## E ORNEY 

# GENERAL QF%-EXAS

PRICE DANIEL .xrTOm?EY

GENERAL April 12, 1948

Hon. Gee. H. Sheppard Comptroller of Public Accounts Austin, Texas Opinion No. V-540

**Re:** Accrual of penalty **and** interest onunpaid **county taxes**  onthe lands set apart to endow The University of Texae.

Dear Sir:By your letter ofMarch 16thwe are advised that finpaying taxes due the counties on lands belonging to The University of Texas your Department “

. . . inattempting to make the appropriation for each biennium extend as far as possible

. . .has taken advantage of the statutes that authorize discounts and also in some instances bps paid to a certain county involved half the payment and let the other half go delinquent

. . .The question of penalty and interest arises each year when any portion ofthe unpaid taxes is paid
, . ,” Yau request that we &vise you as to ‘whether the State is required to pay penalty **and** interest on unpaid tmxes as above set out and whether lr not the present appropriation authorizes the payment of penalty and interest.”

Section lb(a) ofArticle VII ofthe Constitution ofthe State ofTexas reads as follows:

“All land mentioned inSections 11, 12and 15ofAr - title VII, ofthe Constitution of the State of **Texas, new**  belonging to the University ofTexas shall be subject to the taxation for **county purposes**  **to** the same extent as lands privately owned; povided they shall be rendered for taxatien upon values fixed by the State Tax Board: and providing that the @ate shall remit annually to each ofthehounties inwhich said lands are located an amount equal to the tax imposed up&msaid land for icOunty pur- poses.” (Sec. 16(a), Art. VII, adopted Nov. 4, f930).

Inorder to effectuate the above-quoted pro~vision the 42nd Legislature enacted S.B. 403, Ch. 93, Acts, Regular Session, 42&l Legislature, which act, carried as Article 715Oc, V.C.S., **reads** as follows:Hon. Geo. H. Sheppard, Page 2 (V-540)

“Sec. 1. All the lands set apart for the endowment ofthe University ofTexas by Section 15ofArticle 7 ofthe Constitution of 1876, and by Chapter 72 oftheActs ofthe Regular Session ofthe 18th Legislature, which are now unsold, are hereby declared to be subject to taxation for county purposes inthe counties inwhich they are located, tothe same extent as lands privately owned in said counties.

“Sec. 2. Itshall be the duty ofthe Comptroller ofPublic Accounts, from records inhis office, to submit to the State Tax Board data as to value fixed upon privately owned lands contiguous tothe University of Texas lands inthe several counties.

“Sec. 3. Itshall be the duty ofthe Commissioner ofthe General Land Office tofurnish the State Tax Board with maps showing the location of said Univer - sity of Texas lands, herein declared to be subject to taxation.

“Sec. 4. Itshall be the duty of the State Tax Board to place the valuation upon which said land shall be assessed and rendered for taxation. It shall further determine the taxable value of lands in each county separately. Inarriving at its amount tobe paid intaxes the value ofthe land only shall be considered, and not the value ofany buildings or other improvements, owned by the State, and situated upon said land.

“Sec. 5. The Tax Collector of each county which contains any ofthe land enumerated inSection 1,hereof, shall render to the Comptroller of Public Accounts by October 1of each year a certified statement showing the values fixed by the State Tax Board upon said lands, the county rate oftaxation, and the amount due said county as taxes upon said land.

“Sec. 6. Itshall be the duty ofthe Comptroller of Public Accounts to issue warrants upon the General Fund to pay taxes due each county, beginning with taxes assessed for the year 1931, and annually thereafter; said warrants to be issued and mailed to the several counties within the time as now provided by law for the payment of county taxes on privately owned lands.” Acts 1931, 42nd. Leg., p* 136, ch. 93.. -

Hon. Geo. H. Sheppard, Page 3 (V-549)

Inyour request you state that *.

. . since the adoption of the

. . . Constitutional Amendment and also the enactment ofS.B. No. 403 by the 42nd Legislature, this department has construed the law tomean that no interest and penalty would accrue onany portion oftaxes becoming delinquent under the above mentioned law.”

In 1931this Department in Opinion No. 2853 considered various features ofArticle 7150~. The opinion makes the follows ing observation:

“Itwill be noted that the Constitutional Amendment in question authorizes I&etPxaUen ofall lands
see apart and appropri#%d as an endowment for the University of Texas, while the enablfng art (Senate Bill No. 403) limits that taxation to the one million
acres set apart by the Constitution of 1876 and the
one million acres set apart by the Eighteenth Legislature in 1883. For practical purposes this distinction is immaterial, because all ofthe more than 200.6~00 acres embraced inthe fifty league grant to the University by the Republic of Texas in 1839 have been sold, and all the University lands now unsold
are embraced in the endowments ef 1876 and 1883.”

The last legislative appropriation to pay such taxes is found inSection 2(b) ofH.B. 246, Ch. 339, Acts, 50th Legislature, Regular Session. Section Z(b) reads, in part, as follows:

“(b) Inaccordance with the ConsWutional requirement that taxes for county purposes only be paid by SheGeneral Fund to counties inwhich are located endowment lands set Wise to&! University ofTexas by the Constitution ofthe State ofTexas and the Act of 1883, and infurther compliance with Senate Bill No. 403, Chapter 93, Acts ofthe Regular Session of the Forty-sesond Legislature, there is hereby appropriated to the State Comptroller ofPublic Accounts for the payment oftaxes to sueh counties for county purposes only upon said University owned land the sum ofnot to exceed Sixty Thousand Dollars ($60,000) for the fiscal year ending August 31, 1948, and the sum of Fifty Thousand Dollars ($50,000) for the fiscal year ending August 31, 1949. Provided, however, that any moneys herein appropriated may be used for the.purpose of paying current and delinquent taxes that have accrued, or may accrue, under the provisions ofthe above-mentioned Constitutional Amendment and under Senate Bill No. 403, Chapter 93, Acts ofthe Regular Session ofthe Forty-second Legislature.”Hon. Geo.,H. Sheppard, Page 4 (V-540)

posed forThe general rule is that penalty and interest may be imnonpayment oftaxes, but a statute which merely authorizes and provides for the levy ofa tax does not carry with itpenalties and interest, neither ofwhich accrues inthe absence of express provision therefor. R.C.L. Vol. 26, pp. 385, 386, Sets. 342, 343; 51Am. Jur. 849, and authorities cited therein; 61C.J. p. 1482, Sec. 2104; p. 1515, Sec. 2218, the last named section citing the following Texas cases which hold that interest is not recoverable ontaxes unless the statute expressly so provides: Cave v. Houston, 65 Tex. 619; Western Union Tel. Co. v. State, 55 Tex. 314 [rev. on other grounds 105 U.S. 460, 26 L. Kd. 1067); Edmonsen v. Galveston, 53 Tex. 157.
The provisions ofthe Constitution and ofthe statute which impose this particular tax upon lands otherwise exempt from taxation nowhere expressly provide for penalty and interest. The only language which might be construed to embrace penalty and interest is found inthe proviso to the effect that such lands shall be subject to taxation for county purposes ly owned.” “to the same extent as lands privateWe are of the opinion that this phrase has reference to the particular county rate oftaxation which the County Tax Collector
uses in computing the amount oftaxes due the county on said lands atthe valuation fixed by the State Tax Board. See Section 5ofArticle 7150~. Section 6 ofArticle 7150~ expressly provides that the warrants for these taxes shall be I’

. . . issued and mailed to the several counties within the time as now provided by law for the payment of county taxes on privately owned lands”; but, as we have previously said, the imposition ofa tax and prbvisions relating to , payment of same are insufficient to impose payment ofpenalty and interest in the absence of specific legislative authorization. We think that this particular case is the strongest possible case for the application ofthis rule for the reason that the State’s partial surrender ofher sovereign immunity from taxation should not be enlarged by implication.

The language used by the 50th Legislature inmaking the appropriation “for the purpose ofpaying current and delinquent taxes that have accrued, or may accrue, ~. *”is consistent with the views we have expressed in this opinion.

Although these views dispose ofyour question, it should be added that ifthere were any doubt as to the proper construction ofArticle 7150~. the practice ofthe departmental head charged with the duty ofadministering a statute carries great weight indetermining the operation ofthat statute. Sutherland, Statutory Construction, 6.5105, and authorities cited therein. The result we have reached in this opinion is in line with your Department’s consistent construction ofArticle 7150~ since its enactment.. -

Hon. Gee. H. Sheppard, Page 5 (V-540)

SUMMARY

Article 715Oc, V.C.S., which provides that the State ofTexas shall pay county taxes on lands owned by The University ofTexas, **does** not im- ,pose penalty and interest inthe event ofnonpayment of such taxes; nor does Section 2 ofH.B. No. 246, Ch. 339, Acts, 50th Legislature, Regular Session, appropriate funds for the payment of penalty and interest on any portion of such taxes as are past due.

Very truly yours,
ATTORNEY GENBRAL 

### OF TEXAS

MC/wb/JCP **BY** Mrs. Marietta Creel Assistant

ATTORNEYGENERAL