          OFFICE     OF THE ATTORNEY GENERAL     OF TEXAS
                                AUSTIN




Honoreble George tl.Sheppard
Comptroller oi Public AkEounts
Ausifn,     Texas

Dosr Sir:                          Opinion No. O-7278
                                   Re:   Procedure to
                                         in calculatin
              I
            , .. .



               YOW
the opinion of
questions:




                     pmperty been properly assessed.
          8eferriag to yxr first question, Articles 7346
and 7347, R. Y., provide in rubstancm tnat whrn it is d&s-
covered tiut any realty hss been omitted from the tax rolls
for any tFmr sine8 1881, thr Commlssloner8Court may order
a list of such property to be nade and the 8-8 is to be
         George .i.-.ne;!drd,:are 2
.ionor;bls
assesbed 2nd texed for t..cye&r8 J:..ltted,
                                          and trrereSLAPU
be added *a penalty equal in amount to wuat w&ld be 6~
interest to the date of ruaki..g
                               said list from t& date
such prvpertieswould nave bea.&dcli:aquenthad 88~1sbeen
properly rendered by the owner thereof at the time end for
ths yea-8 stated in said list.*
          ks are of the opinion thet the 1anquPgs of the .
statute means 63 par lnnum~ had the Legislature intsnded
that a flst penalty of 6% be levied, we do not believe that
It would hats set forth the term for whloh interest was to
be computed. It uuuld have been muon simpler for the
statute merely to provide a flat penalty of 6;. Our oon-
struat:on of this provision Is in aacord?nce witn tne aot-
struction by the Coilptrollerfor mrny yesrs.
          Cur holding is in accord with comon usace and
follows the general rule. Yee 33 G. J. 196, uherein it 18
steted tist a, . . . where the coiltract contain8 no stip-
ulation as to tne perioc;Cn.,ic.a tns rete agreed upon
shall apply, It Is construed so as to meke the interest
computable p*r annuni,not for any longer or shorter psr1od.s
          yurtuer, it till be noted that Article 5073, 2.S.
imposes the penalties for usury when *a treater ri:teof
interest than 10,P is received. Gur courts have uniforuly
CJirStNed t;.isle.?pur.re
                        to ~86~ 13,~Per ~~UUUIL See for
example :o;,lznerce
                 Trust I;oi;pany
                               v. 3est, 80 S;..;.2d 942,
per Judge ckedley (adopted o?inisn by <o::.LssionJI +?esls).
          TAS answer to your second questiorl-involve8 a
corstructionof mticle 73366, V.A.G.S. Tnis "depression"
Izsasurewas passed in 1934 and provided in part tliat *all
l~rest and penalties that havs accrued on all ad valorem
        taxss that were delinquent on or before Aumst 1,
&     : . . . are hereb- relec.sedprovidsd said . . . .
tar88 are paid aftsr Juz 3'3,1935, with a.?addition of
8;~penalty . . . . together with interest . . . . of 65
par annum, on and from July 1, 1935. . . .I
          It will at cx.oebe noted tnat in order for the
interest and penalty remission bill to be@pllcable, the
interest end penalty must hrve accrued on vtawes ti;atuere
dellaquent on or before .:uFust,l,1934."
          In the fact situation you present, tirenclty in
question had never be..non trio tsx rolls until tds yew,
and it is being placed on the roll8 under the provisions
of Articles 7346 and 7347, supra*
honorable Georgp 14.snerFsrd, ?ar.e3


          a.8are of the opinion that, because no assessment
WaS nado In prior YSsrS, the tnxes in t&lSStiOll
                                               wore not dr-
Linquent prior to this yerr, and aonce Axtlcis 7336d le not
applloable to thim feat rltuetion. In our Cpinlon ho. o-2083,
in OOAStNiA& &'tiOlO 7298, d, &., wo arrived 8.2 a similar
conclu8ion.
               In Clegg *. State, 42 Tex. 605, 605, our 5upreao
Court said:

            "It has beeii repeatedly decldsd, t&t no
       rignt of e&ion exists for the non-payment of
       an ad valorm property tax, Until an asses%etit
       h&s hem sad8 as provided by law.'
          ;Zimllarststvcriente
                             of tmi 1s~ will bs found in
LOpublic Insurzuce Co. v. Xlghlrnd ;.arkIndependent ~wool
District, 57 3. K. 2d 627; Qallae Joint Stock Land apnk of
Gallas v. &w&s, 118 2. Y. 23 941, no apwal) and in !,O
Ter. Jur. 229,
          In 3rom County catsr hqxOVhitWit uistriat v.
Lclnt?aa, 164 6. 'c.2d 722, 726, error refused for wcontof
writ, tns coUrt Spid:    fl..  . in t.13 abse:&s of a.:se6s-
                                  l

ixT;tsA0 taxes are due.”
          TN C&Se of State v. .'ionser~11 and defining Co.
292 b. Sr.869 (COIL%.of Apr.) deslt,xitn a tax on grsoline.
TAt StetUte requtied a dealir t0 report 0~ the 25tn Of lec A
&onth tam amount of hi8 seles for tne preeedlnp month url
pa9 a tax thereon at the @aat time. The statute was rtpwled
during err17 June and the quGtion.uss whether tns tax for
Kay gssollne rales had beooze i liabllit to the Sta.tswhich
the Legislature owld not constitutional If release. The
tourt held thit tLe tex on Eay ralrs ns not a ullab~llty"
Under the oonrtltutionai provision. Artiale 3, Settfon 55,
Tsxas Constitution. The tourt held that the liebillty was
inohoatt and could not aawue until June 25th. "Up to
thst time," said Judge Nickaia, "It would have had a status
comparable to a mere lrvy of an ad valorem tax without an
assessment, and, thus, an etwentlal element would have been
lacking. . . .v
             In Ktrtb l&e Drcinags 3istrict v. State Bank and
TNSt     CO., 92 Ied. 2d 783, tns Court said:
          "It is evident bat a tax cannot be
     delinquent until It has bee.? mad. payable by
     84a8 lsrful procrduro by tn* proper official8
     under the lxlrtlng law8 of tile;itata."

            The ~upromo Court of Indiana in Gallu,?V. Somidt,
56 3. 3.   &I+),450, rtsted t8 follow81 eA8 8aid in Ledwood
Co. v. 'ciinona and St. Fetsr irnd Co., f& Linn. 512, 524, 42
2. ‘il. b73, 477: *One thinp iS very Certain, . . . . that a
p8lUlty in 8ny foM cannot be imposed until P party 18 in
deftult of 80x6 legal duty.    k penalty for the non ~ymtnt
of a trx aa&not be ilo?o88duntil the person ha8 an Ol;portur~ity
to pay It, and ftil8 to do so'. It iS oli8AOLl8r  t0  Call 8Uh-A
a c:larEea 'delinguuent  tax*. It was not a tax at all u.rr:il
aftor the ess886nent a.ldextenrion were msde. gefore t&t
tim8 th8 Clekl sxietsd Otiy i:;the rifJ.Iitto tax, aud not Mtil
molded by tiiieforfusof law into a fixed ChaQ.8 w&S it 8USCep-
tibl8 of d8n;aLiand exact p,?yznent.n
          In Zli818yv. Board of i;onxissiontrs,127 2, '1.217,
(App. Ct. of Ind., Div. 11, tilecourt, as in trbeGallup case,
suI;ra,dealt nit:.propert t;at had been omitted fror?the t:x
rolls. The court #aid:
            wTt,e question            :rese2ted      x.iy te   st:Sed      as
     fo11ows: N.lereproperty is o=iittedIron the
     tzx duplicrtes, &Ad not asses8ed for lever,?1
                        di8CoY8red,placed u;;onthe
     years, and is the:-.
     tax duFlicat6 by tirecounty Auditor, and the
     texes for tne rrevorrlprecedin!: years are
     collected by tileGounty 'Ya%:burer, ttieI&la as
      current   t8X88    for     tim     ye&r     in WiiiUh Such omittsd
      prOpWty    yO8    80   lirted        for    taxatiul,     i8   t&8
      County Tre~8urer entitled to retFir& 0,~of the
      &iiOWIt 80 ColleOtod,    und8r   the &roViSions  Of
      Action 7332, &urR8 1314: If the tsxeo eo
      $.aced upon the trx dur4lcatc s.re'delinquent
      tSX88', it follors triitunder Jection 7332, wqra,
      w;llchdirects tllrttile':reasursrsnail be allowed
       'a COLY!A~~S~~LI of 66 oh til di-llnquent   taxes ool-
      lected by hfr;:'   appellant would be entltled to
      recover the ;l),lOl+.51,      with interest. The quea-
      tlon, however, iasabeen decided advcrsly to
      appellant's contention by the JuF~rclnr      Sourt of
      tale strtc. (Citing the G&l&up case, su;:ra).v
,lodloreble   George ti. Sheppard, Page 5



          hdrr the fore&oinc l ut~~oritirr,we hold tnat
the 6h Interest referr8d to In your Inwiry 8i;OUld be OOOI-




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