                           Office      of the JZlttornep      @emal
                                        Bbtate of Qexas
DAN MORALES
 ATTORNEY
      GENERAL                              April 27,1993

     Honorable Ben W. Childers                     Opiion No. DM-220
     Fort Bend County Attorney
     309 South Fourth St., Suite 621              Re: Whether the Fort Bend County Tax
     Richmond, Texas 77469                        AssessorK!oUector may collect additional
                                                  taxesforchangeofuseofagriadturallandin
                                                  light of the 1989 amendment to section
                                                  23.55(e) of the Tax Code (BQ-325)

     Dear Mr. Childers:

             You have requested an opinion regard@ the authority of the Fort Bend County
     Tax AmeasoKoLlector (the “tax assessol/couect~) to wllect certain additional’taxes in
     light of a 1989 amendmentto section 23.55(e) of the Tax Code.

             Subchapter D of chapter 23 of the Tax Code per&ins to the appraisal of
     a@‘kdtural land. Section 23.55 of the Tax Code sets forth the tax adjustment procedures
     that apply in the event of a change of use of agricultural land. The pertinent provisions of
     section 23.55 are as follows:
                    (a) Iftheuseofkndthathasbanappraisedasprovidedbythis
               subchaptachangts,anadditionaltaxisimposedonthelandequalto
               thediffaencebaweenthetaxesimposedonthelandforeachofthe
               iiveyearsprecedhqtheyearinwhichthechangeofuseoccursthat
               thelandwasappraisedasprovidedbythissubchapterandthetax
               thatwouldhavebeenimposedhadthelandbeentaxedonthebasis
               of market value in each of those years, phrs interest an annual rate of
               seven percent calculated from the dates on which the differences
               would have become due.
                     (b) AtsxLienanachestothelandonthedatethechangeofuse
               occurs to secure payment of the additional tax and interest imposed
               by this section and any penalties incurred. The hen exists in favor of
               all texing units for which the additionaltax is imposed.
                   (c) The additional tax imposed by this section does not apply to
               a year for which the tax has already been imposed.


            'Yoo ldb lo theseaddiliooallaxcsas -mllw= taxes



                                           p. 1152
Honorable Bar W. Childers - Page 2 (DM-220)




               (d) IfthechanBeofuseappU~toonlypartofapPrcelthatha9
           beenappraisedasprovidedbythis&&apter,theadditionaltax
           apptiesonlytothatpartoftheparcdMdequatsthediff~~
           behveenthetaxesimposedonthatpartoftheparcelandthetaxes
           thatwouldhavebeenimposedhadthatpartbeentaxedonthebasis
           of market value.
                (e)Adekrmi&onthatachangeinuseofthelandhas
           ouxrredismadebythechiefappraiser.         Thechiefappraisershall
           deliver a notice of the dekrm&tion to the owner of the land as soon
           as possible after making the dcmmiation       and shall include in the
           notice an explanation of the ow&s right to protest the
           detamdion.       If the owner does not file a timely protest or if the
           6nal determktion of the protest is that the additional taxes are due.
           theassessorforeach~unitshallprepareMddelivaabillfor
           the additional taxes plus interest as soon as practicable. The taxes
           audintexstaredueandbecomedekquentandincurpenaltiesand
           intaestasprovidedbylawforrdvalorrmtaxesimpo~bythe
           tslriagunitifnotpaidbcforethenadFcbruarylthatisatleast20
           &ysaftathedatethebillisdelivaedtotheownaoftheland.
Subsection(e) of section 23.55 was amended in 1989. See Acts 1989,7lst Leg., I&. 7%.
5 20, at 3598.   The amendment had an e&tive date of Septenkr 1, 1989. See id.
8 49(a).

        prior to that date, subsection (e) provided es follows:
                The assesor shall prepare and deliver a smtemem for the
           additional taxes plus interest es soon as practicable after the change
           ofuseoccurs. Thetaxesandinterestaredueandbecomedelinquent
           ~~~tiesMdintaestuprovidedbylawforrdvalorem
           taxesimposedbythetaxingunitifnotpaidbeforeFebnrary             1 ofthe
           yearaikrtheyeerinwhichthechangeofuseoccurs.
See Acts 1981, 67th Leg., 1st C.S.. ch. 13. 5 71, at 145. The amendment to subsection
(e) not only shitkd the authority to determine that a change of use of land has occumd
fromthetax assessor/collector to the chief appraiser, but also changed the date on which
the additional taxes are due end become delinquent end incur penalties end interest fkom
“February 1 of the year al&r the year in which the change of use occurs” to “the next
February 1 that is at least 20 days after the date the bill is delivered.” Conrpme Acts 1981.
67th Leg.. 1st C.S., ch.l3,§ 71 wiih Acts 1989.71s Leg.. ch. 7%, 5 20.

        According to your query, in 1984 the tax assessor/collector calculated additional
taxes for change of use of land for a particular landowner for several past tax years. On
September 1. 1989, the amendment to subsection (e) went into e&c& transferring the



                                        p. 1153
Honorable Ben W. Childers - Page 3 (DM-220)




autho&ytodetemioethatachmgeofuseoflandhasoccumdfiomthetax
assessork&ctor to the chief appraiser of the Fort Bend Central Appraisal District. As of
thatdat~theadditionaltmscalculatedbythetax             asesorMkctor     had not been paid.
You state that thereafter “[t]he Fort Bend Central Appraisal District used August 8,199O
for the date of the use change allowing the tax office to only collect rollback taxes for
1984.* You ask whether the tax assessorkollector has the authority to collect the
additional taxes fix the past tax years prior to 1984.

       The amendmentto subsection (e) was not enacted with a savings clause. See Acts
 1989,71st Leg., ch. 796, 8 49, at 3606. Therefore, its construction should be guided by
the geoeral savings provision rretforth in section 3 11.031 of the Code Construction Act.
See M      Code 5311.031; Tax Code F,1.03 (Code Construction Act applies to the
wnstruction of Tax Code except as othenvk expressly provided). Section 311.031
providesthatMamendmenttoastatutedoesnotaffeaanyprioractiontakenunderthe
m       or any liabii previously accrued under it. Id 5 311.031(a)(l), (4). Therefow
thameadmenttosubseaion(e)wouldnotimralidateatlyprioraction~~bythetax
asessorMkctor under that provision or exti@sh en exkting Uabilhy for additional
taxesowedasaresultofachangeofuseofland.

         In addition, section 3 11.03l(a)(4) provides that the amendment of a statute does
not a&t “any ugation,           procadin& or remedy concerning my privikgc, ot&&-m,
liability penalty, forfeiture, or punishment.” The investigation proceed& or remedy
may he “insthut~ wntinu#l, or enforced, and the penalty, forfehure, or punishment
impos4asifthestaMehadnotbeul...                amended.” Goti Code 5 3 11.031(a)(4); see
ah &indlefcp Oil and Gas Co. v. Parker Comgv, 738 S.W.2d 715.720 (Tex. App.-
Fort Worth 1987. writ denied). Therefore, the prmrisions of the pre-amendment version
of subsection (e) will continue to apply to any proc&iq to collect additional taxes
instituted prior to the dfective date of the amendment? Under the praamendment
version of subsection (e), a proceeding to collect additional taxes would have been




                                      p. 1154
Honorable Ben W. Childers - Page 4 (Dt+220)




insthuted by delivering “a statement for the additional taxes plus interest” to the
landowner. Ifthetax assessor/wllector did not deliver “a statement for the additional
taxes plus interest” prior to the e&tive date of the amendment, however, the new
provisions will apply, evw though the change of use ocwrred prior to the etktive date.

        On the basis of the foregoing principles, we conclude that the tax
assessor/wUector has the authority to collect the additional taxes under the pre-
amendment version of subsection (e) if prior to the etfective date of the amendment, i.e.,
hefore September 1.1989, she sent the landowner a statement for additional taxes and
interest in accordance with that provision. As of the e&ctive date of the amendmen&the
authoritytodetaminethatachangeofuseoflandhasoclcurredand~tonotifjrthe
landowner of the detmmination &i&d to the chief appraiser. In addition, the date on
which the additional taxes are due and become delinquent and incur penalties changed. If
the tax assessor/wUector did not send the landowner a statement for additional taxes and
interest in accordance with the pm-amendment version of subsection (e) prior to
September 1, 1989, then the current version of that provision govems. Only the chief
appraisawouldbe~tod~ethatachangeofuseoflandhas~aad
thetaxeswouldbedueonthenextFebnrarylthatisatl~20daysaftathedatethebill
is ddivered. Moreover, in that case, the tax assessor/wllector would not be authoriaed to
wllect any additional taxes based on a change of use of land absent the chief appraiser%
determination, even ifthe change of use of land owutred prior to September 1.1989.

        There appears to be some question here whether the tax assessor/wllector act&y
sentthelandownaastatanentforadditionaltaxesandiramstinaccordancewiththe
pm-amendment version of subsection (e) prior to Septenkr 1.1989. You state that “[i]n
Febmary of 1984, rollhack taxes were calculated for [the landowner] and mailed by a Fort
Bend County Tax Research Clerk. During that time period rollback taxes were calwlated
at the request of the @andowner].” You also state that in 1989 a representative of the
landowner “acknowledged receiving the rollback taxes calculated by the tex office in
1984.” Apparentty, “[t]he [tax assessor/wUector] believes that because [the landowner]
was given notice of the change in land use and acknowledged same prior to the 1989
amendment, she has the authority to wkct the rollback taxes.” The determination
whether the wmmunication sent to the landowner in 1984 and the landown~s alleged
acknowledgement of that wmnnmication in 1989 satisfy the pre-amendment version of
subsection (e) would require the resolution of fact questions. We cannot resolve t&t
questions in an attorney general opinion, Attorney General Opiion JM-495 (1986), and
are the&ore unable to provide a detinitive response to your query.

                                  SUMMARY

               The 1989 amendment of section 23.55(e) of the Tax Code
          shifled the authority to determine that a change of use of agricultural
          land has occurred and to notify the landowner of the determiwtion
          from the Fort Bend County tax assessor/wUector to the chief


                                      p.   1155
Honorable Ben W. Childas - Page 5 (DM-220)




            appraiser of the Fort Bend Central Appraisal District. The tax
            assessor/wUector has the authority to wllect thcadditional taxes at
            issue pursuant to the pre-amendmentversion of section 23.55(e) only
            if the tax assessor/wllector sent the landowner a statement for
            additional taxes and interest prior to September 1,1989, the elbtive
            date of the amendment.




                                                     DAN      MORALES
                                                     Attorney Oeneral of Texas

WILL PRYOR
FiiASSiSWAttOfllCyGenenl


MARYKBLLER
Deputy Attomey Oeneral for Litigation

RENEAHJcm
State Solicitor

MADELEINE B. JOHNSON
chair, opiion committee




                                        p.   1156
