Hoiiorable S. Perry Brown Opinion No. M-11 

Chairman-Ekecutlve Director 

Texas Emplojment Commission Re: Tlme$lneas of application 

hatin, Texm for refund of contributions 

under the provisions of 

Dear Mr. Brown: Article 5221b-12( j) (l), V.C.S. 

This is In an8yer to ‘your Fegtieat for an opinion 

concerning the following questions. 

” 1. Does Article 5221b-12( j) (1) cbnstltute 

a three-year statute of limitations with 

respect to the Commission’s authority to 

consider applications for refund made 

after the three-year period has sxpired? 

“2. If so, is the Commlsaion authorizgd to 

waive at its discretion In meritorious 

cases this statutory defense and consider 

applications for refund made after the 

three-year period has run? 

“3. If you have decided that Article 5221b-12 

(j) (1) is a statute of limitations and the 

Commission has authority to waive it in 

meritorious cases, may such authority be 

exercised at the discretion of the Commlssion 

prior to the filing of a lawsuit bx the taxpayer for recovery of such refund? 

Article 5221t-12( j) (1)) Vernon’s Civil Statutes, 

provides as followti: 

“Where any employing unit ha8 made 

a payment to the Commission of contrlbutions and/or penalties alleged to be 

due, and it is later determined that such 

contributions and/or penalties were not 

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Hon. S, Perry Brown, pag e 2 (M-11) 

due, in whole or in part, the emplbying 

unit makings such payment may make application to the Commission for ‘an adjustment thereof in connectionwith 

contribution payments then due, or for 

a refund thereof because such adjustment cannot be made. If the Commission 

shall determine that such contributions 

or penalties, or any portion thereof 

were errorsously collected, the CommissIon shall allow such employingunit 

to make an adjustment thereof without 

interest in connection with contribution 

payments then due by such employing unit. 

If such adjustment cannot be made, the 

Commission shall refund said amount without 

interest from the fund. It Is provided, 

however, that no application for adjustment or refund shall ever be considered 

by the Commission unless the same shall 

have been filed within three (3) yeprs 

fron the date on which such contritutlons 

and/or penalties wo,uld have become due, 

had such contributions and/or penalties 

been legally collectible by the Commission 

from such employing unit. . , .” 

The general rule of law is that a taxing statute must 

be plain and unambiguous to levy a tax, but once the tax 

is established, then an exception to the payment of the tax 

is strictly construed against the exception or exemption. 

Texas Unemployment Compensation CornIn. v. Bass, 137 Tex. 1, 

1-51 

We are of the opinion, in answer to your question number 

1 and 2 that Article 5221b-12( j) (1) is not a statute of limitations which may be waived but is rather a statute of prohibition; or a statute in bar, and the Employment Commission 

is barred from considering an application for adjustment or 

refund after the three-year period stated In the statute has 

expired. 

It is a well established principle of law that the 

courts in construing a statute will endeavor to carry out 

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Hon. S. Perry Brown, page. 3 (M-11) 

the q.ntent and purpose of the Legislature. 53 Tex.Jur. 

2d 168, Statutes, Sec. 3.1.9. 

It is hard to conceive of language more specific than 

that used~ in the statutes under constructionwherein ‘it is 

stated that “it is provided, however, that no application 

for adjustment or refund shall ever be considered’ by the 

Commission unless the same~ shall have been filed within 

three years. . . .” (Emphasis added) 

The Legislature in’ enacting this statute’certainly 

intended that it have some meaning or purpose. If the 

three-year provision could be waived, then, in fairness 

to all and to make the statute apply equally to all persons 

it would be necessary to waive the three-year provision 

across the board in all cases,‘and this would make the 

statute absolutely meaningless, 

Paragraph number (2) of Section (j) of the above 

statute provi”es that when an employing ,unit hae nade application to the Commission for a refund or adjusfment 

within the three-year time limit and such application for 

refund or adjustment has been denied by the Commission, 

such employing unit, may, within one year from the date 

on which notice of such denial was mailed to it (meaning 

the employing unit), commence an action in any court of 

competent jurisdiction in Travis County, Texas. This 

indicates that the Legislature intended that the application for refund or adjustment must be filed within 

three years or they would be barred from commencing an 

action in the court for the refund or adjustment. 

The following is quoted from 1 Tex.Jur.2d 666, Administrative Law, Sec. 23: 

“The right to invoke an administrative 

agency’s authority may be lost by delay. 

Thus, where the statute prescribes a period 

within which application is to be made, 

presentation of the application within the 

specified period is said to be ‘exclusive 

and jurisdictional’. . . .‘I 

By virtue of our answers to your questions number 1 

and 2, we deem it unnecessary to answer your question 

number 3, 

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Hon. S. Perry Brown, page 4 (M-11) 

SUMMARY 

The Texas Emplo@neht Commission doea 

not havB atithority to waive the three-year 

provision authorizing the time in'whlch 'an 

employer may apply for adjustments.or .refunds under Article 5223b-12(j)(l), V.C.S. 

Prepared by J. H. Broadhtirat 

Assistant Attorney ffeneral 

APPROVED: 

OPINION COMMITTEE 

HBwthorne PhilLips, Chairman 

W. V. Geppert, Co-ohairman 

Jack Goodman 

John Reeves 

Nell Williams 

Linward Shivers 

Staff Legal Aesistant 

A. J. Carubbl, Jr. 

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