     OPFlCE OF THE ArToRNEV   GF.NERAL   STATE OF TEXAS

     JOHN      CORNYN




                                                  January 12,200l



The Honorable Michael P. Fleming                             Opinion No. JC-0328
Harris County Attorney
1019 Congress, 15th Floor                                    Re: Whether penalties and interest on delinquent
Houston, Texas 77002-1700                                    property taxes are canceled in whole or in part if
                                                             no notice has been sent as section 33.04(b) of the
                                                             Tax Code requires (RQ-0255-JC)


Dear Mr. Fleming:

         A taxing unit’s tax collector, “in each year divisible by five,” must mail written notice (the
five-year notice) to a property owner whose property taxes have been delinquent more than one year.
TEX. TAX CODE ANN. 5 33.04(b)(l) (V emon Supp. 2000).’ The property owner may raise the
collector’s failure to provide the required five-year notice as an affirmative defense in a suit to
collect the tax. See id. 5 33.04(d). When the collector at last delivers a required five-year notice,
penalties and interest are “reinstated prospectively” and begin to accrue “on the first day of the first
month that begins at least 21 days after the date the collector delivers the subsequent notice.” Id.
§ 33.04(e). Where a tax collector did not deliver a five-year notice until nineteen years after the tax
accrued, you ask what portion of the penalty and interest the property owner must pay.l The
property owner owes only that portion of the penalty that begins to accrue on the first day of the first
month beginning at least twenty-one days after the collector delivers the notice ifthe delinquent tax
is not paid by that time. See id. 4 33.01 l(a)(l); see also id. 5 33.04(f) (stating that notice is
presumed to be delivered when it is deposited in regular first-class mail, postage prepaid, and
addressed to appropriate person). And, assuming that the legislature constitutionally may waive the
collection of interest that has accrued since August 26, 1991, the property owner owes only that
portion of the interest that begins to accrue on unpaid tax on the first day of the first month
beginning at least twenty-one days after the collector delivers the notice. See TEX. CONST. art. III,
9 55; TEX. TAX CODE ANN. 5 33.01 l(a)(l) (Vernon Supp. 2000).

         Your request concerns approximately              fifty-three 1981 tax accounts that were not paid until
at least 1999:


          ‘We note that House Bill 490, tiled January 8,2001, is pending before the 77th Texas Legislature, and ifpassed
as introduced, will repeal section 33.04 of the Tax Code. See Tex. H.B. 490, 77th Leg., R.S. (2001) (Introduced
version).

           2See Letter from Honorable Michael P. Fleming, Harris County Attorney, to Honorable John Comyn, Texas
Attorney    General (June 30,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Michael P. Fleming          - Page 2       (Jc-0328)




               In 1981, U.S. Homes owned [a] multi-tract property and failed to pay
               the 1981 taxes. In 1982, U.S. Homes requested a replat of the
               property and[,] apparently, an entry error was made at the time ofthat
               replat. The error resulted in the omission of the then[-Idelinquent
               taxes from the newly created accounts. Instead, the old account
               numbers continued to reflect the delinquent taxes, penalties[,] and
               interest. Subsequently, these properties were sold by the developer.
               Apparently, the new owners were not provided the old account
               numbers and had no knowledge of any delinquent taxes at the time
               they purchased the propert[ies].      The new owners’ names and
               addresses were properly recorded under the new account numbers and
               have been known by the tax office since that time, as they correctly
               appeared on the tax rolls, and all subsequent tax years are current.
               Meanwhile, the delinquencies were carried forward on the delinquent
               tax rolls under the old account numbers, with the previous owner’s
               name, U.S. Homes, Inc., with no address information. Consequently,
               no delinquent tax notices for the 1981 taxes have been mailed to any
               property owners of record since 1982, and the taxes owed prior to the
               replat, along with the penalties and interest which have accrued
               thereon, remain outstanding.3

In a few instances in which U.S. Homes financed the sales to new owners, you indicate that the
owners paid taxes to U.S. Homes, but U.S. Homes failed to forward the tax payments to the tax
assessor. See Memorandum, note 2, at 1 n. 1. After U.S. Homes tiled for bankruptcy, the 1981 taxes
were never paid. See id. The county finally notified the correct property owners of the delinquent
tax, penalties, and interest in August 1999, although the tax assessor did not mail the requisite tive-
year notices until May 2000. See id. at 1; TEX. TAX CODE ANN. 5 33.04(b) (Vernon Supp. 2000).
After property owners questioned the tax assessor’s authority to collect penalties and interest that
have accrued since February 1, 1982, the tax assessor requested you to seek our opinion. See
Memorandum, note 2, at 1. You do not ask about payment of the delinquent tax itself. See id.

        Chapter 33 of the Tax Code provides a taxing unit with various means to prevent or punish
delinquent taxes. See Jones Y. WiIZiams, 45 S.W.2d 130, 136 (Tex. 1931). A delinquent tax, for
example, typically incurs a penalty of up to twelve percent of the amount of the tax. See TEX. TAX
CODE ANN. 5 33.01(a) (Vernon Supp. 2000). But see id. 5 33.01(d) (listing circumstances inwhich
penalty is fifty percent). A delinquent tax also “accrues interest at a rate of one percent for each
month or portion of a month the tax remains unpaid” to compensate “the taxing unit for revenue lost
because of the delinquency.” Id. 4 33.01(c).




        ‘Memorandum   attached to Request Letter, at l(footnotes   omitted) [hereinafter   Memorandum].
The Honorable     Michael P. Fleming    - Page 3      (~~-0328)




        Chapter 33 also provides various circumstances in which penalties and interest may be
canceled orwaived. Under section 33.05, delinquent taxes, penalties, and interest are presumed paid
after twenty years unless litigation to collect the taxes is pending:

                     (b) A tax delinquent     for more than the limitation period
                 prescribed by this section and any penalty and interest on the tax is
                 presumed paid unless a suit to collect the tax is pending.

                      (c) If there is no pending litigation concerning the delinquent tax
                 at the time of the cancellation and removal, the collector for a taxing
                 unit shall cancel and remove from the delinquent tax roll:

                          (1) a tax on real property that has been delinquent   for more
                      than 20 years.

Id. 5 33.05(b), (c)(l). And, under section 33.011, a taxing unit must waive penalties        and interest
if the delinquent tax results from taxing-unit error and it is timely paid:

                      (a) The governing body of a taxing unit:

                          (1) shall waive penalties and may provide for the waiver of
                 interest on a delinquent tax if an act or omission of an officer,
                 employee, or agent of the taxing unit or the appraisal district in which
                 the taxing unit participates caused or resulted in the taxpayer’s failure
                 to pay the tax before delinquency and if the tax is paid within 21 days
                 after the taxpayer knows or should know of the delinquency.

Id. 5 33.011(a)(l).

         We presume that section 33.05 of the Tax Code does not yet apply to limit collecting taxes,
penalties, and interest. The taxes here have been delinquent since 1981. See Memorandum, supra
note 2, at 1. The five-year notices were delivered in 2000, nineteen years later. Under section 33.05,
a tax must be delinquent twenty years before it, any penalty, and interest may be presumed paid. See
TEX.TAXCODEANN. 5 33.05(a)(2),(b) (VemonSupp. 2000). At somepoint in2001, the delinquent
taxes will be canceled and penalties and interest will be presumed paid ifthe taxing unit does not sue
to collect the tax. See id. 5 33.05@), (c)(l).

         We further presume that the taxing unit may not waive the taxpayers’ penalties and interest
under section 33.01 I(a)(l). Because you describe the error as omitting “the then delinquent taxes
t?om the newly created accounts,” we do not believe that the error caused the delinquencies.
Memorandum, supra note 2, at 1. Rather, the taxes were delinquent when the error was made, and
the error affected only notice of the delinquency. Whether a particular property owner has failed to
pay a tax before it became delinquent because of an act of an officer, employee, or agency of the
The Honorable    Michael P. Fleming     - Page 4       (JC-0328)




taxing unit or the appraisal district is a fact question that the opinion process cannot resolve. See
TEX. TAxCODEANN. 3 33.011(a)(l) (Vernon Supp. 2000); see, e.g., Tex. Att’y Gen. Op. Nos. JC-
0020 (1999) at 2 (“[IInvestigation and resolution of fact questions       cannot be done in the opinion
process.“); DM-98 (1992) at 3 (“[Qluestions of fact.      cannot be resolved in the opinion process.“).

       Rather than cite either section 33.011 or 33.05 ofthe Tax Code, you refer to section 33.04,
which relates to a taxing unit’s failure to notify a property owner of a delinquent tax account:

                     (a) At least once each year the collector for a taxing unit shall
                deliver a notice of delinquency to each person whose name appears
                on the current delinquent tax roll.

                    . .


                     (b) In addition. . . , the collector for each taxing unit in each year
                divisible by five shall deliver by mail a written notice of delinquency
                to:

                        (1) each person whose name and mailing address are listed
                on the most recent certified appraisal roll, if the taxes on the property
                of that person are shown on the collector’s records as having been
                delinquent more than one year;




                     (c) The collector shall state in the notice required by Subsection
                (b) the amount of the delinquent tax, penalties, and interest due, the
                description of the property on which the tax was imposed, and the
                year for which the tax is delinquent.

                     (d) In a suit brought against a person entitled to receive notice
                under Subsection (b) for the collection of penalties and interest on a
                tax delinquent more than five years or a multiple of five years, it is an
                affirmative defense available to the person that the collector did not
                deliver the notice required by Subsection (b).

                     (e) Notwithstanding    Subsection (d), interest and penalties on a
                tax are reinstated and shall be collected by the collector if, subsequent
                to the collector’s failure to deliver the notice required by Subsection
                (b), the collector delivers the notice in any subsequent year divisible
                by five.     The interest and penalties on the tax are reinstated
                prospectively and begin to accrue at the rates provided by Section
The Honorable Michael P. Fleming        - Page 5      (X-0328)




                33.01 on the first day of the first month that begins at least 21 days
                after the date the collector delivers the subsequent notice.

                    (t) A notice.     is presumed to be delivered when it is deposited
                in regular first-class mail, postage prepaid, and addressed to the
                appropriate person under Subsection (b).

TEX. TAX CODE ANN. 5 33.04 (Vernon Supp. 2000).

         As we understand your question, you inquire whether the property owner must pay all or any
part of the penalty and interest that accrued between the time the tax became delinquent-in     this
case, 1981-and      the time the collector finally delivered the five-year notice-here, 2000. We
assume, in answering your question, that the legislature constitutionally may waive the payment of
interest that has accrued since August 26, 199 1. See infra pp. 7-9.

         The significant legal issue is the meaning of the phrase “reinstated prospectively” in
subsection (e): “The interest and penalties on the tax are reinstated prospectively and begin to accrue
    on the first day of the first month that begins at least 21 days” after delivery. Id. § 33.04(e).
Section 33.04 does not define the phrase. We accordingly read the phrase in context and consistently
withrulesofgrammarandcommonusage.           S~~TEX.GOV’TCODEANN. 5 3ll.Oll(a)(Vemon              1998).
The term “reinstate” is commonly understood to mean “to restore to or in a proper state; to replace.”
XIII OXFORDENGLISHDICTIONARY539 (2d ed. 1989) (sense 2). The adverb “prospectively,“which
modifies “reinstated,” means “[wlith bearing upon or application to the future.” XII OXFORD
ENGLISHDICTIONARY670 (2d ed. 1989) (sense 2). To the extent that “reinstated” refers to the past
and “prospectively” refers to the future, the words contradict each other and cloud the phrase’s
meaning.

         We resolve the confusion by construing the phrase “reinstated prospectively” to mean that
penalties and interest that accrued between the time the taxes became delinquent and “the first day
of the first month that begins at least 21 days after” delivery of the five-year notice are canceled.
See TEX. TAX CODE ANN. § 33.04(e) (Vernon 2000). But if a property owner does not pay the tax
by “the first day of the first month that begins at least 21 days after the date the collector delivers”
the required five-year notice, penalty and interest begin to accrue on that date. The property owner
must pay any penalty and interest that begin to accrue on that date.

         This construction does not ignore the adverb “prospectively” and thus best effects the
statutory language. We presume the legislature intended this adverb to be effective. See TEX. GOV’T
CODEANN. 3 3 11.021 (Vernon 1998) (requiring construer to presume that legislature intended whole
of statute to be effective); see also In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 37 1,
380 (Tex. 1998) (stating that interpreter ofstatute should begin “with the words ofthe statute itself’).
If the adverb were not there-if     section 33.04(e) directed only that penalties and interest were to be
“reinstated” if the delinquent tax was not timely paid-then         we reasonably could conclude that
accrued penalties and interest are not canceled but are due, in full, if the delinquent tax is not timely
The Honorable Michael P. Fleming         - Page 6       (X-0328)




paid. To give the word “prospectively” meaning, we conclude that a property owner is not liable
for penalties and interest that have accrued between the time the tax became delinquent until “the
first day of the first month that begins at least 21 days after the date the collector delivers” a tive-
year notice under section 33.04(b). See TEX. TAX CODEANN. 5 33.01(a), (c) (Vernon Supp. 2000).

         In addition, were we to construe section 33.04 to require that accrued penalties and interest
be carried forward, instead of canceled, this office would need to ascertain the period during which
penalties and interest accrue so that the accrued amount may be “reinstated” if the delinquent tax is
not timely paid. We may examine, to aid in statutory construction, “the consequences that would
follow from alternate constructions.” See In re BACALA, 982 S.W.2d at 380. For instance, should
penalties and interest accrue until the date that the first missed live-year notice should have been
delivered; until the date that the five-year notice is actually delivered; until the date that the first one-
year notice is properly delivered under section 33.04(a); or until the property owner actually knows
of the delinquency?    Section 33.04 draws no line, and it is inappropriate for us to provide one.

        Section 33.04’s legislative history is not inconsistent with our conclusion.        See In r.e
BACALA, 982 S.W.2d at 380 (“To determine legislative intent, courts may consider.           the nature
and object to be obtained.   .“). Prior to 1999, the statute expressly canceled penalties and interest:

                         Penalties and interest on a tax delinquent more than live years
                or a multiple of live years are cancelled and may not be collected if
                the collector has not delivered the notice required by Subsection (b)
                ofthis section in each year that is divisible by five following the date
                on which the tax first became delinquent for one year.

Act of May 26, 1985, 69th Leg., R.S., ch. 761, 5 1, 1985 Tex. Gen. Laws 2600, 2601 (emphasis
added) (amended 1999) (current version at TEX. TAX CODE ANN. 5 33.04(d) (Vernon Supp. 2000).
The legislature apparently determined that an open-ended cancellation created problems. See HOUSE
COMM. ON WAYS & MEANS, BILL ANALYSIS, Tex. C.S.H.B. 3549, 76th Leg., R.S. (1999)
(articulating bill’s purpose as clarifying and correcting); Hearings on H.B. 3549 Before the House
Comm. on Ways & Means, 76th Leg., R.S. (Apr. 14, 1999) (statement of Representative Heflin,
author) (tape available at House Video/Audio Services Office) (“We’ve worked very hard to        only
include items that address       technical problems in administering the tax collection and carrying
it     through the court system.“). You suggest that the pre-1999 version of the statute allowed a
taxpayer, once he or she received a five-year notice, “to delay paying the base tax without penalty.”
Memorandum, supra note 2, at 3. In this way, you continue, the pre-1999 version of the statute
encouraged a property owner to delay paying the delinquent tax. See id. As we construe section
33.04, a taxpayer who does not timely pay the delinquent tax is penalized because penalties and
interest begin to accrue if the delinquent tax is not paid within the statutory grace period. In this
way, section 33.04 encourages the property owner to timely pay the delinquent tax.

        The legislature has used the phrase “reinstated prospectively” in other statutes in the same
or a substantially similar manner. Article 6243n1 of the Revised Civil Statutes and article 3.50-2
The Honorable    Michael P. Fleming     - Page 7       (X-0328)




of the Insurance Code use the prospective-reinstatement     concept to suggest not that lost time is made
up, but that the clock begins to tick. Article 6243ni1, in particular, distinguishes between the phrases
“reinstated retroactively” and “reinstated prospectively.” TEX. REV. CIV. STAT. ANN. art. 6243n-1,
9 6.01(d)(4) (Vernon Supp. 2000). Section 6.01, article 6243n-1, permits police retirement system
trustees to pay pensioners an annual cost-of-living-adjustment       payment, which the statute terms an
“adjustment payment.” See id. 5 6.01(c). But if the system’s actuary believes it is necessary to do
so, the actuary may order the trustees to stop making adjustment payments unless and until the
actuary orders “either that the same adjustment payments which were discontinued.           be reinstated
retroactively,   or that the adjustment payments (of the same amount as those which were
discontinued) be reinstatedprospectively      from the date of the actuary’s order to reinstate      .” Id.
5 6.01(d)(4) (emphasis added). In other words, the actuary may reinstate the adjustment payments
retroactively, so that the amount of adjustment pay that a retiree lost during the freeze on payment
is made up, or prospectively, so that the amount lost is not made up. Article 3.50-2 of the Insurance
Code similarly permits a participant in the Texas Employees Uniform Group Insurance Benefits Plan
who retired between December 3 1, 1995 and September 1, 1997 and “who elected at the time of
retirement to continue the maximum optimal term life insurance amount available to a retiree at the
time,” to “reinstate, prospectively, the level of optional group term life insurance in force on the
participant’s life immediately before the” participant retired. TEX. INS. CODE ANN. art. 3.50-2, 5
1 l(e)(4) (Vernon Supp. 2000), as enacted by Act ofMay 28, 1997,75th Leg., R.S., ch. 1048,§ 49,
1997 Tex. Gen. Laws 3986,3999. Thus, a retiree may raise the amount of optional group term life
insurance in force to an amount equal to that in force just before retirement, effective September 1,
1997, but the increase is not effective to cover the time between retirement and the effective date.
See id.

         Moreover, article 6243n-1 of the Revised Civil Statutes and article 3.50-2 of the Insurance
Code, when authorizing “retroactive reinstatement,” provide a specific point in time at which certain
benefits stop, to be reinstated at a later point in time. Under article 6243n-1, reinstatement relates
back to the date that the actuary ordered that the adjustment payments be discontinued.       See TEX.
REV. CIV. STAT. ANN. art. 6243n-1, 5 6.01(d)(4) (V emon Supp. 2000). Under article 3.50-2,
reinstatement relates back to the time “immediately before the” participant retired. See TEX. INS.
CODE ANN. art. 3.50-2, 5 1 l(e)(4) (Vernon Supp. 2000), as enacted by Act of May 28, 1997,75th
Leg., R.S., ch. 1048, $49, 1997 Tex. Gen. Laws 3986,3999. Section 33.04 of the Tax Code does
not, by stark contrast, provide a specific point in time to which the reinstatement of penalties and
interest relates back.

         Our construction also comports with judicial decisions construing the phrase. For example,
in Harris v. Railroad Retirement Board the federal Court of Appeals for the Fifth Circuit concluded
that the widow’s annuity payments that Harris received under the Railroad Retirement Act until she
remarried should be “reinstated      prospectively” from the date the second marriage was annulled.
Harris v. R.R. Ret. Bd., 3 F.3d 131, 135 (5th Cir. 1993). The Railroad Retirement Board was not
required to make up the amount of the annuity payments from the date of the second marriage until
the annulment.     See id.; see also Haskew v. Bradford, 370 So. 2d 259, 260-61 (Alaska 1979)
(concerning prospective reinstatement of court order).
The Honorable Michael P. Fleming       - Page 8       (JC-0328)




          We finally assume that, to the extent section 33.04 of the Tax Code purports to cancel
interest, it does not violate article III, section 55 of the Texas Constitution. Article III, section 55
withholds from the legislature “power to release or extinguish, or to authorize the releasing or
extinguishing, in whole or in part,” any corporate or individual “indebtedness, liability or obligation
      to this State or to any county or defined subdivision thereof, or other municipal corporation
therein,” except taxes that are at least ten years overdue. TEX. CONST. art. III, 5 55. If the interest
on delinquent taxes is “indebtedness, liability or obligation” for the purposes of article III, section
55, then the legislature constitutionally may not release or extinguish those that are not at least ten
years overdue. See id. In a 193 1 case, Jones v. Williams, the Texas Supreme Court decided that
interest on delinquent taxes was not “interest eo nomine,” or true interest that the state imposes and
demands as compensation for not timely having the money. See Jones v. Williams, 45 S.W.2d 130,
133 (Tex. 1931). Rather, according to the court, it is in reality a penalty that the state imposes to
discourage property owners from not timely paying ad valorem taxes. See id. Article III, section
55 authorizes the legislature to release or extinguish penalties and interest that serve to prevent
delinquency or to punish the property owner unless the penalties or interest have been reduced to
a judgment, but the legislature may not release or extinguish interest eo nomine. See TEX. CONST.
art. III, 5 55; Jones, 45 S.W.2d at 137-39. After examining the state’s tax statutes’history, theJones
court concluded that impositions made for “failure to pay taxes, whether                    denominated
‘penalties, ’‘interest,’ [or] ‘forfeitures,“’ are really “penalties imposed for delinquency or failure of
duty.” Jones, 45 S.W.2d at 133. They are not “charges made by the state for the use or detention of
its money.” Id. In other words, the interest on delinquent ad valorem taxes under the Jones decision
is a penalty, not interest eo nomine; it is “not a part of the tax” proper, and the legislature
constitutionally may release it. Id. at 138.

         Whether Jones remains good law is unclear to us. Since Jones was decided, the legislature
in 1991 amended section 33.01 of the Tax Code explicitly to state that interest on delinquent taxes
compensates a taxing unit “for revenue lost because of’ a delinquency. See TEX. TAX CODE ANN.
5 33.01(c) (Vernon Supp. 2000); Act ofMay 27, 1991, 72d Leg., R.S., ch. 836, 5 5.3, 1991 Tex.
Gen. Laws 2890,2893. Two federal courts have determined that the 1991 amendment undermines
Jones’ classification of interest as a penalty that the legislature constitutionally    may release or
extinguish.    See Irving Zndep. Sch. Dist. v. Packard Props., 970 F.2d 58, 65 (5th Cir. 1992);
Galveston Zndep. Sch. Dist. v. HeartlandFed. Sav. &Loan Ass’n, 159 B.R. 198,204-05 (S.D. Tex.
1993). As the Fifth Circuit Court of Appeals stated in Irving Independent School District, the
amendment, “effective on August 26,1991,          shows the Texas legislature’s desire to reverse Jones
as it might affect section 33.01(c) [of the Tax Code] and to treat interest imposed under that
subsection as interest and not as a penalty.” ZrvingZndep. Sch. Dist., 970 F.2d at 65. Thus, the court
concluded, the amendment substantively changed Texas tax law “by redesignating what was once
a penalty as interest and, therefore, partially overruling Jones.” Id.; accord Galveston Zndep. Sch.
Dist., 159 B.R. at 205 (“This amendment overruled Jones.“). But a more recent decision of a state
court of appeals confirms Jones’ continued validity: “The [Texas] Supreme Court has held that
Section 55 of article III does not apply to interest and penalties on delinquent taxes, [and]        we
are not at liberty to overrule long-standing precedent of our high court.” Jefferson County v. Clark
The Honorable Michael P. Fleming       - Page 9      (JC-0328)




Ref: & Mktg., Inc., 7 S.W.3d 324, 328 (Tex. App.-Beaumont       1999, no pet.) (citing Jones). While
the Jefferson County court recognized that “[ulnder current law, interest compensates the taxing unit
for revenue lost because of the delinquency,” id. at 328 n.3, the decision does not address whether
the amendment redesignating interest as interest eo nomine affects the court’s conclusion in Jones
that interest serves as a penalty. See id. at 328.

        Given the uncertain status of the law, we assume that, to the extent section 33.04(e) of the
Tax Code, or any of the other sections we have cited, e.g., sections 33.011 and 33.05, releases a
property owner of the obligation to pay interest that has accrued since August 26, 1991-the date
that the amendment to section 33.01(c) became effective-it      does so consistently with article III,
section 55 of the Texas Constitution. See TEX. TAX CODE ANN. 5s 33.01(c), .Ol l(a)(l), .05(b), (c)
(Vernon Supp. 2000); Act ofMay 27, 1991,72d Leg., R.S., ch. 836, 5 5.6, 1991 Tex. Gen. Laws
2890,2894.    Our conclusion with respect to the release of penalties is not premised on any similar
assumption, however.

          Thus, assuming that the legislature constitutionally may waive the collection of interest that
has accrued since August 26, 1991, a property owner who owes delinquent property tax to whom
a required five-year notice was not delivered, in accordance with section 33.04 of the Tax Code, is
not responsible to pay any penalty and interest that accrued between the time the taxes became
delinquent and the first day of the first month that begins at least twenty-one days after the five-year
notice is finally delivered. On the first day of the first month that begins at least twenty-one days
after the notice is delivered, penalty and interest begin to accrue unless the delinquent tax has been
paid. Of course, if the tax has been delinquent twenty years, and there is no litigation pending to
collect the tax, the taxing unit must, under section 33.05, cancel and remove the tax from the
delinquent tax roll and presume the penalty and interest paid (again assuming that the legislature
constitutionally may release interest that has accrued since August 26, 1991). See TEX. TAX CODE
ANN. 5 33.05(b), (c)(l) (Vernon Supp. 2000).
The Honorable   Michael P. Fleming     - Page 10      (X-0328)




                                         SUMMARY

                         A taxpayer who owes property tax that is delinquent more
                than five years but who has not received proper notice under section
                33.04(b) of the Tax Code is not responsible to pay any penalty
                and interest until “the first day of the first month that begins at least
                21 days after the” tax collector delivers proper notice. See TEX. TAX
                CODE ANN. 5 33.04(b), (e) (Vernon Supp. 2000); see also id.
                5 33.04(f) (defining delivery). Any penalty and interest that has
                accrued between the time the tax became delinquent and the first day
                of the first month that begins at least twenty-one days after the
                delivery of proper notice is canceled. This conclusion assumes that
                the legislature may, without violating article III, section 55 of the
                Texas Constitution,     release and extinguish a property owner’s
                obligation to pay interest that has accrued since August 26,199l. See
                ActofMay27,      1991,72dLeg.,     R.S.,ch. 836, $5 5.3, 5.6, 1991 Tex.
                Gen. Laws 2890,2893,2894.




                                                Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
