Untitled Texas Attorney General Opinion ( 1990 )

THE ATTORNEY GENERAL
OF TEXAS
Honorable Robert Hill Trapp Opinion No. JM-1192
County Attorney
San Jacinto County Re: Application of section
P. 0. Box 430 31.04(a) of the Tax Code to tax
Coldspring, Texas 77331 bills which cannot be mailed
because of an unknown address
(RQ-1800)
Dear Mr. Trapp:
You ask the following question:
Whether Sec. 31.04(a) of the Property Tax
Code, providing for the postponement of the
delinquency date for tax bills mailed after
January 10, means that a delinquency date is
never established for tax bills that cannot
be mailed because of an unknown address.
We are informed that the staff of the State Property
Tax Board consistently has construed section 31.04 of the
code to forbid the establishment of a delinquency date and
the imposition of penalties and interest in an instance in
which no tax bill is sent because the address of the owner
is not known. In Letter Opinion 89-60 (1989), this office
was asked whether the construction by the staff of the State
Property Tax Board of section 31.04 was correct. We con-
cluded that it was. After reconsidering the issue, we
conclude that the administrative construction of the State
Property Tax Board is incorrect; we hereby overrule Letter
Opinion 89-60.
Section 31.04 of the Tax Code provides the following in
relevant part:
(4 If a tax bill is mailed after January
10, the delinquency date provided by Section
31.02 of this code is postponed to the first
day of the next month that will provide a
period of at least~ 21 day~faf~teesthebe``:;
of mailing for payment
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Honorable Robert Hill Trapp - Page 2 (JM-1192)
delinquent unless the taxing unit has adopted
the discounts provided by Section 31.05(c) of
this code, in which case the delinquency date
is determined by Subsection (d) of this
section.
. . . .
(e) If the delinquency date for a tax is
postponed under Subsection (a) of this sec-
tion, that postponed delinquency date is the
date on which penalties and interest begin to
be incurred on the tax as provided by Section
33.01 of this code.
The letter requesting the letter opinion from this
office set forth the administrative construction adopted by
the Office of General Counsel of the State Property Tax
Board:
If a tax office never mailed a tax bill, a
delinquency date has not been established,
and penalties and interest should not be
added to the tax due. A delinquency date is
established only when a tax office mails an
original tax bill.
Letter from Rep. Allen Hightower to Attorney General Jim
Mattox (July 17, 1989) (quoting Mr. Dennis Hart, Office of
General Counsel, State Property Tax Board).
The advice by the State Property Tax Board was based
upon that agency's administrative construction of the effect
of a 1985 amendment to subsection (e) of that section.1
1. The State Property Tax Board has construed section
31.04 of the code in this manner since the adoption of the
1985 amendments to the section that added what is now sub-
section (e). We note that the construction placed upon a
statute by the agency charged with its administration is
entitled to great weight, Ex narte Roloff, 510 S.W.2d 913
(Tex. 1974): State v. Aransas Dock & Channel CO., 365 S.W.2d
220 (Tex. Civ. APP. - San Antonio 1963, writ ref'd),
especially where contemporaneous, or nearly so, with the
enactment of the statute itself. Burrouahs v. Lvles, 181
S.W.Zd 570 (Tex. 1944); Stanford v. Butler, 181 S.W.2d 269
(Tex. 1944).
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Honorable Robert Hill Trapp - Page 3 (JM-1192)
Subsection (e), which has not been changed since its 1985
amendment, provides:
(e) If the delinquency date for a tax is
postponed under Subsection (a) of this sec-
tion, that postponed delinquency date is the
date on which penalties and interest begin to
be incurred on the tax as provided by Section
33.01 of this code.
Acts 1985, 69th beg., ch. 753, § 1, at 2579. Prior to the
1985 amendment of subsection (==I,that subsection provided
the following:
For purposes
unit's tax bills
earliest date on
all or substantially all of the tax bills.
The difficulty in construing section 31.04 arose because of
that section's apparent conflict with section 31.01 of the
code.
Section 31.01 of the code imposes on the assessor for
each taxing unit the duty of preparing and mailing a tax
bill and sets forth those items of information that a tax
bill must contain. That section provides in pertinent part:
(a) Except as provided by Subsection (f)
of this section, the assessor for each taxing
unit shall prepare and mail a tax bill to
each person in whose name the property is
listed on the tax roll or to his authorized
agent. The assessor shall mail tax bills by
October 1 or as soon thereafter as practic-
able.
. . . .
(f) The governing body of a taxing unit
may provide in the manner required by law for
official action by the body that a tax bill
not be sent until the.total amount of unpaid
taxes the unit collects on the property is
$25 or more. Penalties and interest do not
accrue during a period when a bill is not
sent because of the provisions of this
section.
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Honorable Robert Hill Trapp - Page 4 (JM-1192)
(g) EXCeDt as orovided bv Subsection If)
of this section. failure to send or receive
the tax bill ouired bv this section does
not affect thertaliditv of the tax, oenaltv,
or interest, the due date. the existence of a
tax lien, or anv nroc ure instituted to
collect a tax.2 (Emphaszt added.)
It is our understanding that the staff of the board
construed the underscored language of subsection (9) of
section 31.01 to be in conflict with the amended version of
subsection (e) of section 31.04. Statutes bearing upon the
same subject matter should be construed together and both
given effect, if it is possible to do so, because the repeal
of a statute by implication is not favored. T exas Den't of
Pub. Safetv v. Schaeibe, 687 S.W.2d 727 (Tex. 1985);
Standard v. Sadler, 383 S.W.2d 391 (Tex. 1964). However, in
an instance in which two statutory provisions enacted at the
same time or during different sessions of the legislature
are irreconcilable, the statute latest in time of enactment
prevails. See Gov't Code .Q 311.026. The staff of the
board, invoking that principle, concluded that subsection
(e) of section 31.04 controlled over subsection (9) of
section 31.01, because it was the provision enacted later in
time.
Admittedly, a reading of section 31.04 of the code, in
isolation from other provisions, tends to support the
board's construction. However, when section 31.04 is con-
strued with other provisions of the Tax Code3 and of the
Rules of Civil Procedure, 4 it becomes clear that the board's
construction cannot be reconciled with other statutory
2. Subsection (f) was amended in 1987 to raise the
minimum amount of taxes due that triggers the duty to send
a tax bill from $5 to $25. Acts 1987, 70th Deg., ch. 834,
§ 1, at 2870. Subsection (g) has not been amended since the
code's enactment in 1979.
3. See. e.a., Tax Code 55 25.02(l), 33.04.
4. Rule 117a of the Rules of Civil Procedure governs
citation in suits for delinquent ad valorem taxes and
specifically provides for service by publication in the
event that the name or address of a delinquent taxpayer is
unknown. The rule was first added in 1947 and most recently
amended in 1987.
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Honorable Robert Hill Trapp - Page 5 (JM-1192)
provisions. The State Property Tax Board's construction of
section 31.04 presupposes that the legislature intended the
section to govern in all instances in which no tax bill is
mailed. For two reasons, we disagree with this construction
of the relevant provisions.
First, if section 31.04 were intended to govern in
instances in which no tax bill - be mailed, then the
irreconcilable conflict between that provision and section
31.01 arose first, not in 1985, but in 1979 when the Tax
Code originally was enacted. Section 31.04 originally
provided the following:
(a) If tax bills are mailed after Januarv
10. the delinouencv date Drovided bv Section
31.02 of this code is DostDoned to the first
dav of the next month that will Drovide a
period of at least 21 days after the date of
mailina for Davment of taxes before deli..B=
SBD%.
(b) If the delinquency date is postponed
as provided by this section, the assessor who
mails the bills shall notify the governing
body of each taxing unit whose taxes are
included in the bills of the postponement.
If the due date for state taxes is postponed,
the county assessor-collector shall notify
the State Property Tax Board of the postpone-
ment.
(c) A payment option provided by Section
31.03 of this code or a discount provided by
Section 31.05 of this code does not apply to
taxes that are calculated too late for it to
be available. (Emphasis added.)
If the 1985 amendment to subsection (e) of section
31.04 had never been enacted, there would still be a
conflict between the two sections under the State Property
Tax Board's construction of section 31.04. The conflict
arises between the original 1979 version of subsection I;;
of section 31.04 and the original version of subsection
of section 31.01.
Under the board's construction of subsection (a), if no
tax bill is ever mailed, then no delinquency date is ever
established and no taxes could ever be collected on such
property. But subsection (g) of section 31.01 provides that
failure to send a tax bill does not affect the validity of a
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Honorable Robert Hill Trapp - Page 6 (JM-1192)
tax, penalty or interest, the due date, the existence of
a tax lien or any procedure instituted to enforce the col-
lection of a tax. Thus, the apparent conflict between the
two provisions antedates the enactment of the amendment to
subsection (e) of section 31.04. The apparent conflict that
we must resolve involves statutes, the relevant portions of
which were enacted during the same legislative session and
were included in the same bill. Acts 1979, 66th beg., ch.
841, § 1, at 2284-85. Therefore, reliance on the "later in
time" principle of statutory construction is inappropriate.
Second, even if we were to accept, arcuendo, the con-
struction of section of 31.04 adopted by the board, such a
construction cannot be reconciled with an amendment to
section 33.04 of the code enacted by the same legislature
that enacted the amendment to subsection (e) of section
31.04. Section 33.04 of the code governs the notice of
delinquency that must be delivered to delinquent taxpayers.
The predecessor statute to section 33.04 of the code,
article 7324, V.T.C.S., originally required a tax collector
to notify every delinquent taxpayer listed on the tax rolls
once every year. Subsection (a) of section 33.04, as
originally enacted, imposed the same duty on tax collectors
to notify delinquent taxpayers yearly, but also imposed at
subsection (b) an additional duty on tax collectors of
notifying in each year divisible by five every delinquent
taxpayer who owes a tax that has been delinquent more than
one year.
Subsection (c) of section 33.04 originally provided
that the tax collector had a duty to send a notice every
five years, but only if the collector knew or, by exercising
reasonable diligence, could determine the delinquent
taxpayer's name and address. In the event that the
collector could not determine the taxpayer's name and
address, he was required to provide notice by publishing
it in a newspaper. In 1985 section 33.04 was amended to
provide, inter alia, that the reasonable diligence pro-
visions regarding the tax collector's duty to provide the
notice required every five years by subsection (b) were
extended to the yearly notice required by subsection (a):
(a) At least once each year the collector
for a taxing unit shall deliver a notice of
delinquency to each person whose name appears
on the current delinquent tax roll. However,
the notice need not be delivered if:
(1) [Exception inapplicable];
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Honorable Robert Hill Trapp - Page 7 (JM-1192)
(2) the collector does not know and by
exercisina reasonable diliaence cannot
determine the delinouent taxoaver's name and
address. (Emphasis added.)
Acts 1985, 69th Leg., ch. 761, 5 1, at 2601.
Thus, under the board's construction of section 31.04,
a 1985 amendment to subsection (e) of that section acts to
forbid the establishing of a delinquency date if no tax bill
is ever mailed, even in an instance in which no bill can be
sent because the address of the taxpayer is unknown. But a
1985 amendment to section 33.04 provides that a tax
collector has no duty to notify a delinquent taxpayer,
except by newspaper notice, if the collector does not know
and cannot determine, by exercising reasonable diligence,
the delinquent taxpayer's name and address.
In an instance in which conflicting statutes are
enacted by the same session of the legislature, the latest
expression of legislative intent prevails. Ex narte de
Jesus de la 0,, 227 S.W.2d 212 (Tex. Crim. App. 1950);
Attorney General Opinions JM-908 (1988); WW-139 (1980);
H-115 (1973). In this instance, the date on which legisla-
tive action last occurred on each bill was the same, namely
May 26, 1985. The Senate Journal indicates, however, that
the house took action on the bill containing the amendment
to section 33.04 later than it took action on the other
bill. S.J. of Tex., 69th beg. 2040-41 (May 26, 1985).
Therefore, if we were to construe section 31.04 to
govern in instances in which no tax bill could be sent
because the address of the taxpayer was unknown, then,
invoking the same principle that the staff of the board
invoked, we would perforce conclude that the amendment to
section 33.04 effectively controlled the amendment to
section 31.04, and that the board's construction of section
31.04 was incorrect. However, we reject the board's
construction of section 31.04, because we reject the
presupposition upon which that construction was predicated,
namely that the section was intended in the first instance
to govern a situation in which a tax bill could not be sent
because the address of a delinquent taxpayer was unknown.
Two arguments support our construction.
First, as we noted earlier, we are required to construe
statutes in oari materia in such a way as to harmonize any
conflicts, if such a construction is possible, because the
repeal of a statute by implication is not favored. We
construe section 31.04 to govern only in instances in which
P. 6296
Honorable Robert Hill Trapp - Page 8 (JM-1192)
a tax bill can be sent, but is mailed late; it has no
application in an instance in which no tax bill can sent
because the name or address of the delinquent taxpayer is
unknown. Our construction of section 31.04 harmonizes any
apparent conflict with other statutory provisions and
renders any further reliance on abstruse principles of
statutory construction otiose.
Second, we are required to construe statutory pro-
visions in such a way that will not lead to absurd or
ridiculous consequences. C' '
*, .
527 S.W.2d 175 (Tex. 1975); Maanolia Petro leum Co. v.
Walker, 83 S.W.2d 929 (Tex. 1935). Section 33.41 of the
code permits a taxing unit, at any time after a tax on
property becomes delinquent, to file suit to foreclose a tax
lien. As we noted earlier, if section 31.04 of the code
were construed to reach situations in which no tax bill was
sent because the address of the delinquent taxpayer was
unknown, then the section would effectively prohibit the
establishment of a delinquency date and no taxes could ever
be collected on such property. We have found nothing in the
code to indicate that the legislature intended such a
result.
Therefore, we conclude that section 31.04 of the Tax
Code does not govern in instances in which no tax bill can
be sent because the name or address of the taxpayer is
unknown; it governs only in situations in which a tax bill
can be mailed but is mailed late. In an instance in which
no bill can be mailed because the address of the taxpayer is
unknown, section 31.02 of the code, which provides that the
delinquency date is February 1 of the year after the taxes
are imposed, controls the establishment of a delinquency
date.
SUMMARY
Section 31.04 of the Tax Code does not
operate to forbid the establishment of the
delinquency date and the imposition of
penalties and interest on taxes due in a
situation in which no tax bill is sent
because the name or address of the delinquent
taxpayer is unknown. Section 31.04 governs
in instances in which tax bills can be
mailed, but are mailed late. Subsection (a)
of section 33.04 of the code specifically
provides that the duty imposed on a tax
collector to notify delinquent taxpayers does
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Honorable Robert Hill Trapp - Page 9 (JM-1192)
not apply where the collector does not know
and, by exercising reasonable diligence,
cannot determine the name or address of the
delinquent taxpayer. In an instance in which
no tax bill can be mailed because the address
of the taxpayer is unknown, section 31.02 of
the code, which provides that the delinquency
date is February 1 of the year after the
taxes are imposed, controls the establishment
of a delinquency date.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCRRARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RRNEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
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