                          ORNEY       GENERAL

                         OFTEXAS




Honorable Robert S. Calvert    Opinion No. WW-616
Comptroller of Public Accounts
Capitol Station                Re: Whether Comptroller of
Austin, Texas                       Public Accounts has the
                                    power to invoke against
                                    the taxpay~erthe $25
                                    penalty provided in Sec-
                                    tion 12 of Article 7047
                                    l-1, VCS (providing an
                                    excise tax on the sale
                                    of radio and television
                                    sets) and require its
                                    payment under the bond
Dear Mr. Calvert:                   without a court judgment.
          We quote from your opinion request as follows:
     "Section 6 (a) of House Bill 630, Acts of the Regular
     Session of the 54th Legislature provides in part as
     follows:
         'The said bond shall be pay~ableto the State of
    Texas, and conditioned upon the full, complete, and
    faithful performance by the retailer of all the condi-
    tions and requirements imposed upon him by this act,
    or the rules and regulations of the Comptroller pro-
    mulgated hereunder, on a form to be prescribed by the
    Comptroller expressly~providing for the performance of
    said obligations, and the remittance and/or payment at
    Austin, Travis County, Texas, of all taxes collected
    and required to be collected for the use and benefit
    of the State, all taxes due upon the use of radios or
    television sets by said retailer, and all costs, pen-
    alties, and interest provided in this Act, provid~ed,
    however, that in any event the total of all recoveries
    under such bond for any and all breaches of its condi-
    tions occurring at any time while it remains in force
    to support a permit, shall not for any fiscal year
    exceed the penal sum named therein, . . .I
     "Section 12 provides in part as follows:
          'If any person affected by this Act (a) shall fail
     to pay to the State of Texas any tax due and owing
Honorable Robert S. Calvert, Page 2 (Opinion No. WW-616)


     under the provisions of this Act, or. . .(h) shall
     fail to make and deliver to the Comptroller any re-
     turn or report required herein to be made and filed
     or (I) shall fail or refuse to comply with any provi-
     sion of this Act or shall violate the same, or (j)
     shall fail or refuse to comply with any rule and reg-
     ulation promulgated hereunder by the Comptroller or
     violate the same, he shall forfeit to the State of
     Texas as a penalt the sum of not less than Twenty-
     five Dollars ($253 nor more than Five Hundred Dollars
     ($500). Each day's violation shall constitute a sep-
     arate offense and incur another penalty, which, if
     not paid shall be recovered in a suit by the Attorney
     General in a court of competent jurisdiction in
     Travis County, Texas, or any other court of competent
     jurisdiction having venue under existing Venus Stat-
     utes. Provided that in addition to the penalties
     shown, if any retailer does not make remittance for
     any taxes collected, or pay any taxes due the State
     of Texas by said retailer, within the time prescribed
     by law, said retailer shall forfeit to the State two
     per cent (2%) of the amount due; and if said taxes
     are not remitted or paid within twenty (20) days from
     the date due, an additional penalty of eight per cent
     (8%) shall be forfeited. All past due taxes and pen-
     alties shall draw interest at the rate of six per
     cent (6$) per annum.'
     "The question has arisen in this Department as to
     whether the Comptroller has the power or authority to
     invoke the $25 penalty, first mentioned above in Sec-
     tion 12, against the taxpayer and require its payment
     under the bond without a court judgment."
          House Bill 630, 54th Leg., which is codified as
Article 7047 l-l, provided an excise tax on sales of radio
and television sets. To paraphrase Section 12, quoted above,
any person who fails to pay the tax provided by the Act, or
who is guilty of any of the acts or omissions specified,
shall forfeit to the State of Texas as a penalty the sum of
ii?%-ressthan $25 nor more than $500, and each day's viola-
tion shall constitute a separate offense and incur another
penalty, which, if not paid, shall be recovered in a suit by
the Attorney GenEaT    Itis clear from this language that
it is not necessary to file suit or take judgment before
assessing the penalty against the taxpayer.
          The obligers in a bond executed pursuant to a
statute are presumed to have known the terms of the statute
and to have contracted accordingly~. 7 Tex. Jur. Section 24,
Honorable Robert S. Calvert, Page 3 (Opinion No. WW-616)


   86   Section 6 (a) of House Bill 630, 54th Leg., states
znequivocably that the bonds in question are conditioned
upon the remittance of all penalties provided in the Act.
Ihe Act does not require a judgment as a prerequisite to
the collection of a penalty under a bond. Consequently,
you are advised that the Comptroller of Public Accounts
may invoke the penalty provided in Sec. 12 of Article 7047
l-l against the taxpayer and require its payment under the
bond required by Sec. 6 of said Article without a court
judgment.

                          SUMMARY
               The Comptroller of Public Accounts of
          the State of Texas has the power and author-
          ity to invoke the penalty provided for in
          Section 12 of Article 7047 1-l V.C.S. and
          require its payment under the bond required
          by such Article without a court judgment.
                                    Yours very truly,

                                    WILL WILSON
                                    Attorney General




JNP:bct
APPROVED:
OPINION COMMITTEE:
Geo. P. Blackburn, Chairman
Ralph Rash
Jot Hodges, Jr.
John Reeves
Kenneth Burns
REVIEWED FOR THE ATTORNEY GENERAL
By: W. V. Geppert
