ORNEY GENERAL

OFTEXAS

Honorable Robert S. Calvert Opinion No. WW-616 Comptroller of PublicAccounts Capitol Station Re: Whether Comptrollerof Austin, Texas PublicAccounts has the power to invoke against the taxpay~er

the $25 penalty provided in Section 12 of Article 7047 l-1,VCS (providingan 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 fromyour opinion request as follows:
"Section 6 (a) of House Bill 630, Acts of the Regular Session of the 54th Legislatureprovides in part as follows:

'The said bond shall be pay~able to the State of Texas, and conditionedupon the full, complete, and faithfulperformanceby the retailer of all the conditions and requirements imposedupon him by this act, or the rules and regulations of the Comptrollerpromulgated hereunder, on a form to be prescribed by the Comptroller expressly~ providing for the performance of said obligations,and the remittanceand/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 setsby said retailer, and all costs,penalties, and interestprovided 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 occurringat any time while it remains in force to supporta permit, shallnot for any fiscalyear exceed the penal sum named therein,

. . .I
"Section 12provides in part as follows:

'Ifany person affected by this Act (a) shall fail to pay to the State of Texas any tax due and owingHonorable Robert S. Calvert, Page 2 (OpinionNo. WW-616)

under the provisions of this Act, or.
. .(h) shall fail to make and deliver to the Comptrollerany return or report requiredherein to be made and filed
or (I) shall fail or refuse to complywith any provision of this Act or shallviolate the same, or (j) shall fail or refuse to complywith any rule and regulation promulgatedhereunder by the Comptroller or violate the same,he shall forfeitto the State of Texas as a penalt the sum of not less than Twentyfive Dollars ($25

3 nor more than FiveHundred Dollars ($500). Each day's violation shall constitutea separate offense and incur anotherpenalty, which, if not paid shallbe recovered in a suitby the Attorney General in a court of competent jurisdiction in Travis County,Texas, or any other court of competent jurisdictionhaving venue under existingVenus Statutes. Provided that in addition to the penalties shown, if any retailer does not make remittance for any taxes collected, or pay any taxes due the State of Texas by said retailer,within the time prescribed by law, said retailer shall forfeit to the State two per cent (2%) of the amount due; and if said taxes
are not remitted orpaid within twenty (20)days from the date due, an additionalpenalty of eightper cent (8%) shall be forfeited. All past due taxes and penalties shalldraw interest at the rate of sixper cent (6$)per annum.'

"The questionhas arisen in this Department as to whether the Comptrollerhas the power or authority to invoke the $25penalty, firstmentioned 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, anyperson 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?%-ressthan $25nor more than $500, and each day's violation shall constitutea separateoffense and incur another penalty, which, if not paid, shall be recovered in a suitby 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 executedpursuant to a statute arepresumed to have known the terms of the statute and to have contractedaccordingly~.7 Tex. Jur. Section 24,Honorable Robert S. Calvert, Page 3 (OpinionNo. 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 allpenaltiesprovided in the Act. Ihe Act does not require a judgmentas a prerequisite to the collection of a penaltyunder a bond. Consequently, you are advised that the Comptrollerof PublicAccounts may invoke the penalty provided in Sec. 12 of Article 7047 l-l against the taxpayer and require itspayment under the bond required by Sec. 6 of saidArticlewithout a court judgment.

SUMMARY

The Comptrollerof Public Accounts of the State of Texas has the power and authority to invoke the penaltyprovided for in Section 12 ofArticle 7047 1-lV.C.S. and require its paymentunder the bond required by suchArticle 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