                     EATTOBNEYGENERAL

                              OFTEXAS


   FVILL  WILSON
A’ITORNEYoENER*L
                               September 8, 1961

     Mr. Richard L. Coffman          Opinion No. WW-1137
     Administrator, Texas
      Employment Commission          Re:   Proper computation dates and
     Austin, Texas                         taxable wages to be used in
                                           experience tax rate cornutations
                                           under subsection 7(c)(&p of
                                           Article 5221b, V.C.S., under
     Dear Mr. Coffman:                     facts stated.
          The facts as stated in your opinion request are substantially
     as follows:
                A subject employer came within the provisions
           of the Texas Unemployment Compensation Act, herein-
           after referred to as the Act, Article 5221b-1, et seq.,
           V.C.S., in 1958 by virtue of having four or more
           employees on a day in twenty different weeks in a year.
           The employer has remained subject to the Act each year
           although he has not paid any tax. The employer's status
           was discovered and determined in 1960.
           Assuming that the subject employer now pays his contributions
      on his total taxable payroll for the years 1958 or 1959 or 1960 on
      or before October 31, 1961, your question is:
                 Are the contributions on the total taxable
            payroll for the year, or years, 195&, 1959 and 1960,
            if now paid on or before October 31, 1961, to be
            considered in computing the "benefit wage ratio" in
            determining the employer's tax rate for 19611
           Those provisions of the Act with which we are primarily con-
      cerned are:-
            Article 5221b-17(b)(l)
                 "'Benefits' means the money payments payable to
            an individual, as provided in this Act, with respect
            to his unemployment."
            Article 5221b-17(d)
                 "'Contributions' means the money payments to the
            State Unemployment Compensation Fund required by this Act."
Mr. Richard L. Coffman, Page 2 (Opinion No. WW-1137)

     Article 5221b-5(c)(4)
          "The benefit wage ratio of each employer shall
    be a percentage equal to the total of his benefit wages
    for the thirty-six (36) consecutive completed calendar
    months immediately preceding the date as of which the
    emnlover's tax rate is determined divided bv his total
    t&abie payroll for the same months on which contri-
    butions have been paid to the Commission on o-e
    the last dav of the month in which the comvutation date
    occurs; provided that, in the event the employer has less
    thanhree    (3) years but at least one (1) vear of
    compensation-experience,such computation shall be made
    on the basis of all of the employer's compensation ex-
    perience during the consecutive completed calendar
    quarters (throughout which his account has been chargeable
    with benefit wages) immediately preceding the date as
    of which the employer's tax rate is determfned. As
    amended Acts 1949, 51st Leg., pe 283, ch. 148 B 5A; Acts
    1955, 54th Leg., po 399, ch. 116 8 5.
          Operative Jan, 1, 1.956.” (Emphasis ours)
     Article 5221b+(d)   in part reads:
          "The computation date for all experience tax rates
     shall be as of October 1 of the year preceding the
     calendar year for which such rates are to be effective,
     and such rates shall be effective on January 1 of the
     calendar year immediately following such computation date
     for the entire year; o d e e As amended Acts 1949, 51st
     Leg      283, ch, 148, 8 5E; Acts 1955, 54th Leg,, pe 399,
     ch/;,g; El5, Acts 1957, 55th Leg., pa 1350, ch, 460, % 4."
      These statutes are clear and plain meanfng and the date for
comnutation
~- .~        of the subject emnlover's ex-oeriencerate is to be
determined by trackinglthe s&&e;     i.e.-the comwtation date for
all experience tax rates shall be as of October 1 of the year pre-
ceding the calendar year for whieh such rates are to be effective;
and such rates shall be effective on Januarv 1 of the calendar year
immediately following such computation date for the entire year.
     You advise that for many.years the Texas Employment Commission,
hereinafter referred to as the Commfssion, has interpreted the term,
"computation date", as used in subsection 5(c)(4) and 5(d), Article
5221b, V.C,S,, to be the date as of which a tax rate for the suc-
ceeding period (calendar year) is calculated, i.e, October 1 of the
year immediately preceding the calendar year for which the tax rate
    applicable - not the date on which the arithmetic is actually
c&formed.   You further advise that the arithmetic computation is
actually performed subsequent to the date of October 31.
r   .




        Mr. Richard L. Coffman, Page 3   (Opinion No. WW-1137)

             Under the formula relied upon by the Commission to determine
        an emvlover's tax rate. the first stev is to divide the total
        benefit wages paid by the employer by-the total taxable payroll
        for which contributions have been vaid, Under the fact situation
        herein, the denominator of the benefit wage ratio is nil, i.e.,
        there is no amount of the total taxable payroll upon which eon;
        tributions have been vaid to be divided into the "benefit wages".
        Therefore, it is impossible to compute an experience benefit wage
        ratio for the subject employer herein and it is impossible to
        assign him an experience tax rate of less than the maximum of 2.7%
        forany year when the contributions on his total taxable Payroll
        have not been vaid on or before October 31 of the preceding year.
             In order for the employer to avail himself of an experience
        rate for any particular year less than the statutory meximum,he
        must have paid those total taxable payroll contributions due before
        the last day of the computation month, i.e., October 31 of the pre-
        ceding year. We again point out that this is necessary because
        those total taxable wages on which contributions have been timely
        paid form the denominator of the formula used to arrive at the
        particular employer's benefit wage ratio. Under the facts pre-
        sented herein, there were no total taxable wages on which contri-
        butions had been timely paid, hence the ratio is indeterminate.
             While we believe the statute is clear and unambiguous, even
        should there be any ambi uity the legislature has met many times
        since Article 5221b-5(c)74) and (d) was construed by the Commission
        as above indicated and has not undertaken to change the statute so
        as to alter the construction given to such statute as above indi-
        cated. If the legislature did not approve the construction which
        has been given the statute, it could have easily amended the law,
             The Courts of this State have always recognized and applied
        the rule of statutory construction that where a statute of doubtful
        construction has been construed by executive officers of the State
        charged with its execution, and it has been subsequently re-enacted
        without substantial change of language, it will continue to receive
        the same construction. H, & T.C. Rv. v. State, 95 Tex. 507, 521,
        66 S.W. 777, 781 (1902); TollCesonvs Rogan, 96 Tex. 424, 73 S.W. 520,
        5f$l~~903); State v. Duke, 1 4 T     355 370 137 sew, 654 662
                 Kov v. Schneider, 110 TEz: 369: 401: 221 S.W. 880' 8S5
        I1920)i State v. H. & T.C. Rv    209 S.W. 820, 825 (Tex. Ci;. App.
        1918);'Greenwood v. City of Ei'Paso, 186 S.W. 2d 1015, 1016 (Tex.
        Civ. App, 1945).
             An excellent discussion of this doctrine by the Supreme Court
        of Texas is found in Stanford v* Butler, 142 Tex. 692, 700, lE?l
        S.W.2d 269,, 273, 274 11944.1, wherein the court sets forth the rule
        as stated immediately above and cites numerous authorities for the
        acceptance of such rule.,
Mr. Richard L. Coffman, Page 4   (Opinion No. WW-1137)

     In accordance with the foregoing, you are advised that it is
the opinion of this office that the contributions on the total
taxable payroll for the year, or years, 1958, 19.59,and 1960, if
now paid on or before October 31, 1961, are not to be considered
in computing the benefit wage ratio in determining the employer's
tax rate for 1961, but such contributions would be considered in
computation of the subject employer's 1962 tax rate.

                       SUMMARY
     The contributions on the total taxable payroll for the
     year, or years, 1958, 1959, and 1960, if now paid on
     or before October 31, 1961.. are not to be considered in
     computing the benefit wage-ratio in determining the
     employer s tax rate for 1961.
                                    Sincerely yours,



                                       .
                                    WILL WILSON
                                    Attorney General of Texas


                                    a+ Marvin
                                       Assistant
                                                om 9

MTtfb
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Milton Richardson
Fred Werkenthin
Ralph Rash
FYVIEWED FOR THE ATTORNEY GENERAL
  : Howard W. Mays
