Honorable Robert S. Calvert Opinion No. W-1444
Comptroller of Public Accounts
Capitol Station Re: Construction of Art.
Austin, Texas 2307 Title 122A,
V.C.S.
Dear Mr. Calvert:
Your letter requesting our opinion relative to the
captioned matter reads as follows:
"In 1961 the 1st called session of the 57th Leg-
islature amended Chapter 23, Title 122A, Taxation
General, Revised Civil Statutes, 1925, by adding
a new article 23.07 which reads as follows:
*If any person shall fail to file a re-
port as required herein or shall fail to
pay to the Comptroller the tax as imposed
herein when said report or payment is due,
he shall forfeit five per cent (5%) of the
amount due as a penalty, and after the first
thirty (30) days he shall forfeit an ad-
ditional five per cent (5%) of such tax.
Provided, however, that the penalty shall
never be less than One Dollar ($1). De-
liquent taxes shall draw interest at the
rate of six per cent (6%) per annum be-
ginning sixty (60) days from the date due.'
The bill containing this provision by Its own terms,
became effective September 1, 1961. No Interest
or penalty was levied upon delinquencies until
the amendment in 1961.
Skyway Motel of Harlingen, Texas, has failed to
remit the Hotel Tax and is delinquent in the fol-
lowing respect:
- .
Honorable Robert S. Calvert, page 2 (WW 1444)
MarPgr;;d ,"dcIng Amount
June 3, ig61 $?Fz
September 30, 1961 198:70
December 31, 1961 138.80
March 30, 1962 89.16
In light of the above amendment, we request your
opinion as to whether the penalty and interest
should be applied to all of the xerlods set out
above, or only for certain ones.
Article 23.07 amends the hotel occupancy tax. Prior
to this amendment such delinquent taxes did not draw
interest and were not subject to penalties. This amend-
ment became effective September 1, 1961. The only
questions involved are whether this amendment is appli-
cable to taxes which became delinquent prior to September
1, 1961, and if so, the time the penalties accrue and
the Interest begins to run.
Article 1, Section 1.6of the Texas Constitution
provides: "No bill of attainder, ex post facto law,
retrcactive law, or any law impairing the obligations
of contracts, shall be made."
Although the Constitution in terms prohibits
retroactive legislation, only such retroactive legis-
latioi,that destroys or impairs vested rights is -
proscribed. The Legislature has the same Dower to act
restrospecively as it does prospectively as long as
vested rights are not destroyed or impaired.
Peck, 57 Tex. 142 (1882); League v. State, 93
m. W. 34 (1900); Blomstrom v. Wells, p39 S.W. 227
dism.); ,McCain v. Yost, 155 Tex. 174,
(1955); McGinley v. McGinle
v. Garland Indepen%n:'&&% ~~s?!~
1959, error ref. n.r.e.).
We can conceive of no vested right that a taxpayer
possesses to continue to refuse or neglect to pay his
delinquent taxes without being penalized for such failure
or neglect. We are therefore of the opinion that Article
23.07 does not violate Section 16 of Article 1 of the Con-
stitution If applied to taxes which became delinquent
prior to September 1, 1961.
Hon. Robert S. Calvert, page 3 (WW 1444)
It is evident that Article 23.07 was enacted as an
aid in the collection of the hotel occupancy tax and there-
fore should be construed to cover past delinquencies as
well as taxes becoming due after the effective date thereof.
The only question remaining is whether the penalties attach
as of the date the taxes became due and the interest is to
be calculated sixty days after such due date, or the
penalties accrue on the effective date of the Act and the
taxes begin to draw interest 60 days thereafter.
As stated in 12 Tex. Jur. 2d 471, Constitutional Law,
Sec. 122, 'It is presumed that the Legislature intends a
statute to operate prospectively rather than retrospectively,
and, unless the enactment is made retroactive in clear
terms, this presumption will be given effect.
By virtue of the above presumption, and the fact that
the Legislature did not in clear terms make the act retro-
active, we are constrained to hold that the first 5 per
cent penalty attaches on the effective date of the Act and
that the second penalty of five per cent will attach thirty
days after the effective date of the Act, and if not paid
until 60 days after September lst, 1961 that such delinquent
taxes will then draw interest at the rate of six per cent
per annum. Although the taxes were due prior to
September lst, 1961, and the taxes were past due on September
lst, such taxes were also due and payable on September lst,
1961. It Is clear that the Legislature Intended to
penalize the taxpayer only ten per cent during the first
sixty day period.
SUMMARY
Hotel occupancy taxes which accrued under
Chapter 23, Title 122A, Taxation-General,
Vernon's Civil Statutes, prior to the ef-
fective date of Article 23.07 If not paid
- .
Honorable Robert S. Calvert, page 4 (WW 1444)
before September 1, 1961, are subject
to penalties and interest provided in
said Article 23.07.
Very truly yours
WILL WILSON
Attorney General of Texas
By:
Assistant
APPROVED:
OPINION COMMITTEE
Howard Mays, Chairman
L. P. Lollar
Marietta Payne
Pay Bailey
P&VIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore