                         TEZEATTORNEYGENEXCAL
                                       OFmXAS
                                      AUXTX-IN   1%. TEXAB

      W’ILL     WILSON
A--               GENERAL

                                       June 15, 1960

              Honorable Robert S. Calver,t   Opinion No. hW-847
              Comptroller of Pub1ic Accounts
              Cavltol Station                Re: Application of Art. 1.11,
              Austin, Texas                       Title 122A, R.C.S;, to an
                                                  overpayment of taxes which
                                                  occurred prior to the
                                                  effective date of such
              Dear Mr. Calvert:                   article.
                    Recently you requested our opinion upon the interpre-
              tation of Art. 1.11, Title 122A, R.C.S., providing that
              where an overpayment of tax has occurred the taxpayer may
              elect to have the overpayment credited to his tax account
              with the State, in lieu of pursuing any other remedy.
              Specifically, you inquired whether or not this provision
              would be applicable to the full amount of overpayment of
              gross receipts taxes made by Industrial Gas Supply Corpora-
              tion, Houston, Texas, during the period November, 1950, through
              December, 1959, or only applicable to the ,porti.onof taxes
              overpaid on and after September 1, 1959, the effective date
              of the Article (Sec. 8).
                   It is our opinion that the article may only operate
              upon that portion of tax overpaid on and after September
              1, 1959.
                   In State v. Humble Oil & Refining Co., 141 Tex. 40,
              169 S.W.2d 707 (1943), a parallel question was posed. There,
              Humble had overpaid the gross production tax on oil prior to
              May 30, 1935. The 44th Legislature enacted a tax credit
              provision, very similar to the one here involved, allowing
              an offset for overpayment of taxes, the provision becoming
              effective on May 30, 1935. Humble contended that it could
              creoit .itsprior overpayment against taxes due for the month
              of January;lg36, while the State contended that the law
              could.have no such retroactive effect. Judgment was for
              Humble in the trial court and was affirmed by the Court of
              Civil Appeals. In reversing both courts and renderlng judg-
              ment for the State, the Supreme Court said
                              "After a very careful examination
                            of the authorities, we have reached
                            the conclusion that the above-quoted
                            statute cannot be applied retrospec-
Honorable Robert S. Calvert, Page 2   Opinion No.   ~~-847



         tively. It is the law of this State,
         and the law generally, that, in the
         absence of any special indication or
         reason, a statute will not be applied
         retrospectively, even when there is no
         constitutional impediment against it.
         Stated in another way, it is the rule
         that statutes will not be applied retro-
         spectively unless it appears by fair
         implication from the language used that
         it was the intention of the Legislature
         to make it applicable to both past and
         future transactions. citing authoritiefl
         When we apply this rule to this statute,
         we find no words contained therein which
         indicate a legislative intent to apply
         its provisions to past transactions."
     We believe that this holding forecloses any possibility
of interpreting Art. 1.11 so as to allow credit in this case
for overpayments occurring prior to September 1, 1959.

                     SUMMARY
              Art. 1.11, Title 122A, R.C.S.,
         providing that overpayments of taxes
         may be credited to the taxpayer with
         his consent in lieu of other remedies
         available, cannot apply to overpayments
         occurring prior to September 1, 1959,
         the effective date of the Act.
                          Yours very truly,
                           WILL WILSON
                           Attorney General of Texas

JRI:cm
                                ames R. Irion
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Fred B. Werkenthin
C. K. Richards
L. P. Lollar
Jerry H. Roberts          REVIEWED FOR THE ATMRNEY     GENERAL
                          By: ,LeonardPassmore
