                                                                                          91



        OFFICE OF THE ATTORNEY               GENERAL OF TEXAS
                                  AUSTIN




Honorable  Y!ayne Lafevre
County Auditor
Clay County
Henrietta,  Texas
Dear Sir:




            T!e have received      an                   your letter      of hpril    7,
1943, in which you r                                      this department     as to
whether   penalty       and                             llnquent    real   and per-
sonal property        ta                                  owned by a person       in
the military      ser
                                             y has deoided     that in case
                                             the federal   war power the
                                             o, O-4646; opinion      NO. .0-5165.
                                             ne the Soldiers*      and Leilorst
                                          he aGplioable   portions    reed as

                               ) The provisions       of this section       shall
                                es or essassmants         whether general       or
                                n taxes on inaoue          whether    falling
                               uring the period       of military     service,
                          personal    property,     money, or credits,         or
                          owned and occupied        for dwelling,      prores-
      sional,    business,      or agricultural       purposes    by a person
      in military      service     or his dependents       at the co.:aenoe-
      ment of his period          of military    service    and still      so
      occupied    by his depentients         or e,%ploy,zes are not paid.
Ffonorabla   Xayne Larevre,        Page   2.


            “(2) No sale of such property           shall    be made to
      enforce    the oollection    of such tax or as3easmect,                or
      any proceeding     or action     ror such purpoee         oormenced,
      except upon leeve of court granted             upon applioation
      made thereror    by the collector        of taxes or other           orri-
      cer whose duty it is to enforae            the oollection         of’ taxes
      or assesszwmts.     The court     thereupon,       unless    in Its opin-
      ion the ability      of the person in military            service     to pay
      anch t?xas or assessments         ia not materially          artacted      by
      reaaon of such servioe,       may stay such proceedings               or
      such sale,    as provided    in this Act, for a period axtand-
      ing not mora than six months after             the termination          of
      the period    or mllltarg    ssrtios     of such person.
             “(3) Khan by law suoh property             nay be sold or far-
      reited      to enforce    the oollaation       of auoh tax or assess-
      ment, such person in military             service    shall  have the
      rlSht     to redaem or corPlnenoe an aotion          to redeem suoh
      property,      et any time not later         than six months atter
      the termination        of such service,        but in no case later
      than six months after         the date when this act ceases          to
      be in force;       but this shall      not be taken to shorten
      any period,       now or hereafter       provided    by the laws of
      any Stste      or Territory     for such redemption.

           *(&) li’hanever my tax or ‘asaeesmeat      shall   not be
     paid when due, such tax or aassssment~         due and unpaid
     shall   bear interest   until    paid at the rate of 6 per
     centua per annura, and no other        penalty  or interest
     shall   be incurred   by reason     or such nonpayment.      Any
     lien   ror such unpaid taxas or assessment        shall     also
     Occlude suoh Snterest      thereon.
            v’sec. 700. (1) A pt!rson may, et any tine during, hi8
     o?riod     of milltsrp       service      or within     six months there-
     after,     apply to a court for relief                in respect    0r any
     obligation      or liabiiity         incurred      by suah piirson prior
     to his teriod        of military        ssrvioe     or in respect     of any
     tax. cr e:jsessment        vrhether f%Lling due prior            to or dur-
     I-, i:is period       of military         servioe.     Tha court,    utter
     appropriate      notice     and hearing,         unJ,ess in its opinion
     the ability      of the applicant            to oomply with the terms
     ci such cblip,ation         or liebility         or to pay such tax or
     assessment      has not been materiall::             affected    by reason
     oi hi3 military         sarvice,      meg grant      the follov:ing     relief:
Honorable        Wayne Lafavre,      Page   3.


             n
                 .   .   .   .


              *(b) In the ceae of any other                obligation,        liablllty,
        tax, or aseassmsnt,           a etap or the anr0rO8lPsilt             thereor
       during      the apTlicant*s         period    of: military       sarvica      and,
       fros the date or tarsination                or such period of military
       servioe,      or iron the date of appLiaation                 if made after
       such aervlae,         for :L period       cf tin;    equal to the period
       or military        servlas     oi:the     epplicant     or any part of suah
       period,      subject     to peytnent of the balance             of prinolpal
       and aaauaulated          Interest      due and unpaid at the date of
       terainatloa        or such period        or .nllitary       aervfae      or the
       date of appl%ftiiik,            as the case hay be, ln equal per-
       lodla     Installments        during    such extended        period      at suah
       i;i;    or interest        as may be presarlbed           for auah obllga-
             , liability,         tax, or aeaeeemant,          il paid when due,
       and subject        to suah other terms as nag be just.

            “(21   ‘Ashenany aourt has granted        a stay ae provided
       in this asation     no fine or penalty      shall    aaarue during
       the period    the terms and condltlonr        of such stay are
       com_ollad with by mason       of failure    tc aomply with the
       tarma or conditions      of the obligation,       liability,  tax,
       or assessment     in respeot   of whloh such stay was granted.”
            Sea. 500 (4) spsoifically             provides     that a tax or ameBB-
mant when past due ahall         bear interest            at the rate of 6 per
aentum par mnum but that no othar                 penalty     or interest      shall  be
incurred.    ‘This provision     auperaedes        the penaltie~a       to be applied
in aaoordanae     with Art, 7336 8. A. C. S. However you will note
that Sea, 500 and the subseations               thereto     are United       in their’
application     to taxes or assessment8            In reepect      0r personal pro-
perty,    money, or credits,        or real property-owned            aid oacuplid
for dwelling,     profeesional,        bueinsse      or 3griCUltUral       prUpOst3S
by a peraon in nilitary         service     or hia dependents          at the aom-
mencement of his nilltary           service     and still      ao oaaupied      by hgs
deuendents    or emloreea.        ( 2mphasis      ours.
             Thie section      does not provide    any relier   a8alnst     penal-
ties    and interest     acc~lng     on delinquent    real properly     taxes
by vlrtus    ,or Art. 7335 V. . . . c, s. ii the person la ailltary
service    did not rulrlll        the preearibed   aondifione   set out in
Sec. 500 (1) or the Act.
                                                                                        ’   94
,




    Honorable    yfayne Larevre’,    Page   &


                Turning   to a consideration        of Sea, 700 (l),     snbsaa-
    Mona (1) (b) and (2), which grant             further    relier,  we rind
    that the parson     in military     sariice    must make application        to
    a court ror the reller       provided     whlah may be granted       at the
    dlacretlon    or the court.     Thla saatlon       and the subssotions
    thereto    do not inhibit    the i~apoaltlon      of psnaltiae    and inter-
    est aa provided     for in Art.     7336 V. A. C. S., but merely          grant
    the propsr    court the dlacretlonary         power to fix a just rate
    or Interest    when it8 juriadiotion        attaches.
               You are advised      therefore     that no Ieaaltiee       or Interest
    exceeding    6 par asntula per annum may be asesseed against               delin-
    quent tnxas In rsspeat        of personal     property,    money, or oradits,
    whether   falling    due prior    to or during      the period   of mtlltary
    aerrlce.   However,     the schedule     of oenal’tiae   and interest      pro-
    vtded in Art. 7336 V. A, c. S., ahall             apply to delinquent       real
    property   taxes rhen the psreon in nllitary            aervler    did not own
    and occupy his real property          for dwellfng,     pro~esalonal,     buai-
    nesa or agricultural       purposes,     at the commencement of hia pari-
    od of military     sarviaa    or when said property        la not et111 80
    oacuplsd   by his dependants       or employeea.
                                                            Vary   truly   ymrs




                                                                     Woodrow Edwarde
                                                                           Asalatant
