## TEZEATTORNEYGENEXCAL

OFmXAS

W ’ILL WILSON
A-- GENERAL AUXTX-IN 1%.TEXAB

June 15, 1960

HonorableRobert S. Calver,t OpinionNo. hW-847 Comptroller of Pub1ic Accounts Cavltol Station Re: Austin, Texas Application of Art. 1.11, Title 122A, R.C.S;, to an overpaymentof taxeswhich occurredprior to the effectivedate of such Dear Mr. Calvert: article.
Recently you requested our opinion upon the interpretation of Art. 1.11, Title 122A,R.C.S., providing that where an overpayment of tax has occurred the taxpayermay elect to have the overpayment credited to his tax account with the State, in lieu of pursuing any other remedy. Specifically,you inquiredwhether or not this provision would be applicable to the full amount of overpayment of gross receipts taxesmade by IndustrialGas Supply Corporation, Houston, Texas, during the period November, 

### 1950,through December, 1959, or only applicable to the ,porti.on of taxes overpaid on and after September 1, of the Article (Sec.

### 8). 1959, the effectivedate

It is our opinion that the articlemay only operate upon that portion of tax overpaid on and after September 1, 

## 1959.

In State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707 (1943),a parallel questionwas posed. There, Humble had overpaid the gross production tax on oil prior to 

### May 30, 1935. The 44th Legislature enacted a tax credit provision, very similar to the one here involved,allowing
an offset for overpaymentof taxes, the provisionbecoming effective on May 

### 30, 1935. Humble contended that it could creoit .its

prior overpayment against taxes due for themonth of January;lg36, while the State contended that the law could.haveno such retroactive effect. Judgment was for Humble in the trial court and was affirmed by the Court of Civil Appeals. In reversing both courtsand renderlng judgment for the State, the Supreme Court said

"Aftera very careful examination of the authorities,we have reached the conclusion that the above-quoted statute cannotbe applied retrospec-HonorableRobert S. Calvert, Page 2 Opinion No. ~~-847

tively. It is the law of this State, and the law generally, that, in the absence of any special indicationor reason, a statutewill not be applied retrospectively,even when there is no constitutional impedimentagainst it. Stated in another way, it is the rule that statuteswill not be applied retrospectivelyunless it appears by fair implication from the languageused that itwas the intention of the Legislature tomake it applicable to both past and future transactions. citing authoritiefl When we apply this rule to this statute,
we find no words contained thereinwhich indicate a legislative intent to apply itsprovisions to past transactions."

We believe that this holding forecloses any possibility of interpretingArt. 1.11 so as to allow credit in this case for overpayments occurringprior to September 1, 1959.

SUMMARY

Art. 1.11, Title 122A, R.C.S., providing that overpayments of taxes may be credited to the taxpayerwith his consent in lieu of other remedies available, cannot apply to overpayments occurringprior to September 1, 1959, the effective date of the Act.

Yours very truly,

WILL WILSON Attorney General of Texas

JRI:cm

APPROVED: ames R. Irion

OPINION COMMITTEE: W. V. Geppert, Chairman

Fred B. Werkenthin C. K. Richards L. P. Lollar Jerry H. Roberts REVIEWED FOR THE ATMRNEY GENERAL By: ,LeonardPassmore