   OFFICE
        OFTHE
            ATTORNEY
                  GENERAL.
                        STATE
                            OFTEXAS
   JOHN CORNYN




                                         October 28, 1999



The Honorable Yolanda de Leon                     Opinion No. X-0134
Cameron County District Attorney
974 East Harrison Street                          Re: Whether a county may waive taxes on real
Brownsville. Texas 78520                          property that houses a nonprofit organization, but
                                                  is owned by an individual (RQ-007%JC)

Dear Ms. de Leon:

        You have asked this office whether Cameron County may waive taxes, penalties, and interest
on real property that houses a nonprofit organization, but that is owned by an individual. A brief
prepared by your office in connection with this request concludes that, absent any showing that the
taxpayer’s failure to pay the tax was caused by an act or omission of the taxing unit, such interest
may not be waived pursuant to section 33.011 of the Tax Code. See Letter Brief from Honorable
Yolanda de Leon, Cameron County District Attorney, to Office of the Attorney General, Opinion
Committee (June 16,199V) [hereinafter “de Leon Brief ‘1. The brief further concludes that taxes are
not exempted under section 11.18 ofthe Tax Code on real property used by anonprofit organization,
but actually owned by an individual. See id. at 4. We agree.

        As a preliminary matter, we note that this office does not find facts in the opinion process.
Accordingly, we will assume for the purposes of this opinion that the facts in this situation are as
described in the brief submitted to us.

        As we understand it, a property owner in Cameron County has been letting a nonprofit
organization use a building he owns since 1987, and has not paid county taxes on the building since
1988. It is these unpaid taxes, along with the attendant penalties and interest resulting from their
delinquency, which the city is asking if it may waive.

        Waiver of penalties and interest is covered by section 33.011 of the Tax Code, which
provides in relevant part:

                (a) The governing body of a taxing unit:

                       (1) shall waive penalties and may provide for the
                       waiver of interest on a delinquent tax if an act or
                       omission of an officer, employee, or agent of the
                       taxing unit or the appraisal district in which the taxing
The Honorable Yolanda de Leon - Page 2           (X-0134)




                       unit participates caused or resulted in the taxpayer’s
                       failure to pay the tax before delinquency and if the tax
                       is paid within 21 days after the taxpayer knows or
                       should know of the delinquency.

Act ofMay 26, 1999,76thLeg., R.S., ch. 817, $ 1, sec. 33.011(a), 1999 Tex. Sess. Law Serv. 3449,
3450 (to be codified as an amendment to TEX. TAXCODEANN. 5 33.011). A request for a waiver
of penalties under this section must be made within six months of the delinquency. See TEX. TAX
CODE ANN. 5 33.011(d) (Vernon Supp. 1999).

        The plain language of the statute requires that the delinquency be somehow attributable to
an act or omission of the taxing unit or its agents in order for interest and penalties to be waived.
However, the brief you have submitted indicates that such is not the case here: “In this case it
appears that the taxpayer has been given notice on a regular basis, and knows or should know that
the tax is owed.” de Leon Brief at 2. Moreover, a waiver is not available under the statute unless
the tax is paid within twenty-one days of the time the taxpayer knows or ought to know of the
delinquency. But in this case, you inform us, “The taxes owed to the county have not been paid from
1988 to the present.” Id. Accordingly, waiver of penalties pursuant to section 33.011 is not
available in this case.

       Nor does section 11.18’s exemption for the property of a nonprofit organization apply in this
case. Section 11.18(a) provides in relevant part:

               An organization that qualifies as a charitable organization as provided
               by this section is entitled to an exemption from taxation of

                       (1) the buildings and tangible personal property that:

                           (A) are owned by the charitable organization;
                           and

                           (B) except as permitted by Subsection(b), are
                           used exclusively by qualified charitable
                           organizations.

Act of May 6, 1999,76th Leg., R.S., ch. 138, 5 1, sec. 11.18, 1999 Tex. Sess. Law Serv. 596,597
(to be codified as an amendment to TEX. TAX CODEANN. 5 11.18) (emphasis added).

        The statutory language plainly requires that the exemption is available for property owned
by the charity, not leased or rented or held in some other form of tenure. But again, that is not the
case here. Your brief informs us that “[t]ax records indicate that the owner of the property is an
individual.” de Leon Brief at 2. Because the owner of the property is an individual, section 11.18
of the Tax Code is inapplicable.
The Honorable Yolanda de Leon - Page 3          (JC-0134)




        To summarize, we agree with your conclusion that Cameron County may not waive taxes,
penalties, and interest on real property owned by an individual that houses a nonprofit organization.

                                        SUMMARY


                        Cameron County may not waive taxes, penalties, and interest
                on real property owned by an individual that houses a nonprofit
                organization.




                                               JOH‘N CORNYN
                                               Attorney General of Texas


ANDY TAYLOR
First Assistant Attorney General

 CLARK RENT ERVIN
 Deputy Attorney General - General Counsel

 ELIZABETH ROBINSON
 Chair, Opinion Committee

 James E. Tourtelott
 Assistant Attorney General - Opinion Committee
