ORNEY GENERAL 

OFTEXAS 

Honorable Robert S. Calvert Opinion No. WW-616 

Comptroller of Public Accounts 

Capitol Station Re: Whether Comptroller of 

Austin, Texas Public Accounts has the 

power to invoke against 

the taxpay~er the $25 

penalty provided in Section 12 of Article 7047 

l-1, VCS (providing an 

excise tax on the sale 

of radio and television 

sets) and require its 

payment under the bond 

Dear Mr. Calvert: without a court judgment. 

We quote from your opinion request as follows: 

"Section 6 (a) of House Bill 630, Acts of the Regular 

Session of the 54th Legislature provides in part as 

follows: 

'The said bond shall be pay~able to the State of 

Texas, and conditioned upon the full, complete, and 

faithful performance by the retailer of all the conditions and requirements imposed upon him by this act, 

or the rules and regulations of the Comptroller promulgated hereunder, on a form to be prescribed by the 

Comptroller expressly~ providing for the performance of 

said obligations, and the remittance and/or payment at 

Austin, Travis County, Texas, of all taxes collected 

and required to be collected for the use and benefit 

of the State, all taxes due upon the use of radios or 

television sets by said retailer, and all costs, penalties, and interest provided in this Act, provid~ed, 

however, that in any event the total of all recoveries 

under such bond for any and all breaches of its conditions occurring at any time while it remains in force 

to support a permit, shall not for any fiscal year 

exceed the penal sum named therein, . . .I 

"Section 12 provides in part as follows: 

'If any person affected by this Act (a) shall fail 

to pay to the State of Texas any tax due and owing 
Honorable Robert S. Calvert, Page 2 (Opinion No. WW-616) 

under the provisions of this Act, or. . .(h) shall 

fail to make and deliver to the Comptroller any return or report required herein to be made and filed 

or (I) shall fail or refuse to comply with any provision of this Act or shall violate the same, or (j) 

shall fail or refuse to comply with any rule and regulation promulgated hereunder by the Comptroller or 

violate the same, he shall forfeit to the State of 

Texas as a penalt the sum of not less than Twentyfive Dollars ($25 3 nor more than Five Hundred Dollars 

($500). Each day's violation shall constitute a separate offense and incur another penalty, which, if 

not paid shall be recovered in a suit by the Attorney 

General in a court of competent jurisdiction in 

Travis County, Texas, or any other court of competent 

jurisdiction having venue under existing Venus Statutes. Provided that in addition to the penalties 

shown, if any retailer does not make remittance for 

any taxes collected, or pay any taxes due the State 

of Texas by said retailer, within the time prescribed 

by law, said retailer shall forfeit to the State two 

per cent (2%) of the amount due; and if said taxes 

are not remitted or paid within twenty (20) days from 

the date due, an additional penalty of eight per cent 

(8%) shall be forfeited. All past due taxes and penalties shall draw interest at the rate of six per 

cent (6$) per annum.' 

"The question has arisen in this Department as to 

whether the Comptroller has the power or authority to 

invoke the $25 penalty, first mentioned above in Section 12, against the taxpayer and require its payment 

under the bond without a court judgment." 

House Bill 630, 54th Leg., which is codified as 

Article 7047 l-l, provided an excise tax on sales of radio 

and television sets. To paraphrase Section 12, quoted above, 

any person who fails to pay the tax provided by the Act, or 

who is guilty of any of the acts or omissions specified, 

shall forfeit to the State of Texas as a penalty the sum of 

ii?%-ress than $25 nor more than $500, and each day's violation shall constitute a separate offense and incur another 

penalty, which, if not paid, shall be recovered in a suit by 

the Attorney GenEaT Itis clear from this language that 

it is not necessary to file suit or take judgment before 

assessing the penalty against the taxpayer. 

The obligers in a bond executed pursuant to a 

statute are presumed to have known the terms of the statute 

and to have contracted accordingly~. 7 Tex. Jur. Section 24, 
Honorable Robert S. Calvert, Page 3 (Opinion No. WW-616) 

86 Section 6 (a) of House Bill 630, 54th Leg., states 

znequivocably that the bonds in question are conditioned 

upon the remittance of all penalties provided in the Act. 

Ihe Act does not require a judgment as a prerequisite to 

the collection of a penalty under a bond. Consequently, 

you are advised that the Comptroller of Public Accounts 

may invoke the penalty provided in Sec. 12 of Article 7047 

l-l against the taxpayer and require its payment under the 

bond required by Sec. 6 of said Article without a court 

judgment. 

SUMMARY 

The Comptroller of Public Accounts of 

the State of Texas has the power and authority to invoke the penalty provided for in 

Section 12 of Article 7047 1-l V.C.S. and 

require its payment under the bond required 

by such Article without a court judgment. 

Yours very truly, 

WILL WILSON 

Attorney General 

JNP:bct 

APPROVED: 

OPINION COMMITTEE: 

Geo. P. Blackburn, Chairman 

Ralph Rash 

Jot Hodges, Jr. 

John Reeves 

Kenneth Burns 

REVIEWED FOR THE ATTORNEY GENERAL 

By: W. V. Geppert