                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                March 6,2003



The Honorable Carole Keeton Strayhom                     Opinion No. GA-0028
Comptroller of Public Accounts
Lyndon B. Johnson Building                               Re: Whether the Comptroller of Public Accounts
111 East 17th Street                                     may disclose certain information relating to state
Austin, Texas 78701                                      tax liens (RQ-0592-JC)


Dear Comptroller     Strayhorn:

         You ask whether the Comptroller of Public Accounts (“the Comptroller”) may disclose
certain information relating to state tax liens. Specifically, you ask whether the Comptroller may
“disclose the amount of current tax, penalty, and interest owed by a delinquent taxpayer when that
amount is actually secured by a publicly available state tax lien, even if the total amount owed is not
reflected on the face of the lien.“’

         Chapter 113 of the Tax Code provides for state tax liens. Under chapter 113, “[a]11 taxes,
fines, interest, and penalties due by a person to the state under [title 2 of the Tax Code] are secured
by a lien on all of the person’s property that is subject to execution.”         TEX. TAX CODE ANN.
0 113.001(a) (V emon 2001). A state tax lien may also be used to secure other taxes or fees that the
Comptroller “is required to collect under a law not included in this title.” Id. 8 113.002 1. To be
effective, a state tax lien must be filed with the county clerk in the county where real property is
located or, with respect to personal property, in the county where the taxpayer resided at the time
the tax became due and payable or in the county where the taxpayer filed the report. See id.
9 113.101(a).

         The Comptroller issues and files tax lien             notices required by chapter 113. See id.
$113.002( a) ; see also id. 8 113.003 (“The comptroller        may execute, certify, authenticate, or sign any
instrument authorized under this chapter to be issued         by the comptroller or under the comptroller’s
authority with a facsimile signature and seal.“). A           tax lien notice “must” include the following
information:




        ‘Letter from Jesse Ancira, Jr., General Counsel to the Comptroller of Public Accounts, to Honorable John
Cornyn, Texas Attorney General at 1 (Aug. 21,2002) ( on f 11e with Opinion Committee) [hereinafter Request Letter].
The Honorable    Carole Keeton Strayhom - Page 2             (GA-0028)




                (1) the name and address of the taxpayer;

                (2) the type of tax that is owing;

                (3) each period for which the tax is claimed to be delinquent;     and

                (4) the amount of tax only due for each period, excluding the amount
                of any penalty, interest, or other charge.

Id. 8 113.002(b). A tax lien notice may also include “other relevant information that the comptroller
considers proper.” Id. 0 113.002(c). Thus, the Comptroller has the discretion to include additional
information in a tax lien notice.

         The Comptroller files state tax lien notices with county clerks. Each county clerk is required
to maintain a “state tax lien book.” See id. 6 113.004 (“The county clerk of each county shall
provide at the expense of the county a well-bound book, entitled ‘State Tax Liens,’ in which notices
of state tax liens filed by the comptroller are recorded.“). On receipt of a tax lien notice from the
Comptroller, the county clerk is required to “record the notice in the state tax lien book.” Id.
0 113.005(a)(l).

        A state tax lien “attaches to all of the property of a person liable for the taxes.” Id.
8 113.001(b). Once the Comptroller has filed a state tax lien notice, the filing and recording of the
notice “constitutes a record of the notice.” Id. 8 113.006(a). A state tax lien on personal property
and real estate continues until the taxes secured by the lien are paid. See id. tj 113.1 OS(a).

         Significantly, pursuant to section 113.006 of the Tax Code, “[ o]ne tax lien notice is sufficient
to cover all taxes of the same nature, including penalty and interest computed by reference to the
amount of tax, that may have accrued before or after the filing of the notice.” Id. tj 113.006(b). You
explain that this provision “saves the Comptroller from having to expend additional manpower, time,
and additional lien filing fees each time a taxpayer accrues additional liabilities or makes partial
payments. At the same time, the single lien ensures protection of the state’s collection interests.”
Request Letter, supra note 1, at 2. However, the Comptroller is not prohibited from updating a lien
to reflect changes in the taxpayer’s liability. See TEX. TAX CODEANN. 5 113.002(c) (Vernon 2001)
(tax lien notice may include “other relevant information that the comptroller considers proper”).

         You state that the Comptroller has “traditionally treated all lien information - including the
amount secured by the lien - as public and readily available for release.” Request Letter, supra note
1, at 3. You ask whether the Comptroller may “disclose the amount of current tax, penalty, and
interest owed by a delinquent taxpayer when that amount is actually secured by a publicly available
state tax lien, even if the total amount owed is not reflected on the face of the lien.” Id. at 1. We
conclude that the Comptroller may do so.

        The legislature amended the state tax lien provisions in 1961 to provide for the recording of
liens with county clerks to establish “a method of determining the status and ownership of real
property and real property liens.” See Act ofApr. 18, 1961,57th Leg., R.S., ch. 104,§ 6,196l Tex.
The Honorable       Carole Keeton Strayhom - Page 3                     (GA-0028)




Gen. Laws 201,203. By its very nature, a state tax lien notice filed in the office of a county clerk
is a public record and is intended to put members of the public on notice of the state’s interest in
property. See TEX. Lot. GOV’T CODEANN. @j 118.024 (Vernon 1999) (county clerk’s authority to
charge fees with respect to documents, including authority to charge fees for filing personal and real
property records, does not limit person’s right to full and free access to such documents), 191.006
(“All records belonging to the office of the county clerk to which access is not otherwise restricted
by law or by court order shall be open to the public at all reasonable times. A member of the public
may make a copy of any of the records.“); TEX. PROP. CODE ANN. 0 13.002 (Vernon 1984) (“An
instrument that is properly recorded in the proper county is notice to all persons of the existence of
the instrument.“); see also TEX. TAX CODEANN. 8 9 15 1.027(a) (Vernon 2002) (information set forth
in a sales, excise, and use tax lien open to public inspection), 171.207 (franchise tax information
contained in a document filed with a county clerk as a notice of a tax lien “shall be made open to
public inspection”).

         A state tax lien notice filed with a county clerk must disclose the name and address of the
taxpayer; the type of tax that is owing; each period for which the tax is claimed to be delinquent; and
the amount of tax due for each period. See TEX. TAX CODEANN. 9 113.002(b) (Vernon 2001).
However, a state tax lien notice need not include the amount of any penalty, interest, or other
charges. See id. 8 113.002(b)(4) (excluding from information that must be included in a state tax
lien “the amount of any penalty, interest, or other charge”). And a state tax lien will not include
additional taxes that may have accrued after it was filed. By operation of section 113.006, however,
the tax lien notice will cover “all taxes of the same nature, including penalty and interest computed
by reference to the amount of tax, that may have accrued before or after the filing of the notice.” Id.
8 113.006(b). We agree that the Comptroller’s policy to treat as “public and readily available for
release” all lien information, including the amount secured by the lien, provides the public with
complete notice of the extent of the taxes and other amounts secured by the lien pursuant to section
113.006. See Request Letter, supra note 1, at 3-4.

         You express some concern that the Comptroller’s policy of releasing this information is
limited by confidentiality provisions, such as sections 111.006, 15 1.027, and 17 1.206 of the Tax
Code. See id. at 2; see also TEX. GOV’T CODE ANN. 4 552.022(a) (Vernon Supp. 2003) (“the
following categories of information are public information and not excepted from required disclosure
under this chapter unless they are expressly confidential under other law: . . . (15) information
regarded as open to the public under an agency’s policies”) (emphasis added). Very generally, those
provisions make confidential information the Comptroller obtains from the examination of a
taxpayers’ records* and have been interpreted to make confidential the amount of taxes owed by a



          *See TEX. TAX CODE ANN. $0 111.006(a) (Vernon 2001) (“The following matter is confidential and may not
be used publicly, opened to public inspection, or disclosed except as permitted by this section: . . . (2) all information
secured, derived, or obtained by the comptroller or the attorney general during the course of an examination of the
taxpayer’s books, records, papers, officers, or employees, including an examination of the business affairs, operations,
source of income, profits, losses, or expenditures of the taxpayer.“), 15 1.027(b) (Vernon 2002) (“Information secured,
derived, or obtained during the course of an examination of a taxpayer’s books, records, papers, officers, or employees,
including the business affairs, operations, profits, losses, and expenditures of the taxpayer, is confidential and not open
                                                                                                               (continued.. .)
The Honorable      Carole Keeton Strayhom - Page 4                     (GA-0028)




taxpayer. See, e.g., A & TConsultants, Inc. v. Sharp, 904 S.W.2d 668,680 (Tex. 1995) (holding that
the amounts of assessed tax deficiencies, refunds, or credits are derived from taxpayer-furnished
information and thus are confidential under section 111.006 of the Tax Code, and concluding that
the Comptroller was required under Public Information Act to disclose that audits resulted in a
deficiency assessment or refund warrant, but not to disclose the amounts of an assessment or refund).
Section 17 1.206 of the Tax Code, which makes confidential information obtained from a corporation
on which a franchise tax is imposed, see TEX. TAX CODE ANN. 0 171.206 (Vernon 2002), is
expressly modified by section 171.207, which provides that information contained in a document
filed under chapter 171 with a county clerk as a notice of a tax lien is not confidential and “shall be
made open to public inspection,” id. 8 17 1.207. See also id. $15 1.027(a) (“Information in or derived
from a record, report, or other instrument required to be furnished under this chapter [regarding
collection of sales, excise, and use taxes] is confidential and not open to public inspection, except
for information set forth in a lien filed under this title . . . .“). No provision, however, expressly
addresses the information about which you ask, information about the current liability secured by
a tax lien that may not be contained in the state tax lien notice but is necessary to evaluate the scope
of the lien. Nor is there a judicial or attorney general opinion on the subject.

          We conclude that the confidentiality provisions do not apply to information that discloses
the extent of the tax liability secured by a tax lien, because the statutory lien provisions except it
from the scope of the confidentiality provisions. The purpose of state tax liens is to secure amounts
owed to the state and to disclose to the public the state’s interest in property. See authorities cited
supra pp. 2-3. A state tax lien notice, which must include the name and address of the taxpayer and
the amount of tax due, see TEX. TAX CODE ANN. 8 113.002(b)(l), (4) (Vernon 2001), is public
information. See authorities cited supra p. 3. The legislature has also expressly provided in section
113.006 that a state tax lien notice covers additional amounts not included in the notice. See TEX.
TAX CODEANN. 6 113.006(b) (Vernon 2001) (“One tax lien notice is sufficient to cover all taxes
of the same nature, including penalty and interest computed by reference to the amount of tax, that
may have accrued before or after the filing of the notice.“). To the extent information supplements
information in a state tax lien notice, which is and must be publicly available, thus informing the
public of the full scope of the taxes and other amounts covered by the tax lien notice by operation
of section 113.006, the Comptroller is authorized by section 113.006 to release it. See TEX. GOV’T
CODEANN. 8 8 3 11.021 (Vernon 1998) (“In enacting a statute, it is presumed that . . . (3) a just and
reasonable result is intended; (4) a result feasible of execution is intended; and (5) public interest is
favored over any private interest”), 3 11.023 (“In construing a statute . . . a court may consider among
other matters the: (1) object sought to be attained; . . . (5) consequences of a particular construction;
[and] (6) administrative construction of the statute”). This authority to release information is an
exception to the confidentiality provisions and those provisions do not apply to the information when
it is released for this purpose.


          ‘(-continued)
to public inspection except as provided by Subsection (c) of   this section.“) (sales, excise, and use taxes), 17 1.206 (“ the
following information is confidential and may not be made        open to public inspection: . . . (2) information, including
information about the business affairs, operations, profits,    losses, or expenditures of a corporation, obtained by an
examination of the books and records, officers, or employees    of a corporation on which a tax is imposed by this chapter”)
(franchise taxes).
The Honorable   Carole Keeton Strayhom - Page 5             (GA-0028)




                                         SUMMARY

                         The Comptroller may disclose the amount of current tax,
                penalty, and interest owed by a delinquent taxpayer when that amount
                is actually secured by a publicly available state tax lien notice to the
                extent this information is disclosed to supplement information
                available in the state tax lien notice.




                                                Attorney General of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
