E k%.?!tTOWSEY 

OF TEXAS 

Honorable Robert S. Calvert Opinion No. C-289 

Comptroller of Public Accounts 

Austin, Texas Re: Whether the County Attorney or the Attorney General has the duty to file 

suit for foreclosure of 

the State's lien for dellnquent inheritance taxes 

Dear Mr. Calvert: 

and the venue and jurisdiction of such suits. 

You have advised us that inheritance taxes have been 

assessed and are delinquent, due and owing from the estates 

of seven decedents who died in Harris County, Texas. You 

request the opinion of this office on the above captioned 

matter, in view of Article 1.04, Chapter 1, Tit.le 122A, 

Tax.-Gen. Vernon's Civil Statutes, and of Article 14.20, 

Chapter 14, Title 122A, Tax.-Gen., V.C.S. 

Article l.O4,reads, in part, as follows: 

"(1) All delinquent State taxes and 

penalties therefor due,and owing to the 

State of Texas, of every kind and character whatsoever, including all franchise, 

occupation, gross receipts, gross production, gross premiums tax on Insurance 

companies, inheritance, gasoline, excise 

and all other State taxes which become 

delinquent other than State ad valorem 

taxes on property shall be recovered 

by the Attorney General in a suit brought 

by him in the name of the State of Texas. 

"(2) The venue and jurisdiction of 

all suits arising hereunder is hereby 

conferred upon the courts of Travis 

County." 

Article 14.20 reads as follows: 

"If the amount of tax due hereunder 

as shown by such assessment furnished 

by the county judge and Comptroller is 

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Honorable Robert S. Calvert, Page 2 (Opinion No. C- 289 ) 

not, paid within three months from the 

date of said assessment, same shall 

draw two per cent interest per month 

until paid, beginning with the date 

of notice of such assessment, and 

shall be added to said tax and 

collected as a penalty. If said 

tax and penalty are not paid within 

nine months from the date of such 

assessment the Comptroller shall 

so advise the county attorney, or 

if there is no county attorney then 

the district attorney, who must 

Immediately file suit in the district court to foreclose the tax 

lien as other tax liens are foreclosed." 

Article 1.04 has its source in Acts 1933, 43rd Leg. 

p. 581 ch. 192 8 1, formerly carried as Article 7076, Chapter 

2, Title 122, Taxation, Vernon's Civil Statutes, Article 

1.04 covers essentially the same matter included in the former 

Article 7076, but there are substantial differences. The 

authority presently conferred on the Comptroller was formerly 

exercised by the State Tax Commissioner and the State Tax 

Board; and it was previously provided that "The, penalties provided for by this Chapter shall be recovered by the Attorney 

General in a suit brought by him in the name of the State of 

Texas; . . .' . 

The only suit which has ever been instituted by any 

Attorney General in Travis County to recover delinquent 

inheritance taxes pursuant to the provisions of Articles 

7076 and 7076a, Vernon's Annotated Civil Statutes is 

Scanlan v. State, 215 S.W.2d 203 (Tex.Civ.App. 1948). The 

opinion in the Scanlan case is concerned with the disposition 

of an appeal frmnterlocutory order overruling pleas of 

privilege seeking to change the venue from Travis County to 

Port Rend County where the defendants resided. The case holds 

that the suit to recover inheritance taxes on property which 

the defendants had inherited from sisters dying intestate and 

on whose estates no administration had been had and in connection with which no proceeding had been had to appraise property and fix the amount of inheritance taxes due the State, 

was a suit for "delinquent State taxes due and owing to the 

State" within the provisions of Articles 7076 and 7076a, and 

that, therefore, venue properly lay in Travis County. Thus, 

the Scanlan case dealt with a situation entirely different 

from that presented by your request in that there had been no 

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Honorable Robert S. Calvert, Page 3 (Opinion No. C- 289 ) 

assessment of Inheritance taxes against the estates of the 

decedents therein involved. Whereas, since there has been 

an assessment in the estates here under consideration, the 

facts as they exist come within the express provisions of 

Article 14.20, which requires that: 

,I . . . If said tax and penalty are 

not paid within nine months from the 

date of such assessment the Comotroller 

Keeping this distinction in mind, we find no ambiguity or 

conflict between Articles 1.04 and 14.20. 

We do not want this holding to be misconstrued. We 

do not hold that 'the Attorney General could never in any 

instance file suit in a District Court of Travis County to 

foreclose the State's lien for delinquent inheritance taxes 

after an assessment has been made. We do hold that the 

County or District Attorney has a positive and primary duty 

in,the first instance to file suit for the foreclosure of 

such liens. It may well be that in cases involving a large 

amount of inheritance taxes or questions of great importance 

to the jurisprudence of this state the Attorney General might 

proverls loin with the County or District Attorney in a suit 

to foreclose inheritance tax-liens. In State v. ho 

568, 70 S.W.2d 699 (1944; rehearing denied, v?j6r3 Tex72 S.W.2d 593), the Attorney General and the Criminal DiAtrict 

Attorney of Harris County, Texas, there being no County Attorney in said county, sued Mike Hogg as executor under the will 

and estate of W. C. Hogg, deceased, and twenty-three other 

individuals, to whom property had passed under Hogg's will, 

to recover inheritance taxes and penalties claimed to be due 

the State of Texas by virtue of the inheritance tax statutes 

of this state. Exemptions for the devises and bequests in 

question were claimed on various grounds and were denied. 

However, the devisees and legatees under the will who had not 

received notice of the assessment of the inheritance taxes 

involved were held not liable for penalty for delay in payment of the tax. Again, it is noteworthy that the inheritance 

taxes had been assessed and that suit for collection of the 

taxes was filed in a District Court of Harris County, the 

residence of the decedent, in accordance with the provision 

(although this point was not specifically questioned) of 

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Honorable Robert S. Calvert, Page 4 (Opinion No. c-289 ) 

Article 7134, Chapter 5, Title 122, Taxation, Vernon’s Civil 

Statutes. The provisions of Article 14.20 are identical 

with the provisions of Article 7134. 

We think that our conclusion that Articles 1.04 and 

14.20 are clearly reconcilable is justified for the reasons 

we have previously stated. However, if the two articles be 

deemed ambiguous, there is further support for our conclusion 

in that it is consistent with the well recognized rule of 

statutory construction that statutes relating to the same 

subject matter will be harmonlzed and reconciled whenever 

possible to avoid irreconcilable oonflict, 53 Tex.Jur.2d 

243, Statutes, Section 164, and authorities cited therein. 

Moreover, you have advised us that it has been the administrative practice of the Comptroller’s Department that ever 

since the original enactment of.Article 14.20, which, we 

reiterate, has remained in the identical form of its original 

enactment in 1923, Acts 1923, 38th Leg. 2nd C,S. p. 63 ch. 29 

Sec. 1.8, to advise the County Attorney or in the event there 

is no County Attorney, the District Attorney, of inheritance 

taxes which have not been paid within nine months from the 

date of assessment, and that, throughout the years, the 

County or District Attorneys, as the case may be, have filed 

suits to foreclose the inheritance tax liens as other tax 

lie,ns are foreclosed. It is, of course, well settled that 

the departmental construction of an ambiguous statute by the 

official charged with the administration and enforcement 

thereof is entitled to great weight and will not be departed 

from unless clearly wrong. 53 Tex.Jur.2d 259, Statutes, til 177. 

Even if Articles 1.04 and 14.20 were viewed as being 

in irreconcilable conflict, the provisions of Article 14.20 

are still necessarily controlling. We quote the following 

excerpt from 53 Tex.Jur.2d 233, Statutes, 8 161: 

“In case of conflict between a 

general provision and a special 

provision dealing with the same 

subject, the former is controlled 

or limited by the latter, since a 

specific statute more clearly evidences the intention of the legislature than a general one; and this 

is so whether the provisions in 

question are contained in the same 

act or in different enactments.” 

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Honorable Robert 5. Calvert$ Page 5 (Opinion No. C- 289 ) 

Article 14.20 is the special provision pertaining to the 

foreclosure of inheritance tax liens when inheritance taxes 

have not been paid within nine months after assessment. 

If Article 14.20 were treated as being in irreconcilable conflict with Article 1.04, the result would be to 

repeal Article 1,04 to the extent of the conflict since it 

is last in order of position or arrangement. However, this 

rule is followed only when all other means of interpretation 

have been exhausted. 82 C.J.S. 717-720. Statutes. Sec. 347: 

53 Tex.Jur.2d 150, Parshall vi 

62 

State, 

Crim.Rep. 177, S.W. Stevens v. St 

70 Crim.Rep. 565, 

138 ate, 

159 S.W. We believe we have 

sustained rather than exhausted~other means of interpretation. 

You are therefore advised that th,e County Attorney 

of Harris County has the duty to file suit for foreclosure 

of the State’s lien for delinquent inheritance taxes due 

and owing from the estates of seven decedents who died in 

Harris County, Texas, and that Harris County District 

Courts properly have venue and jurisdiction of said suits. 

This is true regardless of the fact that, in one of the 

estates property formerly belonging to the decedent is not 

within Harris County so long as it is within the jurisdiction of this State. 

SUMMARY 

The Harris County Attorney has the duty 

of filing suits for foreclosure of the State’s 

lien for delinquent inheritance taxes, and 

Harris County District Courts properly have 

venue and jurisdiction of said suits even 

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Honorable Robert S. Calvert, Page 6 (Opinion No. U-289 ) 

in those Instances In which property 

formerly belonging to a decedent is 

not within Harris County, 80 long a6 

it is within the jurisdiction of this 

State. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

By: /vL 

APPROVEDI 

OPWION COMMITTEEI 

W. V. Geppert, Chairman 

W. E. Allen 

Arthur Sandlin 

Larry Merriman 

Harry Gee 

APPROVED FOR THE ATTORNEY QEWERAL 

By:' Stanton Stone 

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