Qerald C. Mann

w?amx~~~~xxx *-mexDzY

"-Am. AuFrrINIl. -rrcxAsThis Opinion overrules

in part letter opinion toW.M. Porter dated 2/12/38. Hon. JohnM. Turner CountyAttorney Opinion No. O-4424 Eee county Re: Penalty on delinquent taxes Reevllle,Texas of Independent school district.

Dear Sir:

We have receivedyour letter of recent date in which you ask'the opinion of this departmentupon the following question:

"Can an independent school district legally charge ten per cent penalty on its
own delinquent taxes?"
Article 

### 7336,Vernon'sAnnotated Civil Statutes, provides In part as follows:

"If anyperson fails to pay one-half (l/2)of the taxes,; Imposedby law upon him
or his property, on or before the thirtieth day of November of theyear forwhich the assessment Is made, then unless he pays all of the taxes (Imposedby law on him or his property), on or before the thirty-firstday of the succeeding January, the following penalty shall be payable thereon, to-wit: During the month of February, one (1%)per cent; during themonth ofMarch, two (2$) cent; during the month ofApril, three (3% Per

per cent; during themonth of May, four(4$) per cent; during themonth of June, five (5%) per cent; and on and after the first day of July, eight (8$) per cent."

We quote from the opinion of the recent case of Love v. Spur Independent School District, et al, 143 S.W. (2d) 793:
"Article 7336, Revised Civil Statutes of 1925,.provided In effect that a penalty of lC$ on the entire amount of delinquent taxes should accrue~and be collected as penalty.-Thereafter in 1934 article 

### 7336was amendedby the Fourth Called Session of theparty-thlrd~Leglslature, c. 10,$2,Vernon's Ann. Clv. St.art.'7336, and reduced the penalty on delinquent taxes to 8$, butHonorable John M. Turner, Page 2

the amendmentbecame effective ninety days after the date of the adjournment of said sessionNovember 10, 1934. Article 

### 7336d provides that the State or any county or other subdivision of the State 'exceptsuch cities, towns, villages, special school districts and independentschool districtswhich do not adopt the provisions of this section' shall collectpenalty on a differentbasis but this last articlehas no application to the case under consideration for the reason the record falls to show that Its provisionswere adopted by the City of Spur or the Spur Independent School District. Therefore the penaltywould be calculated according to article 

### 7336and article 

### 7336as amendedby the Forty-third Legislature.

"Itwill be noted from the delinquent tax record of the City heretofore set out that It charged lC$ penalty for the years 1928 to 1938, inclusive,when under the law it should have charged only 8$ penalty for the years 1935 to 1938, inclusive,which would have reduced the penalty due the City by $1.97.

"The judgment In favor of the City for $1.97 penalty in excess of the legal amount is a mistakewhich in our opinion comesunder the doctrine of de minimis and does not require a reversal or modification of.the judgment. Texas & N.O.R.Co. v..Stumberg,Tex. -Civ.App.,

### 115 S;W.(2d) 

### 1~26;Lewis v.Lewis, Tex.Clv.App.. 

### 125 S.W.2d 

### 375;Wichita Falls & OklahomaRy. Co. et al v. Pepper, Tex.CiV. APP., 101 S.W.2d 

### 365. .Wealso note that in 1930 the Spur Independent School District charged a penalty of but $2.40 on delinquent taxes of 

### $48. This was to the defendant's advantage In the sum of $2.40.

"An examination of the schedule of the delinquent tax record of the Spur Independent School Districtheretofore set out discloses that the School District charged lO$ penalty. up to and including 1933 but only 

### 8% penalty thereafterand the defendant is entitled to no deduction therefrom."

You are respectfully advised that thepenalty should be calculatedaccording to Article 

### 7336before and. .

Hondrable JohnM. Turner, Page 3

after its amendment. In other words, for the years prior to the amendment a penalty of lO$ is authorized. For the years after the amendment a penalty on a graduated scale Is authorized from February to July followingthe date of delinquency, and a penalty of 8$ after the first day of July. The letter opinion to which you refer in your letter of requestwas onewritten February 12, 1938, to Honorable W. M. Porter. The author of the opinion citedArticle
as amended, providing for an 8$ penalty. He closed the7336, opinionw1th.a statement that the district could charge a lO$ penalty. We believe that the author Inadvertentlywrote lC$ when he meant 8$. This statement is expressly overruled.

Yours very truly

ATTORNEYGENERAL OF TEXAS

By George W. Sparks

Assistant OWS:IM:bt Approved March 4, 1942

Grover Sellers First. Assistant Attorney General
Approved Opinion Committee By BWB, Chairman