DAN MORALES 

ATTORSEY GESERAL 

QBffice of tiy ~ttotnep General 

&date of aexae 

July 12, 1993 

Honorable Luis V. Saenz 

Cameron county District Attorney 

Cameron County Courthouse 

914 East Harrison Street 

Brownsville. Texas 78520 

Opinion No. DM-235 

Re: Whether a delinquent tax penalty 

adopted by the Cameron County 

Commissioners Court under section 33.07 of 

the Tax Code applies to delinquent taxes 

subject to insklbnent agreements entered 

into under section 33.02 of the Tax Code 

prior to July 1 of the year in which the taxes 

became delinquent (RQ-528) 

Dear Mr. Saenz: 

On behalf of the Tax Assessor-Collector of Cameron County (the “tax assessorcokctor). you ask whether a delinquent tax penalty adopted by the Cameron County 

Ckxnmissioners Court under section 33.07 of the Tax Code applies to delinquent taxes 

subject to instaUment rgreanents entered into under section 33.02 of the Tax Code prior 

to July 1 of the year in which the taxes became delinquent. Subsection (c) of section 6.30 

of the Tax Code au&or&s the goveming body of a taxing tit to contract with any 

competent attorney to represent the tmit to enforce the collection of delinquent taxes. 

Section 33.07 authotizes a taxing unit to provide that 

tsxeJthat~delinquentonJuly1oftheyecrrinwhichthey 

become delinquent incur an additional penalty to d&y costs of 

CdlWtiO~ifthCUIlit... bas cmtracted wlth an attorney pmuant to 

Section 6.30 of this code. The amount of the penalty may not exceed 

15 percent of the amount of taxes, penalty and interest due. 

You inform us that the Cameron County Commissioners CoUn has entered into an 

agreement with a law firm to collect delinquent taxes in accordance with section 6.30, and 

has passed a resolution providing for a 15 percent penslty on taxes that remain delinquent 

on July 1 of the year in which they become delinquent pursuant to section 33.07. YOU 

state that “[t]he compensation under the contract with the kw fbm is the 15% penalty 

~lecl by Section 33.07 and required by the Commissioners Court.” You ask whether 

p. 1217 
Honomb~e Luis V. Saenz - Page 2 (D&235) 

~Sl~pacmtpenaltymayberawwArgaiaPtataxpclyawhohrr~~intom 

indbwnt apeanent with the taxing unit under section 33.02 prior to July 1 of the year 

inwhichtbetaxesbecmcdelinquent.’ 

Section 33.02, which authorizes the cokctor for a taxing unit to mta an 

agmeant with a person for the payment of delinquent taxes, penalties, and imerest in 

imtallments, provides in pertknt part: 

(a) The collector fbr a taxing unit that cokts its own taxes 

mayenteranagreementwithapersonde&nquentinthepayomtof 

thelax,pendtieqandinterestininlrtalhnentr. Theagmemmtmust 

kiawriting~~ynotadmdforapaiodofmorrthan36 

months. 

(b) Interest awrues as provided by Subsection (c) of Section 

33.01ofthiswdeontheunpaidbalanceduringthepcriodofthe 

Igncment. 

(c) A property OWIEI’S execution of an b~al&nt agreement 

under this section is an irmwcable admission of liabiity for all taxpenalties, and interest that are subject to the agreement. 

(d) Propatymaynotbeseitedmd~ldMdaarit~ynotbe 

81ed to collect a delinquent tax subject to an bstalknt agreement2 

lldeoEthCp~owner: 

(1) 5ilstomakeapaymentasrquiredbythergrramm; 

(2)failstopayotherpropertytaxesc4Alectedbytheunit 

whendueasmquiredbythe4kcto~or 

p. 1218 
Honorable Luis V. Saenz - Page 3 (DM-235) 

(3) breaches any other condition of the agreement, 

. . 

Tax Code 0 33.02(a) - (d) (footnote added). 

The comptrolkr interprets section 33.02 to allow a delinquent taxpayer who enters 

into an insmllment agreement to avoid the imposition of titrther penalties. A letter to the 

tax assessor-wllector from the office of the comptroller states in pertinent part: 

Subsection (b) [of section 33.021 provides that interest accrues on 

the unpaid balance-the subsection does not provide for penalties to 

accrueonthatbalance.. . . We have wnsistently interpreted Section 

33.02(b) to allow a taxpayer to stop the imposition of penalties on 

. delinquent taxes by enteting mto an insmlhnent agreement. 

Throughout the Tax Code, the Legislature specifies “interest” when 

it means interest and “penalties” when it means penalties. Further, 

we think the clear intent of Section 33.02 was to allow a taxpayer to 

formally agree to pay delinquent taxes and avoid the imposition of 

further penalties or a suit to wllect taxes-a taxpayer would have 

little or no incentive to enter into an insmlhnent agreement if 

penalties wntinued to accrue or he wuld still be sued for wlkction. 

Uaderourimezpraation,atwpc?yacwldnotbe~leforthe 15 

percent additional penalty ifhe entered into the instaument agrmment 

before July 1. Section 33.02 does not permit penshies to accrue 

after the agreement is made and Section 33.07 does not permit the 15 

percentadditionalpenaltytoattachuntUJuly1. Thishssbeenour 

wnsistent administrative wnstruction of the law. 

Letter to Antonio Yzaguirre, Jr., Tw Assessor-Collector, Cameron County, from Ray 

Bonilla, General Counsel, Comptroller of Public Accounts, dated April 16, 1993 

(emphasis in the originsl). 

You disagree with the wmptroller’s wnchrsion. You contend that the phrase 

“taxes that remain delinquent on July 1 of the year in which they bewme delinquent incur 

an additional penalty” in section 33.07 refers to delinquent taxes subject to an installment 

agreement. You base your contention on that fan that section 31.02(a), the provision 

which establishes the date upon which tsxes become delinquent, sets forth cettain 

exceptions, namely taxes paid under sections 31.02(b), 31.03 and 31.04, but does not 

except taxes subject to an installment agreement under section 33.02. We wncur with the 

wmptroUer’s interpretation of section 33.02, and tind your contention unpemuasive. 

p. 1219 
Honomble Lads V. Saenz - Page 4 (DM-235) 

Fbst, we agree with the wmptrokr that it ia dkpoMve that section 33.02 

acprrsslyprovidesthatimaenwntimreoto~eontheunpaidbalaaccbutdoesnot 

dmitrlyprovidethatpwelti~wiUwn&etoiccrw. Again,subaection(b)ofsection 

33.02 states that “[i]nrcrr.rr accrues as provided by Subsection (c) of Section 33.01 of this 

wdeonthetmpaidbalancedtuingthepekdoftheylrrsment: (Emphasisadded.) 

Subsection (b) does not provide that penalffes will wntinue to be imposed. Significantly, 

rcction33.01ppovidertorbathtbercaurlofintaat~theimporitiw0fpeaaltia. 

%bsection (a) of section 33.01, for example, provides: 

Adelitquenttaxincucsrpenaltyofsixpercentoftheamountof 

the~forthe~crladumonShitirdelinqucntpl~onepaccllt 

foreachdditionalmonthorportionofamonththetaxrem8ins 

unpaid prior to July 1 of the yeu in which it bewmes delinquent. 

However,ataxdeUtquentonJuly1incursatotalpenaltyoftwelve 

percentoftbeamountoftbede&nquenttaxwitbout~tothe 

mmberoftnontbsthetahasbeatdeUnquent. 

In~~webclim~itisinsieaificMtthlltpeaiw31.02(a)doesnotaccept 

instdment agreements. Section 31.02(a) establishes the date upon which taxes become 

delinquent. It does not impose pen&k, nor do the provisions it excepts.) The 

imposition of penalties is speciiically lddrrsred in sections 33.01.33.02, end 33.07. We 

w~withthecomprrolldsw~onthat~provirionsdoaot~aturingunit 

to impose a penalty adopted pursunt to section 33.07 on a taxpayer wi20 has entered into 

p. 1220 
HonorableLuisV. Saenz - Page 5 W-235) 

mstabat agreemmt under section 33.02 prior to July 1 of the year in which the mes 

ikatne delinquent.’ 

SUMMARY 

A delinquent tax penalty adopted under section 33.07 of the Tax 

Code does not apply to delinquent taxes subject to &aliment 

agramam entered into under section 33.02 of the Tax Code prior 

toJuly1oftheyeuinwhichthetucesbecMledelinqumt. 

DAN MORALES 

Attorney Oeneral of Texas 

WJLL PRYOR 

FitSthSiStMtAttorlICyGenenl 

MARYKELLER 

Deputy Attomey Oend for Litigation 

RENBAHICK!J 

State Solicitor 

MADELEINE B. JOHNSON 

Chair, Opiion Committee 

PreprredbyMaryR(-- 

Assistmt Attorney Ckaaal 

p. 1221