Untitled Texas Attorney General Opinion

E ORNEY GENERAL
QF%-EXAS
PRICE DANIEL
.xrTOm?EYGENERAL
April 12, 1948
Hon. Gee. H. Sheppard
Comptroller of Public Accounts
Austin, Texas Opinion No. V-540
Re: Accrual of penalty and in-
terest on unpaid county
taxes on the lands set apart
to endow The University of
Texae.
Dear Sir:
By your letter of March 16th we are advised that fin paying
taxes due the counties on lands belonging to The University of Texas
your Department “. . . in attempting to make the appropriation for
each biennium extend as far as possible . . . has taken advantage of
the statutes that authorize discounts and also in some instances bps
paid to a certain county involved half the payment and let the other
half go delinquent . . . The question of penalty and interest arises
each year when any portion of the unpaid taxes is paid , . ,” Yau re-
quest that we &vise you as to ‘whether the State is required to pay
penalty and interest on unpaid tmxes as above set out and whether l r
not the present appropriation authorizes the payment of penalty and
interest.”
Section lb(a) of Article VII of the Constitution of the State
of Texas reads as follows:
“All land mentioned in Sections 11, 12 and 15 of Ar -
title VII, of the Constitution of the State of Texas, new
belonging to the University of Texas shall be subject to
the taxation for county purposes to the same extent as
lands privately owned; povided they shall be rendered
for taxatien upon values fixed by the State Tax Board:
and providing that the @ate shall remit annually to each
of the hounties in which said lands are located an amount
equal to the tax imposed up&m said land for icOunty pur -
poses.” (Sec. 16(a), Art. VII, adopted Nov. 4, f930).
In order to effectuate the above-quoted pro~vision the 42nd
Legislature enacted S.B. 403, Ch. 93, Acts, Regular Session, 42&l
Legislature, which act, carried as Article 715Oc, V.C.S., reads as
follows:
Hon. Geo. H. Sheppard, Page 2 (V-540)
“Sec. 1. All the lands set apart for the endow-
ment of the University of Texas by Section 15 of Ar-
ticle 7 of the Constitution of 1876, and by Chapter 72
of the Acts of the Regular Session of the 18th Legis-
lature, which are now unsold, are hereby declared
to be subject to taxation for county purposes in the
counties in which they are located, to the same ex-
tent as lands privately owned in said counties.
“Sec. 2. It shall be the duty of the Comptroller
of Public Accounts, from records in his office, to
submit to the State Tax Board data as to value fixed
upon privately owned lands contiguous to the Univer-
sity of Texas lands in the several counties.
“Sec. 3. It shall be the duty of the Commissioner
of the General Land Office to furnish the State Tax
Board with maps showing the location of said Univer -
sity of Texas lands, herein declared to be subject to
taxation.
“Sec. 4. It shall be the duty of the State Tax
Board to place the valuation upon which said land
shall be assessed and rendered for taxation. It
shall further determine the taxable value of lands
in each county separately. In arriving at its amount
to be paid in taxes the value of the land only shall be
considered, and not the value of any buildings or other
improvements, owned by the State, and situated upon
said land.
“Sec. 5. The Tax Collector of each county which
contains any of the land enumerated in Section 1, here-
of, shall render to the Comptroller of Public Accounts
by October 1 of each year a certified statement showing
the values fixed by the State Tax Board upon said lands,
the county rate of taxation, and the amount due said
county as taxes upon said land.
“Sec. 6. It shall be the duty of the Comptroller of
Public Accounts to issue warrants upon the General
Fund to pay taxes due each county, beginning with taxes
assessed for the year 1931, and annually thereafter; said
warrants to be issued and mailed to the several counties
within the time as now provided by law for the payment
of county taxes on privately owned lands.” Acts 1931,
42nd. Leg., p* 136, ch. 93.
. -
Hon. Geo. H. Sheppard, Page 3 (V-549)
In your request you state that *. . . since the adoption of
the . . . Constitutional Amendment and also the enactment of S.B.
No. 403 by the 42nd Legislature, this department has construed
the law to mean that no interest and penalty would accrue on any
portion of taxes becoming delinquent under the above mentioned
law.”
In 1931 this Department in Opinion No. 2853 considered
various features of Article 7150~. The opinion makes the follows
ing observation:
“It will be noted that the Constitutional Amend-
ment in question authorizes I&e tPxaUen of all lands
see apart and appropri#%d as an endowment for the
University of Texas, while the enablfng art (Senate
Bill No. 403) limits that taxation to the one million
acres set apart by the Constitution of 1876 and the
one million acres set apart by the Eighteenth Legis-
lature in 1883. For practical purposes this distinc-
tion is immaterial, because all of the more than
200.6~00 acres embraced in the fifty league grant to
the University by the Republic of Texas in 1839 have
been sold, and all the University lands now unsold
are embraced in the endowments ef 1876 and 1883.”
The last legislative appropriation to pay such taxes is
found in Section 2(b) of H.B. 246, Ch. 339, Acts, 50th Legislature,
Regular Session. Section Z(b) reads, in part, as follows:
“(b) In accordance with the ConsWutional re-
quirement that taxes for county purposes only be
paid by She General Fund to counties in which are
located endowment lands set Wise to &! University
of Texas by the Constitution of the State of Texas
and the Act of 1883, and in further compliance with
Senate Bill No. 403, Chapter 93, Acts of the Regular
Session of the Forty-sesond Legislature, there is
hereby appropriated to the State Comptroller of Pub-
lic Accounts for the payment of taxes to sueh counties
for county purposes only upon said University owned
land the sum of not to exceed Sixty Thousand Dollars
($60,000) for the fiscal year ending August 31, 1948,
and the sum of Fifty Thousand Dollars ($50,000) for
the fiscal year ending August 31, 1949. Provided,
however, that any moneys herein appropriated may be
used for the.purpose of paying current and delinquent
taxes that have accrued, or may accrue, under the pro-
visions of the above-mentioned Constitutional Amend-
ment and under Senate Bill No. 403, Chapter 93, Acts
of the Regular Session of the Forty-second Legislature.”
Hon. Geo.,H. Sheppard, Page 4 (V-540)
The general rule is that penalty and interest may be im-
posed for nonpayment of taxes, but a statute which merely author-
izes and provides for the levy of a tax does not carry with it penal-
ties and interest, neither of which accrues in the absence of express
provision therefor. R.C.L. Vol. 26, pp. 385, 386, Sets. 342, 343;
51 Am. Jur. 849, and authorities cited therein; 61 C.J. p. 1482, Sec.
2104; p. 1515, Sec. 2218, the last named section citing the following
Texas cases which hold that interest is not recoverable on taxes
unless the statute expressly so provides: Cave v. Houston, 65 Tex.
619; Western Union Tel. Co. v. State, 55 Tex. 314 [rev. on other
grounds 105 U.S. 460, 26 L. Kd. 1067); Edmonsen v. Galveston, 53
Tex. 157.
The provisions of the Constitution and of the statute which
impose this particular tax upon lands otherwise exempt from taxa-
tion nowhere expressly provide for penalty and interest. The only
language which might be construed to embrace penalty and interest
is found in the proviso to the effect that such lands shall be subject
to taxation for county purposes “to the same extent as lands private-
ly owned.” We are of the opinion that this phrase has reference to
the particular county rate of taxation which the County Tax Collector
uses in computing the amount of taxes due the county on said lands
at the valuation fixed by the State Tax Board. See Section 5 of Ar-
ticle 7150~. Section 6 of Article 7150~ expressly provides that the
warrants for these taxes shall be I’. . . issued and mailed to the
several counties within the time as now provided by law for the
payment of county taxes on privately owned lands”; but, as we have
previously said, the imposition of a tax and prbvisions relating to ,
payment of same are insufficient to impose payment of penalty and
interest in the absence of specific legislative authorization. We
think that this particular case is the strongest possible case for
the application of this rule for the reason that the State’s partial
surrender of her sovereign immunity from taxation should not be
enlarged by implication.
The language used by the 50th Legislature in making the
appropriation “for the purpose of paying current and delinquent
taxes that have accrued, or may accrue, ~ . *” is consistent with
the views we have expressed in this opinion.
Although these views dispose of your question, it should
be added that if there were any doubt as to the proper construction
of Article 7150~. the practice of the departmental head charged with
the duty of administering a statute carries great weight in determin-
ing the operation of that statute. Sutherland, Statutory Construction,
6.5105, and authorities cited therein. The result we have reached in
this opinion is in line with your Department’s consistent construc-
tion of Article 7150~ since its enactment.
. -
Hon. Gee. H. Sheppard, Page 5 (V-540)
SUMMARY
Article 715Oc, V.C.S., which provides that
the State of Texas shall pay county taxes on lands
owned by The University of Texas, does not im-
,pose penalty and interest in the event of nonpay-
ment of such taxes; nor does Section 2 of H.B. No.
246, Ch. 339, Acts, 50th Legislature, Regular Ses-
sion, appropriate funds for the payment of penalty
and interest on any portion of such taxes as are
past due.
Very truly yours,
ATTORNEY GENBRAL OF TEXAS
BY
Mrs. Marietta Creel
Assistant
MC/wb/JCP
ATTORNEYGENERAL