JIM MATTOX Attorney General

Supreme Court Building P. 0. Box 12546 Austin. TX. 76711. 2546 5121475-2501 Telex 9101674.1367 Telecopier 5121475-0266

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An Equal OppOrtUnitYI Affirmative Action EmP~oVef 

# The Attorney General of Texas September 19, 1983

HonorableJamesW. Smith, Jr. Frio CountyAttorney P. 0. BoxV Pearsall,Texas 78061 opinionNo. JM-74
Ik: Whetherpenaltiesestablished by section 6.06(e)of theTax Code for late payment of taxing entity assessmentsmay be rescinded

DearMr. Smith:

You ask us two questions regarding section 6.06(e) of the Tax Code. This section governs the method by which taxing units pay to the appraisal district their portions of the appraisal district’s expenditures as allocated by section 6.06(d), Tax Code. Section 6.06(e) of the Tax Codeprovides the following:

Unless the governingbody of a unit and the chief appraiser agree to a differentmethod of payment, each taxing unit shall pay its allocation in four equal payments to be made at the end of each calendar quarter, and the first payment shall be made before January 1 of the year in which the budget takes effect. A payment is delinquent if not paid on the date it is due. A delinquent payment incurs a penalty of 5 percent of the amount of the payment and accrues interest at an annual rate of 10 percent. If the budget is amended, any change in the amount of a unit’s allocation is apportioned among the payments remaining. (Emphasisadded).
Your first question is:

If one taxing entity is allowed to pay without penaltyand interest, shouldany otherpenalty and interest paid by another taxing entity be refunded?

Your secondquestion is:

If payments are accepted without payment of penalty and interest, what other recoursewould --

p. 316HonorableJamesW. Smith,Jr. - Page 2 (JM-74)

the Frio County Appraisal District have for collectingdue funds?

We answer your first question in the negative, because we conclude that the appraisal district is without authority to waive or rescind thepenalty and interestto any taxingunitwhich tendersa delinquent payment. Because we answer your first question in the negative, we deem itunnecessary to answeryour secondquestion.
Under settled nrincinles of law. the imnosition of uenalties falls within the poiice power of the iegislature. Waters-Pierce Oil Company v. Texas, 212 U.S. 86, 107 (1909); First Texas~P! cudential Insurance Company v. Smallwood, 242 S.W. 498, 505 (Tex. , Civ. App. - Beaumont 1922, no writ). Moreover, remission by general statute of penalties which have accrued and are due political subdivisions is constitutional. Jones v. Williams, 45 S.W.2d 130, 137 (Tex. 1931). But, in this instance remission cannotbe accomplished,because there is no statutoryprovisionpermitting it. At no place in the code is the appraisal district given the authority to rescind or waive the penaltyand interest imposedby section 6,06(e) of theTax Code. Generally, the powers of such governmentalagencies as counties, townships,and schooldistrictsaremore strictlyconstrued than those of incorporatedmunicipalities. Tri-City Fresh Water SupplyDistrict No. 2 of Harris Countyv. Mann, 142 S.W.2d 945, 948 (Tex. 1940). For examule. a county has no nowers or duties exceut those which are

. clearlv set forth and defined bv the constitution and the state statutes. y v. City of Marshall,

Harrison Count 253 S.W.2d 67, 69 (Tex. Civ. App. - Fort Worth 1952, writ ref'd); Wichita County v. Vance, 217 S.W.2d 702, 703 (Tex. Civ. App. - Fort Worth 1949, writ ref' n.r.e.). See also Miller v. El Paso County, 150 S.W.Zd 1000 (Tex. 1941). Analogously, we hold that an appraisal district can exercise only thosepowers and dutieswhich are clearly set forth in the constitution and statutes of this state. Therefore, absent specific statutory authority,we conclude that an appraisal district is without authority to rescind or waive the penalty imposed by section6.06(e) of the Tax Code.
SUMMARY
An appraisal district is without authority to rescind or waive the penalty and interest imposed by section 6.06(e) of the Tax Code upon taxing units which are delinquent in paying their allocation of the appraisal district's expenditures.

JIM MATTOX Attorney General of Texas. .HonorableJamesW. Smith,Jr. - Page 3 (JM-74)

TOM GREEN FirstAssistantAttorneyGeneral

DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby Jim Moellinger AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE
Rick Gilpin, Chairman Jon Bible David Brooks Colin Carl JimMoellinger Nancy Sutton

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