E k%.?!tTOWSEY
OF TEXAS
Honorable Robert S. Calvert Opinion No. C-289
Comptrollerof Public Accounts
Austin, Texas Re: Whether the County Attor-
ney or the Attorney Gen-
eral has the duty to file
suit for foreclosureof
the State's lien for delln-
quent inheritancetaxes
and the venue and juris-
Dear Mr. Calvert: diction of such suits.
You have advised us that inheritancetaxes have been
assessed and are delinquent,due and owing from the estates
of seven decedents who died in Harris County, Texas. You
request the opinion of this office on the above captioned
matter, in view of Article 1.04, Chapter 1, Tit.le122A,
Tax.-Gen. Vernon's Civil Statutes, and of Article 14.20,
Chapter 14, Title 122A, Tax.-Gen., V.C.S.
Article l.O4,reads,in part, as follows:
"(1) All delinquent State taxes and
penalties therefor due,and owing to the
State of Texas, of every kind and charac-
ter whatsoever, including all franchise,
occupation,gross receipts, gross produc-
tion, gross premiums tax on Insurance
companies, inheritance,gasoline, excise
and all other State taxes which become
delinquent other than State ad valorem
taxes on property shall be recovered
by the Attorney General in a suit brought
by him in the name of the State of Texas.
"(2) The venue and jurisdictionof
all suits arising hereunder is hereby
conferredupon the courts of Travis
County."
Article 14.20 reads as follows:
"If the amount of tax due hereunder
as shown by such assessment furnished
by the county judge and Comptroller is
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Honorable Robert S. Calvert, Page 2 (Opinion No. C- 289 )
not,paid within three months from the
date of said assessment,same shall
draw two per cent interest per month
until paid, beginning with the date
of notice of such assessment, and
shall be added to said tax and
collected as a penalty. If said
tax and penalty are not paid within
nine months from the date of such
assessment the Comptrollershall
so advise the county attorney, or
if there is no county attorney then
the district attorney, who must
Immediatelyfile suit in the dis-
trict court to foreclose the tax
lien as other tax liens are fore-
closed."
Article 1.04 has its source in Acts 1933, 43rd Leg.
p. 581 ch. 192 8 1, formerly carried as Article 7076, Chapter
2, Title 122, Taxation, Vernon's Civil Statutes, Article
1.04 covers essentially the same matter included in the former
Article 7076, but there are substantialdifferences. The
authority presently conferred on the Comptrollerwas formerly
exercised by the State Tax Commissionerand the State Tax
Board; and it was previously provided that "The,penalties pro-
vided for by this Chapter shall be recovered by the Attorney
General in a suit brought by him in the name of the State of
Texas; . . .' .
The only suit which has ever been institutedby any
Attorney General in Travis County to recover delinquent
inheritancetaxes pursuant to the provisions of Articles
7076 and 7076a, Vernon's Annotated Civil Statutes is
Scanlan v. State, 215 S.W.2d 203 (Tex.Civ.App.1948). The
opinion in the Scanlan case is concerned with the disposition
of an appeal frmnterlocutory order overruling pleas of
privilege seeking to change the venue from Travis County to
Port Rend County where the defendants resided. The case holds
that the suit to recover inheritancetaxes on property which
the defendants had inherited from sisters dying intestate and
on whose estates no administrationhad been had and in connec-
tion with which no proceeding had been had to appraise prop-
erty and fix the amount of inheritancetaxes due the State,
was a suit for "delinquentState taxes due and owing to the
State" within the provisions of Articles 7076 and 7076a, and
that, therefore, venue properly lay in Travis County. Thus,
the Scanlan case dealt with a situation entirely different
from that presented by your request in that there had been no
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Honorable Robert S. Calvert, Page 3 (OpinionNo. C- 289 )
assessment of Inheritancetaxes against the estates of the
decedents therein involved. Whereas, since there has been
an assessment in the estates here under consideration,the
facts as they exist come within the express provisions of
Article 14.20, which requires that:
,I
. . . If said tax and penalty are
not paid within nine months from the
date of such assessment the Comotroller
Keeping this distinction in mind, we find no ambiguity or
conflict between Articles 1.04 and 14.20.
We do not want this holding to be misconstrued. We
do not hold that 'theAttorney General could never in any
instance file suit in a District Court of Travis County to
foreclose the State's lien for delinquent inheritancetaxes
after an assessment has been made. We do hold that the
County or District Attorney has a positive and primary duty
in,the first instance to file suit for the foreclosureof
such liens. It may well be that in cases involving a large
amount of inheritance taxes or questions of great importance
to the jurisprudenceof this state the Attorney General might
proverls loin with the County or District Attorney in a suit
to foreclose inheritancetax-liens. In State v. ho
v?j6r3
568, 70 S.W.2d 699 (1944; rehearing denied, Tex-
72 S.W.2d 593), the Attorney General and the Criminal DiAtrict
Attorney of Harris County, Texas, there being no County Attor-
ney in said county, sued Mike Hogg as executor under the will
and estate of W. C. Hogg, deceased, and twenty-threeother
individuals,to whom property had passed under Hogg's will,
to recover inheritancetaxes and penalties claimed to be due
the State of Texas by virtue of the inheritancetax statutes
of this state. Exemptions for the devises and bequests in
question were claimed on various grounds and were denied.
However, the devisees and legatees under the will who had not
received notice of the assessment of the inheritancetaxes
involved were held not liable for penalty for delay in pay-
ment of the tax. Again, it is noteworthy that the inheritance
taxes had been assessed and that suit for collection of the
taxes was filed in a District Court of Harris County, the
residence of the decedent, in accordancewith the provision
(although this point was not specificallyquestioned)of
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Honorable Robert S. Calvert, Page 4 (Opinion No. c-289 )
Article 7134, Chapter 5, Title 122, Taxation, Vernon’s Civil
Statutes. The provisions of Article 14.20 are identical
with the provisions of Article 7134.
We think that our conclusion that Articles 1.04 and
14.20 are clearly reconcilableis justified for the reasons
we have previously stated. However, if the two articles be
deemed ambiguous, there is further support for our conclusion
in that it is consistentwith the well recognizedrule of
statutory constructionthat statutes relating to the same
subject matter will be harmonlzed and reconciledwhenever
possible to avoid irreconcilableoonflict, 53 Tex.Jur.2d
243, Statutes, Section 164, and authorities cited therein.
Moreover, you have advised us that it has been the adminis-
trative practice of the Comptroller’sDepartment that ever
since the original enactment of.Article 14.20, which, we
reiterate, has remained in the identical form of its original
enactment in 1923, Acts 1923, 38th Leg. 2nd C,S. p. 63 ch. 29
Sec. 1.8,to advise the County Attorney or in the event there
is no County Attorney, the District Attorney, of inheritance
taxes which have not been paid within nine months from the
date of assessment,and that, throughout the years, the
County or District Attorneys, as the case may be, have filed
suits to foreclose the inheritancetax liens as other tax
lie,nsare foreclosed. It is, of course, well settled that
the departmentalconstructionof an ambiguous statute by the
official charged with the administrationand enforcement
thereof is entitled to great weight and will not be departed
from unless clearly wrong. 53 Tex.Jur.2d 259, Statutes, til177.
Even if Articles 1.04 and 14.20 were viewed as being
in irreconcilableconflict, the provisions of Article 14.20
are still necessarily controlling. We quote the following
excerpt from 53 Tex.Jur.2d 233, Statutes, 8 161:
“In case of conflict between a
general provision and a special
provision dealing with the same
subject, the former is controlled
or limited by the latter, since a
specific statute more clearly evi-
dences the intention of the legis-
lature than a general one; and this
is so whether the provisions in
question are contained in the same
act or in different enactments.”
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Honorable Robert 5. Calvert$ Page 5 (Opinion No. C- 289 )
Article 14.20 is the special provision pertaining to the
foreclosureof inheritancetax liens when inheritancetaxes
have not been paid within nine months after assessment.
If Article 14.20 were treated as being in irrecon-
cilable conflict with Article 1.04, the result would be to
repeal Article 1,04 to the extent of the conflict since it
is last in order of position or arrangement. However, this
rule is followed only when all other means of interpretation
have been exhausted. 82 C.J.S. 717-720. Statutes. Sec. 347:
53 Tex.Jur.2d 150, Parshall vi State,
62 Crim.Rep. 177, 138 S.W. Stevens v. State,
70 Crim.Rep. 565, 159 S.W. We believe we have
sustained rather than exhausted~othermeans of interpreta-
tion.
You are therefore advised that th,eCounty Attorney
of Harris County has the duty to file suit for foreclosure
of the State’s lien for delinquent inheritance taxes due
and owing from the estates of seven decedents who died in
Harris County, Texas, and that Harris County District
Courts properly have venue and jurisdictionof said suits.
This is true regardless of the fact that,in one of the
estates property formerly belonging to the decedent is not
within Harris County so long as it is within the jurisdic-
tion of this State.
SUMMARY
The Harris County Attorney has the duty
of filing suits for foreclosureof the State’s
lien for delinquent inheritancetaxes, and
Harris County District Courts properly have
venue and jurisdictionof said suits even
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Honorable Robert S. Calvert, Page 6 (OpinionNo. U-289 )
in those Instances In which property
formerly belonging to a decedent is
not within Harris County, 80 long a6
it is within the jurisdictionof this
State.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
By: /vL
APPROVEDI
OPWION COMMITTEEI
W. V. Geppert, Chairman
W. E. Allen
Arthur Sandlin
Larry Merriman
Harry Gee
APPROVED FOR THE ATTORNEY QEWERAL
By:' Stanton Stone
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