Qerald C. Mann            AuFrrIN Il.-rrcxAs This Opinion overrules
w?amx~~~~xxx                                 in part letter opinion
   *-mexDzY"-Am.                             to W.M. Porter dated
                                             2/12/38.
    Hon. John M. Turner
    County Attorney     Opinion No. O-4424
    Eee county          Re: Penalty on delinquent taxes
    Reevllle, Texas         of Independent school dis-
                            trict.

     Dear Sir:
               We have received your letter of recent date in
     which you ask'the opinion of this department upon the fol-
     lowing question:
               "Can an independent school district
          legally charge ten per cent penalty on its
          own delinquent taxes?"
               Article 7336, Vernon's Annotated Civil Statutes,
     provides In part as follows:
               "If any person fails to pay one-half
          (l/2) of the taxes,;Imposed by law upon him
          or his property, on or before the thirtieth
          day of November of the year for which the
          assessment Is made, then unless he pays all
          of the taxes (Imposed by law on him or his
          property), on or before the thirty-first day
          of the succeeding January, the following
          penalty shall be payable thereon, to-wit:
          During the month of February, one (1%) per
          cent; during the month of March, two (2$) er
          cent; during the month of April, three (3%P
          per cent; during the month of May, four(4$) per
          cent; during the month of June, five (5%) per
          cent; and on and after the first day of July,
          eight (8$) per cent."
               We quote from the opinion of the recent case of
     Love v. Spur Independent School District, et al, 143 S.W.
     (2d) 793:
               "Article 7336, Revised Civil Statutes of
          1925,.provided In effect that a penalty of lC$
          on the entire amount of delinquent taxes should
          accrue~and be collected as penalty.- Thereafter
          in 1934 article 7336 was amended by the Fourth
          Called Session of the party-thlrd~Leglslature, c.
          10,$2, Vernon's Ann. Clv. St.art.'7336, and re-
          duced the penalty on delinquent taxes to 8$, but
Honorable John M. Turner, Page 2


     the amendment became effective ninety days
     after the date of the adjournment of said
     session November 10, 1934. Article 7336d
     provides that the State or any county or other
     subdivision of the State 'except such cities,
     towns, villages, special school districts and
     independent school districts which do not
     adopt the provisions of this section' shall
     collect penalty on a different basis but this
     last article has no application to the case
     under consideration for the reason the record
     falls to show that Its provisions were adopted
     by the City of Spur or the Spur Independent
     School District. Therefore the penalty would
     be calculated according to article 7336 and
     article 7336 as amended by the Forty-third
     Legislature.
          "It will be noted from the delinquent
     tax record of the City heretofore set out that
     It charged lC$ penalty for the years 1928 to
     1938, inclusive, when under the law it should
     have charged only 8$ penalty for the years
     1935 to 1938, inclusive, which would have re-
     duced the penalty due the City by $1.97.
           "The judgment In favor of the City for
     $1.97 penalty in excess of the legal amount
     is a mistake which in our opinion comes under
     the doctrine of de minimis and does not re-
     quire a reversal or modification of.the
      judgment. Texas & N.O.R.Co. v..Stumberg, Tex.
     -Civ.App., 115 S;W.(2d) 1~26; Lewis v. Lewis,
     Tex.Clv.App.. 125 S.W.2d 375; Wichita Falls
     & Oklahoma Ry. Co. et al v. Pepper, Tex.CiV.
     APP., 101 S.W.2d 365. .We also note that in
      1930 the Spur Independent School District
      charged a penalty of but $2.40 on delinquent
      taxes of $48. This was to the defendant's
      advantage In the sum of $2.40.
          "An examination of the schedule of the
     delinquent tax record of the Spur Independent
     School District heretofore set out discloses
     that the School District charged lO$ penalty.
     up to and including 1933 but only 8% penalty
     thereafter and the defendant is entitled to no
     deduction therefrom."
          You are respectfully advised that the penalty
should be calculated according to Article 7336 before and
.   .



        Hondrable John M. Turner, Page 3



        after its amendment. In other words, for the years prior
        to the amendment a penalty of lO$ is authorized. For the
        years after the amendment a penalty on a graduated scale
        Is authorized from February to July following the date of
        delinquency, and a penalty of 8$ after the first day of
        July. The letter opinion to which you refer in your letter
        of request was one written February 12, 1938, to Honorable
        W. M. Porter. The author of the opinion cited Article 7336,
        as amended, providing for an 8$ penalty. He closed the
        opinion w1th.a statement that the district could charge a
        lO$ penalty. We believe that the author Inadvertently wrote
        lC$ when he meant 8$. This statement is expressly overruled.
                                                Yours very truly
                                           ATTORNEY GENERAL OF TEXAS


                                           By     George W. Sparks
                                                         Assistant
        OWS:IM:bt
        Approved March 4, 1942
        Grover Sellers
        First.Assistant
        Attorney General
        Approved Opinion Committee
        By BWB, Chairman
