Untitled Texas Attorney General Opinion

I .
The Attorney General of Texas
JIM MAl-rOX Oc:tojer 26, 1984
Attorney General
Supreme Court Building
Ronorable Mike Driscoll Opinion No. JM-221
P. 0. Box 12546 Harris County Attorney
Austin. TX. 76711. 2546 1001 Preston, Suite 634 Re: Whether section 11.431 of
5121475-2501 Houston, Texas 77002 the Tax Code permits refunds of
Telex 9101674.1367
taxes for homestead exemptions
TRlecoPier 5121475.0266
not filed in time
714 Jackson. Suite 700 Dear Mr. Drlscoll:
Dallas. TX. 75202.4506
2141742.0944
You ask the following question:
4824 Alberta Ave., Suite 160 May the Harris County tax assessor-collector
El Paso. TX. 799052793 accept an application for a residence bonestead
91515333464
for the yei~r 1981 which is submitted to the tax
assessor-collector prior to February 1, 1983, or
1001 T.X.8. suite 700 within one year after the 1981 taxes on said
liouston. TX. 77002.311 t residence were paid, whichever is earlier. and
713l223.5666 refund to the applicant the difference between the
amount pa:Ld and the amount that would have been
due if the homestead application had been sub-
SC8 Broadway. Suite 312
Lubbock. TX. 79401.3473
mitted prfor to May 1. 19812
6C61747.5238
Section 11.43 ‘,:I the Tax Code requires Initial applications for
residence homestead exemptions to be filed prior to May 1. The
4309 N. Tenth. SUM B
section also permits a 60-day extension. In 1981, the legislature
kA116n. TX. 76501.1665
5121682.4547 amended the Tax Code, by adding section 11.431, which provides:
(a) T1.e chief appraiser shall accept and
2@.l Main Plaza. Suite 400
approve or deny an application for a residence
San Antonio. TX. 162052797
5121225.4191
homestead exemption after the deadline for filing
it has paszsed if it is filed not later than one
year after the date the taxes on the homestead
An Ewal OpportunityI were paic, or became delinquent, whichever is
Aftirmative Action Erptoyc- earlier.
(b) If’ a late application is approved after
approval elf the appraisal records by the appraisal
review boz.rd, the chief appraiser shall notify the
collector for each unit In which the residence is
located. The collector shall deduct from the
person’s ls,x bill the amount of tax imposed on the
exempted ilmount if the tax has not been paid. If
D. 992
Eonarable Mike Driscoll - Pa(:e! 2 (JM-221)
the tax has been paid. the collector shall refund
the amount of tax imposed on the exempted amount.
The effective date of sectian 11.431 was January 1, 1982. Acts 1981,
,67th Leg., 1st C.S., ch. 13, 5168. at 182. You wish to know whether
section 11.431 permits late applications for residence homestead
exemptions beginning with the 1981 tax year or the 1982 tax year.
Since you raise no constlt,utlonal issue, we raise nz here. We
conclude that section 11.431 permits the filing of late applications
beginning vith the 1982 tax year.
The guiding principl~r of statutory interpretation is the
ascertains&t of-legislative! intent. State v. Shoppers World, Inc.,
380 S.W.2d 107 (Tex. 1972); State v. Jackson, 376 S.W.2d 341 (Tex.
1964). We conclude for two different reasons that the legislature
clearly intended for sectilan 11.431 of the Tax Code to become
effective beginning with the 1982 tax year.
First, the legislature clearly could not have intended for only
one section of the Tax Code’s administration of exemptions provisions
to take effect and reach tares implied in a year earlier than that in
which the remaining sections take effect. Subsection (a) of section
11.431 requires the chief appraiser to accept and approve or deny an
application for a residence homestead exemption If it is filed within
a specified time. Subsection (b) provides that, if a late application
is approved after approval of the appraisal records by the appraisal
review board, the chief apI,raiser must notify the collector for each
affected taxing unit. The collector Is then required to recalculate
the taxpayer’s tax liability If the tax has not yet been paid; if the
tax has been paid, the coll.ector is required to refund the amount of
tax on the exempted amount.
It would make no sense for us to conclude that section 11.431
would reach the 1981 tar: year, because tax appraisal districts
administered by chrappr;r!;sers came into being on January 1, 1982
with the beginning of the .-- 1982 tax year. Acts 1979, 66th Leg., ch.
841. 53, at 2313. Chief appraisers never had authority to accept
exemption applications for the 1981 tax year. Applications in 1980
and 1981 were submitted to the tax assessor-collectors for the
respective taxing units offering them. Appraisal review boards did
no; review and approve sapraissl records for the 1981 tax year;
appraisal review boards were created beginning with the 1982 tax year.
Such records were reviewed in 1981 by local boards of equalization
who, unlike the appraisal re’view boards created after January 1, 1982,
did not possess the authority to review and approve or reject the
granzg of exemptions by ,:he local tax assessor-collectors. Compare
repealed V.T.C.S. art. 72(16 (and cases decided thereunder) and Tax
Code 1541.01, 41;02. The legislature could not have intended that
appraisal review boards rer::lew and approve appraisal records in 1982
of 1981 tax rolls which ha*rc: already been approved by local boards of
equalization. Rather, the 1,egislature intended for section 11.431 to
P. 993
Ilonorable Mike Driscoll - Page 3 (m-221)
reach only tax years beginning with 1982, Just as it intended the
reaalnder of the administration of exemptions provisions, A.
subchapter C of chapter 11 c~f the code, to reach only those tax years
beginning with 1982. By the ve:ry terms which the legislature employed
.in section 11.431. it is clear that the legislature intended the
prevision to become effecti,ve and reach those taxes imposed in the
sase year in which the rest: of the new code became effective. I.e.,
1982.
Second, we must ‘construe s’:atutes in a manner which is not forced
or strained, but is supporl:ei: by the words of the statute. See
Rai,lroad Commissj.on of Tex,ls ‘1. Miller, 434 S.W.2d 670, 672 (TK
19t8). We shculd, if posXle, give effect to every part of a
statute, Cerst v. Oak Cliff Sa’rings and Loan Association, 432 S.W.2d
702 (Tex. 1968). and avoid Tz.pting a construction that will render
any part inoperative or superfluous. Spence v. Fenchler, lE0 S.W. 597
(Tc.x. 1915).
In our opinion, concluding that section 11.431 of the Tax Code
permits the filing of late applications for the 1981 tax year would
eff’ectively render the section superfluous. We believe the legisla-
ture could only have intended for the section 11.431 application
extension to apply to the 1581 tax year if there was applicable during
that year some filing deadline which section 11.431 could validly or
effectively extend. There was in 1980 and 1981, however, no statutory
deadline. And because we co,nclude that the “administrative” deadline
discussed in Attorney General Opinion MU-259 (1980) would snot permit
the filing of an application for the 1981 tax year as late as January
of 1982, we conclude that there was no non-statutory deadline which
could have been extended past the January 1, 1982 effecti.ve date of
section 11.431. Sfnce therr? ws.8 no deadline, statutory or otherwise,
for claiming homestead exemptions for the 1981 tax year which could
have been extended into 198.1, section 11.431 cannot apply to that tax
year. To conclude otherwi:,e is to conclude that section 11.431
expanded a deadline when, in 1981, there~ was no legal principle upon
wh;ch it could validly operate to produce this effect.
In 1978. the voters of Texas added subsections (c) and (d) to
article VIII, section l-b of: the Texas Constitution. Subsection (c)
created a self-executing asl valorem tax exemption of $5,000 of the
market value of residence homesteads from elementary and secondary
public school taxes. It al!lo permitted the legislature by general law
to exempt from elementary aud secondary public school taxes $10,000 of
the market value of residerze homesteads of persons who are disabled
as defined by article VIII. section l-b(b) of the constitution and who
are 65 years of age or olde!r.
In 1979. during the same session in which the Tax Code was
passed, Acts 1979. 66th Leg., ch. 841, .at 2217 [hereinafter Senate
Bi:Ll No. 6211, the legjslature passed implementing legislation
creating the disabled and the elderly residence homestead exemptions.
Honorable Mike Driscoll - Page 4 (JM-221)
Acts 1979, 66th Leg., ch. 302, art. 7, II, at 690 [hereinafter House
Bill No. 10601. Both bills contemplated annusl filing requirements;
however, Senate Bill No. li2l’s effective date provision section
provided that subchapter C of chapter 11 of the Tax Code, the
subchapter setting forth the administration of exemptions provisions,
was not to become effective until January 1, 1982. even though the
portions of Senate Bill No. 621 creating the exemption became
effective on January 1, -.--w
1990. See Senate Bill No. 621, supra. at
231.3-2315. In 1981, the legislature amended subchapter C of chapter I
11 by providing essentially for a one-time-only application; this
amendment became effective ou January 1, 1982. Acts 1981, 67th Leg.,
1st C.S., ch. 13, 9540, 168,, at 131, 182. During the same session,
section 11.431 was also added to subchapter C. -Id. 142, at 132.
The thrust of the foregoing is that the original implementing
legislatfon, coupled with the Tax Code, created three periods during
which different requirements for filing applications for residence
homestead exemptions existed. In 1979, House Bill No. 1060 controlled
and required that application,s be flied yearly. House Bill No. 1060
was repealed effective January 1, 1980, however, and was replaced by
the Tax Code. The code Implemented the constitutional exemption
beginning on January 1, 19M. but it contained filing application
requirements which became effective on January 1, 1982. As noted
above, these requirements wel’e amended in 1981. Acts 1981. 67th Leg.,
1st C.S.. ch. 13. 540, at 1.31. In 1980 and 1981. therefore. there
were no specific statutorr provisions requiring the filing of
applications for exemptions, nor were there any .provisions imposing a
deadline for filing.
It would make sense tc. conclude that the legislature intended
that section 11.431 permits late application for residence homestead
exemptions for the 1981 ta:c year only if an applicant could have
applied for such exemption M late as January 1. 1982. If such an
application was possible, then it would arguably make sense to
conclude that the legislature ~intended for the deadline extension to
also apply to the 1981 tax year. We conclude, however, that such was
not the case; whatever the C,eadline was for application for the 1981
tax year, January 1, 1982 war; too late.
It has heen suggested that Attorney General Opinion Mu-259 (1980)
effectively created an “admlu%strative” filing deadline. This opinion
addressed the effect of a taxpayer’s failure to timely apply for a
residence homestead exemption during 1980 and 1981. when there were no s -
statutory filing requirement:%;;, it concluded that a taxpayer may become
estopped to claim the exemption if his delay makes its recognition
“administratively impractlcab3.e.”
Attorney General Opinion MW-259 relied inter alla on Gragg v.
Cayuga Independent School District, 539 S.W.?d 861 (Tex. 19761, appeal
dlsm’d, 429 U.S. 973 (1976); Moore v. White, 569 S.W.2d 533 (Tex. Civ.
APP. - Corpus Christi 1978, rGmref’d.1; and Jay v. Devers, 563
.
I
Honorable Mike Dtiscoll - Page 5 (JM-221)
S.W.Zd 880 (Tex. Civ. App. ‘- Eastland 1978, no writ). These cases
concerned applicants for special ad valorem valuation of land under
the “agricultural use” prov::sions of article VIII, section l-d of the
Texas Constitution. Articlsr VIII, section l-d is self-executing and
contains no language regal,d,ing its administration or establishing
.deadlines for filing affidavits therefor. In each of the three cases
cited above, however, the cc’urts determined, by considering the entire
enactment, that applicationr, deemed “untimely” were not intended to be
allowed. In Moore v. White,, =ra at 536, the court declared that an
application for special vcl,uatG under article ‘VIII, section l-d
filed in December was not timely and should not be accepted by the
taxing jurisdiction, becaurie the applicant “waited until after the
[taxing jurisdiction’s] plans of taxation were put into effect before
filing her claim for exemption.” In Gragg v. Cayuga Independent
Sch,>ol District, supra at E’rO, the supreme court held that a taxpayer
G not entitled to special valuation under article VIII, section l-d,
because the applicant “sat by and permitted the assessments to be
madma, the tax . . . to be prepared, and this suit for taxes to be
fil.ad against him before challenging the refusal by the tax assessor
to give his land ths agricultural use designation.” See a@, Jay v.
Devars,
-- supra; Attorney Genc!ral Opinion H-988 (1977).
Where the constitution does not by its own terms exempt a
particular kind of property but merely permits its exemption without
prescription, the legislature may ordinarily prescribe reasonable
conditions for the exemption’s receipt. Dlckison v. Woodmen of the
World. Life Insurance Socies!, 280 S.W.Zd 315 (Tex. Civ. App. - San
Antonio 1955. writ ref’d). Bet in this instance, as with article
VIII, section l-d, the. :isgislature prescribed no dead:llnes for
application during 1980 and 1.981. We are therefore left wi.th the rule
set -forth in a, Moore, ;nld il -- namely, that taxpayers may estop
themselves through tardiness from claiming the benefits conferred by
the constitution and statutes. In Attorney General Opinion Mu-259
this office declared that a “taxpayer may become estopped to claim the
exemption if his delay makes its recognition administratively
impracticable” (emphasis adcled). The opinion did not, however, define
what constitutes “administ~cstively impracticable,” saying only that
each case would turn on Its own facts.
In our opinion, the cases cited above; coupled with the statutes
in effect during 1980 and 1981, i.e.. V.T.C.S. articles 7111. 7112
(governing the authority ard responsibilities of a board of equaliza-
don), indicate that in alt l.ikelihood. granting an exemption at any
point after the board of ec,ualization has certified the values on the
tax roll would be “administratively impracticable.” It was a rule of
long standing under now-repealed articles 7111 and 7112 that once the
valuation of property had heen determined and entered upon the roll,
the board of equalization had no power to increase or reduce such
valuation. Bass v. Aransas County Independent School District, 389
S.W.2d 165 (Tex. Civ. App. 1, Corpus Christi 1965, writ ref’d n.r.e.1;
Chicago R.I. (L G. Railway CD. v. State, 241 S.W. 255 (Tex. Civ. App. -
n. 996
Honorable Mike Drlscoll - Pa@! 6 (JM-221)
Texarkana 1922). aff’d 263 S.W. 249 (Tex. Comm’n App. 1924, judgmt
adopted); Attorneyzral Opinion H-988 (1977). At the very least,
relying on Gragg. Moore, and %, we believe we can safely state that
an application is xely :.i’ it is filed as late as December of the
tax year in which the benef:lt is sought. In this instance, then, we
conclude that an applicant who filed for a residence homestead
exemption for the 1981 tax Irear as late as January of 1982 would not
be entitled to receive the benefits of the exemption for 1981.
Accordingly, since the granting of any application for a residence
homestead exemption for 1981 would, at least after December 31. 1981,
be “administratively impracticable,” we conclude that the legislature
could not have intended for the section 11.431 application extension
to apply to the 1981 tax yes. Thus, section 11.431 of the Tax Code
could reasonably permit only the granting of refunds and the filing of
late applications for residence homestead exemptions beginning with
the 1982 tax year.
.SUMMARY
Section 11.431 of the Tax Code p.ermits the
granting of refunds and the filing of late
applications for residence homestead exemptions
beginning with the 1982 tax year.
Attorney General of Texas
TOM GREEN
First Assistant Attorney Cereral
DAVID R. RICHARD8
Executive Assistant Attorney, General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OPINION COMNITTEE
Rick Gilpin. Chairman
Susan Garrison
Jim Hoellinger
Nancy Sutton