DAN MORALES 

ATTORNEY GENERAL 

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November 17, 1998 

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The Honorable James M. Kuboviak 

County Attorney 

Brazos County 

300 East 26th Street, Suite 325 

Bryan, Texas 77803 

Opinion No. DM-491 

Re: Whether a delinquent tax penalty to defray 

collection costs authorized pursuant to Tax Code 

section 33.07 applies to taxes delinquent on or 

after July 1 under Tax Code sections 31.03, 

31.031,31.032, or 31.04 (RQ-970) 

Dear Mr. Kuboviak: 

On behalf of the Tax Assessor-Collector of Brazos County, you ask whether a delinquent tax 

penalty to defray collection costs authorized under section 33.07 of the Tax Code with respect to 

taxes that remain delinquent on July 1 of the year in which they become delinquent applies to taxes 

delinquent on or after July 1 under sections 3 1.03, 3 1.03 I,3 1.032, or 3 1.04 of the Tax Code. You 

suggest that the penalty does not apply to taxes delinquent on or after July 1. We concur for the 

following reasons. 

Generally taxes become delinquent on February 1 of the year following the year in which 

they are imposed.’ However, sections 3 1.03,3 1.03 1,3 1.032, and 31.04 of the Tax Code provide for 

subsequent delinquency dates. 

Section 31.03 provides that “a person who pays one-half of the unit’s taxes before 

December 1 may pay the remaining one-half of the taxes without penalty or interest before July 1 

of the following year.” If the person does not make the second payment before July 1, the second 

payment is delinquent and incurs a penalty of twelve percent of the unpaid tax amount.’ Thus, the 

second tax payment is delinquent on July 1. 

‘Tax Code section 3 1.02(a) provides that 

[e]xcept as provided by Subsection(b) of this section and by Sections 3 1.03 and 3 1.04 

of this code, taxes are due on receipt of the tax bill and are delinquent if not paid before 

February 1 of the year following the year in which imposed. 

Subsection(b) extends the date on which persons serving on active duty in the United States armed forces in the Persian 

Gulf War may pay delinquent taxes without penalty OI interest. Tax Code 5 31.02(b). 

‘Id. § 33.01(b). 
The Honorable James M. Kuboviak - Page 2 (DM-491) 

Section 3 1.03 1 allows an individual who is disabled or at least 65 years of age and who 

claims the disabled or elderly homestead exemption to pay taxes on residence homestead in 

installments.3 If the person pays at least one-fourth of the taxes before February 1, he or she may 

pay the remaining taxes without penalty or interest in three equal installments.4 The first installment 

must be paid before April 1, the second before June 1, and the third before August 1 .5 If the 

individual fails to make a payment on the date required, the unpaid amount is delinquent and incurs 

a penalty of twelve percent and interest as provided by section 33.01(~).~ This installment plan, of 

course, is not available unless the individual makes the initial payment before February 1. Thus, the 

relevant delinquency dates under this section are generally April 1, June 1, and August 1.’ 

Section 3 1.032 applies to residential homestead property located in a disaster area and that 

has been damaged directly by the disaster. If the owner of the property pays at least one-fourth of 

the taxes before February 1, the person may pay the remaining taxes without penalty and~interest in 

three equal installments.’ The first installment must be paid before April 1, the second before 

June 1, and third before August l? If the individual fails to make a payment before the applicable 

date, the unpaid amount is delinquent and incurs a penalty of twelve percent and interest as provided 

by section 33.01(c).” Again, because the installment plan is not available unless the person makes 

the initial payment before February 1, the relevant delinquency dates under this section are also 

generally April 1, June 1, and August 1 .‘I 

“See id. $5 11.13(c), 31.031(a) 

41d. $5 31.02(a), .031(a). 

sId. 5 31.031(a). 

61d. $ 3 1.03 l(b). Delinquent taxes incur penalties and interest apart from the section 33.07 penalty. Section 

33 .O l(a) provides that a delinquent tax incurs a penalty of six percent for the first calendar month it is delinquent plus 

one percent for each additional month or portion of a month the tax remains unpaid before July 1 of the year in which 

it becomes delinquent. A tax delinquent on July 1 incurs a penalty of twelve percent. Id. 5 33.01(a). Section 33.01(c) 

provides that “[a] delinquent tax accrues interest at a rate of one percent for each month or portion of a month the tax 

remains unpaid.” 

‘But see id. 5 31.03 l(d) (postponement of delinquency dates if tax bill mailed after September 30 and taxing 

unit has adopted discounts provided by section 31.05(c)). 

*Id. 5 3 1.032(b). 

9Id. 5 3 1.032(b). 

“Id. 5 31.032(c). 

“Buf see id. $ 3 1.032(e) (if delinquency date postponed to May 1 or later, each installment date similarly 

postponed). 

p. 2709 
The Honorable James M. Kuboviak - Page 3 (DM-491) 

Finally, section 3 1.04 provides for postponing the delinquency date when a tax bill is mailed 

after January 10. The February 1 delinquency date is postponed to the first day of the next month 

that allows at least 21 days after the date of mailing for payment of the taxes before they become 

delinquent.‘* The usual penalties and interest provided by section 33.01 start accruing on the 

postponed delinquency date.” 

We turn now to the additional delinquent tax penalty you ask about. Section 6.30(c) of the 

Tax Code authorizes the governing body of a taxing unit to contract with any competent attorney to 

represent the unit to enforce collection of delinquent taxes. Tax Code section 33.07 allows the 

taxing unit to recover those collections costs from the delinquent taxpayers,14 and provides in 

pertinent part the following: 

(a) A taxing unit or appraisal district may provide, in themannerrequired 

by law for official action by the body, that taxes that remain delinquent on 

July I of the year in which they become deliplquent incur an additional 

penalty to defray costs of collection, if the unit or district or another unit that 

collects taxes for the unit has contracted with an attorney pursuant 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. 

(d) If a taxing unit or appraisal district provides for a penalty under this 

section, the collector” shall delivera notice of delinquency and ofthepenalty 

to the property owner at least 30 and not more than 60 days before July 1. 

[Emphasis added.] [Footnote added.] 

In short, the statute allows a taxing unit to impose an additional penalty to defray the costs of 

collecting delinquent taxes ifthe taxing unit has contracted with an attorney pursuant to section 6.30 

and complied with the other statutory requirements. 

‘*Id. 5 31.04(a). 

“Id. $ 3 1.04(e) 

‘%ee Attorney General Opinion N-857 (1988) at 8 (taxing unit must use all penalties collected under section 

33.07 to compensate attorneys with whom it has contracted). 

“See Tax Code 5 1.04( 15) (defming “collector” as “the officer or employee responsible for collecting property 

taxes for a taxing unit by whatever title he is designated”). 

p. 2790 
The Honorable James M. Kuboviak - Page 4 (DM-491) 

As a statute imposing penalties, section 33.07 must be strictly construed.i6 By its terms 

section 33.07 permits the additional penalty to be imposed only against fuxes that remain delinquent 

011 July I of the year in which they become delinquent. ” Words and phrases must be read in context 

and construed according to the rules of grammar and common usage.” As commonly used, 

“remain” means that some condition or status continues unchanged.‘9 In this case, that condition or 

status of course is the delinquency of the applicable taxes. It follows that the taxes described here 

must become delinquent before July 1 in order to continue to be delinquent on July 1. Thus taxes 

to which the additional penalty applies must become delinquent before July 1. 

Additionally, such taxes must become delinquent on a date at least 30 days before July 1 

given the language of the statutory notice provision. Section 33.07(d) requires the collector to 

deliver a notice of delinquency and ofthepenalty at least 30 and not more than 60 days before 

July l.*’ By definition, taxes must first be delinquent before a notice of delinquency can be sent.*’ 

The delinquency date must then be a date at least 30 days before July 1 for notice of the delinquency 

to be delivered at least 30 days before July 1. 

Construction of section 33.07 to require the relevant taxes to be delinquent on a date at least 

30 days before July 1 because notice of delinquency and of penalty cannOt be delivered until the 

taxes are actually delinquent also comports with the purpose of the section 33.07 notice, i.e., to 

‘6Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814,818 (Tex. 1970); Hatch v. Davis, 621 S.W.Zd443, 

446 (Tex. App.--Corpus Cluisti 1981, writ ref d n.r.e.); see Attorney General Opinion JM-285 (1984) (discussing 

appIicabilityofsection33.07penalty);seea~so CityofHouston v.FirstCiq, 827S.W.Zd462,475 (Tex. App.--Houston 

[ 1st Dist.] 1992, writ denied) (any statute which permits recovery of attorney’s fees penal in nature and to be strictly 

enforced). 

“See Attorney General Opinion JM-285 (1984) at 3 (July 1 date is mandatory; section 33.07 does not provide 

any means whereby taxing unit or appraisal district may extend July 1 date). 

“Gov’t Code 5 3 11 .O 1 l(a); Tax Code $ 1.03 (Code Construction Act, chapter 3 11, Gov’t Code applies to each 

provision of title 1 (chapters 1 through 43) of Tax Code except as otherwise expressly provided). 

‘%e WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 995 (defining “remain” as “to continue unchanged”); 

see also Nunez v. Superior Court, 503 P.2d 420,423 (Ark. 1972) ( “remain” presupposes and implies something that 

exists or continues after some other time or event); Kudlich v. Ciciarelli, 401 P.2d 449,454 (Hawaii 1965) (“remain” 

means to continue unchanged in form, condition, status, or quantity). 

‘OThe additional penalty is ineffective if a taxing unit does not comply with the notice requirements. Cifj of 

Houston, 827 S.W.2d at 474 (failure to provide notice); Uvalde County AppraisolDist. v. Parker, 733 S.W.2d 609,611 

(Tex. App:-San Antonio, writ ref d n.r.e.) (same); see also Salvaggio Y. Houston Indep. Sch. Dist., 752 S.W.2d 189, 

191 (Tex. App.--Houston [14th Dist.] 1988, tit denied) (notice must be given before penalty may be imposed). 

“See Tax Code 5 33.04 (Notice of Delinquency) (“At least once each year the collector shall deliver a 

notice of delinquency to each person whose name appears on the current delinquent tax roll.“). 

p. 2791 
The Honorable James M. Kuboviak - Page 5 (DM-49 1) 

specially warn a taxpayer of the delinquency and allow a reasonable opportunity to pay the amount 

due before the additional penalty attaches.22 

In sum, the section 33.07 penalty may be imposed against taxes that become delinquent on 

a date at least 30 days before July 1 and that remain delinquent on July 1 of the year in which they 

become delinquent, if notice of the delinquency and of the penalty is delivered within the requisite 

time period. The notice of delinquency and of penalty must be delivered after the applicable tax 

delinquency date and at least 30 days and not more than 60 days before July l.*’ Thus, although 

taxes that become delinquent on June 1 are “taxes that remain delinquent on July 1,” it is not 

possible to deliver the statutory notice after the June 1 delinquency date but at least 30 days before 

July 1 ?4 Therefore, we conclude that the section 33.07 penalty may not be imposed against taxes 

that become delinquent on or after June 1 under sections 3 1.03,3 1.03 1,3 1.032, or 3 1.04 of the Tax 

Code. 

A brief submitted to this office argues that the section 33.07 penalty should apply to 

delinquent taxes that become delinquent on July 1 .25 The brief concedes that because the tax did not 

become delinquent in the months preceding July 1, the required notice of delinquency and of the 

penalty would ordinarily not have been sent. However, the brief argues, because there is no reason 

to believe that the legislature intended to abolish the section 33.07 penalty for taxes that become 

delinquent on July 1, the attorney general “should carve an exception to the notice requirements 

under 5 33.07 to allow for the 15% penalty to be added to accounts which become delinquent on 

July 1 .rr*6 The brief does not provide nor do we know of any authority that would allow us to 

disregard the express statutory requirement that notice ofdelinquency and ofthe penalty be delivered 

at least 30 and not more than 60 days before July 1. 

In the alternative, the brief argues, taxing units should be allowed to send the notice of 

delinquency and penalty within the required time period, but before taxes become delinquent. In 

support of this, the brief cites to the court’s statement in Sdvuggio, 752 S.W.2d at 192, that the 

**This office in Attorney General Opinion m-285 stated that “the section 33.07 penalty can attach only after 

the notice has been given and during the year the taxes first become delinquent[,]” and that “[t]he legislative intent, we 

believe, was to allow the imposition of the additional penalty only after the property owner had been specially warned 

of its prospective attachment (and in time to avoid its imposition).” Attorney General Opinion JIv-285 (1984) at 2 

(emphasis in original). 

“‘In computing period of days, the first day is excluded and the last day included. Gov’t Code 5 3 11.014(a). 

Additionally, if the last day of any period is a Saturday, Sunday, or a legal holiday, the period is extended to include 

the next date that is not a Saturday, Sunday, or a legal holiday. Id. 9 311.014(b). 

“Letter from Sandra Griffm, Calame Linebarger Graham & Pena, L.L.P., to Dan Morales, Attorney General 

of Texas (Jan. 15, 1998) (on file with Attorney General Opinion Comm.). 

“61d. at 2. 

p. 2792 
The Honorable James M. Kuboviak - Page 6 (DM-49 1) 

requirements of section 33.07 need not be performed in any particular order. We believe the 

Salvaggio court’s statement is taken out of context and does not apply to nor support giving notice 

of delinquency before the applicable taxes become delinquent. In Salvaggio, the court set out the 

three separate actions that a taxing unit must take before imposing the penalty: contract with an 

attorney pursuant to Tax Code section 6.30; take official action to impose the penalty; and deliver 

notice of delinquency and of the penalty within the requisite time period.” The taxpayer in 

Salvuggio contended that the section 33.07 penalties assessed against him were void because the 

taxing unit had sent the notice prior to officially adopting the penalty and had adopted the penalty 

before contracting with counsel. 28 The court disagreed, stating that section 33.07 “contains no 

language expressly requiring that the actions be taken in any particular sequence.“29 This statement 

is inapposite for two reasons. First, the statement refers only to the order in which the taxing unit 

must take the actions at issue, namely, contracting with attorneys, taking official action, and giving 

notice of delinquency and of the penalty. Second, in contrast to the statutory silence with respect 

to the order in which those actions must be taken, section 33.07 does expressly indicate when the 

required notice must be delivered by stating that notice ofdelinquency and of thepenalty must be 

delivered at least 30 days and not more than 60 days before July I. 

Lastly, the brief contends that the additional penalty authorized by section 33.07 is intended 

to help defray the costs of collecting delinquent taxes and that allowing taxpayers who benefit from 

the extended delinquency dates under sections 3 1.03, 3 1.03 1, 3 1.032, or 3 1.04 to escape the 

additional penalty for taxes delinquent on or after July 1 contradicts that intent. Thus the brief 

argues that the legislature intended the penalty to apply to delinquent taxes irrespective of whether 

they become delinquent on or after July 1 .30 However, the brief does not cite any legislative history 

to support this interpretation. In fact, the plain language of section 33.07 and fundamental rules of 

“Salvaggio, 752 S.W.2d at 192. 

281d. 

“Id. 

‘“See Letter from Sandra Griffi at 3, supa note 25 

p. 2793 
The Honorable James M. Kuboviak - Page 7 (DM-491) 

statutory construction belie such an interpretation. Like a court, we must interpret the statute as 

written: 

Courts must take statutes as they find them. More than that, they should 

be willing to take them as they find them. They should search out carefully 

the intendment of a statute, giving full effect to all of its terms. But they 

must find its intent in its language, and not elsewhere. They are not the lawmaking body. They are not responsible for omissions in legislation. They 

are responsible for a true and fair interpretation of the written law. It must be 

an interpretation which expresses only the will of the makers of the law, not 

forced nor strained, but simply such as the words of the law in their plain 

sense fairly sanction and will clearly sustain.” 

Like a court, we must construe this statute strictly given that it imposes a penalty.” Section 33.07 

expressly provides that “taxes that remain delinquent on July 1 of the year in which they become 

delinquent incur an additional penalty ” and that the “collector shall deliver a notice of delinquency 

and of the penalty to the property owner at least 30 and not more than 60 days before July 1.” A 

construction of section 33.07 to allow the penalty to be imposed against taxes delinquent on or after 

July 1 is not only contrary to the legislative “will” expressed by the plain language ofthe statute, but 

also ignores the rule that a statute imposing penalties must be strictly construed. Consequently, 

while it may be the case as a matter of public policy that taxpayers who enjoy the benefits of the 

extended delinquency dates should not escape the additional penalty for taxes delinquent on or after 

July 1, amendment of section 33.07 lies with the legislature and not this office. 

“Simmons v. Amim, 220 SW. 66,70 (Tex. 1920); see also Railroad Comm’n of Tcx. Y. Miller, 434 S.W.Zd 

670,672 (Tex. 1968). 

p. 2784 
The Honorable James M. ,Kuboviak - Page 8 (DM-491) 

SUMMARY 

The additional delinquent tax penalty authorized pursuant to Tax Code 

section 33.07 may only be imposed against taxes that become delinquent on 

a date at least 30 days before July 1 and that remain delinquent on July 1 of 

the year in which they become delinquent, if notice of the delinquency and 

of the penalty is delivered within the requisite time period. The notice of 

delinquency and of penalty must be delivered after the applicable 

delinquency date at least 30 and not more than 60 days before July 1. Thus, 

the section 33.07 penalty may not be imposed against taxes that become 

delinquent on or after June 1 under Tax Code sections 3 1.03,3 1.03 1,3 1.032, 

or 31.04. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Sheela Rai 

Assistant Attorney General 

p. 2795