Lead Opinion
OPINION
This is а statutory-construction case. Robert and Tania Hovel sued a limited liability company, 7677 Real Property LLC, for breach of contract and DTPA violations. After suit was filed but before any determination of liability was made, the company stopped paying its franchise tax and forfeited its corporate privileges. Eventually, the Hovels obtained a default judgment against the company.
The Hovels then sought to have the sole manager of the company, Gal Batzri, held personally liable for the company’s debt under Section 171.255 of the Texas Tax Code. That statute charges corporate directors and officers with personal liability for business debts “created or incurred” after the business fails to pay its franchise tax and before any subsequent revival of corporate privileges. Tex. Tax Code Ann. § 171.255 (West 2015).
The sole manager and the Hovels filed cross motions for summary judgment. The trial court granted the manager’s motion and denied the Hovels’. In two issues, the Hovels contend that the trial court erred in concluding that the manager was not personally liable.
Recognizing that Section 171.255 is penal in nature and that our established
Background
The Hovels contracted with 7677 to build a custom home. 7677 is a Texas limited liability company with a single member and manager: Gal Batzri. The Hovels became dissatisfied, alleging that 7677 was in breach of the construction contract by delivering the home late and with construction defects. The Hovels sued 7677.
The Hovels sought as expectation damages the difference between the contract price and the actual value of the property they received. They also sought consequential damages, reliance damages, mental-anguish damages, and other damages under the DTP A, as well as attorney’s fees and costs. Tex. Bus. & Com. Code Ann. § 17.50(b)(1), (d) (West 2011).
While the suit was pending, 7677 forfeited its charter and corporate privileges by failing to pay its franchise tax. During the period of forfeiture, the Hovels obtained a default judgment against 7677.
Post-default, the Hovels brought this lawsuit, seeking to hold Batzri personally liable for the judgment against 7677 under Tax Code section 171.255, which imposes personal liability akin to a general partnership for “each debt of the [entity] that is created or incurred” between the date that a company forfeits its corporate privileges and the date that it revives them.
Standard of Review
We review a summary judgment de novo. Tex. R. Civ. P. 166a; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
We also review issues of statutory construction de novo. Tex. Lottery Comm'n v. First State Bank of DeQueen,
Section 171.255
Section 171.255 of the Tax Code penalizes directors and- officers of a corporation for knowingly creating or incurring debt in the name of the corporation while its corporate privileges are in forfeiture.
(a) If the corporate privileges of a corporation are forfeited for the failure to file a report or pay a tax or penalty, each director or officer of the corporation is liable for each debt of the corporation that is created or incurred in this state after the date on which the report, tax, or penalty is due and before the corporate privileges are revived. The liability includes liability for any tax or penalty imposed by this chapter on the corporation that becomes due and payable after the date of the forfeiture.
(b) The liability of a director or officer is in the same manner and to the same extent as if the director or officer were a partner and the corрoration were a partnership.
(c) A director or officer is not liable for a debt of the corporation if the director or officer shows that the debt was created or incurred:
(1) over the director’s objection; or
(2) without the director’s knowledge and that the exercise of reasonable diligence to become acquainted with the affairs of the corporation wouldnot have revealed the intention to create the debt.
Tex. Tax Code Ann. § 171.255(a)-(e).
Both- parties agree that Batzri — 7677’s sole member and manager — is personally liable for any debt created or incurred during forfeiture of 7677’s corporate privileges and that the Hovels obtained a default judgment against 7677 .during that period. But the parties dispute whether 7677’s debt was created or incurred when the default judgment was entered or when the tortious or otherwise wrongful conduct occurred that ultimately led to the Hovels’ judgment against 7677.
Relying, in part, on a narrow definition of “debt” adopted by the Legislature in 1987, the Hovels argue that a debt does not come into existence until it is liquidated, their damages remained unliquidat-ed until they obtained the default judgment, and therefore, no debt was created or incurred until the default judgment issued during the forfeiture. Conversely, Batzri argues that the 1987 narrow definition of “debt” is no longer significant because the legislation enacting it has been repealed. He argues for a broad definition of “debt” that includes unliquidated obligations and contends that 7677’s debt was created or incurred when the acts or omissions that gave rise to the Hovels’ claim occurred. According to Batzri, the debt was created or incurred at that time — pre-forfeiture — and the default judgment relates back to that time.
The Rule of “Strict Construction”
Although the statute imposes civil liability, Section 171.255 of the Tax Code operates as a penal statute. Schwab v. Schlumberger Well Surveying Corp.,
More recently, this court reaffirmed strict construction of this penal statute, stating that “we are obliged to interpret section 171.255 and its statutory predecessors as the Texas Supreme Court and this court have, with the recognition that the statute is ‘penal in nature,’ and therefore must be ‘strictly construed’ to protect individuals against whom liability is sought.” Willis v. BPMT, LLC,
Under this rule, a penal statute “cannot be extended beyond the clear import of [its] language.” Schwab,
“Strict construction,” in the context of construing a penal statute, does not mean that each individual term must be read narrowly. It means that, when a statutory provision is unclear, the statute is read in its entirety in a way that benefits the party facing the possibility of a penalty if a fair reading permits it. See Coastal States Gas Producing Co. v. Pate,
The dissent seems to suggest that strict construction is a mechanism to punish an officer or director for conduct of an ongoing corporate entity that occurred while it held its corporate privileges and might be viewed as “wrongful” in a moral sense. Dissent op. at 172-74. We disagree. Its purpose is actually the opposite: “to protect individuals against whom liability is sought.” Willis,
The principle of strict construction applies here as we construe a penal statute that does not clearly state for which debts a director or officer might face individual liability. Section 171.255 speaks only in terms of “debts” “created or incurred” during relevant periods, without defining when a liability is considered a “debt” or at which point debts should be considered “created or incurred.”
Our construction is also guided by past interpretations of this statute. In particular, we consider pre-1987 cases deciding that debts were considered created or incurred at the time the relevant contractual obligations were incurred. Schwab,
Pre-1987 Era: Applying Strict Construction to Conclude that Post-forfeiture Judgments were Created or Incurred when the Pre-forfeiture Acts Transpired
The rule of strict construction, in the sense of achieving a narrow application of a statute as a whole, was first applied in a forfeiture case in Schwab. Analyzing the predecessor statute to Section 171.255, the Texas Supreme Court broadly defined the terms “created” and “incurred” as follows: “ ‘create’ means ‘[t]o bring into existence something which did not exist’ ” and “incur” means “ ‘[b]rought on,’ ‘occasioned,’ or ‘caused.’” Schwab,
Another approach that courts have applied that is Consistent with strict construction' — and 'also consistent with the broad definition of “create or incur” from Schiuab — is the “relation-back” doctrine. That doctrine was first applied to a Section 171.255 case in Curry, which involved a corporation that failed to make lease payments both before and after forfeiting its corporate privileges. Curry,
“Strictly construing” Section 171.255, the court held that the corporate officers were not personally liable because “the obligations, circumstances, conduct, or transactions that create[d] or incur[red] the debt in question pre-existed the forfeiture,” even though the debt was, at that point, still unliquidated. See id. Curry, thus, construed the statute to limit individual liability by applying, for the first time, a “relation-back” doctrine that allowed future liquidated debts to relate back to the execution of the agreement through which damages were owed.
Many intermediate appellate courts have followed Curry. For example, in River Oaks Shopping Center v. Pagan,
This same “relation-back” doctrine was also applied in a tort case. See Rogers v. Adler,
The Rogers plaintiffs claim arose from the pre-forfeiture contract between the plaintiff and the entity-defendant even if the causes of action asserted by the plaintiff “sound[ed] in tort.” Id. According to the court, a claim that “sounds in tort” instead of contract is a “distinction ... without a difference” when the claims relate to the parties’ agreement; therefore, “all claims ... relate back to the contract,” even if expressed as fraud and statutory DTPA claims. Id. By applying the “relation-back” doctrine, the court held that the contract and tort claims were, in effect, created or incurred pre-forfeiture.
1987: The Legislature Enacts a Narrow Definition of “Debt” after which the “Relation-Back” Doctrine is Applied Inconsistently
The Texas Supreme Court has noted that the term “debt” is ambiguous.
That same year, the Legislature adopted a narrow definition of “debt” within the Tax Code as “any legally enforceable obligation measured in a certain amount of money which must be performed or paid within an ascertainable period of time or on demand.”
By adding the narrow statutory definition, the term was no longer ambiguous or subject to broad interpretation by the courts:
The report of the House Ways and Means Committee, the “Fiscal Note” from the director of the Legislative Budget Board, and the bill analysis prepared by the House Research Organization all reflect that the purpose of the amendment was to codify an existing accounting rule of the State Comptroller of Public Accounts that was being challenged in court by various parties. A corporation calculates how much franchise tax it owes based, in part, on the amount of its surplus. The comptroller had adopted an accounting rule prohibiting corporations from deducting from their calculation of surplus any sums set aside by the corporation to provide for contingent or estimated losses. Rather, under the comptroller’s rule, only debts of a fixed amount could be used to reduce a corporation’s surplus. Several corporations had successfully challenged the validity of the comptroller’s rule in court and, although the court rulings were being appealed, the legislature sought to codify the rule in order to protect against a possible revenue shortfall in the event the appeals were unsuccessful. Thus, the legislature added the amendment in order to guarantee that corporations could not, in calculating their franchise taxes, reduce the amount of their surplus by unrealized, estimated, or contingent losses. Rather, as under the comptroller’s rule, only debts of a fixed, certain amount would be allowed to reduce surplus.
Jonnet,
A decade after the narrow “debt” definition was enacted, the Fourteenth court of appeals applied the “relation-back” theory to the phrase “created or incurred.” Similar to what had occurred in Curry and Rogers, the court held that a debt from a negligently performed termite inspection was not “created or incurred” at the time of the default judgment entered against the inspector but, instead, at the earlier time when the inspeсtion was negligently performed. Ballard v. Quinn, No. 14-97-01057-CV,
Given that the Legislature had defined “debt” narrowly to mean a liquidated obligation, the Ballard court concluded that the trial court’s default judgment was the “debt.” Id. However, relying on Curry, the court explained that “a determination of what constitutes the ‘debt’ is only the first step in the analysis. We must next determine when, under the facts and circumstances shown by the record, the obligations evidenced by the debt were‘created’ or ‘incurred.’ ” Id. To answer that question, the court followed Rogers and stated that “the conduct creating the debt occurred when the corporation performed the negligent termite inspection, nearly two years prior to forfeiture of its charter.” Id.; cf. McCarroll v. My Sentinel, L.L.C., No. 14-08-01171-CV,
The “relation-back” doctrine was later rejected by the same Fourteenth court of appeals in Taylor v. First Community Credit Union,
The court discussed the import of the 1987 narrow statutory definition of “debt” implemented by the Legislature and its effect on the often-used “relation-back” doctrine. Id. In the court’s view, permitting a judgment to relate back to the date of execution of a contract would be the equivalent of concluding that the “debt” was created at that point. See id. at 869. But, at that point, “no party had breached the agreement” and “there was no money owed under the agreement.” Id. According to the Taylor court, to hold that a debt existed when the contract had not been breached and no damages could be measured was irreconcilable with the Legislature’s 1987 pronouncement that a “debt” means “any legally enforceable obligation measured in a certain amount of money which must be performed or paid within an ascertainable period of time or on demand.” Id.
The Taylor court concluded that the Legislature must have intended to overrule the use of the “relation-back” doctrine in these Section 171.255 cases when it enacted such a narrow definition of a “debt.” Id. at 869 (stating that “legislative addition of this definition conflicts with the relation back doctrine” and constituted material change in law after relation-back cases were decided).
Post-2008: After Repeal, the Taylor Basis for Rejecting the “Relation-back” Doctrine is Removed
In 2008, the Legislature repealed its narrow “debt” definition while revising the method of calculating franchise taxes.
All of these cases demonstrate application of the rule of strict construction to protect a party facing a penalty through a construction of Section 171.255 in that party’s favor. Courts have focused on when a debt was “created or incurred,” read those terms broadly, and applied the “relation-back” doctrine to link post-forfeiture judgments to pre-forfeiture conduct and agreements. Cases have used this approach, even when the Legislature mandated that “debt” meant a fully liquidated obligation, by concluding that the debt was the judgment but it was created or incurred at the time the conduct occurred or contract was executed. See Rogers,
The exception is Taylor. There, the Fourteenth court of appeals rejected the “relation-back” doctrine when it concluded that a statutory requirement that a debt be liquidated is incompatible with a determination that the debt was “created or incurred” at a point it was still unliquidat-ed. Taylor,
The dissent relies on two cases to argue that the 2008 repeal of the 1987 definition does not allow a reemergence of the “relation-back” theory. First, the dissent relies on Skrepnek v. Shearson Lehman Bros., Inc., to argue that “debt” is incurred on the day of judgment and cannot relate back to the time of the contract.
Second, the dissent relies on Beesley v. Hydrocarbon Separation, Inc.,
The Rule of Strict Construction Leads to Conclusion that 7677’s Debt was “Created or Incurred” Pre-forfei-ture
With this historical context in mind and recognizing that prior precedent supports applying the rule of strict construction to construe penal statutes, such as this one, in favor of the party against whom individual liability would attach, we consider whether the trial court erred by concluding that 7677’s debt was not a debt created or incurred during forfeiture and, as a result, Batzri did not have individual liability under Section 171.255.
We have concluded that the repealed statutory definition is not only no longer binding but, at this point, has become immaterial to our analysis of Section 171.255. See Willis,
That review leads us to note the similarities between the Hovels’ claim and the one pursued in Ballard. In both cases, the plaintiff had a contract with the entity-defendant, the entity-defendant allegedly breached the agreement, the plaintiff asserted tort-based claims alongside breach-of-contraet claims, the entity forfeited its corporate privileges by failing to pay franchise taxes, a judgment was entered against the entity-defendant during the period of forfeiture, and the plaintiff sought to hold an officer or director individually liable under Section 171.255 for that judgment debt.
The Ballard court held that individual liability would not attach. Because “all of the operative facts occurred nearly two years before the corporate charter was forfeited” and the “work performed under the agreement had long since been completed before corporate privileges were forfeited,” “the claims asserted by [the plaintiff] in the underlying suit necessarily related back to and arose out of the contract,” regardless if phrased as a simple breach-of-contract claim or a tort-based negligence claim. Ballard,
We reach a similar conclusion here. The Hovels entered into a contract to purchase a conforming home. When they determined that the home did not meet the standards promised, they sued under contract, statutory, and tort-based theories. All of the conduct underlying their claim, as well as the agreement, occurred prefor-feiture. The only occurrence post-forfeiture was entry of the judgment to liquidate the damages claim.
Applying the rule of strict construction and utilizing the Supreme Court’s definition of the terms “created” and “incurred” from Schwab, we conclude .that the debt evidenced by the default judgment obtained by the Hovels against 7677 was created or incurred pre-forfeiture at the time that the parties established their contractual and other obligations and, as such, Batzri is not individually liable for the entity’s debt.
Public Policy Supports Broadly Construing “Created or Incurred”
Finally, even if we were to consider public policy, we would reject the Hovels’ contention that this interpretation is misguided. Section 171.255 is designed to support three public-policy goals: first, to motivate corporate officers and directors to ensure that franchise taxes are paid; second, to protect those dealing with the corporation;
The first purpose has been satisfied: 7677 paid its outstanding franchise taxes. The third purpose is inapplicable because there is no evidence that 7677 had other outstanding bills that it incurred after forfeiture. 7677 and its officers did not enter
The second purpose is likewise inapplicable because the Hovels were no longer in a contractual relationship with 7677 at the time it forfeited its corporate status; the construction of their home had long before been completed. This is not a situation in which individuals are interacting with a corporation without realizing that it had forfeited its corporate privileges.
The Hovels argue, “If this Court were to adopt Batzri’s proposed interpretation of the statute, unscrupulous investors would have an incentive to undercapitalize their businesses ... and then default on their franchise tax obligations in the event that the business becomes potentially liable ...” But neither the text of the statute nor any legislative history provided by the parties suggests that the statute was intended to protect creditors
We reject the Hovels’ argument for two reasons. First, the Hovels’ issue is one of statutory interpretation. Second, we do not share the Hovels’ alarm. Undercapi-talization is a risk inherent in any contractual relationship with a limited-liability en
Response to Dissent
A comparison of our opinion and that of the dissent shows that the Section 171.255 cases can be reconciled in two very different ways. In our view, the outcomes are generally compatible if viewed chronologically in recognition of when the Legislature narrowly defined “debt” and then did away with that definition. The outcomes, likewise, are generally compatible when we distinguish between claims arising from pre-forfeiture contracts — whether they be expressed as purely contract claims or a mixture of contract, tort, and statutory claims — and other claims that do not arise from a pre-forfeiture contractual relationship between the parties.
In the dissent’s view, the dividing line between when an officer or director of a forfeited entity will be held liable and when he will not has always been located at the point that his conduct might be considered “culpable” or “wrongful.” If the debt was “lawfully created in the exercise of corporate officers’ duties before forfeiture,” according to the dissent, the officer or director escapes individual liability. If, on the other hand, the debt results from “wrongful acts,” “either before or after forfeiture,” for which the officer or director is viewed as “culpable,” there will be post-forfeiture individual liability. Dissent op. at 158-60; 171.
We believe the dissent’s definitions of “wrongful act” and “culpability” are different than the meanings assigned to those terms in the case law. See e.g., Rossmann,
Moreover, the dissent’s litmus test of whether a business action should be con
We submit that use of the tern “wrongful,” which can be traced back to the foundational post-forfeiture individual liability case, Schwab, was not a call to judge behavior as “culpable” (or not) in a moral or tortious sense. Instead, it was attached to the concept of knowingly entering into a contract in the name of an entity with full appreciation of the fact that the entity no longer held its corporate privileges due to failure to pay franchise taxes. Schwab states, “It thus seems obvious that the liability imposed under the statute is only for debts contracted after the forfeiture of the right to do business.... ”
A second major difference between our opinion and that of the dissent is the application of the rule of strict construction. The dissent disagrees that the rule of strict construction should be applied because “neither Schwab nor Curry characterizes section 171.255 as a penal, or criminal, statute as opposed to a civil one, or as an ambiguous statute to be construed in favor of culpable defendants.” Dissent op. at 162. But the Texas Supreme Court requires that we apply the rule of strict construction to a penal civil statute. See, e.g., City of Houston v. Jackson,
Conclusion
Businesses frequently fail and close their doors. When they do so, they should follow the corporate formalities for closing the business and pay outstanding franchise taxes. But the failure to pay those taxes does not open the door to liability that may be far out of proportion to the unpaid taxes — here over $2 million — unless Section 171.255 makes clear that such a result will follow. It does not. Perhaps there are compelling arguments for holding officers and directors of defunct corporations personally liable, but those policy decisions are not ours to make. Instead, we apply the rules of statutory construction. Because this penal statute must be strictly construed and may not be read to penalize more than is indicated by its terms, we conclude that individual liability is not statutorily authorized under these facts.
When the Hovels contracted with 7677, it was a corporate entity in good standing. The Hovels necessarily intended to look to it, and not to the individual owner, to perform the contract. They were not barred from seeking relief from Batzri for any individual wrongdoing by him because tortfeasors are always liable for their own torts. But they are not able to impose individual liability based solely on the fortuitous timing of the default judgment when the contract, breach, and any bad acts all occurred pre-forfeiture.
An Issue We Do Not Reach: Limiting “Debt” to Contractual Debts
There is another approach consistent with the rule of strict construction that would also favor the party against whom the penalty is sought: construe the word “debt” as limited to contractual debts. In Rogers, which involved contract and tort claims that led to a post-forfeiture judgment held to relate back to the pre-forfei-ture agreement, the Dallas court of appeals refused to reach this issue:
Our holding in this respect should not be taken as favoring a construction of Section 171.255 which would impose individual liability for purely tortious acts committed by a corporation or its agents before forfeiture but reduced to debt after forfeiture. We do not consider this question to be presented by the facts of this case and, therefore, expressly reserve opinion on the question.
Rogers,
Disposition
Having concluded that the debt was not created or incurred post-forfeiture, we
Keyes, J., dissenting.
Notes
. By the time the Hovels sued 7677, their business relationship had ended; all that was left was for their unliquidated claim to be judicially reduced to a liquidated damages award.
. The Hovels’ suit included other defendants. The Hovels’ claims against 7677 were resolved in their favor by the $2 million default judgment. Their claims against the other defendants were subsequently tried to a jury and resulted in a judgment of less than $250,000. Those defendants pointed to 7677, in its absence, as the liable party. The jury’s findings are not legally relevant to the prior default judgment against 7677.
. Throughout this opinion, we use "forfeiture” as shorthand for the earliest date after which the statute begins imposing personal liability for debts thereafter created or incurred. Many courts have made use of this shorthand, as we do, for readability. See, e.g., McKinney v. Anderson,
. In addition, the failure to pay the required taxes results in a 5% penalty due to the State. Tex. Tax Code Ann. § 171.362(a) (West 2015).
.Subsection (b) holds officers and directors individually liable, as if they were partners in a general partnership, for the entity's debts created or incurred after the forfeiture. The statute assigns such liability prospectively; it does not look back in time to assign individual liability for acts that occurred pre-forfei-ture — while the corporate form still existed— as a form of punishment. In our view, this provision does not support the dissent’s conclusion that the statute is intended to punish officers of tortious entities by reaching back in time to impose individual liability for actions that occurred before forfeiture. Dissent op. at 156, 158-59, 171-74.
. The penalty is particularly draconian for an officer or director who may not even have any ownership in the corporate entity.
. This rule functions much like the rule of lenity. The rule of lenity typically applies in the criminal context. See Phillip M. Spector, The Sentencing Rule of Lenity, 33 U. Tol. L. Rev. 511, 511-12 (2002) (“The rule of lenity counsels that criminal laws should be narrowly interpreted in favor of criminal defendants”). But the rule of strict construction, which applies in the context of a civil penal statute, operates in a similar way as the criminal rule of lenity.
As noted by two commentators,
the rule of lenity is underused in modem judicial decision-making — perhaps the consequence of zeal to smite the wicked. The defendant has almost always done a bad thing, and the instinct to punish the wrongdoer is a strong one. But a fair system of laws requires precision in the definition of offenses and punishments. The less the courts insist on precision, the less the legislatures will take the trouble to provide it.
Scalia & Garner, supra, at 301.
. We disagree with Cain v. State,
. As discussed below, the Fourteenth court later determined that Pagan was overruled by the Legislature when it added a statutoiy definition of "debt.” Taylor v. First Cmty. Credit Union,
. Some cases have employed the term "relate back,” while others have, in a more general sense, held that the term "created or incurred” is broad enough to include earlier events in the chain of events that led to a post-forfeiture judgment. Compare Rogers v. Adler,
. In 1984, the Texas Supreme Court defined "debt” as used in the Probate Code — not the Tax Code — narrowly as a "specified sum of money owing to one person from another, including not only [an] obligation of [a] debt- or to pay but [the] right of [a] creditor to receive and enforce payment.” Seay v. Hall,
.This definition was added as part of legislation setting forth the computation of franchise taxes. See Wilburn v. State,
. We recognize, of course, that Ballard lacks precedential value. But, as we explain, there are numerous similarities between the Ballard case and this one, and we believe the analysis is persuasive.
. The Taylor court relied on the 1987 definition even though it had been repealed by that point because all of the material events in the case occurred pre-repeal. See Taylor,
. 15 This repeal was part of a series of amendments designed to fund Texas schools by adopting new methods to calculate businesses’ tax bills. Senate Research Center, Bill Analysis, Tex. H.B. 3, 79th Leg., 3d C.S. (2006).
. We respectfully disagree with the dissent's interpretation of Energy Service Co. of Bowie, Inc. v. Superior Snubbing Services, Inc.,
. The dissent asserts that Texas law does not follow the rule that a repealed statute should be treated as inapplicable and, instead, requires us to continue to implement a repealed definition if its repeal was for unrelated reasons. Dissent op. at 166-68. We cannot agrée for two reasons. First, Texas law permits a court to consider former versions of a statute, but it does not require it. Klevenhagen v. Int’l Fid. Ins. Co.,
. Schwab,
. Rossmann,
. There is no basis for concluding that Section 171.255 was enacted to provide a remedy to a creditor of the corporation when none would otherwise exist. The officers and directors of a defunct corporation may relieve themselves of personal liability for any debts by formally winding up the corporation's affairs. See Tex. Bus. Orgs. Code Ann. §§ 11.051; 21.501, et seq. (West 2012). The Hovels^ have not identified any authority holding that personal liability under the Tax Code is designed not only to create an incentive to pay the outstanding tax but also to provide а remedy to creditors if the actions are cast as "culpable” or “wrongful.”
. Among those steps, a corporation must "send a written notice of the winding up to each known claimant against the [corporation],” Tex Bus. Orgs. Code Ann. § 11.052(a)(2) (West 2011), and, to the extent that it has sufficient assets, "apply and distribute its property to discharge, or make adequate provision for the discharge of all of the [corporation's liabilities and obligations.” Id. § 11.053; see Burnett v. Chase Oil & Gas, Inc.,
Contract creditors may also seek to pierce the corporate veil under Sections 21.223-.225 of the Business Organizations Code. Tex. Bus. Orgs. Code Ann. §§ 21.223-225 (West 2015). Tort creditors may seek to pierce the corporate veil under the common law. See SSP Partners v. Gladstrong Invs. (USA) Corp.,275 S.W.3d 444 , 451 (Tex. 2008) (corporate form may be disregarded when it "has been used as part of a basically unfair device to achieve an inequitable result,” such as "when the corporate structure has been abused to perpetrate a fraud, evade an existing obligation, achieve or perpetrate a monopoly, circumvent a statute, protect a crime, or justify wrong,” including alter ego doctrine) (internal quotation marks omitted); but see Target Strike, Inc. v. Marston & Marston, Inc., No. SA-10-CV-0188-OLG NN,2011 WL 1486568 , at *2 (W.D.Tex. Apr. 19, 2011), aff'd,524 Fed.Appx. 939 (5th Cir.2013) (stating that under Section 21.223 corporate shareholder is held liable for "the corporation's contractual obligations or matters relating to or arising from the obligations” and therefore granting summary judgment on tort claims underlying piercing-corporate-veil claims). The Hovels did not seek relief under any of these statutes.
. Willis,
Dissenting Opinion
Justice, dissenting.
There is an aphorism: ‘You can ignore reality, but you cannot ignore the consequences of ignoring reality.” This case requires this Court to determine whether, under Texas Tax Code section 171.255, appellee Gal Batzri, the sole shareholder, officer, and director of 7677 Real Street, L.L.C. (“7677”), should be held liable to appellants Robert and Tania Hovel for the torts of negligent misrepresentation and fraud committed against them by 7677 that were reduced to a liquidated judgment debt against the corporation after it forfeited its corporate charter. The majority has chosen to ignore the reality of seyenty unbroken years of the,-Texas 'Supreme ^Court’s and appellate courts’ consistent construction of section 171.255 and to substitute its own alternative meaning of the statute’s terms under its own chosen rules of construction.
The purpose of section 171.255, as clearly stated by the Texas Supreme Court in 1946 and unchanged since then, is to prevent wrongful acts by culpable corporate directors and officers and to protect the public — particularly those who deal with corporations — by imposing personal liability on those officers for “debts of the corporation ... created or incurred” after forfeiture of the corporate charter as a result of such wrongful acts. The Texas Supreme Court has required “strict construction” of the terms of section 171.255 to ensure that culpable corporate officers and directors are held liable for debts of the corporation created or incurred after forfeiture of a corporate charter to the same extent that a culpable partner may be held liable for the debts of a general partnership, including being held personally liable for wrongful' acts of the corporation that occurred before forfeiture but were reduced to a debt of the corporation after forfeiture, as here. Following that law, I would reverse the trial court’s judgment and render judgment in the Hovels’ favor.
The majority in this case holds just the opposite. Based on its own new construction of the terms of section 171.255 under its own rules, the majority affirms the trial court’s judgment and absolves Batzri from liability to the Hovels for 7677’s judgment debt for fraud and negligent misrepresentation, effectively preventing them from recovering redress for the wrongs done to them.
Both the majority’s reasoping/ánd -its holding are exactly cqntrary to all precedent ^nd .to the statute’s clear meaning and purpose. Although recognizing that Texas Supreme Court law requires that section 171.255 of the Tax Code be strictly, or narrowly, construed in accordance with its language, the majority reasons that section 171.255 is not an unambiguous civil liability statute that must be strictly construed to impose liability on culpable corporate officers to prevent corporate wrong-doing, as the statute itself states. Rather, section 171.255 is an ambiguous “penal” statute that must be broadly construed to protect culpable officers under the virtually obsolete canon of construction of ambiguous criminal statutes known as “the rule of lenity” — a rule of construction which requires broad construction of ambiguous criminal statutes in favor of criminal defendants.
Accordingly, Batzri, viewed leniently as a criminal defendant, is not liable for 7677’s debt to the Hovels, since the corpo
The result is an opinion that contravenes the purpose and plain language of section 171.255, the previously uniform history of the statute’s construction, and the policy of the state of Texas. It also creates a conflict with all other Texas Courts of Appeals — including the Texas Supreme Court and our sister court, the Fourteenth Court of Appeals. This act of judicial will renders the law unreliable, puts this Court at odds with all other courts, wastes judicial resources, and greatly increases the delay and costs of litigation in this case, even as it invites review and reversal. Those are the consequences of ignoring the reality of the law. I, therefore, dissent.
I would reverse the judgment of the trial court in favor of Batzri and render judgment in favor of the Hovels.
Background Facts
Because the majority opinion does not include all facts necessary for the proper disposition of this appeal, the material facts and their significance are restated below.
In 2008, the Hovels hired 7677 to build a house for them. Batzri was 7677’s sole shareholder, director, and president. After discovering numerous construction defects in the home, the Hovels filed a lawsuit in February 2010 against 7677 and others, asserting breach of contract, violation of the Deceptive Trade Practices Act, and other related causes of action. 7677 subsequently failed to pay its franchise tax and thus forfeited its charter on March 25, 2011, and its corporate privileges on July 29, 2011.
Almost two years after 7677’s forfeiture of its charter, the case was tried to a jury on March 18, 2013. 7677 did not appear at trial. The trial court therefore granted a default judgment against 7677 on March 28, 2013, and the trial proceeded against other defendants. The jury found that 7677, alone among the several defendants, committed fraud and statutory fraud against the Hovels, and it awarded them $59,000 in compensatory damages to repair their home. The jury also found that 7677 made a negligent misrepresentation on which the Hovels justifiably relied and was 100% liable for any negligent misrepresentation, and it awarded the Hovels $59,000 for “[t]he difference ... between the value of what the Hovels received in the transaction and the purchase price or value given.” It also awarded them $183,000 for “[t]he economic loss ... otherwise suffered in the past as a consequence of the Hovels’ reliance on the misrepresentation.”
On April 29, 2013, the trial court rendered its final judgment memorializing the default judgment against 7677 and incorporating by reference the jury charge and the jury findings, which the court acknowledged it had “received, filed, and entered of record.” The judgment stated that it “finally disposes of all claims and all parties and is appealable,” and it ordered that execution issue against 7677.
On July 24, 2013, the Hovels filed this suit against Batzri personally, alleging that
On cross-motions for summary judgment, the trial court granted summary judgment in favor of 7677 and Batzri, holding him not liable for 7677’s judgment debt to the Hovels, and it denied the Hovels’ cross-motion on the ground that the “debt” was incurred before the forfeiture of corporate privileges — an error the majority repeats.
Discussion
The resolution of this case turns on whether 7677’s “debt” to the Hovels was the judgment debt incurred by 7677 two years after it forfeited its charter or an unliquidated “debt” created by 7677’s wrongful acts of fraud and negligent misrepresentation committed by 7677 before it forfeited its charter and several years before that “debt” was reduced to the Hovels’ tort claims against 7677 and tried to a money judgment against the corporation. The trial court and the majority say that 7677’s “debt” to the Hovels was “created or incurred” at the time 7677 committed its wrongs of negligent misrepresentation and fraud against the Hovels, before 7677’s forfeiture of corporate privileges, and thus Batzri is not liable for the debt. However, seventy years of construction of section 171.255 and its predecessor statute say that the debt was incurred when the Hovels’ claims against 7677 were reduced to an enforceable liquidated obligation of the company in the form of a money judgment two years after 7677 forfeited its corporate charter. Following the law as historically developed, I would construe section 171.255 in accordance with its language and express purpose, and I would hold Batzri personally liable for the damages awarded to the Hovels in their judgment against 7677. The majority does the opposite.
Construction of Tax Code Section 171.255
The first questions to be answered in construing Tax Code section 171.255 are (1) what is a “debt of the corporation” and (2) when is a debt “created ... or incurred” for purposes of the section? The final question is whether the money judgment obtained by the Hovels against 7677 two years after forfeiture of its corporate charter is a post-forfeiture debt of 7677 enforceable against Batzri, the sole оfficer and director of 7677, under section 171.255.
A. Standard of Review of Statutory Construction
The primary objective of a court in construing a statute is to give effect to the legislature’s intent. State v. Shumake,
Texas has long recognized that “the entire statute is intended to be effective,” that “a just and reasonable result” is intended, and that the “public interest is favored over any private interest.” Tex. Gov’t Code Ann. § 311.021(2), (3), (5) (West 2013); see Brooks,
B. Tax Code Section 171.255
Tax Code section 171.255 provides, in relevant part:
(a) If the corporate privileges of a corporation are forfeited for the failure to ... pay a tax or penalty, each director or officer of the corporation is liable for each debt of the corporation that is created or incurred in this state after the date on which the report, tax, or penalty is due1 and before the corporate privileges are revived. The liability includes liability for any tax or penalty imposed by this chapter on the corporation that becomes due and payable after the date of the forfeiture.
(b) The liability of a director or officer is in the same manner and to the same extent as if the director or officer were a partner and the corporation were a partnership.
(c) A director or officer is not liable for a debt of the corporation if the director or officer shows that the debt was created or incurred:
(1) over the director’s objection; or
(2) without the director’s knowledge and that the exercise of reasonable diligence to become acquainted with the affairs of the corporation would not have revealed the intention to create the debt.
TÉx. Tax Code Ann.& 171.255(a)-(c) (West 2015) (emphasis added).
Under subsection 171.255(a), enforceable obligations or “debt[s] ... created or incurred” before forfeiture of a corporate charter (more precisely, in terms of the statute, created or incurred. before the date a tax or penalty was due but was not paid, resulting in forfeiture of the charter) are not enforceable against corporate officers or directors after forfeiture of the charter. See id. § 171.255(a). This provision reflects the corporate shield doctrine. See Willis v. Donnelly,
Reflecting these bedrock principles of corporate law, subsection 171.255(b) provides that a director or officer of a corpo
Because an officer or director of a corporation with knowledge of a debt of the corporation wrongfully created or incurred after forfeiture is jointly and severally liable for the debt, the questions of what constitutes a “debt” of the corporation and when the debt is “created or incurred” are of paramount importance in construing section 171.255.
C. The Strict Construction Rule for Construing “Debt ... Created or Incurred” in Section 171.255(a) and the “Relation-Back” Doctrine
1. Schwab and Silberstein and the strict construction rule
Texas ease law prior to this case has consistently defined the “debt” of a corporation, as used in section 171.255, as “any legally enforceable obligation measured in a certain amount of money which must be performed or paid within an ascertainable period of time or on demand.” Taylor v. First Cmty. Credit Union,
Taylor, decided in 2010, defined “debt” in the language of a statutory definition added to Tax Code Chapter 171 in 1987 and repealed effective 2008 as part of a recodification of Chapter 171 unrelated to section 171.255. In doing sо, however, it relied on an unbroken history of binding case law construing section 171.255 and defining “debt” as an enforceable financial obligation of the corporation that now dates back seventy years to the Texas Supreme Court case of Schwab v. Schlumberger Well Surveying Corp.,
In Schwab, the Texas Supreme Court construed the language “debt ... created or incurred” with respect to the predecessor of section 171.255 to determine whether an officer of a corporation that had forfeited its charter could be held personally liable for payment of a promissory note of the corporation- — that is, a legally enforceable obligation of the corporation measured in a certain amount of money— that was renewed after forfeiture of the charter.
The court reasoned that the word “created” means “[t]o bring into existence,” while the word “incurred” means “[b]rought on, occasioned, or caused.” Id. Using these definitions, the court held that no new debt of the corporation was created or incurred after forfeiture of the corporate charter and that the predecessor to section 171.255 had “no application to the renewal of obligations arising prior thereto” and therefore did not impose liability on corporate officers for such debts. See id. at 81-82. The court refused to hold the officer of the corporation whose charter had lapsed personally liable on the promissory note renewed after forfeiture because the note merely renewed an enforceable financial obligation of the corporation incurred in the regular course of business prior to forfeiture and was not attributable to “official delinquencies.” Id.
The Schwab court explained its construction of section 171.255 in accordance with “the clear import of [its] language” as appropriate to effectuate the purpose of the statute, stating, “The statute was meant to prevent wrongful acts of culpable officers of a corporation, and was for the protection of the public and particularly those dealing with the corporation.” Id. (emphasis added). The “strict construction” rule pronounced in Schwab provides that section 171.255 “cannot be extended beyond the clear import of [its] language” so that the purpose of the statute is achieved: to protect officers and directors of a corporation that has forfeited its charter from joint and several liability for the debts of the cоrporation only insofar as those debts arose from activities performed in the scope of their duties and, therefore, insulated those officers and directors from personal liability. See id. at 81; see also Portlock,
Twenty years after Schwab, the Texas Supreme Court again read section 171.255 strictly in accordance with its plain language and purpose. In that case, however, it held officers and directors of a franchisee corporation that had forfeited its charter liable for a liquidated corporate debt of $1,867.58 incurred for the purchase of merchandise for the corporation four years after forfeiture. See First Nat’l Bank of Boston v. Silberstein,
In 1992, the Austin Court of Appeals contrasted statutes imposing a corporate franchise tax — which are to be liberally construed in favor of the taxpayer to effectuate their purpose as revenue statutes— and “statutes making directors and officers liable for corporate debts,” like section 171.255, which “must be strictly construed and cannot be extended beyond the clear meaning of their language.” Wilburn v. State,
Up until the present, section 171.255 has consistently been strictly construed to ensure that an officer or director of a corporation that has forfeited its corporate charter is held personally liable only for a “debt” of the corporation, narrowly defined as an enforceable liquidated obligation of the corporation that is “created or incurred” after forfeiture for a wrongful act of the corporation of which the defendant had knowledge. See In re Trammell,
In none of this history is there any indication that the term “debt” in section 171.255(a) is to be construed broadly so that it is “created or incurred” when the corporation commits a wrongful act, as the majority holds. Nor is there any indication that section 171.255 is to be construed in accordance with the criminal law rule of lenity to protect corporate officers and directors from personal liability for wrongful acts of the corporation of which they had knowledge, including intentional torts of the corporation, that result in a liquidated corporate obligation after forfeiture of the corporate charter. Rather, the established law is exactly the opposite.
The requirements of strict construction do, however, create a tension between section 171.255’s protection of corporate officers from liability for enforceable obligations of the corporation created or incurred as a result of the corporate officers’ activities within the scope of their duties in creating enforceable obligations of the corporation before forfeiture that are liquidated after forfeiture and its imposition of personal liability on corporate officers for liquidated debts of the corporation incurred after forfeiture as a result of wrongful acts of the corporation prior to forfeiture. The courts have resolved this tension by developing the “relation-back doctrine.”
2. Curry and Cain and the “relation-back doctrine”
Schwab’s strict construction rule requires both (1) that the phrase “debt ... created or incurred” in section 171.255(a) must be strictly construed to hold “culpable officers” and directors of a corporation
In 1994, in Cain v. State, the Austin Court of Appeals addressed the courts’ resolution of the tension, discussing at length the historical development of the strict construction of section 171.255.
The Cain court focused its analysis of this problem on Curry Auto Leasing, Inc. v. Byrd,
The relation-back doctrine, as expressed in Cain and Curry, holds that “[w]hen parties enter into a contract the law presumes they intend the consequences of its performance. It follows that performance. or implementation of the contractual provisions relate back to and are authorized at the time of execution of the contract.” Id. (quoting Curry,
In Curry, a corporation entered a car-lease agreement in the regular course of business and breached it before forfeiture of its corporate charter, but the sums owed to the non-breaching party were not calculable until after the sale of the leased car, and that sale did not occur until after forfeiture of the corporate charter; thus, although an enforceable lease contract was entered in the regular course of business before forfeiture, no liquidated obligation came into existence until after forfeiture. See Curry,
The Cain court observed, “Other decisions have followed Curry in its application of the rule of ‘strict construction’ and the relation-back doctrine. In these decisions also, the corporation breached its contract before forfeiture but damages were not calculable or liquidated until after forfeiture of corporate privileges.”
A common feature of Curry and the subsequent decisions is they (1) assume the word “debt” carries a narrow, restricted meaning of a liquidated money obligation that is legally enforceable but (2) apply the relation-back doctrine to hold against personal liability of officers and directors notwithstanding that assumption. Unless the courts acted under that assumption, the relation-back doctrine is meaningless.
Id. (emphasis in original).
The Cain court stated, “All the relevant decisions after Schwab turn on the rule of statutory construction known as the ‘strict construction’ rule coupled with the relation-back doctrine.” Id. It pointed out,
Schwab adhered to the narrow or strict meaning of the word “create” and operated, moreover, on the assumption that the word “debt” also was similarly restricted to its technical meaning of a liquidated obligation that was legally enforceable against the corporation. The subsequent decisions mentioned previously also operated on that assumed meaning in applying the relation-back doctrine.
Id. at 518.
Cain itself, however, like this case, presented the opposite situation from that in Curry for which the relation-back doctrine was devised — one in which a liquidated financial penalty was incurred by a corporation after forfeiture of its charter for wrongful acts of the corporation that occurred prior to forfeiture. In Cain, after ordering an oil-well operator corporation to plug a number of oil wells, which it failed to do, the Texas Railroad Commission authorized the expenditure of State funds to plug the wells. Id. at 516. Six months later, the corporation forfeited its corporate charter for failure to file its franchise-tax report. Id. Subsequently, the Commission paid nearly $50,000 to plug the wells and then sought to collect the state funds it had spent from Cain, an officer and director of the corporation. Id.
The court observed that Cain was “contending] for a liberally expanded interpretation of the words ‘debt’ and ‘create’ so that they encompass legal obligations of all kinds, rather than liquidated money obligations only” — exactly like Batzri and the majority in this case. See id. at 519. But, the court concluded,
So far as we are able to find, the word “dеbt” as used in [section 171.255] has never been thought to include an obligation that is unliquidated. Indeed, it is difficult to see how such a meaning could be assigned the word if it is required to be construed strictly, that is to say, narrowly, literally, and technically.
Id. That being the case, the Cain court held that the relation-back doctrine did not apply to protect Cain from liability under section 171.255 for the penalty incurred after forfeiture based on the wrongful acts
Thus, under Curry and its progeny, money owed, or a liquidated debt incurred after forfeiture of a corporate charter on a legally enforceable contractual obligation of a corporation lawfully created in the exercise of corporate officers’ duties before forfeiture relates back to the creation of the enforceable obligation, even though the debt is not liquidated or not fully liquidated before forfeiture, and corporate officers are not personally liable for the debt. And under Cain and its progeny, financial penalties and money judgments incurred as enforceable liquidated obligations of a corporation after forfeiture of its corporate charter due to the wrongful acts of the corporation, occurring either before or after forfeiture, do not relate back to the date of the unlawful act that generated the post-forfeiture penalty or judgment, and liability for the debt may be imposed upon the corporation’s culpable corporate officers and directors under section 171.255.
3. Historical application of the “strict construction” rule and the “relation-back” doctrine
Since the time of Curry and Cain, the Texas appellate courts have consistently applied the strict construction rule and the relation-back doctrine as stated above.
In 1994, two months before deciding Cain, the Austin .Court of Appeals, strictly construing section 171.255, held that a corporation’s directors and officers were personally liable for penalties assessed against the corporation after forfeiture of its charter, holding that the “debt” was created or incurred when the Texas Railroad Commission assessed the penalties. Jonnet v. State,
The Jonnet concurrence — authored by the same judge who would author Cain two months later — would have reached the same conclusion on different grounds by inquiring into the legislature’s intended meaning of the word “debt” in section 171.255. The concurrence pointed out that the word “debt” can have various meanings; “[i]n legal usage, however, the word ‘debt’ carries a narrower, restricted, and technical meaning,” namely “a liquidated money obligation that is legally enforceable.” Id. at 525 (Powers, J., concurring) (emphasis in original), (citing Seay,
The Jonnet concurrence cited Schwab,
Since these cases were decided, the Texas courts have consistently, until now, defined the term “debt” in section 171.255(a) as a legally enforceable liquidated obligation, and they have consistently applied the relation-back doctrine to save officers and directors from liability under 171.255 for legally enforceable financial obligations of a corporation created or incurred in the scope of their duties before forfeiturе of the corporate charter, even if those obligations were not liquidated until after forfeiture. But they have never held that section 171.255 protects culpable officers of a corporation from liability for penalties or judgments incurred after forfeiture as enforceable liquidated financial obligations of the corporation due to wrongful acts of the corporation before or after forfeiture.
Skrepnek v. Shearson Lehman Bros., Inc.,
Similarly, in Taylor, a lender brought an action against an automobile-dealership corporation and its officer-director for the balance due on defaulted retail automobile installment contracts. See Taylor,
By contrast, Beesley v. Hydrocarbon Separation, Inc. falls into the line of cases in which the relation-back doctrine does apply and corporate officers and directors are not held liable for corporate obligations liquidated after forfeiture. In Beesley, the Dallas Court of Appeals held that the promoter and officer of a corporation that had forfeited its corporate charter could not be held personally liable for the corрoration’s breach of a consulting agreement entered into by the corporation and its former owner before forfeiture.
Thé distinction drawn in Beesley between types of debt to which the relation-back doctrine does and does not apply is informative here. It places the judgment entered against 7677 squarely within the category of liquidated judgment debts incurred by a corporation after forfeiture of the corporate charter as a result of acts of wrongdoing by the corporation that occurred prior to forfeiture. The relation-back doctrine does not apply to such acts of wrongdoing, and corporate officers and directors with knowledge of the wrongdoing may be held personally liable for the corporate debt under section 171.255.
I agree with the law as set out in Bees-ley and the other foregoing cases and find in them the correct construction of section 171.255. Thus, I disagree with the majority’s unique construction of section 171.255. Because the scenario in Cain and its progeny — in which the relation-back doctrine was held not to apply — is materially the same as here, I would apply the same reasoning as in Cain, and I would hold that the debt in this case was incurred when the Hovels obtained a legally enforceable liquidated money judgment against 7677 two years after forfeiture of 7677’s corporate charter for its wrongful acts of negligent misrepresentation and fraud against them prior to forfeiture. Therefore, I would hold that Batzri, as 7677’s sole officer and director, is personally liable to the Hovels for that debt— exactly contrary to the majority opinion, but consistent with Schwab, Schlumberger, Curry, Cain, and their progeny.
The majority opinion contrasts sharply with the foregoing cases. The majority begins its analysis of Tax Code section 171.255 by characterizing Schwab and Curry as support for a subtly but foundation-ally corrosive argument. It states, “Although the statute impоses civil disability, Section 171.255 of the Tax Code operates as a penal statute ” and “[bjecause Section 171.255 is a penal statute, we must ‘strictly construe’ any ambiguity in favor of the party penalized by it. ” Op. at 136 (citing Schwab and Curry) (emphasis added).
As shown above, neither Schwab nor Curry characterizes section 171.255 as a penal, or criminal, statute as opposed to a civil one, or as an ambiguous statute to be construed in favor of culpable defendants. Schwab says that “statutes ... making the directors or other officers of a corporation liable for its debts where they are guilty of official delinquencies ... though held to be remedial in some instances, are also penal in nature, and it is generally held that they must be strictly construed and cannot be extended beyond the clear import of their language.”
Nevertheless, undeterred by the text of Schwab and Curry, the majority states, “ ‘Strict construction, ’ in the context of construing a penal statute, does not mean that each individual term must be read narrowly. It means that, when a statutory provision is unclear, the statute is read in its entirety in a way that benefits the party facing the possibility of a penalty .... ” and that “strict construction of the entire statute, as opposed to strict construction of an isolated word, might require that an individual word be read broadly to accomplish a construction in favor of the party facing the penalty.”
The majority bolsters its mischaracteri-zation of Schwab and Curry with additional misleading and incorrect citations, beginning with a 1964 case that followed Schwab-Sheffield v. Nobles, 378 S.W.2d
The majority reaches the real crux of its argument, however, only in a footnote, citing a treatise of its choice instead of case law or the Texas Code Construction Act, and stating, “This rule [of strict construction] functions much like the rule of lenity.” Op. at 136 n. 7 (emphasis added). It explains: “The rule of lenity is ‘sometimes cast as the idea that “[pjenal statutes must be construed strictly” and sometimes as the idea that, if two rational readings are possible, the one with the less harsh treatment of the defendant prevails.’ ” Id. at 137 n. 7 (quoting Antonin Scalia & Bryan GaRner, Reading Law: The Interpretation of Legal Texts 296 (2012)). It then cites the same treatise for the proposition that “[t]he rule ‘applies not only to crimes but also to civil penalties.’” Id. at 137 n. 7 (quoting Scalia & Garner, Reading Law: The Interpretation of Legal Texts at 297).
And for precedential support for these propositions in Texas law, it turns to a concurrence in a Texas Court of Criminal Appeals case, Cuellar v. State,
In Cuellar, Judge Cochran joined the majority opinion, but she also concurred, adding that, in a case like Cuellar, in which a criminal statute is ambiguous, “the Rule of Lenity requires this Court to adopt the less harsh interpretation of penal statutes.” Id. at 821. She added, “Fortunately, Texas courts rarely need resort to the Rule of Lenity to construe its penal provisions, due to the drafting of the Texas Penal Code with clarity, precision, and straightforward, well-defined language.” Id. at 822. Thus, it is clear that Judge Cochran never conceived of the rule of lenity as applicable to a civil statute, or an unambiguous one, or one that must be strictly construed. Moreover, even as stated, her Cuellar concurrence drew a sharp dissent from fellow Court of Criminal Appeals Judge Michael Keasler. Judge Keasler disagreed that the rule of lenity is available in Texas as a first resort to resolve an ambiguity in a criminal statute, much less to construe an unambiguous civil liability statute. See id. at 837-38 (Keasler, J., dissenting). After observing that Judge Cochran had cited “an 1886 Texas case and a 1955 United States Supreme Court case as authority,” Judge Keasler stated, “[B]oth our Court and the United States Supreme Court have since
E. The Majority’s Analysis of the Case Law Construing Sеction 171.255 and the Effect of the Enactment and Repeal of the Statutory Definition of “Debt”
Two crucial errors drive the majority’s application to this case of the rule of lenity, miscalled “strict construction.”
First, recognizing that section 171.255 has been consistently “strictly construed,” in accordance with the rule in Schwab, it purports to follow that rule, but, instead of following the plain language of section 171.255 and Schwab and the other cases construing and applying the requirements of the rule of strict construction — which would lead it to the opposite result from the one it believes warranted in this case— it redefines “strict construction” to mean its exact opposite, “the rule of lenity.” It then construes section 171.255 — an unambiguous civil statute — as an ambiguous criminal statute to which it claims the rule of lenity applies as a rule of construction of the first resort. And, even though the Texas courts have consistently held that the rule of strict construction requires a narrow definition of the terms of section 171.255, the majority holds that the rule (being really the rule of lenity) requires extremely broad construction. Finally, it maintains that the Texas courts have actually construed section 171.255 as the majority currently does except when they have gotten pulled off track by the statutory definition of “debt” in Tax Code chapter 171, which is now repealed and therefore inapplicable.
Second, because the proper construction of section 171.255 turns on when the “debt of the corporation [was] created or incurred,” Tex. Tax Code Ann. § 171.255(a), the majority not only has to redefine these terms broadly, especially the term “debt” in section 171.255, to conform to its conception of the requirements of the rule of lenity, but it also has to reconstruct the rationale and application of the relation-back doctrine. It does this in two ways. It declares that the creation of a “debt” relates back to the wrongful acts of culpable officers prior to forfeiture so that they are protected from liability for those acts under section 171.255. It then declares that the case law has interpreted the terms of section 171.255 and the relation-
The majority’s argument is analyzed below.
1. The three stages of construction of section 171.255
The majority divides the historical development of the construction of section 171.255 into three sections. The first it calls the “pre-1987 era,” i.e., the period before the legislature incorporated a statutory definition of “debt” into Tax Code Chapter 171. It describes this period as one in which “debts were considered created or incurred at the time the relevant contractual obligations were incurred” and unliquidated debts “were permitted to relate back to the contractual obligations.” Op. at 138. At that time, the majority opines, “strict construction, in the sense of achieving a narrow application of a statute as a whole was first applied in a forfeiture case in Schwab.” Id. at 138. “Strict construction,” so defined, the majority states, “resulted in the officers of the corporation not having personal liability for the entity’s debts, consistent with the previously announced view that ‘before any one should be punished, either in a criminal or a civil action, ... the offense should be clearly defined’ and ‘doubt as to the intention of the legislature should be resolved in favor of the defendant.’ ” Id. at 139. In support of its argument, the majority cites an inapposite 1892 case, Gulf, C. & S.F. Ry. Co. v. Dwyer,
The majority’s reconstruction of the second stage of section 171.255 interpretation, “1987,” is equally unprecedented. The majority describes 1987 as the year “when the Tax Code was amended to include a narrow definition of ‘debt,’ limiting it to a liquidated obligation.” Id. at 138. Prior to that, the majority opines, the term “debt” in section 171.255(a) was ambiguous. Id. at 140. As support, it cites another 1892 case and a 1938 case, both of which long predated section 171.255 and neither of which supports its claim. See id. (citing Barber v. City of E. Dallas,
Notably, both of the pre-section 171.255 cases cited by the majority as support for
The third period the majority views as pivotal, “post-2008,” is characterized by the majority — again without precedent — as a time in which, after repeal of the statutory definition of “debt” in Tax Code Chapter 171, the “basis for rejecting the ‘relation-back’ doctrine is removed,” and, once again, “the pre-1987 view of this statute, which focused on broadly construing ‘created’ and ‘incurred’ and allowed unliquidat-ed debts to relate back to the contractual obligations from which they arose, controls.” Id at 142, 138. At that time, the majority opines, “the ‘relationback’ doctrine reemerged to avoid individual liability for pre-forfeiture acts that lead to post-forfeiture judgments.” Id at 142.
2. The effect of repeal of the statutory definition of “debt”
The majority’s reconstructed three-stage history of the construction of section 171.255 turns not only upon the reinterpretation of the term “strict construction” as “the rule of lenity” but also upon the enactment of the statutory definition of “debt” and its repeal as marking a sharp turn in the proper analysis of the statute. To reach this conclusion, however, the majority must not only reconstruct the case law, as set out below, but it must also conclude “that the repealed statutory definition is not only no longer binding but, at this point, has become immaterial to our analysis of Section 171.255.” Op. at 144. It supports this claim by again picking a canon of construction of its choice from the treatise Reading Law by Scalia and Gamer, namely a rule which states, “ ‘When a statute is repealed, it falls irretrievably into oblivion,’ and has no effect.” Id (quoting Scalia & GarneR, Reading Law: The Interpretation of Legal Texts at 334). “As a result,” the majority opines, “we are not constrained by the narrow definition of a ‘debt’ as a liquidated sum certain. Instead, we look to the other pre- and post-repeal cases to analyze when 7677’s debt was created or incurred.” Id at 144-45.
The Texas Supreme Court — whose instructions the majority essentially ignores — has, however, never held that whenever any statute, much less a general statutory definition applicable to many diverse statutes, has been repealed it “falls irretrievably into oblivion.” Instead, Texas law holds that when a statute has been re-codified and text omitted, with no clear statement by the Legislature that a substantive change is intended, and with no replacement by a clearly conflicting statement of law, the courts must “diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.” Energy Serv. Co. of Bowie, Inc. v. Superior Snubbing Servs., Inc.,
The statutory definition of the term “debt” in Tax Code Chapter 171 was repealed in 2008 during a recodification of the chapter. The amendments had nothing to do with section 171.255, which provides for the liability of officers of a corporation that has forfeited its charter for the corporation’s debt. Instead, as the majority itself acknowledges, it was “part of a series of amendments designed to fund Texas schools by adopting new methods to calculate businesses’ tax bills.” Op. at 142 n. 15 (citing Senate Research Center, Bill Analysis, Tex. H.B. 3, 79th Leg., 3d C.S. (2006)). The amendments to Chapter 171 were not intended to change the narrow definition of “debt” historically applied in section 171.255, a statute making directors and officers liable for corporate debts; they were intended to permit courts to apply a broader definition when calculating businesses’ tax bills. The definition of “debt” formerly applied to all of Chapter 171 did not need to be replaced for purposes of construing section 171.255 because the definitions of the terms “debt,” “created,” and “incurred” were all well established as strictly construed with respect to section 171.255 and its predecessor long before the chapter’s statutory definition of “debt” was enacted in 1987. The legislative history of the amendments did not indicate that any substantive change was intended with respect to the definition of “debt” for section 171.255 either when it was added or when it was repealed. Instead, it made clear that the amendments were intended for another purpose entirely-
The Texas Supreme Court has instructed that, “[a]bsent any identifiable reason for a substantive change to have been made in the statutory provision, ... the most reasonable construction of [the statutory term] is the same as its pre-[amendment] predecessors.” See Energy Serv. Co.,
3. The majority’s application of the rule of “strict construction” prel987, 1987-2008, and post-2008
For the majority, if not for previous courts constrained by rule and precedent, the construction of section 171.255 changed dramatically from the time of Curry, when Schwab’s rule of lenity was incorporated into the relation-back doctrine, in 1987, when the narrow statutory definition of “debt” was enacted and the rule of lenity, with its broad interpretation of the terms of section 171.255, was pushed aside; and it changed dramatically again in 2008, when the narrow statutory definition of “debt” was repealed and fell “irretrievably into oblivion,” permitting the restoration of the rule of lenity as the rule of construction of section 171.255.
The majority leads off its analysis of the pre-1987 construction of section 171.255 with Schwab, stating, “The rule of strict construction, in the sense of achieving a narrow application of a statute as a whole was first applied in a forfeiture case in
The majority then compounds the distorting effect of its reconstruction of the case law, characterizing the relation-back doctrine as set out in Curry as a further example of the rule of lenity (called, again, “strict construction”), claiming that, “ ‘[s]trictly construing’ Section 171.255, the [Curry ] court held that the corporate officers were not personally liable because ‘the obligations, circumstances, conduct, or transactions that create[d] or incurfred] the debt in question pre-existed the forfeiture,’ even though the debt was, at that point, still unliquidated.” Op. at 139 (quoting Curry,
Cain explains this, but the majority repudiates Cain, stating in a footnote:
We disagree with Cain v. State,882 S.W.2d 515 , 519 (Tex.App.-Austin 1994, no writ), which held that a striсt construction of Section 171.255 requires courts to adopt the strictest possible definition of each statutory term. Indeed, the definitions given for “create” and “incur” in Schwab v. Schlumberger Well Surveying Corp.,145 Tex. 379 ,198 S.W.2d 79 , 81 (1946)-which are recited axiomatically in almost every Section 171.255 case — are remarkably broad.
Op. at 138 n. 8. Thus, it condemns Cain as being in opposition to Curry, which it believes “is consistent with strict construction” as it sees it — namely consistent with the rule of lenity, ft then states, “Many intermediate appellate courts have followed Curry.” Op. at 139. Thus, while the bare statement that many courts have followed Curry is correct, it is profoundly misleading because it is based on an improper analysis of both the relation-back doctrine as propounded in Curry and Cain and the rule of strict construction as propounded in Schwab.
The majority’s backwards understanding of the terms “strict construction” and “debt” and of the relation-back doctrine colors all the case law it addresses. As a result, the majority fails to discern the various types of debt distinguished by the case law construing section 171.255. It conflates those cases, and it attributes the holding in all of them to the rule of lenity under the rubric of “strict construction” or to its temporary suspension by the legislative imposition of a narrow definition of
The majority opines that Rogers and other section 171.255 cases that followed Curry support its arguments construing section 171.255 in terms of the rale of lenity. See Op. at 139-40. Actually, however, in cases like Rogers and McKinney, as in Curry, the courts’ decisions gave effect to the lawful intentions of the parties to a preexisting contract, preserved rights that would otherwise have been lost, or afforded a remedy to a creditor of the corporation when none would otherwise exist; thus, in each of these cases, the relation-back doctrine as traditionally understood applied. See Cain,
The majority cites Jonnet (which I have discussed above as explaining the rationale for the relation-back doctrine) only twice— both times citing the dissent. Op. at 137-38, 140-41 (citing Jonnet,
The majority also cites, in support of its “rule of lenity” analysis, cases decided after the Legislature repealed Chapter 171’s statutory definition of “debt” in 2008. These cases include Beesley (likewise discussed above). But the majority only says of Beesley, incorrectly, that “it does not address the issue we face” and that the analysis in that case “is consistent with applying the ‘relation-back’ doctrine.” Op. at 143-44.
The majority also includes Rossmann v. Bishop Colo. Retail Plaza, L.P.,
The majority finds only one exception to the restoration of the rule of lenity in construing section 171.255 following repeal of the statutory definition of debt in Chapter 171 of the Tax Code in 2008: Taylor (discussed above). See
It is true that Taylor rejected the relation-back doctrine, but what it actually did was to reject the application of the doctrine in that case to relieve a corporate officer of liability for acts of wrong-doing that occurred prior to forfeiture but were reduced to a money judgment after forfeiture. See
Finally, the majority cites, as support for its construction of section 171.255, Willis v. BPMT, LLC,
Willis involved an action to recover unpaid rent from a corporation under a lease agreement entered in the ordinary course of business of the corporation well before forfeiture of its charter.
The majority, nevertheless, referring to the cases cited above and others, states, “All of these cases demonstrate application of the rule of strict construction [by which it actually means the rule of lenity] to protect a party facing a penalty through a construction of Section 171.255 in that party’s favor.” Op. at 143. But this is not the case. Contrary to the majority’s claims, Texas courts have never followed its conception of either the strict construction rule applicable to section 171.255 or the relation-back doctrine. And no other courts have held that all repealed statutes fall irretrievably into oblivion and that they are free to redefine the term “debt” in section 171.255 because the legislature repealed the statutory definition for that term in Chapter 171 in connection with broadening the tax base for businesses. Rather, the courts, almost without exception, have followed Schwab, Curry, and Cain as they really are. And, under that law, this ease falls squarely within the scope of those cases in which thе courts have held that the relation-back doctrine does not apply and section 171.255 does apply — namely, those cases in which a tax, penalty, or money judgment is incurred by a corporation after forfeiture of its corporate charter as a result of wrongful acts of the corporation either before or after forfeiture. Following its own lead, the majority rejects this conclusion.
F. The Result of the Majority’s Analysis of Section 171.255
The majority’s reconstruction of the law interpreting section 171.255 leads it to conclude that 7677’s debt to the Hovels “was created or incurred pre-forfeiture” and that Batzri is not liable for it. Id. at 145. Nevertheless, despite all it has done to justify its vision of the law, the majority still can find no support for its conclusion among published cases. Therefore, it relies on an unpublished 1998 case with no petition for review, Ballard v. Quinn, No. 14-97-01057-CV,
Rather than review the majority’s recitation of Ballard, I merely note that — in a footnote several pages before setting out the “similarities between the Hovels’ claim and the one pursued in Ballard ” — the majority states, “We recognize, of course, that Ballard lacks precedential value. But,” it continues, “as we explain, there are numerous similarities between the Ballard case and this one, and we believe the analysis is persuasive.” Op. at 141 n. 13. Thus, the majority effectively decides to disregard the clear statement in the Rules of Appellate Procedure that “opinions issued prior to the 2003 amendment [to Rule 47, governing publication of appellate opinions] ... and affirmatively designated ‘do not publish’ should be considered ‘unpublished’ cases lacking precedential value,” and to assign “persuasive” value to Ballard as its ultimate authority for its holding absolving Batzri from liability to the Hovels. See Op. at 145; see also “Notes and Comments” following Tex. R. App. P. 47.2.
Thus, disregarding Rule 47.2, the historically narrow construction of the terms of section 171.255, the rule of law governing statutes repealed as part of inapplicable amendments as expressed in Energy Services Co., the purpose of section 171.255 as
Applying the rule of strict construction and utilizing the Supreme Court’s definition of the terms “created” and “incurred” from Schwab, we conclude that the debt evidenced by the default judgment obtained by the Hovels against 7677 was created or incurred pre-for-feiture at the time that the parties established their contractual and other obligations and, as such, Batzri is not individually liable for the entity’s debt.
Op. at 145. Every part of this statement is legally unfounded. Nevertheless, the majority takes its statement to its logical conclusion and then adds, “Finally, even if we were to consider public policy, we would reject the Hovels’ contention that this interpretation is misguided.” Id. at 145. Rather, it claims, “public policy supports broadly construing ‘created or incurred’ ” and, of course, “debt.” Op. at 145-46.
G. The Consequences of Ignoring Reality
I find the majority’s opinion and holding so divergent from the mainstream of legal construction and precedent, so diametrically opposed to the purpose of the statute and the public policy of this state as expressed in Schwab and reiterated in its progeny, and so far from accurately presenting the law that I have nothing to say in conclusion other than to summarize the departures of the majority opinion from precedent and to note the consequences of this decision.
First, the strict construction of “debt ... created or incurred” in Schwab and all subsequent section 171.255 cases, and the development of the relation-back doctrine traceable to Curry and Cain have long enabled courts to draw the distinctions necessary in a section 171.255 case to characterize the “debt” for which a plaintiff seeks to hold an officer or director of a defunct corporation liable as either wrongfully or lawfully “created” or “incurred.” They enable courts to distinguish (1) enforceable financial obligations of a corporation created or incurred by corporate officers acting within the scope of their duties before forfeiture of a corporate charter, for which corporate officers may not be held personally liable under section 171.255 and the relation-back doctrine, even if the obligations are not liquidated until after forfeiture and (2) enforceable liquidated financial obligations of the corporation created or incurred after forfeiture of the corporate charter as a result of wrongful acts of the corporation that occurred either before or after forfeiture, for which section 171.255 makes culpable officers and directors of the corporation personally liable. Thus, they enable courts to determine whether or not their application of the statute will “prevent wrongful acts of culpable officers of a corporation ... for the protection of the public and particularly those dealing with the corporation.” See Schwab,
Correctly construed in accordance with its purpose, section 171.255 transfers liability for a liquidated obligation incurred by a corporation after forfeiture of its charter as a result of wrongful acts of the corporation to the corporation’s officers and directors with knowledge of the wrongful acts, but it does not transfer personal liability to corporate officers and directors for liquidated obligations incurred after forfeiture as a result of enforceable obligations of the corporation created by corporate officers acting within the scope of their duties prior to forfeiture. See Tex.
On the majority’s reading of section 171.255, however, if a corporation is held liable in a money judgment incurred after forfeiture of its corporate charter for its wrongful acts, the judgment cannot be enforced against the principals and officers of the corporation because the debt was “created or incurred” when the bad acts took place — prior to forfeiture. This is the exact opposite of the intent of section 171.255, which is to prevent the principals of a corporation from using forfeiture of a corporate charter to avoid liability for wrongful acts of the corporation, as Batzri seeks to do here. See Cain,
Second, the distinctions made by the case law through the application of the “strict construction” rule of Schwab and the relation-back doctrine of Curry allow courts to harmonize the subsections of section 171.255 to effectuate the purpose of the statute. Under partnership law, incorporated into subsection 171.255(b), partners in a partnership are generally liable for the debts of the partnership. See Tex. Tax Code Ann. § 171.255(b); U.S. Rest. Props.,
The majority, however, ignores subsections 171.255(b) and (c), which provide that only a director or officer of a corporation with culpable knowledge of a corporate debt “created or incurred” after forfeiture may be held liable under section 171.255 “in the same manner and to the same extent as if the director or officer were a partner and the corporation were a partnership.” See Tex. Tax Code Ann. § 171.255(b), (c). And it ignores the strict construction rule that requires that the terms of section 171.255 be narrowly construed so that corporate officers are held personally liable only for those debts of the corporation incurred after forfeiture of the corporate charter as a result of wrongful acts of the corporation of which they had knowledge. It simply writes subsections 171.255(b) and (c) out of the statute in favor of applying the rule of lenity it has chosen as its own rule of construction, just as it fails to harmonize the terms of the
The majority holds that corporate officers and directors may not be held liable for wrongful acts of the corporation of which they have knowledge that were committed prior to forfeiture because the “debt” was created when wrongful acts— such as fraud or misrepresentation — occurred and not when an enforceable legal obligation was incurred by the corporation after forfeiture as a result of those acts. Thus, under the majority’s construction of section 171.255, a corporate officer cannot be held personally liable for the fraud or misrepresentation after forfeiture of the corporate charter, even though a partner would be personally liable for such acts committed by a partnership and even though the purpose of the statute requires that all terms and parts of the statute be given effect and harmonized.
Third, the majority substitutes an inapplicable and essentially obsolete canon of construction of ambiguous criminal statutes — the rule of lenity — for the rule of strict construction promulgated in Schwab for construing this unambiguous civil statute, in contradistinction to all prior case law. And it declares that it is not bound by any law in defining “debt” in section 171.255, contrary to Texas Supreme Court instruction. These actions result in the substitution of an unprecedented and extremely broad redefinition of the term “debt” in section 171.255 as including un-liquidated potential obligations of a corporation rather than the narrow definition of “debt” as an enforceable liquidated obligation of the corporation used historically, and they undermine the rationale for the development of the relation-back doctrine.
In sum, the majority opinion deprives both this Court and any future court that adopts its redefinition of the operative terms in section 171.255 of all the prece-dential case law strictly construing a “debt” for purposes of section 171.255 as a legally enfоrceable obligation to pay money. It deprives the Court of precedential case law relying upon the relation-back doctrine to distinguish among (1) debts lawfully created or incurred as enforceable obligations by a corporation that subsequently forfeits its charter, as to which no personal liability may be imposed on corporate officers and directors after forfeiture; (2) new debts incurred or created after forfeiture by officers with knowledge of the post-forfeiture debts, for which the officers or directors may be held personally liable; and (3) judgment debts or penalties incurred by a corporation for wrongful acts of the corporation that occurred prior to forfeiture but were not reduced to a legally enforceable obligation until after forfeiture, for which officers and directors with knowledge of the acts can be held personally liable. It creates division between this Court and all others. And, in so doing, it destroys the consistency and reliability of the law.
The consequences of the majority’s ignoring legal reality are both perverse and severe. The majority opinion, therefore, in my view, has the potential to do much damage to established law.
Conclusion
I conclude that the conditions of Texas Tax Code section 171.255 for finding a corporate officer or director personally liable for the debts of a corporation that has forfeited its corporate charter were met in this case. ' Therefore, I would reverse the summary judgment of the trial court in favor of Batzri, and I would render the judgment the trial court should have ren
. For simplicity, I have used the terms "pre-forfeiture” and "post-forfeiture” throughout to refer to acts that occurred, in the precise terms of the statute, before and after "the date on which the report, tax, or penalty is due and before the corporate privileges are revived.” See Tex. Tax Code Ann. § 171.225(a) (west 2015).
. "When I use a word,” Humpty Dumpty said ..., "it means just what I choose it to mean— neither more nor less.”
"The question is,” said Alice, “whether you can make words mean so many different things.”
Lewis Carroll, Alice Through the Looking Glass.
. Judge Keasler pointed out:
Today, our leading case on statutory construction [of the Penal Code] is Boykin v. State [818 S.W.2d 782 (Tex.Crim.App. 1991) ]. In Boykin, we explained that if the meaning of the statutory text should have been plain to the legislators who voted on •it, we should give effect to that meaning. But if the plain language is ambiguous or leads to an absurd result,, we should then consider extratextual factors. The extratex-tual factors include those listed in the Code Construction Act and mentioned above. No mention is made in Boykin of the rule of lenity. A year after we handed down Boy-kin, we analyzed a statute’s meaning by following the method outlined in Boykin, specifically rejecting the dissent's reliance on the rule of lenity. That does not mean that the rule of lenity no longer exists in Texas. But it should not be used until all other avenues have been exhausted and a statute's meaning remains ambiguous.
Cuellar v. State,