Untitled Texas Attorney General Opinion

Hoiiorable S. Perry Brown Opinion No. M-11
Chairman-Ekecutlve Director
Texas Emplojment Commission Re: Tlme$lneas of application
hatin, Texm for refund of contributions
under the provisions of
Dear Mr. Brown: Article 5221b-12( j) (l), V.C.S.

This is In an8yer to ‘your Fegtieat for an opinion
concerning the following questions.

” 1. Does Article 5221b-12( j) (1) cbnstltute
a three-year statute of limitations with
respect to the Commission’s authority to
consider applications for refund made
after the three-year period has sxpired?

“2. If so, is the Commlsaion authorizgd to
waive at its discretion In meritorious
cases this statutory defense and consider
applications for refund made after the
three-year period has run?

“3. If you have decided that Article 5221b-12
(j) (1) is a statute of limitations and the
Commission has authority to waive it in
meritorious cases, may such authority be
exercised at the discretion of the Commlssion
prior to the filing of a lawsuit bx the tax-
payer for recovery of such refund?

Article 5221t-12( j) (1)) Vernon’s Civil Statutes,
provides as followti:

“Where any employing unit ha8 made
a payment to the Commission of contrl-
butions and/or penalties alleged to be
due, and it is later determined that such
contributions and/or penalties were not

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Hon. S, Perry Brown, pag e 2 (M-11)

due, in whole or in part, the emplbying
unit makings such payment may make ap-
plication to the Commission for ‘an ad-
justment thereof in connectionwith
contribution payments then due, or for
a refund thereof because such adjust-
ment cannot be made. If the Commission
shall determine that such contributions
or penalties, or any portion thereof
were errorsously collected, the Com-
missIon shall allow such employingunit
to make an adjustment thereof without
interest in connection with contribution
payments then due by such employing unit.
If such adjustment cannot be made, the
Commission shall refund said amount without
interest from the fund. It Is provided,
however, that no application for adjust-
ment or refund shall ever be considered
by the Commission unless the same shall
have been filed within three (3) yeprs
fron the date on which such contritutlons
and/or penalties wo,uld have become due,
had such contributions and/or penalties
been legally collectible by the Commission
from such employing unit. . , .”

The general rule of law is that a taxing statute must
be plain and unambiguous to levy a tax, but once the tax
is established, then an exception to the payment of the tax
is strictly construed against the exception or exemption.
Texas Unemployment Compensation CornIn. v. Bass, 137 Tex. 1,
1-51
We are of the opinion, in answer to your question number
1 and 2 that Article 5221b-12( j) (1) is not a statute of limi-
tations which may be waived but is rather a statute of pro-
hibition; or a statute in bar, and the Employment Commission
is barred from considering an application for adjustment or
refund after the three-year period stated In the statute has
expired.

It is a well established principle of law that the
courts in construing a statute will endeavor to carry out

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Hon. S. Perry Brown, page. 3 (M-11)

the q.ntent and purpose of the Legislature. 53 Tex.Jur.
2d 168, Statutes, Sec. 3.1.9.

It is hard to conceive of language more specific than
that used~ in the statutes under constructionwherein ‘it is
stated that “it is provided, however, that no application
for adjustment or refund shall ever be considered’ by the
Commission unless the same~ shall have been filed within
three years. . . .” (Emphasis added)

The Legislature in’ enacting this statute’certainly
intended that it have some meaning or purpose. If the
three-year provision could be waived, then, in fairness
to all and to make the statute apply equally to all persons
it would be necessary to waive the three-year provision
across the board in all cases,‘and this would make the
statute absolutely meaningless,

Paragraph number (2) of Section (j) of the above
statute provi”es that when an employing ,unit hae nade ap-
plication to the Commission for a refund or adjusfment
within the three-year time limit and such application for
refund or adjustment has been denied by the Commission,
such employing unit, may, within one year from the date
on which notice of such denial was mailed to it (meaning
the employing unit), commence an action in any court of
competent jurisdiction in Travis County, Texas. This
indicates that the Legislature intended that the appli-
cation for refund or adjustment must be filed within
three years or they would be barred from commencing an
action in the court for the refund or adjustment.

The following is quoted from 1 Tex.Jur.2d 666, Ad-
ministrative Law, Sec. 23:

“The right to invoke an administrative
agency’s authority may be lost by delay.
Thus, where the statute prescribes a period
within which application is to be made,
presentation of the application within the
specified period is said to be ‘exclusive
and jurisdictional’. . . .‘I

By virtue of our answers to your questions number 1
and 2, we deem it unnecessary to answer your question
number 3,

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Hon. S. Perry Brown, page 4 (M-11)

SUMMARY

The Texas Emplo@neht Commission doea
not havB atithority to waive the three-year
provision authorizing the time in'whlch 'an
employer may apply for adjustments.or .re-
funds under Article 5223b-12(j)(l), V.C.S.

Prepared by J. H. Broadhtirat
Assistant Attorney ffeneral

APPROVED:
OPINION COMMITTEE

HBwthorne PhilLips, Chairman
W. V. Geppert, Co-ohairman
Jack Goodman
John Reeves
Nell Williams
Linward Shivers

Staff Legal Aesistant
A. J. Carubbl, Jr.

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