EATTOBNEYGENERAL 

OFTEXAS 

FVILL WILSON 

A’ITORNEYoENER*L 

September 8, 1961 

Mr. Richard L. Coffman Opinion No. WW-1137 

Administrator, Texas 

Employment Commission Re: Proper computation dates and 

Austin, Texas taxable wages to be used in 

experience tax 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 Unemployment Compensation Act, 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 different weeks in a year. 

The employer has 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 employer now 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 contributions on 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 "benefit wage ratio" in 

determining the employer's tax 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 Compensation Fund required by this Act." 
Mr. Richard L. Coffman, Page 2 (Opinion No. WW-1137) 

Article 5221b-5(c)(4) 

"The benefit wage ratio of each employer shall 

be a percentage equal to the total of his benefit wages 

for the thirty-six (36) consecutive completed calendar 

months immediately preceding the date as of which the 

emnlover's tax rate is determined divided bv his total 

t&abie payroll for the same months on which contributions have been paid to the Commission on o-e 

the last dav of the month in which the comvutation date 

occurs; provided that, in the event the employer has less 

thanhree (3) years but at least one (1) vear of 

compensation-experience,such computation shall be made 

on the basis of all of the employer's compensation experience during the consecutive completed calendar 

quarters (throughout which his account has been chargeable 

with benefit wages) immediately preceding the date as 

of which the employer's tax rate is determfned. As 

amended Acts 1949, 51st Leg., pe 283, ch. 148 B 5A; Acts 

1955, 54th Leg., po 399, ch. 116 8 5. 

Operative Jan, 1, 1.956.” (Emphasis ours) 

Article 5221b+(d) in part reads: 

"The computation date for all experience tax rates 

shall be as of October 1 of the year preceding the 

calendar year for which such rates are to be effective, 

and such rates shall be effective on January 1 of the 

calendar year immediately following such computation date 

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, 

El 5, Acts 1957, 55th Leg., pa 1350, ch, 460, % 4." 

These statutes are clear and plain meanfng 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 experience tax rates shall be as of October 1 of the year preceding the calendar year for whieh such rates are to be effective; 

and such rates shall be effective on Januarv 1 of the calendar year 

immediately following such computation date for the entire year. 

You advise that for many.years the Texas Employment Commission, 

hereinafter referred to as the Commfssion, has interpreted the term, 

"computation date", as used in subsection 5(c)(4) and 5(d), Article 

5221b, V.C,S,, to be the date as of which a tax rate for the succeeding period (calendar year) is calculated, i.e, October 1 of the 

year immediately preceding the calendar year for which the tax rate 

applicable - not the date on which the arithmetic is actually 

c&formed. You further advise that the arithmetic computation is 

actually performed subsequent to the date of October 31. 
r . 

Mr. Richard L. Coffman, Page 3 (Opinion No. 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 

benefit wages paid by the employer by-the total taxable payroll 

for which contributions have been vaid, Under the fact situation 

herein, the denominator of the benefit wage ratio is nil, i.e., 

there is no amount of the total taxable payroll upon which eon; 

tributions have been vaid to be divided into the "benefit wages". 

Therefore, it is impossible to compute an experience benefit wage 

ratio for the subject employer herein and it is impossible to 

assign him an experience tax rate of less than the maximum of 2.7% 

forany year when the contributions on his total taxable Payroll 

have not been vaid on or before October 31 of the preceding year. 

In order for the employer to avail himself of an experience 

rate for any particular year less than the statutory meximum,he 

must have paid those total taxable payroll contributions due before 

the last day of the computation month, i.e., October 31 of the preceding year. We again point out that this is necessary because 

those total taxable wages on which contributions have been timely 

paid form the denominator of the formula used to arrive at the 

particular employer's benefit wage ratio. Under the facts presented herein, there were no total taxable wages on which contributions had 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) 7 

uity the legislature has met 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 construction given to such statute as above indicated. If the legislature did not approve the construction which 

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 construction that where a statute of doubtful 

construction has been construed by executive officers of the State 

charged with its execution, and it has been subsequently re-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);'Greenwood v. City of Ei'Paso, 186 S.W. 2d 1015, 1016 (Tex. 

Civ. App, 1945). 

An excellent discussion of this doctrine by 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 (Opinion No. WW-1137) 

In accordance with the foregoing, you are advised that it is 

the opinion of this office that the contributions on 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 benefit wage ratio in determining the employer's 

tax rate for 1961, but such contributions would be considered in 

computation of the subject employer's 1962 tax rate. 

SUMMARY 

The contributions on 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 benefit wage-ratio in determining 

employer s tax rate for 1961. 

Sincerely yours, 

WILL WILSON 

the 

Attorney General of Texas 

. a+ Marvin om 9 

Assistant 

MTtfb 

APPROVED: 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

Milton Richardson 

Fred Werkenthin 

Ralph Rash 

FYVIEWED FOR THE ATTORNEY GENERAL 

: Howard W. Mays