Jonnet v. State

POWERS, Justice,

concurring.

I concur in the judgment that the Jonnets are personally hable under section 171.255(a) *525of the Tax Code for the corporate debt of Brent Ranch Operating, Inc., upon which the State sued. See Tex.Tax Code Ann. § 171.-255(a) (West 1992). I have, however, a different view of the statute and the circumstances.

The issue is whether the corporation incurred the “debt” before or after March 15, 1990, the due date of the franchise-tax report the corporation failed to file. If the “debt” existed before that date, the Jonnets are not personally hable; if the “debt” came into existence after that date, they are personally hable under section 171.255(a). One must initially inquire, then, as to the legislature’s intended meaning of the word “debt.”

In ordinary usage, the word “debt” can mean anything from an obhgation arising out of sin, to a social obhgation, to a money obhgation due and payable. In legal usage, however, the word “debt” carries a narrower, restricted, and technical meaning. The word “debt” means a liquidated money obhgation that is legally enforceable. See Seay v. Hall, 677 S.W.2d 19, 23 (Tex.1984); 26 C.J.S. Debt 6 (1956).1 In using the word “debt” in section 171.255(a), did the legislature intend the meaning of the term in ordinary usage or in legal usage? “Absent legislative intent to the contrary, or other evidence of a different meaning, legal terms in a statute are presumed to have been used in their legal sense.” 2A Sands, Sutherland Statutory Construction § 47.30, at 262 (1992) (emphasis added); First Nat’l Bank of Mineola v. Farmers & Merchants State Bank, 417 S.W.2d 317, 329 (Tex.Civ.App.—Tyler 1967, writ ref'd n.r.e.). Indeed, it would appear quite unusual if the legislature had intended otherwise when the word “debt” is found in a revenue statute. In all events, we find that the word “debt” must be confined to its narrow, restricted, and technical or legal sense because the statute and its operation are “penal in nature.”

Section 171.255(a) was preceded by another statute that also made corporate officers and directors personally liable for “debts” that were “created” by the corporation after loss of its corporate privileges. The court construed and applied the statutory language in Schwab v. Schlumberger Well Surveying Corp., 145 Tex. 379, 198 S.W.2d 79 (1946). There, the corporation accumulated a corporate money obligation on open account — an obviously liquidated sum and therefore a “debt” both in the legal sense and in ordinary usage. Unable to pay its account when due, the corporation executed and delivered to its creditor the corporation’s promissory note. Unable afterwards to pay the note, the corporation gave its creditor a series of six consecutive renewal notes, the last of which was executed and delivered after forfeiture of corporate privileges. The creditor sued on the last renewal note, contending the officers and directors were personally liable under the statute because the note was a debt created after forfeiture.

The court held against such liability, reasoning as follows: The statute was “penal in nature” and “must be strictly construed and [not] extended beyond the clear import of [its] literal language.” Schwab, 198 S.W.2d at 81 (emphasis added). The word “created” means literally to “bring into existence.” *526The debt first came into existence as a money obligation owing on open account at a time well before forfeiture. The creditor failed to prove that any of the promissory notes were given and accepted in novation of the open-account obligation so as to create a new debt. The mere renewal of the notes, even if the last occurred after forfeiture, did not create a new debt because under the common law of bills and notes

the renewal merely operates as an extension of time to pay the original indebtedness. The debt ... remains the same; it is in substance and in fact the same indebtedness evidenced by a new promise.

Id., at 82 (open account). Since the statute imposed personal liability “only for debts contracted after the forfeiture of the right to do business, [it can have] no application to the renewal of obligations arising prior thereto.” Id., 198 S.W.2d at 81 (emphasis added).

The decision in Curry Auto Leasing, Inc. v. Byrd, 683 S.W.2d 109 (Tex.App.—Dallas 1984, no writ) applied section 171.255(a) in light of Schwab. In Curry, the corporation terminated its lease contract before forfeiture. Under the contract, however, whether the corporation owed the lessor any sum of money could not be determined until the lessor sold the leased property. This did not occur until after forfeiture; thus the fact of the amount of the corporation’s obligation was not ascertainable until after forfeiture. Citing the rule of “strict construction” laid down in Schwab, the court in Curry conceded the word “create” meant “to bring into existence something which did not exist.” Faced then with the fact that no “debt” existed before forfeiture, under the rule of “strict construction,” Curry nevertheless held against personal liability on the following basis:

When parties enter into a contract the law presumes they intend the consequences of its performance. It follows that performance or implementation of thé contractual provisions relate back to and are authorized at the time of execution of the contract.

Curry, 683 S.W.2d at 112 (citation omitted) (emphasis added). The Curry court believed the relation-back doctrine was within the “strict construction” rule of Schwab but was careful to note that its application was “limited by the facts of this case.” Id.

Other decisions have followed Curry and Schwab with almost no real discussion of the “strict construction” rule and the relation-back doctrine. In each of these cases, the corporation had breached its contract before forfeiture but the resulting damages remained unliquidated until after forfeiture of corporate privileges. See McKinney v. Anderson, 734 S.W.2d 173 (Tex.App.—Houston [1st Dist.] 1987, no writ); River Oaks Shopping Ctr. v. Pagan, 712 S.W.2d 190 (Tex.App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.); Rogers v. Adler, 696 S.W.2d 674 (Tex.App.—Dallas App.1985, writ ref'd n.r.e.).2 A chief feature of these decisions, as in Curry, is their assumption that the word “debt” carries its narrow, restricted technical or legal meaning of a liquidated money obligation that is legally enforceable. Although personal liability arises under that meaning, the decisions reach the opposite result by applying the relation-back doctrine. Unless that assumption is operative, the relation-back doctrine is meaningless.

Thus, the relevant decisions turn upon the “strict construction” rule of Schwab and the relation-back doctrine of Curry. I believe the rule and the doctrine require more careful consideration than they have received before in this context. They are sophisticated judicial instruments; they have a history and a specific meaning; they have a purpose. They are not mere incantations delivered by a court in rejecting a claim of personal liability under section 171.255(a).

The Relation-Back Doctrine

The relation-back doctrine holds that an act done at one time is considered to have been done at an earlier time for the purposes of the case before the court. Like all such fictions, it enables the court to arrive at *527conclusions that will effectuate justice while maintaining simultaneously the appearance of logical consistency. The doctrine originated in equity but courts now apply it in any number of circumstances when it is necessary to effectuate justice.3 It has nothing to do, of course, with the common-law rule of Schwab that a promissory note is not itself a debt but merely evidence of a debt.

Broadly speaking, the relation-back doctrine may be applied to give effect to the parties’ lawful intentions, preserve rights that would otherwise be lost, or afford a remedy where none would otherwise exist. See Brandon v. Claxton, 30 S.W.2d 679, 680-81 (Tex.Civ.App.—Dallas 1930), aff'd, 121 Tex. 184, 47 S.W.2d 263 (1932). The Curry court applied the doctrine for the first such purpose:

When parties enter into a contract the law presumes they intend the consequences of its performance. It follows that performance or implementation of the contractual provisions relate back to and are authorized at the time of execution of the contract.

Curry, 683 S.W.2d at 112 (citation omitted) (emphasis added). Rogers, Pagan, and McKinney followed and relied upon the doctrine in a way unlike Curry, for the contract was simply breached in those cases before forfeiture and damages were not calculable in money until after forfeiture. Presumably these decisions rest on the idea that one who contracts expressly with a corporation in good standing necessarily intends to look to that limited-liability entity for performance, and in justice he should be confined to the consequences of that intention.4

Merely to refer to the purposes of the relation-back doctrine demonstrates that it is not justified in the Jonnets’ case. The doctrine is not necessary to effectuate their lawful intentions; neither is the doctrine necessary to protect from loss some right they have acquired nor to furnish them a remedy because they would not otherwise have one for a wrong they have suffered. Contrary to their argument, the decisions cited above have not engrafted upon section 171.255(a) an appendage holding that officers and directors are never personally hable whenever it may appear that a post-forfeiture debt, in the sense of a legally enforceable, liquidated money obligation, has some connection to a pre-forfeiture event, cause, or circumstance.

The Rule of “Strict Construction”

Schwab adhered to the narrow, strict, or technical meaning of the word “create” and operated, moreover, on the assumption that the word “debt” was similarly restricted to its legal meaning of a liquidated money obligation that was legally enforceable. The subsequent decisions mentioned previously also operated on that assumed meaning in applying the relation-back doctrine. It is therefore difficult to understand the Jonnets’ invocation of the strict-construction rule because, under that rule, the corporation’s “debt” first came into existence after forfeiture and the Jonnets are therefore personally hable for the corporate “debt” under section 171.255(a). They argue in reahty for an *528expanded interpretation of the word “debt” so that it includes unliquidated or inchoate obligations as well as liquidated money obligations. Nevertheless, I will discuss the rule of strict construction as if they had properly invoked it.

The language and legal effect of a statute may require its “strict” construction, meaning a limited, narrow, or inflexible reading and application of the statutory language. This is true generally of two kinds of statutes, those that authorize a penalty and those that infringe upon private property or liberty interests. Application of the rule does not, however, follow automatically once the court is able to ascertain that the legal effect of the statute places it within one of the two categories.

The rule rests upon two basic propositions. The first is that of fair notice. When statutory language is susceptible of either an expansive or a restricted meaning, and it imposes a penalty, it may be necessary to adhere to the latter meaning so

that the party upon whom it is to operate may with reasonable certainty ascertain what the statute requires to be done, and when it must be done; otherwise there would be no opportunity for a person charged with the statutory duty to protect himself by the performance of it according to law.

Missouri, K. & T. Ry. of Tex. v. State, 100 S.W. 766, 767 (Tex.1907); see also State v. International & G. N. Ry., 179 S.W. 867 (Tex.1915); Houston E. & W. Ry. v. Campbell, 91 Tex. 651, 45 S.W. 2 (1898). The Jonnets do not suggest that they have been subjected to liability because the terms of section 171.255(a), or some other statute, are written in language that is insufficiently specific in light of the penalty it imposes.

In this connection, I should observe that the necessity for a literal, narrow, and technical, and inflexible interpretation diminishes considerably when the penal statute supplies procedures for preventing or circumscribing the chances of arbitrary action being taken by government in the name of the statute, whatever it lacks in specificity. Carbide Int’l Ltd. v. State, 695 S.W.2d 653, 659 (Tex.App.—Austin 1985, no writ); see 3 Sands, Sutherland Statutory Construction § 59.07, at 22 (1974) (“[PJrocedural safeguards may now be conceived to be more suitable than the safeguard of strict construction to protect the interests of individuals in not being subjected to undeserved punishment.”). The Tax Code provides such procedural safeguards in sections 171.213 and 171.313, which authorize administrative revival of the corporate shield and privileges on filing of the delinquent report and paying the sums owed the State. Similarly, the Natural Resources Code provides for administrative hearings and judicial review of the Commission’s actions in cases like the present. See Tex.Nat. Res.Code Ann. §§ 81.0531-.0532, 85.381 (West 1993).

The second proposition underlying the rule of strict construction is that of proportion:

[T]he more severe the penalty, and the more disastrous the consequences to the person subject to the provisions of the statute, the more rigid will be the construction of its provisions in favor of such a person and against the enforcement of such law.

Missouri, K & T. Ry., 100 S.W. at 767. One may assume the penalties possible to be imposed under section 171.255(a) are severe. It is plain in all events that the rule of strict construction can be of no assistance to the Jonnets even if they had actually invoked it.

So far as I am able to find, the word “debt” as used in section 171.255(a) has never been thought to include an obligation that is unliquidated. Indeed, it is difficult to see how such a meaning could be assigned the word if it is required to be construed “strictly,” that is to say, narrowly, literally, and technically.

Under the strict meaning of the word “debt,” no debt came into existence in the Jonnets’ case until after forfeiture. Before forfeiture, the corporate debt existed only in unliquidated form; the obligation did not become liquidated until after forfeiture. If the Jonnets are to escape liability under the judicial decisions they cite, then they must show some basis justifying a relation-back of the liquidated debt to a time before forfeiture. They do not claim that the relation-back *529doctrine should apply in their case in order to effectuate contractual intentions, to preserve from loss a right they have acquired, or to afford them a remedy for a wrong they have suffered. Instead, they contend as they do based on the corporation’s violation of law, its failure to plug the wells as required by statute, which occurred before forfeiture. The doctrine does not serve to protect such acts.

Section 171.255(a) was meant “to prevent wrongful acts of culpable officers of a corporation, and was for the protection of the public and particularly those dealing with the corporation.” Schwab, 198 S.W.2d at 81. The circumstances of the present case seem to fit squarely within this statutory objective. The corporation was under a statutory duty to plug the wells and the Commission ordered it to do so. The Jonnets were corporate officials at all material times and responsible for operating the corporation according to law. They do not argue they are not culpable in that regard. They argue instead that section 171.255(a) does not extend to the circumstances, even though they were culpable. I disagree and therefore concur in affirming the trial court judgment.

. This is presumptively the meaning intended by legislature in its use of the word "debt” in section 171.255(a) of the Tax Code, a section within Chapter 171 covering the franchise tax.

The idea that "debt” referred to a liquidated sum was augmented considerably in 1987 when the legislature amended Chapter 171 to add the following definition:

§ 171.109. Surplus
(a) In this chapter:
sj: tj: ;}: jt.
(3) "Debt” means any legally enforceable obligation measured in a certain amount of money which must be performed or paid within an ascertainable period of time or on demand.

(Emphasis added). Although section 171.109 is entitled "Surplus,” this does not mean that the definition of "debt” is limited to the calculation of corporate surplus according to the formula set out subsequently in the section. Subsection (a) declares expressly and literally that the definition applies throughout "this chapter,” not “this section.” If one is tempted to construe differently the scope of the definition’s applicability, then one must give weighty reasons for doing so in the face of the literal language and the presumption that the legislature intends the same words to have the same meaning throughout the statutory scheme. See Fox v. Burgess, 157 Tex. 292, 302 S.W.2d 405, 407 (1957); Hufstedler v. Harral, 54 S.W.2d 353, 355 (Tex.Civ.App.—Amarillo 1932, writ ref'd). No such reasons suggest themselves.

. Curry, Adler, Pagan, and McKinney appear to have been decided before the effective date of the 1987 amendment discussed in note 1, supra.

. A few examples will suffice. See 17A C.J.S. Contracts § 455, at 574 (1963) (when contracting party elects one of alternatives permitted by contract, all rights as between the parties attach as from the making of the contract); 26 C.J.S. Deeds § 94, at 853-54 (1956) (if no other equities intervene, legal effect of deed may relate back to a date earlier than its delivery); 33 C.J.S. Executors and Administrators § 151, at 1113 (1942) (issuance of letters testamentary related back to date of deceased’s death and validated necessary or proper acts of the representative done in the interim); 84 C.J.S. Taxation § 623, at 1244 (1954) (bank’s payment of taxpayer’s check relates back to the date the check was received by taxing authority).

. In Dae Won Choe v. Chancellor, Inc., 823 S.W.2d 740 (Tex.App.—Dallas 1992, no writ), the court held that services rendered on an open account after the corporation failed to file its franchise-tax report on the due date resulted in the directors' personal liability under "the plain and ordinary meaning of the words in section 171.255,” even though the corporate franchise had not yet been forfeited.

In Wilburn v. State, 824 S.W.2d 755 (Tex.App.—Austin 1992, no writ), this Court held that an unemployment tax was a "debt” that was "created” when the wages were actually paid, meaning of course that the amount thereof was a liquidated sum, and when payment was required for work done before loss of the corporate privileges the directors and officers were not personally liable therefor under section 171.255.