E k%.?!tTOWSEY

OF TEXAS

HonorableRobert S. Calvert Opinion No. C-289 Comptrollerof Public Accounts Austin, Texas Re: Whether the County Attorney or the Attorney General has the duty to file suit for foreclosureof the State's lien for dellnquent inheritancetaxes

Dear Mr. Calvert: and the venue and jurisdiction of such suits.

You have advisedus that inheritancetaxes have been assessed and are delinquent,due and owing from the estates of seven decedentswho 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 delinquentState taxes and penalties therefordue,and owing to the State of Texas, of every kind and character whatsoever, includingall franchise, occupation,

gross receipts,gross production, gross premiums tax on Insurance companies, inheritance, gasoline, excise and all other State taxes which become delinquentother 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 jurisdictionof all suits arising hereunder is hereby conferredupon 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 Comptrolleris

**-1381-**Honorable Robert S. Calvert, Page 2 (OpinionNo. C- 

### 289 )

not, paid within three months from the date of said assessment,same shall draw two per cent interestper month until paid, beginningwith the date of notice of such assessment,and shall be added to said tax and collectedas a penalty. If said tax and penalty are not paid within nine months from the date of such assessment the Comptrollershall
so advise the county attorney, or if there is no county attorney then the district attorney,who must Immediatelyfile suit in the district court to foreclosethe 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 essentiallythe same matter included in the former Article 

### 7076,but there are substantial differences. The authoritypresently conferred on the Comptroller was formerly exercisedby the State Tax Commissioner and the State Tax Board; and it was previouslyprovided that "The, penaltiesprovided for by this Chapter shall be recoveredby 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 inheritancetaxes pursuant to the provisionsof 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 concernedwith the disposition of an appeal frmnterlocutory order overrulingpleas of privilege seeking to change the venue from Travis County to Port Rend County where the defendantsresided. The case holds that the suit to recover inheritancetaxes on propertywhich the defendantshad inherited from sisters dying intestateand
on whose estates no administration had been had and in connection with which no proceedinghad been had to appraiseproperty and fix the amount of inheritancetaxes due the State,
was a suit for "delinquentState taxes due and owing to the State" within the provisionsof 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 presentedby your request in that there had been no

-1382---

Honorable Robert S. Calvert, Page 3 (OpinionNo. C- 289 )

assessmentof Inheritancetaxes against the estates of the decedents therein involved. Whereas, since there has been
an assessmentin the estates here under consideration, the facts as they exist come within the expressprovisionsof Article 14.20, which requires that:

,I

. . . If said tax and penalty are not paid within nine months from the date of such assessmentthe Comotroller

Keeping this distinctionin mind, we find no ambiguity or conflictbetween 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 inheritancetaxes after an assessmenthas been made. We do hold that the County or DistrictAttorney has a positive and primary duty in,the first instance to file suit for the foreclosureof such liens. It may well be that in cases involvinga large amount of inheritancetaxes or questions of great importance to the jurisprudence of this state the Attorney Generalmight proverls loin with the County or DistrictAttorney in a suit to foreclose inheritancetax-liens. In State v. ho 568, 70 S.W.2d 699 (1944; rehearingdenied, 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 executorunder the will and estate of W. C. Hogg, deceased,and twenty-threeother individuals,to whom propertyhad passed under Hogg's will, to recover inheritancetaxes and penalties claimed to be due the State of Texas by virtue of the inheritancetax statutes of this state. Exemptions for the devises and bequests in questionwere claimed on variousgrounds and were denied. However, the devisees and legateesunder the will who had not receivednotice of the assessmentof the inheritancetaxes involvedwere 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 collectionof the taxes was filed in a District Court of Harris County, the residence of the decedent, in accordancewith the provision (although this point was not specifically questioned)of

**-1383-**--

Honorable Robert S. Calvert, Page 4 (OpinionNo. 

### c-289 )

Article 

### 7134, Chapter 

### 5, Title 122, Taxation,Vernon’s Civil Statutes. The provisionsof 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 reconcilableis justifiedfor the reasons we have previously stated. However, if the two articlesbe deemed ambiguous, there is further support for our conclusion in that it is consistentwith the well recognizedrule of statutoryconstructionthat statutesrelating to the same subjectmatter will be harmonlzedand reconciledwhenever possible to avoid irreconcilable oonflict, 

### 53 Tex.Jur.2d 243, Statutes, Section 164, and authoritiescited therein. Moreover, you have advisedus that it has been the administrative practice of the Comptroller’s Department that ever since the original enactmentof.Article14.20, 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 DistrictAttorney, of inheritance taxes which have not been paid within nine months from the date of assessment,and that, throughoutthe years, the County or District Attorneys,as the case may be, have filed suits to foreclose the inheritancetax liens as other tax lie,ns are foreclosed. It is, of course,well settled that the departmentalconstructionof an ambiguous statuteby the official charged with the administration and enforcement thereof is entitled to great weight and will not be departed from unless clearlywrong. 

### 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 necessarilycontrolling. We quote the following excerpt from 

### 53 Tex.Jur.2d 233, Statutes, 8 

### 161:

“In case of conflictbetween a general provision and a special provisiondealing with the same subject, the former is controlled
or limitedby the latter, since a specific statutemore clearly evidences the intentionof 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.”

-1384-HonorableRobert 5. Calvert$ Page 5 (OpinionNo. C- 

### 289 )

Article 14.20 is the special provisionpertaining to the foreclosureof inheritancetax liens when inheritancetaxes have not been paid within nine months after assessment.

If Article 14.20 were treated as being in irreconcilable conflictwith 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, Parshallvi 

### 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 thereforeadvised that th,e County Attorney of Harris County has the duty to file suit for foreclosure of the State’s lien for delinquentinheritancetaxes due and owing from the estates of seven decedentswho died in Harris County,Texas, and that Harris County District Courts properly have venue and jurisdiction of said suits. This is true regardlessof the fact that, in one of the estates property formerlybelonging 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 foreclosureof the State’s lien for delinquentinheritancetaxes, and Harris County District Courts properlyhave
venue and jurisdiction of said suits even

**-1385-**Honorable Robert S. Calvert, Page 

### 6 (OpinionNo. U-289 )

in those InstancesIn which property formerlybelonging to a decedent is not within Harris County, 80 long a6 it is within the jurisdiction of this State.

Yours very truly,

WAGGONER CARR AttorneyGeneral 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

-1386-