at

69 , 94 S. Ct. at 2112–13 (holding that registers waiting in warehouse to be shipped

had not begun process of exportation), and

Coe , 116 U.S. at 527 , 6 S. Ct. at 478 (holding that logs on bank of stream

waiting to be transported had not yet entered stream of interstate

commerce).

Additionally, Marathon has

the power to change the destination of the products in its tanks. See

Coe , 116 U.S. at 528 , 6 S. Ct.

at 479 . While a representative of

Marathon testified that this rarely occurs, and probably would require Marathon to

breach a contract, these factors are not dispositive. See Kosydar , 417 U.S.

at 69–70, 94 S. Ct. at 2113 ; Empresa

Siderurgica , 337 U.S.

at 157 , 69 S. Ct. at 997 ; Coe , 116 U.S. at 528 , 6 S. Ct. at 479 .

Unlike the oil pumped

onto the ship in Richfield Oil Corp. ,

Marathon

maintains complete control over the products in its tanks. See

329 U.S.

at 83 , 67 S. Ct. at 164 .

Marathon mu st open a valve to allow the

pipeline carriers to remove the products from the tanks, and the pipeline

carriers will not remove the products until Marathon conducts tests to ensure the

products meet certain regulatory requirements and specifications. While Marathon does not control when the

pipeline carriers take the products from the tanks, it does control their

ability to take the products. Control is

an important factor in determining whether the goods have begun the process of

exportation or entered the stream of interstate commerce under the Coe test. See

Kosydar , 417 U.S.

at 69 , 94 S. Ct. at 2112–13; Empresa

Siderurgica , 337 U.S.

at 157 , 69 S. Ct. at 997 ; Richfield Oil

Corp. , 329 U.S.

at 83 , 67 S. Ct. at 164 ; Coe , 116 U.S.

at 526 , 6 S. Ct. at 478 ; Va. Indon. Co. v. Harris

County Appraisal Dist. , 910 S.W.2d 905 ,

912–13 (Tex.

1995).

Marathon ’s movement of the

products from the processing units to the tanks is similar to the movement of

the logs to the bank of the river in Coe ,

or the movement of the registers to the warehouse in Kosydar . See Kosydar , 417 U.S.

at 63–64, 94 S. Ct. at 2110 ; Coe , 116

U.S.

at 518 , 6 S. Ct.

at 475 . Like the bank of the river in Coe , or the warehouse in Kosydar , Marathon’s tanks serve as a depot where

its products await transportation by the pipeline carriers. See

Kosydar , 417 U.S.

at 69 , 94 S. Ct. at 2112–13; Coe , 116

U.S.

at 525 , 6 S. Ct.

at 477 . Gathering goods at a depot or

entrepot in preparation for their journey out-of-state does not place them in

the stream of interstate commerce. See Hughes Bros. Timber Co. , 272 U.S.

at 475 , 47 S. Ct. at 172 ; Coe , 116 U.S. at 527 , 6 S. Ct. at 478 . As was stated in Coe ,

The carrying of [goods] in carts or other

vehicles, or even floating them, to the depot where the journey is to commence,

is no part of that journey. That is all

preliminary work, performed for the purpose of putting the property in a state

of preparation and readiness for transportation. Until actually launched on its way to another

state, or committed to a common carrier for transportation to such state, its

destination is not fixed and certain. It

may be sold or other wise disposed of within the state, and never put in course

of transportation out of the state.

Carrying it from the farm or the forest to the depot is only an interior

movement of the property, entirely within the state, for the purpose, it is

true, but only for the purpose, of putting it into a course of

exportation. It is no part of the exportation itself .

116 U.S. at 528 , 6 S. Ct. at 479

(emphasis added).

We hold that the

petroleum products in Marathon’s tanks awaiting transportation to out-of-state

customers have not entered the stream of interstate commerce because they have

not commenced their movement out of Texas. See id. at 525, 6

S. Ct.

at 477 . Marathon’s products have not been shipped,

entered with a common carrier for transportation to another state, or started

upon such transportation in a continuous route or journey. See id. at 525–27, 6 S. Ct. at 477–78; see

also Kosydar , 417

U.S. at 66–67, 94 S. Ct. at 2111 ; Empresa Siderurgica , 337 U.S.

at 157 , 69 S. Ct. at 997 ; Richfield Oil Corp. , 329 U.S. at 82–83, 67

S. Ct. at 163–64; Champlain Realty Co. v. Town of Brattleboro , 260 U.S. 366,

373 , 43 S. Ct. 146, 148 (1922); but cf. Va.

Indon. Co. , 910 S.W.2d at 912 (holding that goods entered stream of

commerce when they were shipped from vendor to export packer’s facility because

at that point, goods had begun their movement to precommitted foreign

destination). Marathon’s products are

therefore part of the general mass of property in Texas

and subject to the ad valorem tax assessed by GCAD. See Coe , 116 U.S.

at 527 , 6 S. Ct.

at 478 .

Additionally, GCAD’s ad valorem

taxation of Marathon’s

petroleum products does not constitute an impermissible multiple burden on

interstate commerce as denounced in Michigan-Wisconsin

Pipe Line Co. v. Calvert . See 347 U.S.

at 170 , 74 S. Ct.

at 403 . The

petroleum products in Marathon’s tanks awaiting transportation to out-of-state

customers have not entered the stream of interstate commerce and are therefore

part of the general mass of property in Texas and are subject to

state taxation in the usual way. See Coe ,

116 U.S.

at 527 , 6 S. Ct.

at 478 .

Marathon primarily relies upon cases involving the taxation of

goods already in interstate commerce in support of its contentions in this

appeal. See Carson Petroleum Co. v. Vial , 279 U.S. 95,

99, 109 , 49 S. Ct. 292, 292, 296 (1929) (striking down tax on oil traveling in

interstate commerce that was temporarily delayed in Louisiana);

Hughes

Bros. Timber Co. , 272 U.S. at 475–76, 47 S. Ct. at 172 (striking

down tax on logs that had already entered interstate commerce); Champlain

Realty Co. , 260 U.S. at

373 , 43 S. Ct. at 148 (striking down

tax on logs traveling out-of-state in river that were stopped for safety

reasons at mouth of river); Eureka Pipe Line Co. v. Hallanan ,

257 U.S. 265, 272 , 42 S. Ct. 101, 103 (1921) (striking down tax on oil

traveling in interstate commerce that was temporarily delayed in storage tank

by pipeline company); Texas v. Anderson, Clayton & Co. ,

92 F.2d 104, 107 (5th Cir. 1937) (striking down tax on cotton that had already

entered stream of interstate commerce).

These cases are inapplicable because, as we have determined, the

petroleum products in Marathon’s

tanks awaiting transportation to out-of-state customers have not entered the

stream of interstate commerce. See Coe , 116 U.S.

at 525 , 6 S. Ct. at 477 .

Conclusion

We hold that the petroleum products in Marathon’s tanks

awaiting transportation to out-of-state customers have not entered the stream

of interstate commerce and are therefore part of the general mass of property

in Texas

subject to ad valorem taxation. We affirm

the judgment of the trial court.

Jane Bland

Justice

Panel consists of Justices Hanks,

Bland, and Dorfman. [5]

[1] Marathon Ashland Petroleum L.L.C. is now known as

Marathon Petroleum Company LLC.

[2] U.S. Const . art. I, § 8, cl. 3 (“The

Congress shall have Power . . . [t]o regulate Commerce with foreign Nations,

and among the several States, and with the Indian Tribes . . . .”).

[3] U.S. Const . art. I, § 10, cl. 2 (“No State

shall, without the Consent of the Congress, lay any Imposts or Duties on

Imports or Exports . . . .”).

[4] U.S. Const . art. I, § 9, cl. 5 (“No Tax or

Duty shall be laid on Articles exported from any State.”).

[5] The Honorable Grant Dorfman, judge of the 129th

District Court of Harris County, participating by assignment. See Tex. Gov’t Code

Ann. § 74.003(h) (Vernon 2005).