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DAN MORALES
 ATTORNEY
      GENERAL                                      November      17, 1998


   The Honorable James M. Kuboviak                             Opinion No. DM-491
   County Attorney
   Brazos County                                               Re: Whether a delinquent tax penalty to defray
   300 East 26th Street, Suite 325                             collection costs authorized pursuant to Tax Code
   Bryan, Texas 77803                                          section 33.07 applies to taxes delinquent on or
                                                               after July 1 under Tax Code sections 31.03,
                                                               31.031,31.032, or 31.04 (RQ-970)



   Dear Mr. Kuboviak:

           On behalf of the Tax Assessor-Collector of Brazos County, you ask whether a delinquent tax
   penalty to defray collection costs authorized under section 33.07 of the Tax Code with respect to
   taxes that remain delinquent on July 1 of the year in which they become delinquent applies to taxes
   delinquent on or after July 1 under sections 3 1.03, 3 1.03 I,3 1.032, or 3 1.04 of the Tax Code. You
   suggest that the penalty does not apply to taxes delinquent on or after July 1. We concur for the
   following reasons.

           Generally taxes become delinquent on February 1 of the year following the year in which
   they are imposed.’ However, sections 3 1.03,3 1.03 1,3 1.032, and 31.04 of the Tax Code provide for
   subsequent delinquency dates.

           Section 31.03 provides that “a person who pays one-half of the unit’s taxes before
   December 1 may pay the remaining one-half of the taxes without penalty or interest before July 1
   of the following year.” If the person does not make the second payment before July 1, the second
   payment is delinquent and incurs a penalty of twelve percent of the unpaid tax amount.’ Thus, the
   second tax payment is delinquent on July 1.



            ‘Tax Code section 3 1.02(a) provides that

                      [e]xcept as provided by Subsection(b)   of this section and by Sections 3 1.03 and 3 1.04
                 of this code, taxes are due on receipt of the tax bill and are delinquent if not paid before
                 February 1 of the year following the year in which imposed.

   Subsection(b) extends the date on which persons serving on active duty in the United States armed forces in the Persian
   Gulf War may pay delinquent taxes without penalty OI interest. Tax Code 5 31.02(b).

            ‘Id. § 33.01(b).
The Honorable      James M. Kuboviak          - Page 2          (DM-491)




         Section 3 1.03 1 allows an individual who is disabled or at least 65 years of age and who
claims the disabled or elderly homestead exemption to pay taxes on residence homestead in
installments.3 If the person pays at least one-fourth of the taxes before February 1, he or she may
pay the remaining taxes without penalty or interest in three equal installments.4 The first installment
must be paid before April 1, the second before June 1, and the third before August 1 .5 If the
individual fails to make a payment on the date required, the unpaid amount is delinquent and incurs
a penalty of twelve percent and interest as provided by section 33.01(~).~ This installment plan, of
course, is not available unless the individual makes the initial payment before February 1. Thus, the
relevant delinquency dates under this section are generally April 1, June 1, and August 1.’

         Section 3 1.032 applies to residential homestead property located in a disaster area and that
has been damaged directly by the disaster. If the owner of the property pays at least one-fourth of
the taxes before February 1, the person may pay the remaining taxes without penalty and~interest in
three equal installments.’    The first installment must be paid before April 1, the second before
June 1, and third before August l? If the individual fails to make a payment before the applicable
date, the unpaid amount is delinquent and incurs a penalty of twelve percent and interest as provided
by section 33.01(c).” Again, because the installment plan is not available unless the person makes
the initial payment before February 1, the relevant delinquency dates under this section are also
generally April 1, June 1, and August 1.‘I




         “See id. $5 11.13(c), 31.031(a)

         41d. $5 31.02(a),    .031(a).

         sId. 5 31.031(a).

          61d. $ 3 1.03 l(b). Delinquent taxes incur penalties and interest apart from the section 33.07 penalty. Section
33 .Ol(a) provides that a delinquent tax incurs a penalty of six percent for the first calendar month it is delinquent plus
one percent for each additional month or portion of a month the tax remains unpaid before July 1 of the year in which
it becomes delinquent.      A tax delinquent on July 1 incurs a penalty of twelve percent. Id. 5 33.01(a). Section 33.01(c)
provides that “[a] delinquent tax accrues interest at a rate of one percent for each month or portion of a month the tax
remains unpaid.”

         ‘But see id. 5 31.03 l(d) (postponement of delinquency     dates if tax bill mailed after September   30 and taxing
unit has adopted discounts provided by section 31.05(c)).

         *Id. 5 3 1.032(b).

         9Id. 5 3 1.032(b).

         “Id. 5 31.032(c).

         “Buf see id. $ 3 1.032(e) (if delinquency    date postponed    to May 1 or later, each installment    date similarly
postponed).



                                                           p.    2709
The Honorable James M. Kuboviak             - Page 3          (DM-491)




         Finally, section 3 1.04 provides for postponing the delinquency date when a tax bill is mailed
after January 10. The February 1 delinquency date is postponed to the first day of the next month
that allows at least 21 days after the date of mailing for payment of the taxes before they become
delinquent.‘*    The usual penalties and interest provided by section 33.01 start accruing on the
postponed delinquency date.”

         We turn now to the additional delinquent tax penalty you ask about. Section 6.30(c) of the
Tax Code authorizes the governing body of a taxing unit to contract with any competent attorney to
represent the unit to enforce collection of delinquent taxes. Tax Code section 33.07 allows the
taxing unit to recover those collections costs from the delinquent taxpayers,14 and provides in
pertinent part the following:

                   (a) A taxing unit or appraisal district may provide, in themannerrequired
              by law for official action by the body, that taxes that remain delinquent on
              July I of the year in which they become deliplquent incur an additional
              penalty to defray costs 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 may not exceed 15 percent of
              the amount of taxes, penalty, and interest due.




                   (d) If a taxing unit or appraisal district provides for a penalty under this
              section, the collector” shall delivera notice of delinquency and ofthepenalty
              to the property owner at least 30 and not more than 60 days before July 1.
              [Emphasis added.]       [Footnote    added.]

In short, the statute allows a taxing unit to impose an additional penalty to defray the costs of
collecting delinquent taxes ifthe taxing unit has contracted with an attorney pursuant to section 6.30
and complied with the other statutory requirements.




          ‘*Id. 5 31.04(a).

          “Id. $ 3 1.04(e)

           ‘%eeAttorney General Opinion N-857 (1988) at 8 (taxing unit must use all penalties collected under section
33.07   to compensate attorneys with whom it has contracted).

          “See Tax Code 5 1.04( 15)(defming “collector”as “the officer or employee responsible for collecting property
taxes for a taxing unit by whatever title he is designated”).



                                                         p.   2790
The Honorable        James M. Kuboviak         - Page 4          (DM-491)




        As a statute imposing penalties, section 33.07 must be strictly construed.i6 By its terms
section 33.07 permits the additional penalty to be imposed only against fuxes that remain delinquent
011July I of the year in which they become delinquent. ” Words and phrases must be read in context
and construed according to the rules of grammar and common usage.” As commonly used,
“remain” means that some condition or status continues unchanged.‘9 In this case, that condition or
status of course is the delinquency of the applicable taxes. It follows that the taxes described here
must become delinquent before July 1 in order to continue to be delinquent on July 1. Thus taxes
to which the additional penalty applies must become delinquent before July 1.

        Additionally, such taxes must become delinquent on a date at least 30 days before July 1
given the language of the statutory notice provision.     Section 33.07(d) requires the collector to
deliver a notice of delinquency and ofthepenalty at least 30 and not more than 60 days before
July l.*’ By definition, taxes must first be delinquent before a notice of delinquency can be sent.*’
The delinquency date must then be a date at least 30 days before July 1 for notice of the delinquency
to be delivered at least 30 days before July 1.

        Construction of section 33.07 to require the relevant taxes to be delinquent on a date at least
30 days before July 1 because notice of delinquency and of penalty cannOt be delivered until the
taxes are actually delinquent also comports with the purpose of the section 33.07 notice, i.e., to




            ‘6Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814,818 (Tex. 1970); Hatch v. Davis, 621 S.W.Zd443,
446 (Tex. App.--Corpus        Cluisti 1981, writ ref d n.r.e.); see Attorney General Opinion JM-285 (1984) (discussing
appIicabilityofsection33.07penalty);seea~so        CityofHouston    v.FirstCiq, 827S.W.Zd462,475   (Tex. App.--Houston
[ 1st Dist.] 1992, writ denied) (any statute which permits recovery of attorney’s fees penal in nature and to be strictly
enforced).

         “See Attorney General Opinion JM-285 (1984) at 3 (July 1 date is mandatory;      section 33.07 does not provide
any means whereby taxing unit or appraisal district may extend July 1 date).

            “Gov’t Code 5 3 11 .O1 l(a); Tax Code $ 1.03 (Code Construction Act, chapter 3 11, Gov’t Code applies to each
provision    of title 1 (chapters 1 through 43) of Tax Code except as otherwise expressly provided).

          ‘%e WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 995 (defining “remain” as “to continue unchanged”);
see also Nunez v. Superior Court, 503 P.2d 420,423 (Ark. 1972) ( “remain” presupposes and implies something that
exists or continues after some other time or event); Kudlich v. Ciciarelli, 401 P.2d 449,454 (Hawaii 1965) (“remain”
means to continue unchanged in form, condition, status, or quantity).

          ‘OThe additional penalty is ineffective if a taxing unit does not comply with the notice requirements. Cifj of
Houston, 827 S.W.2d at 474 (failure to provide notice); Uvalde County AppraisolDist.     v. Parker, 733 S.W.2d 609,611
(Tex. App:-San    Antonio, writ ref d n.r.e.) (same); see also Salvaggio Y. Houston Indep. Sch. Dist., 752 S.W.2d 189,
 191 (Tex. App.--Houston    [14th Dist.] 1988, tit denied) (notice must be given before penalty may be imposed).

          “See Tax Code 5 33.04 (Notice of Delinquency) (“At least once each year the collector            shall deliver a
notice of delinquency to each person whose name appears on the current delinquent tax roll.“).




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The Honorable James M. Kuboviak               - Page 5          (DM-49 1)




specially warn a taxpayer of the delinquency and allow a reasonable opportunity                    to pay the amount
due before the additional penalty attaches.22

        In sum, the section 33.07 penalty may be imposed against taxes that become delinquent on
a date at least 30 days before July 1 and that remain delinquent on July 1 of the year in which they
become delinquent, if notice of the delinquency and of the penalty is delivered within the requisite
time period. The notice of delinquency and of penalty must be delivered after the applicable tax
delinquency date and at least 30 days and not more than 60 days before July l.*’ Thus, although
taxes that become delinquent on June 1 are “taxes that remain delinquent on July 1,” it is not
possible to deliver the statutory notice after the June 1 delinquency date but at least 30 days before
July 1 ?4 Therefore, we conclude that the section 33.07 penalty may not be imposed against taxes
that become delinquent on or after June 1 under sections 3 1.03,3 1.03 1,3 1.032, or 3 1.04 of the Tax
Code.

         A brief submitted to this office argues that the section 33.07 penalty should apply to
delinquent taxes that become delinquent on July 1.25 The brief concedes that because the tax did not
become delinquent in the months preceding July 1, the required notice of delinquency and of the
penalty would ordinarily not have been sent. However, the brief argues, because there is no reason
to believe that the legislature intended to abolish the section 33.07 penalty for taxes that become
delinquent on July 1, the attorney general “should carve an exception to the notice requirements
under 5 33.07 to allow for the 15% penalty to be added to accounts which become delinquent on
July 1.rr*6 The brief does not provide nor do we know of any authority that would allow us to
disregard the express statutory requirement that notice ofdelinquency and ofthe penalty be delivered
at least 30 and not more than 60 days before July 1.

        In the alternative, the brief argues, taxing units should be allowed to send the notice of
delinquency and penalty within the required time period, but before taxes become delinquent. In
support of this, the brief cites to the court’s statement in Sdvuggio, 752 S.W.2d at 192, that the



          **This office in Attorney General Opinion m-285 stated that “the section 33.07 penalty can attach only after
the notice has been given and during the year the taxes first become delinquent[,]” and that “[t]he legislative intent, we
believe, was to allow the imposition of the additional penalty only after the property owner had been specially warned
of its prospective attachment (and in time to avoid its imposition).”    Attorney General Opinion JIv-285 (1984) at 2
(emphasis in original).

           “‘In computing period of days, the first day is excluded and the last day included. Gov’t Code 5 3 11.014(a).
Additionally, if the last day of any period is a Saturday, Sunday, or a legal holiday, the period is extended to include
the next date that is not a Saturday, Sunday, or a legal holiday. Id. 9 311.014(b).




         “Letter from Sandra Griffm, Calame Linebarger Graham & Pena, L.L.P., to Dan Morales, Attorney General
of Texas (Jan. 15, 1998) (on file with Attorney General Opinion Comm.).

         “61d.at 2.




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The Honorable     James M. Kuboviak           - Page 6            (DM-49 1)




requirements    of section 33.07 need not be performed                     in any particular   order.   We believe the
Salvaggio court’s statement is taken out of context and does not apply to nor support giving notice
of delinquency before the applicable taxes become delinquent. In Salvaggio, the court set out the
three separate actions that a taxing unit must take before imposing the penalty: contract with an
attorney pursuant to Tax Code section 6.30; take official action to impose the penalty; and deliver
notice of delinquency and of the penalty within the requisite time period.”          The taxpayer in
Salvuggio contended that the section 33.07 penalties assessed against him were void because the
taxing unit had sent the notice prior to officially adopting the penalty and had adopted the penalty
before contracting with counsel. 28 The court disagreed, stating that section 33.07 “contains no
language expressly requiring that the actions be taken in any particular sequence.“29 This statement
is inapposite for two reasons. First, the statement refers only to the order in which the taxing unit
must take the actions at issue, namely, contracting with attorneys, taking official action, and giving
notice of delinquency and of the penalty. Second, in contrast to the statutory silence with respect
to the order in which those actions must be taken, section 33.07 does expressly indicate when the
required notice must be delivered by stating that notice ofdelinquency and of thepenalty must be
delivered at least 30 days and not more than 60 days before July I.

        Lastly, the brief contends that the additional penalty authorized by section 33.07 is intended
to help defray the costs of collecting delinquent taxes and that allowing taxpayers who benefit from
the extended delinquency dates under sections 3 1.03, 3 1.03 1, 3 1.032, or 3 1.04 to escape the
additional penalty for taxes delinquent on or after July 1 contradicts that intent. Thus the brief
argues that the legislature intended the penalty to apply to delinquent taxes irrespective of whether
they become delinquent on or after July 1.30 However, the brief does not cite any legislative history
to support this interpretation.  In fact, the plain language of section 33.07 and fundamental rules of




        “Salvaggio,752    S.W.2d   at 192.

        281d.

        “Id.

         ‘“See Letter from Sandra Griffi     at 3, supa   note 25




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The Honorable    James M. Kuboviak      - Page 7          (DM-491)




statutory construction   belie such an interpretation.     Like a court, we must interpret the statute as
written:

                 Courts must take statutes as they find them. More than that, they should
             be willing to take them as they find them. They should search out carefully
             the intendment of a statute, giving full effect to all of its terms. But they
             must find its intent in its language, and not elsewhere. They are not the law-
             making body. They are not responsible for omissions in legislation. They
             are responsible for a true and fair interpretation of the written law. It must be
             an interpretation which expresses only the will of the makers of the law, not
             forced nor strained, but simply such as the words of the law in their plain
             sense fairly sanction and will clearly sustain.”

Like a court, we must construe this statute strictly given that it imposes a penalty.” Section 33.07
expressly provides that “taxes that remain delinquent on July 1 of the year in which they become
delinquent incur an additional penalty ” and that the “collector shall deliver a notice of delinquency
and of the penalty to the property owner at least 30 and not more than 60 days before July 1.” A
construction of section 33.07 to allow the penalty to be imposed against taxes delinquent on or after
July 1 is not only contrary to the legislative “will” expressed by the plain language ofthe statute, but
also ignores the rule that a statute imposing penalties must be strictly construed. Consequently,
while it may be the case as a matter of public policy that taxpayers who enjoy the benefits of the
extended delinquency dates should not escape the additional penalty for taxes delinquent on or after
July 1, amendment of section 33.07 lies with the legislature and not this office.




          “Simmons v. Amim, 220 SW. 66,70 (Tex. 1920); see also Railroad Comm’n   of Tcx. Y.Miller,   434 S.W.Zd
670,672   (Tex. 1968).




                                                     p.    2784
The Honorable   James M. ,Kuboviak    - Page 8        (DM-491)




                                       SUMMARY

               The additional delinquent tax penalty authorized pursuant to Tax Code
          section 33.07 may only be imposed against taxes that become delinquent on
          a date at least 30 days before July 1 and that remain delinquent on July 1 of
          the year in which they become delinquent, if notice of the delinquency and
          of the penalty is delivered within the requisite time period. The notice of
          delinquency     and of penalty must be delivered after the applicable
          delinquency date at least 30 and not more than 60 days before July 1. Thus,
          the section 33.07 penalty may not be imposed against taxes that become
          delinquent on or after June 1 under Tax Code sections 3 1.03,3 1.03 1,3 1.032,
          or 31.04.




                                                             DAN     MORALES
                                                             Attorney General of Texas

          JORGE VEGA
          First Assistant Attorney General

           SARAH J. SHIRLEY
           Chair, Opinion Committee

          Prepared by Sheela Rai
          Assistant Attorney General




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