Hoiiorable   S. Perry Brown                  Opinion     No. M-11
Chairman-Ekecutlve    Director
Texas Emplojment Commission                  Re:     Tlme$lneas  of application
hatin,     Texm                                      for refund of contributions
                                                     under the provisions      of
Dear Mr. Brown:                                      Article  5221b-12( j) (l), V.C.S.

      This    is In an8yer to ‘your Fegtieat            for    an opinion
concerning      the following questions.

     ” 1.    Does Article     5221b-12( j) (1) cbnstltute
             a three-year     statute  of limitations     with
             respect    to the Commission’s     authority    to
             consider    applications    for refund made
             after   the three-year    period has sxpired?

     “2.     If so, is the Commlsaion authorizgd        to
             waive at its discretion     In meritorious
             cases this statutory    defense  and consider
             applications   for refund made after      the
             three-year   period has run?

     “3. If you have decided         that Article  5221b-12
             (j) (1) is a statute   of limitations    and the
             Commission has authority      to waive it in
             meritorious   cases,  may such authority    be
             exercised   at the discretion    of the Commlssion
             prior   to the filing  of a lawsuit   bx the tax-
             payer for recovery    of such refund?

      Article    5221t-12(   j) (1))      Vernon’s     Civil    Statutes,
provides    as followti:

                    “Where any employing unit ha8 made
             a payment to the Commission of contrl-
             butions    and/or penalties    alleged   to be
             due, and it is later      determined    that such
             contributions     and/or penalties     were not




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Hon. S,       Perry   Brown,   pag e 2 (M-11)



                due, in whole or in part,              the emplbying
                unit makings such payment may make ap-
                plication      to the Commission for ‘an ad-
                justment thereof        in connectionwith
                contribution      payments then due, or for
                a refund thereof        because      such adjust-
                ment cannot be made.            If the Commission
                shall    determine     that such contributions
                or penalties,      or any portion          thereof
                were errorsously        collected,        the Com-
                missIon shall      allow such employingunit
                to make an adjustment           thereof     without
                interest     in connection       with contribution
                payments then due by such employing unit.
                If such adjustment         cannot be made, the
                Commission shall        refund said amount without
                interest     from the fund.          It Is provided,
                however,     that no application           for adjust-
                ment or refund shall          ever be considered
                by the Commission unless             the same shall
                have been filed       within      three (3) yeprs
                fron the date on which such contritutlons
                and/or penalties        wo,uld have become due,
                had such contributions            and/or penalties
                been legally      collectible       by the Commission
                from such employing unit.              . , .”

      The general     rule of law is that a taxing statute     must
be plain and unambiguous to levy a tax, but once the tax
is established,      then an exception   to the payment of the tax
is strictly     construed  against   the exception  or exemption.
Texas Unemployment Compensation        CornIn. v. Bass, 137 Tex. 1,
1-51
       We are of the opinion, in answer to your question        number
1 and 2 that Article      5221b-12( j) (1) is not a statute    of limi-
tations   which may be waived but is rather       a statute  of pro-
hibition;    or a statute   in bar, and the Employment Commission
is barred from considering       an application   for adjustment    or
refund after    the three-year    period   stated In the statute    has
expired.

         It     is a well established       principle     of law that the
courts        in construing   a statute      will    endeavor to carry out




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Hon.   S. Perry   Brown,   page. 3 (M-11)



the q.ntent and purpose      of the Legislature.           53 Tex.Jur.
2d 168, Statutes,  Sec.      3.1.9.

       It is hard to conceive       of language more specific       than
that used~ in the statutes        under constructionwherein      ‘it is
stated   that “it    is provided,    however,   that no application
for adjustment      or refund shall    ever be considered’ by the
Commission unless      the same~ shall    have been filed   within
three years.      . . .” (Emphasis added)

       The Legislature     in’ enacting   this statute’certainly
intended    that it have some meaning or purpose.            If the
three-year     provision   could be waived,      then, in fairness
to all and to make the statute          apply equally    to all persons
it would be necessary       to waive the three-year       provision
across   the board in all cases,‘and         this would make the
statute    absolutely    meaningless,

       Paragraph number (2) of Section          (j) of the above
statute    provi”es      that when an employing ,unit hae nade ap-
plication     to the Commission for a refund or adjusfment
within    the three-year      time limit    and such application    for
refund or adjustment         has been denied by the Commission,
such employing       unit,   may, within one year from the date
on which notice        of such denial was mailed to it (meaning
the employing unit),         commence an action     in any court of
competent     jurisdiction      in Travis County, Texas.       This
indicates     that the Legislature       intended   that the appli-
cation    for refund or adjustment        must be filed   within
three years or they would be barred from commencing an
action    in the court for the refund or adjustment.

      The following   is quoted      from   1 Tex.Jur.2d      666, Ad-
ministrative    Law, Sec. 23:

                  “The right     to invoke an administrative
           agency’s    authority    may be lost by delay.
           Thus, where the statute        prescribes     a period
           within which application        is to be made,
           presentation     of the application       within the
           specified    period is said to be ‘exclusive
           and jurisdictional’.        . . .‘I

     By virtue of     our answers      to your questions number 1
and 2, we deem it     unnecessary      to answer your question
number 3,


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Hon.    S. Perry   Brown,   page 4 (M-11)



                            SUMMARY


                    The Texas Emplo@neht Commission doea
             not havB atithority     to waive the three-year
             provision   authorizing    the time in'whlch    'an
             employer may apply for adjustments.or        .re-
             funds under Article      5223b-12(j)(l),  V.C.S.




Prepared     by J. H. Broadhtirat
Assistant     Attorney ffeneral

APPROVED:
OPINION COMMITTEE

HBwthorne PhilLips,    Chairman
W. V. Geppert,   Co-ohairman
Jack Goodman
John Reeves
Nell Williams
Linward Shivers

Staff    Legal  Aesistant
A. J.    Carubbl,   Jr.




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