‘%KsrIN 11. Trzvas 

PRICE DANIEL 

.\TTORXEY CF.NE”Al August 16, 1951 

Hon. John Ben SheDperd 

Secretary of Statk’ 

Austin, Texas 

Ooinion No. V-1239 

Ae: Authority of the Secretary of State to 

waive, compromise, or 

reduce the penalties 

for late filing of 

franchise tax reports 

(Art. 7089) and franDear Sir: chise taxes (Art. 7091). 

You.have requested the opinion of this office 

on the folqowlng question: 

“May the Secretary of State, under 

certain extenuating circumstances . . . 

accept late filing of the tax report and 

late payment of franchise tax without 

levying the penalties of 10 per cent and 

25 per cent as provided for in Articles 

7089 and 7091, V.R.C.S.?” 

In connection with your request you have stated 

four examples of “extenuating circumstances” which are 

actual cases In your fiAes and you refer to a letter oplnion of this office addressed to Hon. Paul Ii. Brown, Secretary of State, dated August 23, 1948, which you state 

psesents the answer to a different problem. 

,The fact that the office of the Secretary of 

State was confronted with requests by various corporate 

taxpayers that under certain “extenuating circumstances” 

the Secretary of State should waive the penalty for late 

filing of the franchise tax report prescribed In Article 

7089, v.>c.s., or the penalty for Late pajrm*nr of Qhe 

franchise tax prescribed by Article ~7091, V.,C :.S *, constituted the basis for the request by Hon. Paul. H. ~~r~+~-. 

.x thins same subject He asked whether the penalties 

prwided for’ln each of the foregolng Articles were man- 

:&tory or whether ttie Secretary of Stare had the authority CG waive, compromise, or reduce the penalties upon 

z?plication and for cause deemed sufficient in the dlscrezicn cf the Secretary af State. 
, 

Hon. John Ben Shepperd, P%gO 2 (V-1239) 

In holding ihat & corporation nhigh 'fails to 

file Its franahiae tax report or falls to piry ft.6 f'ranchiBe tax uhen due becoaes fmediatel 

7; 

liable for the 

.f POMltlea provided for fti &tfclea 70 9 and 7091, V.C.S., 

rOepeCtlvely, and that the Secretary of state has no 

aU%borlty to wafve, aompromlae, or reduce the pen ltier 

10 provided under any clrcwtancefJ, the opinion’ 4o Hon. 

?Bul H. Brown sta$es in part8 

“The queetion of whether or not the 

provielons of a statute are mandatory is 

one of statutory constructfon. 39 .&,x0 -::..w 

. ..A 9 

33* % 14. However, ft 1s settled that: tZ-?yz 

is no room for construction when the sts%ce 

is exoressed .--~~ ~-~ in Dlain and unamblnuous language and its me&l 

73 

is clear aiid obvious. 

39 Tex.JW. 161, I 8 a 

“me provisions of each of the statlrtes 

here in question are expressed in plain an,3 

unambiguous langvge. Article 7089, V.C.S., 

clearly providesqhat franchise tax reports 

are due between Jinuary 1st and March 15th 

of each yea-, but that the Secretary of St.a% 

may for good causs shown by any conporstioa, 

extend such time up to Mar lat. AK;~ ccrpcr&Ion failing to file Its report shall be 

assessed a penalty of ten per cent. *tic: f’ 

7Ogl~~V.C.S.,Talao provides in clear and WAtietakable language tlzat I? a corporation 

falls to pay its franchise tax when due, ft 

ahall thereupon become liable to a penalty 

of twenty-five per cent oi the amoun% of 

ruch franchise tax due by euoh corporation. 

Bowever, even if' the statute6 were ambPguous 

and thus aubbjeot to conetructlon, It fs no$ed 

that,~lt haa long been the departmental conrtrmotlon pi the offfoe of the Secretary of 

State that'the penaltiee in question are mandatory and cannot be waived, oompromifacd or 

reduoed. The Legislature has met aany time8 

s:nce such comtructlo~ was given the statutes by the SecretarT of State, but has not 

undertaken to change the statute 80 81) to 

alter thla conatmct%on. This offfce doe8 

not feel justfffed to held now that the Seoretary of state wa6 i%e e:ppor 1x1 so ooanet37uf~~. 

the statute. See Iabell vs. QuIf Wnfan Of1 

co,, SUP6 C%., 209 S&(&3) 762. 

. 
Hon. John Ben Shepperd, Page 3 (V-1239) 

“Aa to the question of whether or not 

the Secretary of State has authority to 

waive, compromise or reduce these penalties, 

it is noted that no such authority is given 

the Secretary of State by the constitution 

or etatutes. It Is the settled law in this 

State that Public Officers possess only such., 

authority as is conferred upon them by law, 

34 Tex. Jur. 440 8 67. As no authority Is 

given the.~Secretary of State to waive, compromise or reduce the penalties provided for 

in Articles 7089 and 7091, V.C.S., he has no 

authority to do so." 

This office has carefully reconsidered the foree;cMg opinion In the light of the factual examples of 

extenuating circumstances" referred to and it is the 

opinion of 'this office that the holdings of the,opfnion 

addressed to Hon. Paul H. Brown, dated August 23, 1948, 

are correct and should be reaffirmed. We are 'compelled 

to reach this conclusion under the rule of law announced 

by the Supreme Court in the case of Federal Crude 011 Comany v. Yount-Lee 011 Company, 122 Tex. 2 

2 (1932) 

1, 52 S.W.2C56, 

,.as follows: 

,"Mhere the officers of the state~government, dtifng a long period of years, have construed a statute of doubtful Import and the 

same Is later re-enacted by the Legislature in 

substantially the same form, it will be presumed that the lawmaking body knew of the COEstructlon placed upon Its language by such 

officers, and that, if ft uas not aatlsfled 

t,hrt Its intention had been rightly interpreted, 

.it~uould have so changed the verbiage of the 

act as to have shown clearly ,a contrary intention.". 

', ! 

; Since the ruling of this office on the questions i&lved on August 23# 1948, the Legislature has 

met in Regular Session In the year 1949, In Called Session in the year 1950, and again in Regular Session in 

the year 1951. At Its Regular Session in 1949. the Legislature amended Articles 7089 and 7091, V.C.S. 'Acts 51st 

Leg,, ch. 536, pa 975, sets. 5 and 7. It must be presumed that the LecgfslatuPe knew ot the constsuction placed 

upon its language by the Secretary OP State and by this 

office. it' the Q&slat*@ had not been satisfied that 
, 1. _ 

Iron:' John Ben Shepperd, plr% :4 (V-1239) 

Its intention had been rightly Interpreted, it could have 

changed the verbiage of the'two Articles In question so 

as to authorize the Secretary of State In his discretion 

to walvir, compromise, or reduce the.penaltles in question 

under such circumstances as were found by the Secretary 

of State to be extenuating. This t 

do, and therefore, P 

e Legislature did not 

under the forego ng rule of law, It 

must be presumed that the Legislature concurred In the departmental construction by the Secretary of State and the 

opinion of this office. 

It Is the opinion of this office that the-Secretary of State has no authority to waive, comp?omlse, or 

reduce the penalties provl#ed for failure to make and fl:e 

the franchise tax reports !a8 required by the provisions 

of Article 7089, v.c.s., &d to pay the franchise tax due 

as prov%dUd In Artlcler7O+l, V.C.S., the liability for 

such penalties being mandatory. 

SUMMARY 

The Secretary of State has no authority 

to waive, compromise, or reduce the penalties 

for late filing of tianchlse tax returns as 

provided in Article 7089, V.C.S., or the penalty for late payment of franchise taxes as 

provided InArtIcle 7091, V.C.S., the liabiilty for such penalties being mandatory. 

very truly yours9 

APPROVED: PRICE DANIEL 

Attorney GeEal 

Everett Hutchlnson 

Executive Assistant 

Charles D, Mathews C. K:. Richards 

First Assistant Assistant 

CKFltwb:em