Untitled Texas Attorney General Opinion ( 1942 )

Qerald C. Mann AuFrrIN Il.-rrcxAs This Opinion overrules
w?amx````xxx in part letter opinion
*-mexDzY"-Am. to W.M. Porter dated
2/12/38.
Hon. John M. Turner
County Attorney Opinion No. O-4424
Eee county Re: Penalty on delinquent taxes
Reevllle, Texas of Independent school dis-
trict.
Dear Sir:
We have received your letter of recent date in
which you ask'the opinion of this department upon the fol-
lowing question:
"Can an independent school district
legally charge ten per cent penalty on its
own delinquent taxes?"
Article 7336, Vernon's Annotated Civil Statutes,
provides In part as follows:
"If any person fails to pay one-half
(l/2) of the taxes,;Imposed by law upon him
or his property, on or before the thirtieth
day of November of the year for which the
assessment Is made, then unless he pays all
of the taxes (Imposed by law on him or his
property), on or before the thirty-first day
of the succeeding January, the following
penalty shall be payable thereon, to-wit:
During the month of February, one (1%) per
cent; during the month of March, two (2$) er
cent; during the month of April, three (3%P
per cent; during the month of May, four(4$) per
cent; during the month of June, five (5%) per
cent; and on and after the first day of July,
eight (8$) per cent."
We quote from the opinion of the recent case of
Love v. Spur Independent School District, et al, 143 S.W.
(2d) 793:
"Article 7336, Revised Civil Statutes of
1925,.provided In effect that a penalty of lC$
on the entire amount of delinquent taxes should
accrue~and be collected as penalty.- Thereafter
in 1934 article 7336 was amended by the Fourth
Called Session of the party-thlrd~Leglslature, c.
10,$2, Vernon's Ann. Clv. St.art.'7336, and re-
duced the penalty on delinquent taxes to 8$, but
Honorable John M. Turner, Page 2
the amendment became effective ninety days
after the date of the adjournment of said
session November 10, 1934. Article 7336d
provides that the State or any county or other
subdivision of the State 'except such cities,
towns, villages, special school districts and
independent school districts which do not
adopt the provisions of this section' shall
collect penalty on a different basis but this
last article has no application to the case
under consideration for the reason the record
falls to show that Its provisions were adopted
by the City of Spur or the Spur Independent
School District. Therefore the penalty would
be calculated according to article 7336 and
article 7336 as amended by the Forty-third
Legislature.
"It will be noted from the delinquent
tax record of the City heretofore set out that
It charged lC$ penalty for the years 1928 to
1938, inclusive, when under the law it should
have charged only 8$ penalty for the years
1935 to 1938, inclusive, which would have re-
duced the penalty due the City by $1.97.
"The judgment In favor of the City for
$1.97 penalty in excess of the legal amount
is a mistake which in our opinion comes under
the doctrine of de minimis and does not re-
quire a reversal or modification of.the
judgment. Texas & N.O.R.Co. v..Stumberg, Tex.
-Civ.App., 115 S;W.(2d) 1~26; Lewis v. Lewis,
Tex.Clv.App.. 125 S.W.2d 375; Wichita Falls
& Oklahoma Ry. Co. et al v. Pepper, Tex.CiV.
APP., 101 S.W.2d 365. .We also note that in
1930 the Spur Independent School District
charged a penalty of but $2.40 on delinquent
taxes of $48. This was to the defendant's
advantage In the sum of $2.40.
"An examination of the schedule of the
delinquent tax record of the Spur Independent
School District heretofore set out discloses
that the School District charged lO$ penalty.
up to and including 1933 but only 8% penalty
thereafter and the defendant is entitled to no
deduction therefrom."
You are respectfully advised that the penalty
should be calculated according to Article 7336 before and
. .
Hondrable John M. Turner, Page 3
after its amendment. In other words, for the years prior
to the amendment a penalty of lO$ is authorized. For the
years after the amendment a penalty on a graduated scale
Is authorized from February to July following the date of
delinquency, and a penalty of 8$ after the first day of
July. The letter opinion to which you refer in your letter
of request was one written February 12, 1938, to Honorable
W. M. Porter. The author of the opinion cited Article 7336,
as amended, providing for an 8$ penalty. He closed the
opinion w1th.a statement that the district could charge a
lO$ penalty. We believe that the author Inadvertently wrote
lC$ when he meant 8$. This statement is expressly overruled.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By George W. Sparks
Assistant
OWS:IM:bt
Approved March 4, 1942
Grover Sellers
First.Assistant
Attorney General
Approved Opinion Committee
By BWB, Chairman