dissenting.
I withdraw the dissent- of August 31, 2000 and reissue it on this date without change. I would hold that the rendition provisions of Tax Code sections 22.01(a) and (b) are directory, not mandatory. Accordingly, I respectfully dissent.
Sections 22.01(a) and (b) of the Tax Code provide:
(a) Except as provided by Chapter 24 of this code, a person shall render for taxation all tangible personal property used for the production of income that he owns or that he manages and controls as a fiduciary on January 1.
(b) When required by the chief appraiser, a person shall render for taxation any other taxable property that he owns or that he manages or controls as a fiduciary on January 1.
Tex. Tax Code Ann. § 22.01(a), (b) (Vernon 1992) (emphasis added).
There is precedent from this Court, as well as others, construing the term “shall” in a statutory provision to be directory. Texas Dep’t of Pub. Safety v. Gratzer, 982 S.W.2d 88, 90-91 (Tex.App.—Houston [1st Dist.] 1998, no pet.) (statute directing that officer “shall” send notice directory, not mandatory); accord Texas Dep’t of Pub. Safety v. Guerra, 970 S.W.2d 645, 649 (Tex.App.—Austin 1998, pet. denied) (fail*435ure of Legislature to attach consequence when hearing held outside time mandated means “shall” is directory, not mandatory). In Dubose v. Ainsworth, the San Antonio Court held a provision that taxpayers “shall” deliver lists of property to the city assessor and collector was directory, even though an ordinance provided that it was a criminal offense not to render property under the statute. 139 S.W.2d 307, 308 (Tex.Civ.App.—San Antonio 1940, writ dism’d).
In holding that a provision is directory, courts focus on the “Legislature’s failure to attach a consequence” if a party does not comply with the statutory provision. Guerra, 970 S.W.2d at 649. Courts often conclude, “[i]f the Legislature had intended for [the provision] to be mandatory, it could have easily provided consequences for noncompliance.” Id.; Gratzer, 982 S.W.2d at 91.
In my opinion, the case controlling this issue is Himont v. Harris County Appraisal Dist., 904 S.W.2d 740 (Tex.App.—Houston [1st Dist.] 1995, no writ). In Himont, the taxpayer failed to timely render its property for taxation in a particular tax year. This Court held “although section 22.01(a) says that a person ‘shall’ render tangible personal property for taxation each year, cases interpreting rendition statutes that preceded this section interpreted the word ‘shall’ as directory rather than mandatory.” Id. at 744 (citing Markowsky v. Newman, 134 Tex. 440, 136 S.W.2d 808, 811-14 (1940) and Moody v. City of Galveston, 21 Tex.Civ.App. 16, 50 S.W. 481, 483 (1899), writ ref d) (emphasis added).
Robinson contends Himont expands Markowsky too far beyond its holding. I disagree. In Markowsky, the Supreme Court held the statutory provision that property owners “shall” render “on the first day of January of the current year” was not mandatory as to time. Id. at 814. Although the Supreme Court limited its holding to the time element in Markowsky, I find its reasoning equally applicable under these circumstances:
It may be conceded that the legislature intended by the statute to require all property situated within the municipality to be inventoried to the city for the purpose of taxation, but the failure of the legislature to restrain by express words the inventory of property after the time fixed in the statute indicated in our minds that the time provided therein was not mandatory but directory.
Id. at 813 (emphasis added). Here, the Legislature also “failed to restrain” taxpayers from not rendering. As such, because Markowsky is instructive, I conclude Himont controls this matter. Thus, I further conclude the term “shall” in the rendition provisions in section 22.01(a) and (b) of the Tax Code was correctly found by the trial court to be directory rather than mandatory.
Notably, the Tax Code does not contain a provision for sanctions against a property owner who does not render. In fact, the legislative history of section 22.01 reveals the legislature did not intend for there to be a penalty. When the Tax Code was originally drafted in 1979, the drafters included a penalty provision. S.B. 621, as introduced, 66th Leg., R.S. (1979). However, the legislature deleted the penalty provision prior to its enactment. S.B. 621, as enacted, 66th Leg., R.S. (1979). Additionally, three bills have been introduced seeking to add a penalty for taxpayers who do not render. As each of these bills has died, the Legislature has expressed its intent that a failure to render under sections 22.01(a) and (b) should not have a sanction. The most recent bill to be filed sought to add a new provision that “[a] requirement under this chapter to deliver a rendition *436statement or property report to a chief appraiser is mandatory.” H.B. 1630, § 1, 76th Leg., R.S. (1999). Clearly, if section 22.01 were already mandatory, this bill would have been unnecessary.
The Legislature chose not to attach a penalty or to make rendition mandatory; I believe our duty is to refrain from legislating and to follow existing case law. Accordingly, I would affirm.