### THE ATTORNEY GENERAL OF TEXAS

Honorable Robert Hill Trapp Opinion No. JM-1192 County Attorney SanJacinto County Re: Application of section P. 0. Box 430 31.04(a) of the Tax Code to tax Coldspring, Texas 77331 bills which cannot be mailed because of anunknown address (RQ-1800)

DearMr. Trapp:

You ask the following question:

Whether Sec. 31.04(a) of the Property Tax Code, providing for thepostponement of the delinquency date for taxbills mailed after January 10,means that adelinquency date is never established for taxbills that cannot bemailed because ofanunknown address.

We are informed that the staff of the State Property Tax Board consistently has construed section 31.04 of the code to forbid the establishment of adelinquency date and the imposition ofpenalties and interest inan instance in which no tax bill is sent because the address of the owner isnot known. InLetter Opinion 89-60 (1989), this office was asked whether the construction by the staff of the State Property Tax Board of section 31.04 was correct. We concluded that it was. After reconsidering the issue, we conclude that the administrative construction of the State Property Tax Board is incorrect; we hereby overrule Letter Opinion 89-60.
Section 31.04 of the Tax Code provides the following in relevant part:

(4 Ifatax bill ismailed after January 10, thedelinquency date provided by Section 31.02 of this code ispostponed to the first day of the next month that will provide a period ofat least~21 ofmailing for paymentday~faf~teesthebe~~:;

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delinquent unless the taxing unit has adopted the discounts provided by Section 31.05(c) of this code, inwhich case thedelinquency date is determined by Subsection (d) of this section.

. . . . (e) Ifthe delinquency date fora tax is postponed under Subsection (a)of this section, that postponed delinquency date is the date onwhich penalties and interest begin to be incurred on the tax asprovided by Section 33.01 of this code.
The letter requesting the letter opinion from this office set forth the administrative construction adopted by the Office ofGeneral Counsel of the State Property Tax Board:

Ifa tax office never mailed a tax bill, a

delinquency date has not been established, andpenalties and interest should not be added to the tax due. Adelinquency date is established onlywhen a tax office mails an original tax bill.

Letter from Rep.Allen Hightower to Attorney General Jim Mattox (July 17, 1989) (quoting Mr. Dennis Hart, Office of General Counsel, State Property Tax Board).

The advice by the State Property Tax Board was based upon that agency's administrative construction of the effect of a 1985 amendment to subsection (e)of that section.1

1. The State Property Tax Board has construed section 31.04 of the code inthis manner since the adoption of the 1985 amendments to the section that added what isnow subsection (e). We note that the construction placed upon a statute by the agency charged with itsadministration is entitled togreat weight, Exnarte Roloff, 510 S.W.2d 913 (Tex. 1974): State v.Aransas Dock &Channel CO., 365 S.W.2d 220 (Tex. Civ. APP. - San Antonio 1963, writ especially where ref'd), contemporaneous, or nearly so, with the enactment of the statute itself. Burrouahs v. Lvles, 181 S.W.Zd 570 (Tex. 1944); Stanford v. Butler, 181 S.W.2d 269 (Tex. 1944).

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Subsection (e),which has notbeen changed since its 1985 amendment, provides:

(e) Ifthe delinquency date fora tax is postponed under Subsection (a)of this section, that postponed delinquency date is the date onwhich penalties and interest begin to be incurred on the tax asprovided by Section 33.01 of this code.

Acts 1985, 69th beg., ch. 753, § 1,at 2579. Prior to the 1985amendment of subsection (==I, that subsection provided the following:

Forpurposes unit's taxbills earliest date on all or substantially all of the taxbills.

The difficulty inconstruing section 31.04 arose because that section's apparent conflict with section 31.01 of code.
Section 31.01 of the code imposes on the assessor each bill bill of the

for tax tax taxing unit theduty ofpreparing and mailing a and sets forth those items of information that a must contain. That section provides inpertinent part:

(a) Except asprovided by Subsection (f) of this section, the assessor for each taxing unit shall prepare and mail a tax bill to each person inwhose name the property is listed on the tax roll or tohis authorized agent. The assessor shallmail taxbills by October 1oras soon thereafter as practicable.

. . . . (f) The governing body of ataxing unit may provide inthemanner required by law for official action by the body that a tax bill notbe sentuntil the.total amount of unpaid taxes the unit collects on the property is $25 ormore. Penalties and interest do not accrue during aperiod when a bill is not sent because of the provisions of this section.

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(g) EXCeDt asorovided bv Subsection If) of this section. failure to send or receive the tax bill ouired bv this section does not affect thertaliditv of the tax, oenaltv, or interest, the due date. the existence of a tax lien, or anv nroc ure instituted to collect atax.2 (Emphaszt added.)

It isour understanding that the staff of the board construed the underscored language of subsection (9) of section 31.01 tobe inconflict with the amended version of subsection (e)of section 31.04. Statutes bearing upon the same subject matter should be construed together and both given effect, if it ispossible todo so,because the repeal ofa statute by implication isnot favored. Texas Den't of Pub. Safetv v. Schaeibe, 687 S.W.2d 727 (Tex. 1985); Standard v. Sadler, 383 S.W.2d 391 (Tex. 1964). However, in an instance inwhich two statutory provisions enacted at the same time or during different sessions of the legislature are irreconcilable, the statute latest intime of enactment prevails. See Gov't Code .Q311.026. The staff of the board, invoking that principle, concluded that subsection (e)of section 31.04 controlled over subsection (9) of section 31.01, because itwas theprovision enacted later in time.Admittedly, areading of section 31.04 of the code, in isolation from other provisions, tends to support the board's construction. However, when section 31.04 is construed with other provisions of the Tax Code3 and of the Rules of Civil Procedure,4 itbecomes clear that the board's construction cannot be reconciled with other statutory

2. Subsection (f)was amended in 1987 to raise the minimum amount of taxes due that triggers the duty to send a tax bill from $5to $25. Acts 1987, 70th Deg., ch. 834, § 1,at 2870. Subsection (g)has notbeen amended since the code's enactment in 1979.

3. See. e.a., Tax Code 55 25.02(l), 33.04.

4. Rule 117a of theRules of Civil Procedure governs citation in suits for delinquent ad valorem taxes and specifically provides for service by publication in the event that the name or address of adelinquent taxpayer is unknown. The rulewas first added in 1947 andmost recently amended in 1987.

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provisions. The State Property Tax Board's construction of section 31.04presupposes that the legislature intended the section to govern inall instances inwhich no tax bill is mailed. For two reasons, wedisagree with this construction of the relevant provisions.
First, if section 31.04 were intended to govern in instances in which no tax bill - bemailed, then the irreconcilable conflict between that provision and section 31.01 arose first, not in 1985, but in 1979 when the Tax Code originally was enacted. Section 31.04 originally provided the following:

(a) If taxbills aremailed after Januarv 10. thedelinouencv date Drovided bv Section 31.02 of this code isDostDoned to the first dav of the next month that will Drovide a period of at least 21days after the date of mailina for Davment of taxes before deli..B= SBD%. (b) Ifthe delinquency date is postponed asprovided by this section, the assessor who mails the bills shall notify the governing body of each taxing unit whose taxes are included in thebills of the postponement. If thedue date for state taxes ispostponed, the county assessor-collector shall notify the State Property Tax Board of thepostponement.
(c) Apayment option provided by Section 31.03 of this code or adiscount provided by Section 31.05 of this code does not apply to taxes that are calculated too late for it to be available. (Emphasisadded.)

If the 1985 amendment to subsection (e) of section 31.04had never been enacted, there would still be a conflict between the two sections under the State Property Tax Board's construction of section 31.04. The conflict arises between the original of section 31.04 and the original version of subsection 1979version of subsection I;;
of section 31.01.
Under theboard's construction of subsection (a),ifno taxbill isever mailed, then no delinquency date is ever established and no taxes could ever be collected on such property. But subsection (g)of section 31.01 provides that failure to send a taxbill does not affect thevalidity of a

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tax, penalty or interest, the due date, the existence of a tax lien oranyprocedure instituted to enforce the collection of a tax. Thus, the apparent conflict between the twoprovisions antedates the enactment of the amendment to subsection (e)of section 31.04. The apparent conflict that wemust resolve involves statutes, the relevant portions of which were enacted during the same legislative session and were included inthe same bill. Acts 1979, 66th beg., ch. 841, § 1,at 2284-85. Therefore, reliance on the "later in time" principle of statutory construction is inappropriate.
Second, even ifwewere to accept, arcuendo, the construction of section of 31.04 adopted by the board, such a construction cannot be reconciled with an amendment to section 33.04 of the code enacted by the same legislature that enacted the amendment to subsection (e) of section 31.04. Section 33.04 of the code governs the notice of delinquency thatmust be delivered todelinquent taxpayers. Thepredecessor statute to section 33.04 of the code, article 7324, V.T.C.S., originally required a tax collector tonotify every delinquent taxpayer listed on the tax rolls once every year. Subsection (a) of section 33.04, as originally enacted, imposed the same duty on tax collectors tonotify delinquent taxpayers yearly, but also imposed at subsection (b) an additional duty on tax collectors of notifying ineach year divisible by five every delinquent taxpayer who owes a tax that has been delinquent more than oneyear.
Subsection (c) of section 33.04 originally provided that the tax collector had a duty to send anotice every fiveyears, but only if the collector knew or,by exercising reasonable diligence, could determine the delinquent taxpayer's name and address. In the event that the collector could not determine the taxpayer's name and address, he was required toprovide notice by publishing it inanewspaper. In 1985 section 33.04 was amended to provide, inter alia, that the reasonable diligence provisions regarding the tax collector's duty to provide the notice required every five years by subsection (b) were extended to theyearly notice required by subsection (a):

(a) At least once eachyear the collector fora taxing unit shall deliver anotice of delinquency to each person whose name appears on the current delinquent tax roll. However, the notice need notbe delivered if:
(1) [Exception inapplicable];

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(2) the collector does not know and by exercisina reasonable diliaence cannot determine the delinouent taxoaver's name and address. (Emphasisadded.)

Acts 1985, 69th Leg., ch. 761, 5 1,at 2601.
Thus, under theboard's construction of section 31.04, a 1985amendment to subsection (e)of that section acts to forbid the establishing ofadelinquency date ifno taxbill isevermailed, even inan instance inwhich nobill can be sentbecause the address of the taxpayer isunknown. But a 1985 amendment to section 33.04 provides that a tax collector has no duty tonotify a delinquent taxpayer, except bynewspaper notice, if the collector does not know and cannot determine, by exercising reasonable diligence, thedelinquent taxpayer's name and address.

In an instance in which conflicting statutes are enacted by the same session of the legislature, the latest expression of legislative intent prevails. Ex narte de Jesus de la 0,, 227 S.W.2d 212 (Tex. Crim. App. 1950); Attorney General Opinions JM-908 (1988); WW-139 (1980); H-115 (1973). In this instance, thedate onwhich legislative action last occurred on eachbillwas the same, namely May 26, 1985. The Senate Journal indicates, however, that thehouse took action on thebill containing the amendment to section 33.04 later than it took action on the other bill. S.J. of Tex., 69thbeg. 2040-41 (May26, 1985).
Therefore, if wewere to construe section 31.04 to govern in instances in which no tax bill could be sent because the address of the taxpayer was unknown, then, invoking the sameprinciple that the staff of the board invoked, wewould perforce conclude that the amendment to section 33.04 effectively controlled the amendment to section 31.04, and that theboard's construction of section 31.04 was incorrect. However, we reject the board's construction of section 31.04, because we reject the presupposition uponwhich that construction was predicated, namely that the section was intended inthe first instance to govern a situation inwhich a taxbill could not be sent because the address ofadelinquent taxpayer was unknown. Two arguments support our construction. First, aswe noted earlier, we are required to construe statutes inoari materia insuch a way as toharmonize any conflicts, ifsuch a construction ispossible, because the repeal of a statute by implication isnot favored. We construe section 31.04 togovern only in instances in which

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a tax bill can be sent, but ismailed late; it has no application inan instance in which no tax bill can sent because the name oraddress of thedelinquent taxpayer is unknown. Our construction of section 31.04harmonizes any apparent conflict with other statutory provisions and renders any further reliance on abstruse principles of statutory construction otiose.
Second, we are required to construe visions in statutory prosuch a way thatwill not lead to absurd or ridiculous consequences. C' ' *, . 527 S.W.2d 175 (Tex. 1975); Maanolia Petroleum Co. v. Walker, 83 S.W.2d 929 (Tex. 1935). Section 33.41 of the codepermits a taxing unit, at any time after a tax on property becomes delinquent, to file suit to foreclose a tax lien. Aswe noted earlier, if section 31.04 of the code were construed to reach situations inwhich no tax bill was sentbecause the address of the delinquent taxpayer was unknown, then the section would effectively prohibit the establishment of adelinquency date and no taxes could ever be collected on suchproperty. Wehave found nothing in the code to indicate that the legislature intended such a result.
Therefore, we conclude that section 31.04 of the Tax Code does not govern in instances inwhich no tax bill can be sent because the name or address of the taxpayer is unknown; itgoverns only in situations inwhich a tax bill canbemailed but ismailed late. Inan instance in which nobill canbemailed because the address of the taxpayer is unknown, section 31.02 of the code, which provides that the delinquency date isFebruary 1 of theyear after the taxes are imposed, controls the establishment of a delinquency date.

SUMMARY

Section 31.04 of the Tax Code does not operate to forbid the establishment of the delinquency date and the imposition of penalties and interest on taxes due in a situation in which no tax bill is sent because the name oraddress of the delinquent taxpayer isunknown. Section 31.04 governs in instances in which tax bills can be mailed, but aremailed late. Subsection (a) of section 33.04 of the code specifically provides that the duty imposed on a tax collector to notify delinquent taxpayers does

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not apply where the collector does not know and, by exercising reasonable diligence, cannot determine the name oraddress of the delinquent taxpayer. Inan instance inwhich no tax bill canbemailed because the address of the taxpayer isunknown, section 31.02 of the code,which provides that the delinquency date is February 1 of the year after the taxes are imposed, controls the establishment of adelinquency date.

JIM MATTOX Attorney General of Texas

MARY KELLER First Assistant Attorney General

LOUMCCRRARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RRNEA HICKS Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byJimMoellinger Assistant Attorney General

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