Case Information
*1 The Attorney General of Texas Dectmber 20. 1984 JIM MATTOX
tttorney General Eonorable Sten Schlueter Opinion No. JM-285
~~,emCo&BuIIdlq chairman Ways and Means Comictee Re: Applicability of 15% pen- 4;*m,Tx. 78711-2548 s12/47!9501 Texas Eouae of Representatives alty provided by section 33.07 Telex 910/874-1267 P. 0. Box 2910 of the Tax Code lelecopier 51214750266 Austin, Texas 714 Jackson. Suite 700 Dear Representative Schluetcr: LIelIes, TX. 752024506 2141742.9944 letter to UB asks: (1) Does 15% penalty allowed by section
3824 AlBerta AW.. Suite 160 33.07 of the Texas Property Tax Code apply to all El PIW, TX. 799052783 91E&XM494 tax years chr is it limited to years subsequent to
the enactment of the code? 1001 Texas, SuIta 700 (2) the July 1st date of section 33.07 I3 Hounon.Tx. 77W2Jlll mandatory or directory? That is to say, is the 7131222-5886 taxing enl::,ty prevented from availing itself of section 33.07 after this date in the initial year 806 Broadway. Suite 312 of adoptd.oa or does the date establish Lubbock, TX. 794013479 earliest possible date a taxing unit can add a 0OU747.5228 penalty?
4209 N. Tmth. Sulle 6
The section of the Tex Code tb which you refer was added by the McAllen. TX. 78501-1683 Sixty-seventh Legiakture in 1981. to become effective January 1, 512l6824547 1982. It reads: m MaIn Plaza. suits 400 (a) A taxing unit or appraisal district may San Antonio.TX. 7820~2707 the manner required by law for provide. 512ms-4191 official action by the body, taxes that
remain del.inquent on July 1 of the year in which they beconE delinquent incur an additional penalty An Equal Op,MtU~llYl Afllrmatlve Actlon Employer to defray coats of collection, if the unit or
district or another unit that collects taxes for the unit has contracted with an attorney pursuant to Section 6.30 of this code. The amount of the penalty mt.y not exceed 15 percent of the amount of taxes. per,a,lty. and interest due.
(b) A tax lien attaches to the property on which the tax is imposed to secure payment of the penalty.
ilonorable Stan Schlueter - Page 2 (JM-285)
(c) If a penalty imposed pursuant to this section, a taxing un:it may not recover attorney’s fees in a suit to collect delinquent taxes subject to the penalty.
(d) If a taxing unit or appraisal district for a per&y under this Erovidea section. the collector shall delj;er a notice of delinquency and of the penalty t; the property owner at least 30 and not more t&n 60 days before July 1. (Emphasis added).
Acts 1981. 67th Leg., 1st C.S., ch. 13. $130, at 168.
The stated purpose of tha! statutory penalty under discussion to “defray costs of collection” and it may be assessed only if the collecting unit has contractelI with a private attorney to represent unit. See Tax Code 16.30; Attorney General Tax Code 533.07(a). - Opinion JM-14 (1983).
Statutes impoaiag penaltim are to be strictly construed. Hatch v. Davis. 621 S.W.Zd 443 (Tex. App. - Corpus Christ1 1981. writ ref’d n. It is hinhlv aianificant accordina to the atatutom that. -_ - language, the penalty may be applied only to those taxes “that remain .dellnquent on July 1 of the yg:ar in which they become delinquent” --
and not then unless “the colle’?:or” has delivered a notice of delinqu- ency and of the penalty to the property owner “at least 30 and dot more than 60 days before July I.” In other words, the section 33.07 penalty can attach only after z;e notice has been given and during the year the taxes first become delinquent.
In our opinion, the ad(.i,tioaal penalty authorized by section 33.07(a) of the Tax Code cannot be applied to taxes that first became delinquent in a year prior to t,he year in which section 33.07. having already become effective as law, is adopted by a taxing unit or appraisal district, even thott$:h sucii taxes might remain delinquent thereafter. The legislative :Lutent, we believe, was to allow imposition of the additional penalty only after the property owner had been specially warned of its Imoapective attachment (and in time to avoid imposition). If the, additional penalty were to attach to back taxes because the taxes had remained delinquent past July 1 in a previous year -- i.e.. the year during which they had first become delinquent -- then warning; could be effective and it would be impossible for the property owuer, by paying the delinquent taxes, to avoid the additional penalty.
Indeed, under the section 33.07(a) “year in which they become delinquent” language, if applied to taxes which became delinquent prior years and remained so past July 1 of those years, the section 33.07 penalty would apply ever! If the delinquent taxes were &prior to the enactment of section Yi3.07. We cannot and do not ascribe to *3 Bonorable Stan Schlueter - Page 3 (~21-285)
the leeislature an intent that would raise mecter of an unconsti- law. See Tex. Const. art. I. 516; French v. tutionally retrospective Insurance Company of North Am?::=. 591 S.W.2d 620 (Tex. Civ. App. - See a:Lzalder v. Bull, 3 Dall. (3 U.S) 386, Austin 1979, no writ). (Chase. 3.) (“Every law that takes away, or (1798) (dictum) rights vested; agree;lbly to existing laws, is retrospective, impairs, . - .
and is generally unjust.“) XC: should be noted, however, that even if this additional penalty does not attach, regular penalties may be Tax recovered when delinquent taxes for past years are collected. Code S33.01. retrospective
In addition to these arguments against a ssction 3.02 of the Code Construction Act of the statute, (V.T.C.S. art. 5429b-2) requ:lres a statute to be construed to have only a prospective effect un!.r:ss It is made expressly retrospective.
Section 1.03 of the Tax Code requires that this rule of construction be followed In interpreting the code. Not only does section 33.07 lack any express language requiring retrospective construction; there are examples of tax statutes having such language, showing that the legislature knows how to requj.re a retrospective application when it so desires. See, e.g., Acts 1981, 67th Leg., 1st C.S.. ch. 13. 1159, at 176.
In answer to your first question, we advise therefore that the 15% additional penalty allowemi by section 33.07 of the Tax Code cannot be applied to taxes that first became delinquent in years prior to the date that section 33.07 and its procedures are adopted by a taxing unit.
You inform us that, with your second question, you wish to know whether a taxing unit or an ap,?raisal district which seeks to impose a section 33.07 penalty may extend the July 1 date set forth in the statute for the imposition OF the penalty to. say, August 1 instead.
It is suggested that the July 1 date set forth in section 33.07(s) directory only, not mandatory, and that a taxing unit or appraisal district may properly designate another date at which time 1s imposed just so long as the notice requirements of subsection (d) are met. We disagree. We c:cnclude for two reasons that the July 1 date is mandatory; section 3X.07 does not provide any means whereby a taxing unit or an appraisal district may extend the July 1 date.
First, in support of the proposition that the July 1 date merely directory. it is argued that statutory provisions which regu- late the duty of public offi:ers and specify the time for performance of such duties are directory unless the statute forbids the exercise of such power after that tfne. Markowsky v. Newman, 136 S.W.2d 808 (Tex. 1940); Federal Cntde D:;!. Cc. v. Yount-Lee Oil Co., 52 S.W.Zd 56 (Tex. 1932). As the Texas Supreme Court declared in Chisholm v. Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956):
Ronorable Stan Schlueter - Page 4 (JM-283) is no absolute test by which
There it may be determined whether a statutory provision directory. . . . In determining mandatory or whether the Legisl~~ture intended the particular to be mandatory or merely directory. provision should be given to the entire act, consideration and the consequences that its nature and object. would follow from- each construction. Provisions which are not of the essence of the thing to be done, but which ara[ included for the purpose of promoting the propez, orderly and prompt conduct of business, are not generally regarded as mandatory. (Emphas!~: added).
We do not dispute the statemc:nt of the law; we merely think that to this question :A contrary to the one suggested.
The “essence of the thing to be done” by a taxing unit or an appraisal district in this instance is the adoption of the ordinance or resolution imposing the sel:tion 33.07 penalty. Once the resolution Is adopted, is imposed on July 1 by operation of law, and jior the unit is required the tax assessor-collector to deliver a notice of the delinquency and of the penalty to the property owner at least 30 and not more than 60 days before July 1. The statute silent as to the date by whd.ch such ordinance or resolution must be adopted in order to be effective. In other words, a taxing unit or appraisal district is not empowered to impose a penalty as of July 1 or any other date which is deemed appropriate; a taxing unit or appraisal district is empowe,K,d by section 33.07 to impose only the penalty. The date on whicln the penalty automatically attaches pursuant to a valid ordinance: or resolution is specifically set forth In the statute.
We are required to construe a statute in such a way as to express only the will of the makers of the law, not forced or strained, but law in their plain sense fairly simply such as the words of sus:tain. Railroad Coxunission of Texas v. sanction and will clearly If the legislature had Intended Miller, 434 S.W.2d 670 (Tex. 1968). that a taxing unit or an appraisal district be empowered to extend the July 1 date or adopt a new date on which the penalty attaches, it could have done so and would have done so explicitly. See. e.g., Tax Code 5131.02, 31.03, and 31.51 (providing for February 1 delinquency date and for postponement of such date in certain instances).
Second, in light of the: traditional significance of the July 1 date in the ad valorem tax c.Aendar, it is doubtful that the legisla- intended the date on which the section 33.07 penalty be ture imposed be chosen arbitrarily. Traditionally, July 1 is the last date on which the second payment under a split payment plan may be tendered without the taxpayer incurrirg a delinquent tax penalty. See Tax Code 631.03 and now-repealed V.T.C.S. art. 7336 (predecessorxatute .to *5 Honorable Stan Schlueter - Pal:t: 5 (JM-285) July 1 was also the traditional date on
section 31.03 of the code). which taxing units compiled delinquent taxpayers lists and notified See now-repealed each prior to the imposition of a foreclosure suit. V.T.C.S. arts. 7324, 7325, Y326. And finally, July1 is also the traditional date on which the penalty imposed upon delinquent taxes no longer accrues on a per-month basis but rather imposed as a flat rate. See Tax Code 133.01 and now-repealed V.T.C.S. art.
(predecessor to section 33.01 of the code).
Accordingly, we conclude the July 1 date set forth section on which date the penalty attaches, is mandatory. 33.07, Section 33.07 does not provik any means whereby a taxing unit or an appraisal district may extend the July 1 deadline for payment without incurring the penalty or select a different date on which the penalty attaches.
The penalty provided by section 33.07 of the Tax Code applies to ;a11 taxes currently delinquent in the year in whi:h the penalty imposed; is limited to the years including and subsequent to the z.doption of this code provision by the appropriate taxing unit or appraisal district. Tbe Jul:r 1 date set forth in section 33.07 of the Tax Code, the date on which penalty attaches, is mandatory; section 33.07 does not provide any means whereby a taxing unit or an appraisal district may extend the July 1 date or select a differen’: date on which attaches.
JIM HATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Robert Gray
Assistant Attorney General
Ronorable Stan Schlueter - Pags 6 (JM-265)
APPROVRD:
OPINION COMMIlTRE
Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Jennifer Riggs
p. 1269