                                 The Attorney General of Texas

JIM MATTOX                                           Dectmber 20. 1984
tttorney General


~~,emCo&BuIIdlq                Eonorable Sten Schlueter                           Opinion   No.   JM-285
                               chairman
4;*m,Tx.    78711-2548         Ways and Means Comictee                            Re: Applicability  of 15% pen-
s12/47!9501                    Texas Eouae of Representatives                     alty provided by section 33.07
Telex 910/874-1267
                               P. 0. Box 2910                                     of the Tax Code
lelecopier 51214750266
                               Austin, Texas   78769

714 Jackson. Suite 700         Dear Representative         Schluetcr:
LIelIes, TX. 752024506
2141742.9944
                                          letter     to UB asks:

3824 AlBerta AW.. Suite 160                   (1)  Does        the  15% penalty allowed by section
El PIW, TX. 799052783                     33.07 of the        Texas Property Tax Code apply to all
91E&XM494                                 tax years chr       is it limited to years subsequent to
                                          the enactment        of the code?
1001 Texas, SuIta 700
Hounon.Tx.   77W2Jlll                         (2)   I3   the July 1st date of section        33.07
7131222-5886                              mandatory or directory?     That is to say, is the
                                          taxing enl::,ty prevented  from availing    itself     of
                                          section 33.07 after this date in the initial        year
806 Broadway. Suite 312
Lubbock, TX. 794013479
                                          of   adoptd.oa or does    the   date  establish      the
0OU747.5228                               earliest    possible date a taxing unit can add a
                                          penalty?
4209 N. Tmth. Sulle 6
                                     The section of the Tex Code tb which you refer was added by the
McAllen. TX. 78501-1683
512l6824547
                               Sixty-seventh    Legiakture in 1981. to become effective   January 1,
                               1982.   It reads:
m MaIn Plaza. suits 400                       (a)     taxing unit or appraisal
                                                       A                            district   may
San Antonio.TX. 7820~2707
                                          provide.   in the manner        required  by law for
512ms-4191
                                          official   action   by the body,      that taxes    that
                                          remain del.inquent on July 1 of the year in which
 An Equal Op,MtU~llYl                     they beconE delinquent incur an additional       penalty
 Afllrmatlve Actlon Employer              to defray coats     of collection,     if the unit or
                                          district  or another unit that collects       taxes for
                                          the unit has contracted with an attorney pursuant
                                          to Section 6.30 of this code.        The amount of the
                                          penalty mt.y not exceed 15 percent of the amount of
                                          taxes. per,a,lty. and interest   due.

                                             (b)   A tax lien attaches  to the property                on
                                          which the tax is imposed to secure payment of               the
                                          penalty.


                                                                        p. 1264
ilonorable   Stan Schlueter   - Page 2      (JM-285)




                 (c)  If a penalty is imposed pursuant to this
             section,  a taxing un:it may not recover attorney’s
             fees in a suit to collect  delinquent taxes subject
             to the penalty.

                  (d)  If a taxing unit or appraisal    district
             Erovidea    for a per&y under this section.       the
             collector    shall delj;er a notice of delinquency
             and of the penalty t; the property owner at least
             30 and not more t&n 60 days before         July 1.
             (Emphasis added).

Acts 1981. 67th Leg.,     1st C.S.,   ch.    13. $130, at 168.

       The stated purpose of tha! statutory  penalty under discussion    is
to “defray    costs of collection”   and it may be assessed    only if the
collecting    unit has contractelI with a private attorney    to represent
the unit.     Tax Code 533.07(a).  -See Tax Code  16.30; Attorney   General
Opinion JM-14 (1983).

        Statutes impoaiag penaltim      are to be strictly    construed.   Hatch
 v. Davis. 621 S.W.Zd 443 (Tex. App. - Corpus Christ1 1981. writ ref’d
 n.           It is hinhlv
                       -_   aianificant
                               -            that.  accordina   to the atatutom
 language, the penalty may be applied only to those taxes “that remain
.dellnquent    on July 1 of the yg:ar in which they become delinquent” --
  and not then unless “the colle’?:or”     has delivered   a notice of delinqu-
  ency and of the penalty     to the property owner “at least 30 and dot
 more than 60 days before July I.”         In other words, the section 33.07
  penalty can attach only after z;e notice has been given and during the
  year the taxes first become delinquent.

       In our opinion,        the ad(.i,tioaal   penalty   authorized   by section
 33.07(a)    of the Tax Code cannot be applied to taxes that first became
 delinquent     in a year prior to t,he year in which section 33.07. having
 already    become effective       as law, is adopted by a taxing unit or
 appraisal     district,   even thott$:h sucii taxes might remain delinquent
 thereafter.       The legislative     :Lutent, we believe,     was to allow the
 imposition     of the additional    penalty only after the property owner had
 been specially       warned of its Imoapective      attachment (and in time to
 avoid its imposition).          If the, additional    penalty were to attach to
 back taxes because the taxes had remained delinquent past July 1 in a
 previous    year -- i.e..      the year during which they had first        become
 delinquent      -- then        warning; could be effective       and it would be
 impossible     for the property owuer, by paying the delinquent taxes, to
 avoid the additional       penalty.

       Indeed, under the section   33.07(a)   “year in which they become
 delinquent”   language, if applied to taxes which became delinquent    in
 prior years and remained so past July 1 of those years,     the section
 33.07 penalty would apply ever! If the delinquent taxes were &prior
 to the enactment of section Yi3.07.     We cannot and do not ascribe   to


                                      p. 1265
Bonorable   Stan Schlueter      - Page 3     (~21-285)




the leeislature      an intent that would raise the mecter of an unconsti-
tutionally   retrospective      law.    See Tex. Const. art. I. 516; French v.
Insurance Company of North Am?::=.              591 S.W.2d 620 (Tex. Civ. App. -
Austin 1979, no writ).         See a:Lzalder         v. Bull, 3 Dall.       (3 U.S) 386,
391 (1798)      (dictum)     (Chase.   3.)    (“Every     law  that    takes    away, or
impairs, rights
            . -      vested;
                         .     agree;lbly   to   existing    laws,  is   retrospective,
and is generally unjust.“)           XC: should be noted, however, that even if
this additional       penalty does not attach,            regular   penalties     may be
recovered when delinquent          taxes for past years are collected.                  Tax
Code S33.01.

       In   addition    to     these     arguments   against    a    retrospective
application    of the statute,     ssction 3.02 of the Code Construction           Act
(V.T.C.S.    art. 5429b-2) requ:lres a statute         to be construed      to have
only a prospective      effect    un!.r:ss It is made expressly     retrospective.
Section 1.03 of the Tax Code requires that this rule of construction
be followed     In interpreting      the code.     Not only does section        33.07
lack any express language requiring retrospective            construction;      there
are examples of tax statutes           having such language, showing that the
legislature    knows how to requj.re a retrospective         application    when it
so desires.      See, e.g.,    Acts 1981, 67th Leg., 1st C.S.. ch. 13. 1159,
at 176.

      In answer to your first    question, we advise therefore  that the
15% additional  penalty allowemi by section 33.07 of the Tax Code cannot
be applied to taxes that first became delinquent in years prior to the
date that section   33.07 and its procedures are adopted by a taxing
unit.

       You inform us that, with your second question,    you wish to know
whether a taxing unit or an ap,?raisal district    which seeks to impose a
section   33.07 penalty may extend the July 1 date set forth in the
statute for the imposition     OF the penalty to. say, August 1 instead.
It is suggested that the July 1 date set forth in section      33.07(s)  is
directory    only, not mandatory, and that a taxing unit or appraisal
district   may properly designate another date at which time the penalty
1s imposed just so long as the notice requirements of subsection        (d)
are met.     We disagree.   We c:cnclude for two reasons that the July 1
date is mandatory; section 3X.07 does not provide any means whereby a
taxing unit or an appraisal district     may extend the July 1 date.

      First,  in support of the proposition      that the July 1 date is
merely directory.    it is argued that statutory    provisions   which regu-
late the duty of public offi:ers     and specify the time for performance
of such duties are directory     unless the statute forbids     the exercise
of such power after that tfne.       Markowsky v. Newman, 136 S.W.2d 808
(Tex. 1940); Federal Cntde D:;!. Cc. v. Yount-Lee Oil Co., 52 S.W.Zd 56
(Tex. 1932).      As the Texas Supreme Court declared        in Chisholm v.
Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956):




                                           p. 1266
Ronorable   Stan Schlueter    - Page 4    (JM-283)




            There is no absolute           test by which it may be
            determined      whether     a statutory      provision      is
            mandatory      or    directory.    . . . In     determining
            whether the Legisl~~ture intended           the particular
            provision    to be mandatory or merely directory.
            consideration      should be given to the entire act,
            its nature and object.          and the consequences      that
            would follow      from- each construction.        Provisions
            which are not of the essence of the thing to be
            done, but which ara[ included for the purpose of
            promoting the propez,         orderly and prompt conduct
            of    business,      are   not    generally    regarded     as
            mandatory.      (Emphas!~: added).

We do not dispute the statemc:nt of the law; we merely think that             its
application to this question :A contrary to the one suggested.

       The “essence    of the thing to be done” by a taxing unit or an
appraisal    district   in this instance is the adoption of the ordinance
or resolution     imposing the sel:tion 33.07 penalty.    Once the resolution
Is adopted, the penalty is imposed on July 1 by operation of law, and
the tax assessor-collector       jior the unit is required       to deliver     a
notice of the delinquency and of the penalty to the property owner at
least 30 and not more than 60 days before July 1.              The statute    is
silent    as to the date by whd.ch such ordinance or resolution        must be
adopted in order to be effective.         In other words, a taxing unit or
appraisal    district   is not empowered to impose a penalty as of July 1
or any other date which is deemed appropriate;             a taxing unit or
appraisal    district    is empowe,K,d by section 33.07 to impose only the
penalty.      The date on whicln the penalty          automatically   attaches
pursuant to a valid ordinance: or resolution      is specifically    set forth
In the statute.

       We are required to construe a statute in such a way as to express
 only the will of the makers of the law, not forced or strained,        but
 simply such as the words of the law in their plain           sense fairly
 sanction   and will clearly  sus:tain. Railroad Coxunission of Texas v.
 Miller,  434 S.W.2d 670 (Tex. 1968).    If the legislature   had Intended
 that a taxing unit or an appraisal district    be empowered to extend the
 July 1 date or adopt a new date on which the penalty attaches,           it
 could have done so and would have done so explicitly.      See. e.g.,  Tax
 Code 5131.02, 31.03, and 31.51 (providing     for February 1 delinquency
 date and for postponement of such date in certain instances).

       Second, in light of the: traditional        significance     of the July 1
 date  in the ad valorem tax c.Aendar, it is doubtful that the legisla-
 ture intended   that the date on which the section             33.07 penalty be
 imposed be chosen arbitrarily.      Traditionally,      July 1 is the last date
 on which the second payment under a split payment plan may be tendered
 without the taxpayer incurrirg     a delinquent tax penalty.         See Tax Code
 631.03 and now-repealed     V.T.C.S.   art.   7336 (predecessorxatute          .to


                                     p. 1267
Honorable Stan Schlueter      - Pal:t: 5   (JM-285)




section 31.03 of the code).       July 1 was also the traditional         date on
which taxing units compiled delinquent         taxpayers lists     and notified
each prior to the imposition      of a foreclosure    suit.    See now-repealed
V.T.C.S.    arts.   7324, 7325, Y326.    And finally,      July1    is also the
traditional    date on which the penalty imposed upon delinquent        taxes no
longer accrues on a per-month basis but rather is imposed as a flat
rate.     See Tax Code 133.01       and now-repealed      V.T.C.S.    art.    7336
(predecessor     to section 33.01 of the code).

      Accordingly,   we conclude  that the July 1 date set forth       in
section   33.07,   on which date the penalty attaches,     is mandatory.
Section 33.07 does not provik     any means whereby a taxing unit or an
appraisal district   may extend the July 1 deadline for payment without
incurring the penalty or select a different   date on which the penalty
attaches.



               The penalty provided by section       33.07 of the
           Tax Code applies to ;a11 taxes currently delinquent
           in the year in whi:h the penalty is imposed; its
           application   is limited to the years including and
           subsequent to the z.doption of this code provision
           by the appropriate         taxing  unit   or appraisal
           district.    Tbe Jul:r 1 date set forth in section
           33.07 of the Tax Code, the date on which the
           penalty attaches,     is mandatory; section 33.07 does
           not provide any means whereby a taxing unit or an
           appraisal   district    may extend the July 1 date or
           select    a differen’:    date on which the penalty
           attaches.




                                               JIM        HATTOX
                                               Attorney    General of Texas

TOMGREEN
First Assistant    Attorney   General

DAVID R. RICHARDS
Executive Assistant Attorney       General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Robert Gray
Assistant Attorney General


                                     p. 1268
RonorableStan Schlueter- Pags 6   (JM-265)




APPROVRD:
OPINIONCOMMIlTRE

Rick Gilpin. Chairman
Colin Carl
Susan Garrison
JenniferRiggs




                            p. 1269
