JIM MATTOX 

tttorney General 

~~,emCo&BuIIdlq 

4;*m,Tx. 78711-2548 

s12/47!9501 

Telex 910/874-1267 

lelecopier 51214750266 

714 Jackson. Suite 700 

LIelIes, TX. 752024506 

2141742.9944 

3824 AlBerta AW.. Suite 160 

El PIW, TX. 799052783 

91E&XM494 

1001 Texas, SuIta 700 

Hounon.Tx. 77W2Jlll 

7131222-5886 

806 Broadway. Suite 312 

Lubbock, TX. 794013479 

0OU747.5228 

4209 N. Tmth. Sulle 6 

McAllen. TX. 78501-1683 

512l6824547 

m MaIn Plaza. suits 400 

San Antonio.TX. 7820~2707 

512ms-4191 

An Equal Op,MtU~llYl 

Afllrmatlve Actlon Employer 

The Attorney General of Texas 

Dectmber 20. 1984 

Eonorable Sten Schlueter 

chairman 

Ways and Means Comictee 

Texas Eouae of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Opinion No. JM-285 

Re: Applicability of 15% penalty provided by section 33.07 

of the Tax Code 

Dear Representative Schluetcr: 

letter to UB asks: 

(1) Does the 15% penalty allowed by section 

33.07 of the Texas Property Tax Code apply to all 

tax years chr is it limited to years subsequent to 

the enactment of the code? 

(2) I3 the July 1st date of section 33.07 

mandatory or directory? That is to say, is the 

taxing enl::,ty prevented from availing itself of 

section 33.07 after this date in the initial year 

of adoptd.oa or does the date establish the 

earliest possible date a taxing unit can add a 

penalty? 

The section of the Tex Code tb which you refer was added by the 

Sixty-seventh Legiakture in 1981. to become effective January 1, 

1982. It reads: 

(a) A taxing unit or appraisal district may 

provide. in the manner required by law for 

official action by the body, that taxes that 

remain del.inquent on July 1 of the year in which 

they beconE delinquent incur an additional penalty 

to defray coats 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 mt.y not exceed 15 percent of the amount of 

taxes. per,a,lty. and interest due. 

(b) A tax lien attaches to the property on 

which the tax is imposed to secure payment of the 

penalty. 

p. 1264 
ilonorable Stan Schlueter - Page 2 (JM-285) 

(c) If a penalty is imposed pursuant to this 

section, a taxing un:it may not recover attorney’s 

fees in a suit to collect delinquent taxes subject 

to the penalty. 

(d) If a taxing unit or appraisal district 

Erovidea for a per&y under this section. the 

collector shall delj;er a notice of delinquency 

and of the penalty t; the property owner at least 

30 and not more t&n 60 days before July 1. 

(Emphasis added). 

Acts 1981. 67th Leg., 1st C.S., ch. 13. $130, at 168. 

The stated purpose of tha! statutory penalty under discussion is 

to “defray costs of collection” and it may be assessed only if the 

collecting unit has contractelI with a private attorney to represent 

the unit. Tax Code 533.07(a). See Tax Code 16.30; Attorney General 

- 

Opinion JM-14 (1983). 

Statutes impoaiag penaltim are to be strictly construed. Hatch 

v. Davis. 621 S.W.Zd 443 (Tex. App. - Corpus Christ1 1981. writ ref’d 

n. It is hinhlv aianificant that. accordina to the atatutom 

language, 

-_ - 

the penalty may be applied only to those taxes “that remain 

.dellnquent on July 1 of the yg:ar in which they become delinquent” -- 

and not then unless “the colle’?:or” has delivered a notice of delinquency and of the penalty to the property owner “at least 30 and dot 

more than 60 days before July I.” In other words, the section 33.07 

penalty can attach only after z;e notice has been given and during the 

year the taxes first become delinquent. 

In our opinion, the ad(.i,tioaal penalty authorized by section 

33.07(a) of the Tax Code cannot be applied to taxes that first became 

delinquent in a year prior to t,he year in which section 33.07. having 

already become effective as law, is adopted by a taxing unit or 

appraisal district, even thott$:h sucii taxes might remain delinquent 

thereafter. The legislative :Lutent, we believe, was to allow the 

imposition of the additional penalty only after the property owner had 

been specially warned of its Imoapective attachment (and in time to 

avoid its imposition). If the, additional penalty were to attach to 

back taxes because the taxes had remained delinquent past July 1 in a 

previous year -- i.e.. the year during which they had first become 

delinquent -- then warning; could be effective and it would be 

impossible for the property owuer, by paying the delinquent taxes, to 

avoid the additional penalty. 

Indeed, under the section 33.07(a) “year in which they become 

delinquent” language, if applied to taxes which became delinquent in 

prior years and remained so past July 1 of those years, the section 

33.07 penalty would apply ever! If the delinquent taxes were &prior 

to the enactment of section Yi3.07. We cannot and do not ascribe to 

p. 1265 
Bonorable Stan Schlueter - Page 3 (~21-285) 

the leeislature an intent that would raise the mecter of an unconstitutionally retrospective law. See Tex. Const. art. I. 516; French v. 

Insurance Company of North Am?::=. 591 S.W.2d 620 (Tex. Civ. App. - 

Austin 1979, no writ). See a:Lzalder v. Bull, 3 Dall. (3 U.S) 386, 

391 (1798) (dictum) (Chase. 3.) (“Every law that takes away, or 

impairs, rights . - vested; . agree;lbly to existing laws, is retrospective, 

and is generally unjust.“) XC: should be noted, however, that even if 

this additional penalty does not attach, regular penalties may be 

recovered when delinquent taxes for past years are collected. Tax 

Code S33.01. 

In addition to these arguments against a retrospective 

application of the statute, ssction 3.02 of the Code Construction Act 

(V.T.C.S. art. 5429b-2) requ:lres a statute to be construed to have 

only a prospective effect un!.r:ss It is made expressly retrospective. 

Section 1.03 of the Tax Code requires that this rule of construction 

be followed In interpreting the code. Not only does section 33.07 

lack any express language requiring retrospective construction; there 

are examples of tax statutes having such language, showing that the 

legislature knows how to requj.re a retrospective application when it 

so desires. See, e.g., Acts 1981, 67th Leg., 1st C.S.. ch. 13. 1159, 

at 176. 

In answer to your first question, we advise therefore that the 

15% additional penalty allowemi by section 33.07 of the Tax Code cannot 

be applied to taxes that first became delinquent in years prior to the 

date that section 33.07 and its procedures are adopted by a taxing 

unit. 

You inform us that, with your second question, you wish to know 

whether a taxing unit or an ap,?raisal district which seeks to impose a 

section 33.07 penalty may extend the July 1 date set forth in the 

statute for the imposition OF the penalty to. say, August 1 instead. 

It is suggested that the July 1 date set forth in section 33.07(s) is 

directory only, not mandatory, and that a taxing unit or appraisal 

district may properly designate another date at which time the penalty 

1s imposed just so long as the notice requirements of subsection (d) 

are met. We disagree. We c:cnclude for two reasons that the July 1 

date is mandatory; section 3X.07 does not provide any means whereby a 

taxing unit or an appraisal district may extend the July 1 date. 

First, in support of the proposition that the July 1 date is 

merely directory. it is argued that statutory provisions which regulate the duty of public offi:ers and specify the time for performance 

of such duties are directory unless the statute forbids the exercise 

of such power after that tfne. Markowsky v. Newman, 136 S.W.2d 808 

(Tex. 1940); Federal Cntde D:;!. Cc. v. Yount-Lee Oil Co., 52 S.W.Zd 56 

(Tex. 1932). As the Texas Supreme Court declared in Chisholm v. 

Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956): 

p. 1266 
Ronorable Stan Schlueter - Page 4 (JM-283) 

There is no absolute test by which it may be 

determined whether a statutory provision is 

mandatory or directory. . . . In determining 

whether the Legisl~~ture intended the particular 

provision to be mandatory or merely directory. 

consideration should be given to the entire act, 

its nature and object. and the consequences that 

would follow from- each construction. Provisions 

which are not of the essence of the thing to be 

done, but which ara[ included for the purpose of 

promoting the propez, orderly and prompt conduct 

of business, are not generally regarded as 

mandatory. (Emphas!~: added). 

We do not dispute the statemc:nt of the law; we merely think that its 

application to this question :A contrary to the one suggested. 

The “essence of the thing to be done” by a taxing unit or an 

appraisal district in this instance is the adoption of the ordinance 

or resolution imposing the sel:tion 33.07 penalty. Once the resolution 

Is adopted, the penalty is imposed on July 1 by operation of law, and 

the tax assessor-collector jior the unit is required to deliver a 

notice of the delinquency and of the penalty to the property owner at 

least 30 and not more than 60 days before July 1. The statute is 

silent as to the date by whd.ch such ordinance or resolution must be 

adopted in order to be effective. In other words, a taxing unit or 

appraisal district is not empowered to impose a penalty as of July 1 

or any other date which is deemed appropriate; a taxing unit or 

appraisal district is empowe,K,d by section 33.07 to impose only the 

penalty. The date on whicln the penalty automatically attaches 

pursuant to a valid ordinance: or resolution is specifically set forth 

In the statute. 

We are required to construe a statute in such a way as to express 

only the will of the makers of the law, not forced or strained, but 

simply such as the words of the law in their plain sense fairly 

sanction and will clearly sus:tain. Railroad Coxunission of Texas v. 

Miller, 434 S.W.2d 670 (Tex. 1968). If the legislature had Intended 

that a taxing unit or an appraisal district be empowered to extend the 

July 1 date or adopt a new date on which the penalty attaches, it 

could have done so and would have done so explicitly. See. e.g., Tax 

Code 5131.02, 31.03, and 31.51 (providing for February 1 delinquency 

date and for postponement of such date in certain instances). 

Second, in light of the: traditional significance of the July 1 

date in the ad valorem tax c.Aendar, it is doubtful that the legislature intended that the date on which the section 33.07 penalty be 

imposed be chosen arbitrarily. Traditionally, July 1 is the last date 

on which the second payment under a split payment plan may be tendered 

without the taxpayer incurrirg a delinquent tax penalty. See Tax Code 

631.03 and now-repealed V.T.C.S. art. 7336 (predecessorxatute .to 

p. 1267 
Honorable Stan Schlueter - Pal:t: 5 (JM-285) 

section 31.03 of the code). July 1 was also the traditional date on 

which taxing units compiled delinquent taxpayers lists and notified 

each prior to the imposition of a foreclosure suit. See now-repealed 

V.T.C.S. arts. 7324, 7325, Y326. And finally, July1 is also the 

traditional date on which the penalty imposed upon delinquent taxes no 

longer accrues on a per-month basis but rather is imposed as a flat 

rate. See Tax Code 133.01 and now-repealed V.T.C.S. art. 7336 

(predecessor to section 33.01 of the code). 

Accordingly, we conclude that the July 1 date set forth in 

section 33.07, on which date the penalty attaches, is mandatory. 

Section 33.07 does not provik any means whereby a taxing unit or an 

appraisal district may extend the July 1 deadline for payment without 

incurring the penalty or select a different date on which the penalty 

attaches. 

The penalty provided by section 33.07 of the 

Tax Code applies to ;a11 taxes currently delinquent 

in the year in whi:h the penalty is imposed; its 

application is limited to the years including and 

subsequent to the z.doption of this code provision 

by the appropriate taxing unit or appraisal 

district. Tbe Jul:r 1 date set forth in section 

33.07 of the Tax Code, the date on which the 

penalty attaches, is mandatory; section 33.07 does 

not provide any means whereby a taxing unit or an 

appraisal district may extend the July 1 date or 

select a differen’: date on which the penalty 

attaches. 

JIM HATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Robert Gray 

Assistant Attorney General 

p. 1268 
Ronorable Stan Schlueter - Pags 6 (JM-265) 

APPROVRD: 

OPINION COMMIlTRE 

Rick Gilpin. Chairman 

Colin Carl 

Susan Garrison 

Jennifer Riggs 

p. 1269