Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
OF TEXAS
,T-
Mr. Bob E. Bradley ,, Opinion No. JR-873
Executive Director
Texas State Board of Re: Applicability of statu-
Public Accountancy tory fee increases to certi-
1033 La Posada, Suite 340 fied public accountants
Austin, Texas 78752 (RQ-1243)
Dear Mr. Bradley:
you request our opinion concerning the interpretation
of section 31 of the Public Accountancy Act of 1979,
article 41a-1, V.T.C.S. Section 31 was added to the act
during the second called session of the 70th Legislature.
Acts 1987, 70th Leg., 2nd C.S., ch. 5, art. 9, §6, at
68-69. The pertinent part of.the new provision imposes a
temporary increase in the fees required by the act:
(a) Each of the following fees imposed by or
under another section of this Act that first
becomes due on or after the effective date of
Article 9, H.B. 61, Acts of the 70th
Legislature, 2nd Called Session, 1987, but.
before August 31, 1989, is increased by $110:
(1) annual license fee under Section 9(a)
of this Act for Certified Public Accountants:
(2) renewal fee under Section 9(a) of
this Act for Certified Public Accountants:
and
(3) fee for issuance of a certificate of
Certified Public Accountants under Section 13
of this Act.
V.T.C.S. art. 41a-1, 531(a). Section 9(a) imposes an
annual license fee of not more than $60 and an annual
license renewal fee of not more than $60. An additional
penalty of $20 is charged for reinstatement of licenses
cancelled because of failure to pay the renewal fee; a
license may be reinstated upon payment of this penalty
p. 4255
Mr. Bob E. Bradley - Page 2 CM-8731
only during the licensing year for which the fee was
unpaid. These fees must be paid by the following persons
prior to the issuance of a license:
(1) holders of the certificate of 'Certi-
fied"Public Accountant' issued under this or
prior Acts: and
(2) such persons as are registered with
the board under the provisions of this or
prior Acts.
V.T.C.S. art. 41a-1, 59(a). Section 13 of the act imposes
a fee of not more than $100 for the issuance of a certifi-
cate of "Certified Public Accountant8* by reciprocity.
The Texas State Board of Public Accountancy has
adopted three interpretations of section 31. The first
interpretation and the board's reasoning follows:
It is the int'erpretation of the Texas State
Board of public Accountancy (the Board) that
the $110 fee increases identified in [sub-
divisions] (l), (2) 8 and (3) [of section
31(a)] are restricted to certified vublic
gccountants only rather than all license
fees prescribed in Section 9(a) of the Act.
The Board came to this conclusion by the
following deductions:
Section 9(a) of the Act specifies that
licenses shall be issued to '(1) the
holders of the certificate of "Certified
Public Accountant" issued under this or
prior Acts; and (2) such persons as 'are
registered with the Board under the
provisions of this or prior Acts.'
Had the Legislature intended to impose
the temporary $110 fee on &A&. licenses,
it would have done so without the in-
clusion of the language 'for certified
public accountants.* The Board feels
that the addition of this language
clearly restricts the temporary $110
fee increase to those identified '
Section 9(a)(l) of the Act. (Emphasis ii
original.)
p. 4256
Mr. Bob E. Bradley - Page 3 (JR-8733
In another context, this office advised the board that a
professional corporation cannot be issued a certificate of
**Certified Public Accountant.nl Acting upon this advice,
the board has concluded that the temporary fee increase
imposed by section 31 does not apply to professional
corporations or partnerships registered under section
9(a)(2) of the act.
The cardinal rule of statutory interpretation is to
ascertain legislative intent. Winton v, Frank, 545 S.W.2d
442 (Tex. 1976). Whenever possible, legislative intent is'
determined from the language of the statute. Crimmins v.
&ygy, 691 S.W.Zd 582 (Tex. 1985). If the intent of the
legislature is apparent from the words of the statute,
there is no need to consult extrinsic sources for evidence
of such intent. Winton v. Frank suvra. Therefore,
unless a statute is ambiguous, we ar; compelled to follow
the clear language of the statute. RevublicBank Dallas,
N.A. v. Interkal. Inc., 691 S.W.2d 605 (Tex. 1985).
If the meaning of a statute is doubtful or ambiguous,
the contemporaneous construction of the statute by the
agency charged with its administration is given weight.
P
See Calvert v. Kadane, 427 S.W.Zd 605 (Tex. 1968). An
administrative agency's construction of a statute is not
controlling, however. Bullock v. Ramada Texas, Inc., 609
S.W.Zd 537 (Tex. 1980). It is valid only insofar as it is
consistent with statutory language and will not be allowed
the effect of expanding or contracting the language of the
statute. See Firestone Tire and Rubber co. v. Bullock,
573 S.W.Zd 498, 500 (Tex. 1978).
We conclude that the board's first interpretation of
section 31 reflects the plain language of that provision.
By the terms of section 31, the temporary fee increase is
to be collected for licenses issued for certified public
accountants under section 9(a) or section 13. Under
section 9(a), licenses are issued to "holders of the
certificate of 'Certified Public Accountant"' and to "such
1. you have not asked us to reconsider this advice.
We believe, however, that the language of article 41a-1
clearly supports the conclusion. See V.T.C.S. art. 41a-1,
§§8, 12. Therefore, it is unnecessary to reexamine in
this opinion the cogent analysis of the issue provided
therein.
p. 4257
Mr. Bob E. Bradley - Page 4 04-873)
persons [including partnerships and corporations] as are
registered with the board.n Because only natural persons
may hold a certificate of "Certified Public Accountant,"
the reference to certified public accountants in section
31 necessarily excludes corporations and partnerships from
its coverage. Therefore, we believe the board's interpre-
tation of section 31 with respect to corporations and
partnerships registered with the board under section
9(a)(2) is reasonable.
The board has also interpreted section 31 to' require
payment of the temporary fee increase only twice during
the .period in which the fee increase is in effect.
The Board has also concluded that the
temporary license fee increase applies to
the annual licenses (January 1, through
December 31) for a CPA and does not apply in
those situations where an initial licensee
paw a prorated portion of the annual
license fee and is licensed for less than
365 days. It is the Board's understanding
that the legislative 'intent of HB 531 [sic]
was for the Board to collect the temporary
increase for the 1988 and 1989 license years
(two years only), and the imposition of the
$110 temporary increase in the remaining
months of 1987 would cause an initial
licensee to pay the fee three times.
The board has put in place a licensing program that runs
from January 1 to December 31 of each year. Fees for
licenses issued during a license year are prorated and
expire on December 31 of the license year.
Section 31 of the act states that the temporary fee
increase applies to annual license fees and renewal fees
that "first become due on or after the effective date of
Article 9, Ii. B. No. 61, Acts of the 70th Legislature, 2nd
Called Session, 1987, but before August 31, 1989."
Article 9 of House Bill No. 61 became effective September
1, 1987. m Acts 1987, 70th Leg., 2nd C.S., ch. 5, art.
9, 914(a), at 74; Acts 1987, 70th Leg., 2nd C.S., ch. 8,
at 88-89 (supplying two-thirds vote of both houses of the
legislature required to satisfy article III, section 39 of
the Texas Constitution). Subsection (c) of section 31
requires payment of the entire $110 amount even if the
license fee or renewal fee covers a period that extends
beyond the August 31, 1989, expiration date.
p. 4258
Mr. Bob E. Bradley - Page 5 UM-873)
L
We believe that the language of section 31 is un-
equivocal and requires the $110 fee increase to be added
to all designated license or renewal fees that first
become due between September 1, 1987 and August 31, 1989.
This would include initial license fees collected by the
board for that portion of the 1987 license year following
September 1, 1987. There are two reasons for our
conclusion. First, initial licenses, like all licenses
issued by the board, are issued pursuant to section 9.
Section 31 states clearly that each annual license fee
issued under section 9(a) that first becomes due between
the relevant dates must be increased by $110. It makes no
exception for initial licensees. The board may not read
into the statute exceptions that are not embodied therein
Stubbs v. Lowrev's Heirs, 253 S.W.2d 312 (Tex. Civ. App. -
Eastland 1952, writ ref'd n.r.e.). Second, if the legis-
lature had intended the fee increase to be charged only
twice during the period in which it is in effect, it could
plainly have stated so. The legislature could also have
expressed such intent by simply making the act effective
on January 1; 1988. It did neither. Furthermore, we are
obliged to give effect to acts of the legislature. We
must therefore presume that the legislature had a definite
purpose in mind when it provided for the September 1,
1987, effective date. To read section 1 as the board has
is to effectively nullify section 31 for four months and
make it effective on January 1, 1988, a result the
legislature took great pains to avoid. Accordingly, we
disagree with the board's interpretation of section 31
with respect to initial licensees.
your third question is whether the board may reduce
the $110 temporary fee increase for VetiredV1 licensees.
Section 9(c) of article 41a-1 authorizes the board to
"adopt a system by which individual licensees over age 65
may qualify for a reduced license fee." Pursuant to
that provision, the board has adopted a rule that sets a
reduced fee for licensees over age 65. 22 T.A.C. 3515.8.
you ask whether section 9(c) allows the board to reduce
the temporary $110 license fee set out in section 31 of
article 41a-1 as well as the annual fee provided for in
section 9(a). Section 31 provides that the "annual
license fee under Section 9(a)" iS increased by $110.
Thus, section 31 temporarily increases the license fee
under section 9(a): it does not impose a different fee or
tax. Section 9(c) gives the board authority to reduce the
"license fee" for licensees over age 65. We think that
“license fee" in section 9(c) must be read to include the
entire license fee: i.e., the annual fee as well as the
P
p. 4259
Mr. Bob E. Bradley - Page 6 (JR-873)
-,
temporary $110 increase. Therefore, we think that section
9(c) gives the board authority to reduce the total fee for
qualified licensees over age 65.
SUMMARY
Professional corporations and partner-
ships licensed pursuant to section 9(a)(2)
of article 41a-1, V.T.C.S., are not required
to pay the $110 temporary fee increase
imposed by section 31 of the act; Initial
licensees are required to pay the fee
increase. The Texas State Board of Public
Accountancy may reduce the license fee for
qualified licensees over the age of 65.
Very truly yo r ,
J A AJdk
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLJE STEAKLBY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General
p. 4260