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 athree-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 madeafter the three-year period has run? 

### “3. If you have decided that Article 5221b-12 (j) (1) is astatute of limitations and the Commission has authority to waive it in meritorious cases, maysuch 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, page 2 (M-11)

due, in whole or in part, the emplbying unit makingssuch payment maymakeapplication to the Commission for ‘an adjustment thereof in connectionwith contribution payments then due, or for arefund 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 makean 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 onwhich 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 andunambiguous to levy atax, 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 Weare of the opinion, in answer to your question number 1and 2that Article 5221b-12( j) (1) is not astatute of limitations which maybe waived but is rather astatute of prohibition; or astatute 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 awell established principle of law that the courts in construing astatute will endeavor to carry out

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### 3(M-11)

the q.ntent and purpose of the Legislature. 

### 53Tex.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 makethe 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 makethe 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 arefund 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 1Tex.Jur.2d 

### 666,Administrative Law, Sec. 23:

“The right to invoke an administrative agency’s authority maybe lost by delay. Thus, where the statute prescribes aperiod within which application is to be made, presentation of the application within the specified period is said to be ‘exclusive andjurisdictional’

. . . .‘I Byvirtue of our answers to your questions number 1 and 2, wedeemit unnecessary to answer your question number 

### 3,

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

SUMMARY

TheTexas Emplo@neht Commission doea not havB atithority to waive the three-year provision authorizing the time in'whlch 'an employer mayapply for adjustments.or .refunds 

### under Article 5223b-12(j)(l), V.C.S.

Prepared by J. H. Broadhtirat Assistant Attorney ffeneral APPROVED: OPINIONCOMMITTEE 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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