EATTOBNEYGENERAL OFTEXAS

FVILL WILSON A’ITORNEYoENER*L September 8, 1961

Mr. Richard L. Coffman OpinionNo. WW-1137 Administrator,Texas Employment Commission Re: Proper computationdates and Austin, Texas taxablewages to be used in experiencetax rate corn utations under subsection 7(c)(&p of Article 5221b,V.C.S., under Dear Mr. Coffman: facts stated. The facts as stated in your opinion request are substantially as follows:

A subject employer came within the provisions of the Texas UnemploymentCompensationAct, hereinafter referred to as the Act, Article 5221b-1, et seq., V.C.S., in 1958 by virtue of having four or more employees on a day in twenty differentweeks in a year. The employerhas remained subject to the Act each year although he has not paid any tax. The employer's status was discovered and determined in 1960. Assuming that the subject employernow pays his contributions on his total taxable payroll for the years 1958 or 1959 or 1960 on or before October 31, 1961, your question is:

Are the contributionson the total taxable payroll for the year, or years, 195&, 1959 and 1960, if now paid on or before October 31, 1961, to be considered in computing the "benefitwage ratio" in determining the employer'stax rate for 19611 Those provisions of the Act with which we are primarily concerned are:- Article 5221b-17(b)(l) "'Benefits'means the an individual,as provided to his unemployment." Article 5221b-17(d) money payments payable to in this Act,with respect

"'Contributions'means the money payments to the State Unemployment CompensationFund required by this Act."Mr. Richard L. Coffman, Page 2 (OpinionNo. WW-1137)

Article 5221b-5(c)(4) "The benefitwage ratio of each employer shall be a percentage equal to the total of his benefitwages for the thirty-six (36) consecutive completed calendar months immediatelypreceding the date as of which the emnlover'stax rate is determineddivided bv his total t&abie payroll for the samemonths on which contributions have been paid to the Commission on o-e the last dav of the month in which the comvutationdate occurs; provided that, in the event the employerhas less thanhree (3) years but at least one (1)vear of compensation-experience,suchcomputation shall be made on the basis of all of the employer's compensation experience during the consecutive completed calendar quarters (throughoutwhich his account has been chargeable with benefitwages) immediatelypreceding the date as ofwhich the employer'stax rate is determfned. As amendedActs 1949, 51st Leg., pe 283, ch. 148 B 5A; Acts 1955, 54th Leg., po 399, ch. 116 8 5. Operative Jan, 1, 1.956.” (Emphasisours) Article 5221b+(d) in part reads: "The computationdate for all experiencetax rates shall be as of October 1 of the year preceding the calendaryear for which such rates are to be effective, and such rates shall be effective on January 1 of the calendaryear immediatelyfollowing such computationdate for the entire year; o d e e As amended Acts 1949, 51st Leg ch/;,g; 283, ch, 148, 8 5E; Acts 1955, 54th Leg,, pe 399,

El5, Acts 1957, 55th Leg., pa 1350, ch, 460, % 4." These statutes are clear and plainmeanfng and the date for comnutation of the subject emnlover's ex-oerience rate is to be ~- .~ determined by trackinglthe s&&e; i.e.-the comwtation date for all experiencetax rates shall be as of October 1 of the year preceding the calendaryear for whieh such rates are to be effective; and such rates shall be effective on Januarv 1 of the calendaryear immediatelyfollowing such computationdate for the entireyear. You advise that for many.years the Texas Employment Commission, hereinafter referred to as the Commfssion,has interpreted the term, "computationdate", as used in subsection 5(c)(4) and 5(d), Article 5221b,V.C,S,, to be the date as ofwhich a tax rate for the succeeding period (calendaryear) is calculated, i.e, October 1 of the year immediatelypreceding the calendaryear for which the tax rate applicable - not the date onwhich the arithmetic is actually c&formed. You further advise that the arithmetic computation is actually performed subsequentto the date of October 31.r

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Mr. Richard L. Coffman, Page 3 (OpinionNo. WW-1137)

Under the formula relied upon by the Commission to determine an emvlover's tax rate. the first stev is to divide the total benefitwages paid by the employerby-the total taxable payroll for which contributionshave been vaid, Under the fact situation herein, the denominatorof the benefitwage ratio is nil, i.e., there is no amount of the total taxable payroll upon which eon; tributionshave been vaid to be divided into the "benefitwages". Therefore, it is impossibleto compute an experiencebenefitwage ratio for the subject employerherein and it is impossible to assign him an experiencetax rate of less than themaximum of 2.7% forany yearwhen the contributionson his total taxable Payroll have not been vaid on or before October 31 of the precedingyear. In order for the employer to avail himself of an experience rate for any particularyear less than the statutorymeximum,he must have paid those total taxable payroll contributionsdue before the last day of the computationmonth, i.e., October 31 of the preceding year. We again point out that this is necessary because those total taxablewages on which contributionshave been timely paid form the denominator of the formula used to arrive at the particular employer'sbenefitwage ratio. Under the facts presented herein, there were no total taxablewages on which contributionshad been timely paid, hence the ratio is indeterminate. While we believe the statute is clear and unambiguous, even should there be any ambi since Article 5221b-5(c) 7uity the legislaturehasmet many times 4) and (d)was construed by the Commission as above indicated and has not undertaken to change the statute so as to alter the constructiongiven to such statute as above indicated. If the legislaturedid not approve the constructionwhich has been given the statute, it could have easily amended the law, The Courts of this State have always recognized and applied the rule of statutory constructionthat where a statute of doubtful constructionhas been construedby executive officers of the State chargedwith its execution,and it has been subsequentlyre-enacted without substantial change of language, it will continue to receive the same construction. H, & T.C. Rv. v. State, 95 Tex. 507, 521, 66 S.W. 777, 781 (1902);TollCeson vs Rogan, 96 Tex. 424, 73 S.W. 520, 5f$l~~903); State v. Duke, 1 4 T I 355 370 137 sew, 654 662 1920)i Kov v. Schneider, 110 TEz: 369: 401: 221 S.W. 880' 8S5

State v. H. & T.C. Rv 209 S.W. 820, 825 (Tex.Ci;. App. 1918);'Greenwoodv. City of Ei'Paso, 186 S.W. 2d 1015, 1016 (Tex. Civ. App, 1945).
An excellentdiscussion of this doctrineby the Supreme Court of Texas is found in Stanford v* Butler, 142 Tex. 692, 700, lE?l S.W.2d 269,,273, 274 11944.1,wherein the court sets forth the rule as stated immediately above and cites numerous authorities for the acceptance of such rule.,Mr. Richard L. Coffman, Page 4 (OpinionNo. WW-1137)

In accordancewith the foregoing, you are advised that it is the opinion of this office that the contributionson the total taxable payroll for the year, or years, 1958, 19.59, and 1960, if now paid on or before October 31, 1961, are not to be considered in computing the benefitwage ratio in determining the employer's tax rate for 1961, but such contributionswould be considered in computation of the subject employer's 1962 tax rate.

SUMMARY The contributionson the total taxable payroll for the year, or years, 1958, 1959, and 1960, if now paid on or before October 31, 1961..are not to be considered in computing the benefitwage-ratio in determining employer s tax rate for 1961. Sincerelyyours, WILL WILSON the

Attorney General of Texas 

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Marvin om 9 Assistant MTtfb APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman Milton Richardson FredWerkenthin Ralph Rash
FYVIEWED FOR THE ATTORNEY GENERAL : HowardW. Mays