### DAN MORALES

ATTORNEY GENERAL 

# Qlxfice

oftfp mtornep &ate ofQLexa$ November 17, 1998 

## @eneral

The Honorable James M. Kuboviak County Attorney Brazos County 300 East 26th Street, Suite 325 Bryan, Texas 77803 Opinion No. DM-491 Re: Whether adelinquent 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 ofthe Tax Assessor-Collector ofBrazos County, you ask whether adelinquent tax penalty to defray collection costs authorized under section 33.07 of the Tax Code with respect to taxes that remain delinquent on July 1ofthe year in which they become delinquent applies to taxes delinquent on or after July 1under sections 31.03, 31.03I,3 1.032, or 31.04 ofthe 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 1of the year following the year in which they are imposed.’ However, sections 31.03,3 1.03 1,3 1.032, and 31.04 ofthe 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 1may pay the remaining one-half of the taxes without penalty or interest before July 1 ofthe following year.” If the person does not make the second payment before July 1,the second payment is delinquent and incurs apenalty oftwelve percent ofthe unpaid tax amount.’ Thus, the second tax payment is delinquent on July 1.

‘Tax Code section 31.02(a) provides that

[e]xcept as provided by Subsection(b) of this section and by Sections 31.03 and 31.04 of this code, taxes are due on receipt of the tax bill and are delinquent if not paid before February 1of 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 OIinterest. Tax Code 5 31.02(b).

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

Section 31.03 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 orinterest inthree 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 apayment on the date required, the unpaid amount isdelinquent and incurs apenalty oftwelve percent and interest asprovided 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 31.032 applies to residential homestead property located in adisaster area and that has been damaged directly by the disaster. Ifthe 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? Ifthe individual fails to make apayment before the applicable date, the unpaid amount isdelinquent and incurs apenalty oftwelve percent and interest asprovided 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.$5 31.02(a), .031(a). sId. 5 31.031(a). 61d.$ 31.03 l(b). Delinquent taxes incur penalties and interest apart from the section 33.07 penalty. Section 33.O l(a) provides that adelinquent tax incurs apenalty 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 1of the year in which it becomes delinquent. A tax delinquent on July 1incurs apenalty of twelve percent. Id. 533.01(a). Section 33.01(c) provides that “[a] delinquent tax accrues interest at arate of one percent for each month or portion of amonth the tax remains unpaid.”

‘But see id. 5 31.03 l(d) (postponement of delinquency dates iftax bill mailed after September 30 and taxing unit has adopted discounts provided by section 31.05(c)).

*Id. 5 31.032(b). 9Id. 5 31.032(b). “Id. 5 31.032(c).

“Buf see id. $ 31.032(e) (if delinquency date postponed to May 1or later, each installment date similarly postponed).

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Finally, section 31.04provides forpostponing the delinquency date when atax bill ismailed after January 10. The February 1delinquency 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) ofthe Tax Code authorizes the governing body ofataxing 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) Ataxing unit orappraisal district may provide, inthemannerrequired by law for official action by the body, 

### that taxes that remain delinquent on July I 

### ofthe year in which they become deliplquent incur an additional penalty to defray costs ofcollection, ifthe unit ordistrict 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 15percent of the amount of taxes, penalty, and interest due.
(d) If ataxing unit or appraisal district provides for apenalty under this section, the 

### collector” shalldelivera notice ofdelinquency andofthepenalty to theproperty owner atleast 30andnotmore than 60days beforeJuly 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. $ 31.04(e)

‘%eeAttorney General Opinion N-857 (1988) at 8(taxing unitmustuseallpenaltiescollectedundersection 33.07 tocompensateattorneyswithwhomithascontracted). “SeeTax Code 51.04( 15)(defming“collector”as“theofficeroremployeeresponsibleforcollectingproperty taxesforataxingunitbywhatevertitleheisdesignated”).

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As a statute imposing penalties, section 33.07 must be strictly construed.i6 By its terms section 33.07 permits the additional penalty tobe imposed only against fuxes 

### thatremaindelinquent 011 

### July I ofthe 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 ofthe applicable taxes. It follows that the taxes described here must become delinquent before July 1in 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 anotice of delinquency can be sent.*’ The delinquency date must then be adate atleast 30 days before July 1for notice ofthe 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 adate at least 30 days before July 1because 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 1date is mandatory; section 33.07 does not provide any means whereby taxing unit or appraisal district may extend July 1date).

“Gov’t Code 5311.O1l(a); Tax Code $ 1.03 (Code Construction Act, chapter 311,Gov’t Code applies to each provision of title 1(chapters 1through 43) of Tax Code except as otherwise expressly provided).

‘%e WEBSTER’SNINTHNEWCOLLEGIATEDICTIONARY995 (defining “remain” as “tocontinue 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).

‘OTheadditional penalty is ineffective if a taxing unit does not comply with the notice requirements. Cifj of Houston, 827 S.W.2d at474 (failure toprovide 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.“).

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specially warn ataxpayer ofthe delinquency and allow areasonable 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 adate at least 30 days before July 1and that remain delinquent on July 1of the year in which they become delinquent, ifnotice of the delinquency and ofthe 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 1delinquency 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 1under sections 31.03,3 1.031,3 1.032, or 31.04 ofthe 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 1.25The 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*6The 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 5 311.014(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.

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

### Salvaggio court’s statement is taken out ofcontext 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 atissue, 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 31.03, 31.03 1, 31.032, or 31.04 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 ofwhether they become delinquent on or after July 1.30However, 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
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statutory construction belie such an interpretation. Like a court, we must interpret the statute as written: Courts must take statutes asthey 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 areresponsible for atrue and fair interpretation ofthe written law. Itmust be an interpretation which expresses only the will ofthe 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 acourt, we must construe this statute strictly given that it imposes apenalty.” Section 33.07 expressly provides that “taxes that remain delinquent on July 1of the year in which they become delinquent incur an additional penalty ”and that the “collector shall deliver anotice 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 1is 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 

### ofTcx. 

### Y.Miller, 434 S.W.Zd 670,672 (Tex. 1968).

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SUMMARY The additional delinquent tax penalty authorized pursuant to Tax Code section 33.07 may only be imposed against taxes that become delinquent on adate at least 30 days before July 1and that remain delinquent on July 1of the year in which they become delinquent, ifnotice 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 1under Tax Code sections 31.03,3 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

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