Honorable Robert S. Calvert       Opinion No. W-1444
Comptroller of Public Accounts
Capitol Station                   Re: Construction of Art.
Austin, Texas                         2307 Title 122A,
                                      V.C.S.
Dear Mr. Calvert:
       Your letter requesting our opinion relative to the
captioned matter reads as follows:
       "In 1961 the 1st called session of the 57th Leg-
       islature amended Chapter 23, Title 122A, Taxation
       General, Revised Civil Statutes, 1925, by adding
       a new article 23.07 which reads as follows:
          *If any person shall fail to file a re-
          port as required herein or shall fail to
          pay to the Comptroller the tax as imposed
          herein when said report or payment is due,
          he shall forfeit five per cent (5%) of the
          amount due as a penalty, and after the first
          thirty (30) days he shall forfeit an ad-
          ditional five per cent (5%) of such tax.
          Provided, however, that the penalty shall
          never be less than One Dollar ($1). De-
          liquent taxes shall draw interest at the
          rate of six per cent (6%) per annum be-
          ginning sixty (60) days from the date due.'
       The bill containing this provision by Its own terms,
       became effective September 1, 1961. No Interest
       or penalty was levied upon delinquencies until
       the amendment in 1961.
       Skyway Motel of Harlingen, Texas, has failed to
       remit the Hotel Tax and is delinquent in the fol-
       lowing respect:
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Honorable Robert S. Calvert, page 2 (WW   1444)


       MarPgr;;d ,"dcIng            Amount
       June 3, ig61                $?Fz
       September 30, 1961           198:70
       December 31, 1961            138.80
       March 30, 1962                89.16
       In light of the above amendment, we request your
       opinion as to whether the penalty and interest
       should be applied to all of the xerlods set out
       above, or only for certain ones.
       Article 23.07 amends the hotel occupancy tax. Prior
to this amendment such delinquent taxes did not draw
interest and were not subject to penalties. This amend-
ment became effective September 1, 1961. The only
questions involved are whether this amendment is appli-
cable to taxes which became delinquent prior to September
1, 1961, and if so, the time the penalties accrue and
the Interest begins to run.
       Article 1, Section 1.6of the Texas Constitution
provides: "No bill of attainder, ex post facto law,
retrcactive law, or any law impairing the obligations
of contracts, shall be made."
       Although the Constitution in terms prohibits
retroactive legislation, only such retroactive legis-
latioi,that destroys or impairs vested rights is -
proscribed. The Legislature has the same Dower to act
restrospecively as it does prospectively as long as
vested rights are not destroyed or impaired.
Peck, 57 Tex. 142 (1882); League v. State, 93
m.    W. 34 (1900); Blomstrom v. Wells, p39 S.W. 227
                      dism.); ,McCain v. Yost, 155 Tex. 174,
                (1955); McGinley v. McGinle
                         v. Garland Indepen%n:'&&%      ~~s?!~
                           1959, error ref. n.r.e.).
       We can conceive of no vested right that a taxpayer
possesses to continue to refuse or neglect to pay his
delinquent taxes without being penalized for such failure
or neglect. We are therefore of the opinion that Article
23.07 does not violate Section 16 of Article 1 of the Con-
stitution If applied to taxes which became delinquent
prior to September 1, 1961.
Hon. Robert S. Calvert, page 3 (WW 1444)


       It is evident that Article 23.07 was enacted as an
aid in the collection of the hotel occupancy tax and there-
fore should be construed to cover past delinquencies as
well as taxes becoming due after the effective date thereof.
The only question remaining is whether the penalties attach
as of the date the taxes became due and the interest is to
be calculated sixty days after such due date, or the
penalties accrue on the effective date of the Act and the
taxes begin to draw interest 60 days thereafter.
       As stated in 12 Tex. Jur. 2d 471, Constitutional Law,
Sec. 122, 'It is presumed that the Legislature intends a
statute to operate prospectively rather than retrospectively,
and, unless the enactment is made retroactive in clear
terms, this presumption will be given effect.
       By virtue of the above presumption, and the fact that
the Legislature did not in clear terms make the act retro-
active, we are constrained to hold that the first 5 per
cent penalty attaches on the effective date of the Act and
that the second penalty of five per cent will attach thirty
days after the effective date of the Act, and if not paid
until 60 days after September lst, 1961 that such delinquent
taxes will then draw interest at the rate of six per cent
per annum. Although the taxes were due prior to
September lst, 1961, and the taxes were past due on September
lst, such taxes were also due and payable on September lst,
1961.   It Is clear that the Legislature Intended to
penalize the taxpayer only ten per cent during the first
sixty day period.
                      SUMMARY
         Hotel occupancy taxes which accrued under
         Chapter 23, Title 122A, Taxation-General,
         Vernon's Civil Statutes, prior to the ef-
         fective date of Article 23.07 If not paid
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Honorable Robert S. Calvert, page 4 (WW 1444)


             before September 1, 1961, are subject
             to penalties and interest provided in
             said Article 23.07.

                              Very truly yours
                              WILL WILSON
                              Attorney General of Texas

                              By:
                                    Assistant
APPROVED:
OPINION COMMITTEE
Howard Mays, Chairman
L. P. Lollar
Marietta Payne
Pay Bailey
P&VIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore
