Attorney General Opinion JM-0221

I . JIM MAl-rOX Attorney General Supreme Court Building P. 0. Box 12546 Austin. TX. 76711. 2546 5121475-2501 Telex 9101674.1367 TRlecoPier 5121475.0266 714 Jackson. Suite 700 Dallas. TX. 75202.4506 2141742.0944 4824 Alberta Ave., Suite 160 El Paso. TX. 799052793 91515333464 1001 T.X.8. suite 700 liouston. TX. 77002.311 t 713l223.5666 SC8 Broadway. Suite 312 Lubbock. TX. 79401.3473 6C61747.5238 4309 N. Tenth. SUM B kA116n. TX. 76501.1665 5121682.4547 2@.l Main Plaza. Suite 400 San Antonio. TX. 162052797 5121225.4191 An Ewal OpportunityI Aftirmative Action Erptoyc- The Attorney General of Texas Oc:tojer 26, 1984 Ronorable Mike Driscoll Harris County Attorney 1001 Preston, Suite 634 Opinion No. JM-221 Re: Whether section 11.431 of Houston, Texas 77002 the Tax Code permits refunds of taxes for homestead exemptions not filed in time Dear Mr. Drlscoll: You ask the following question: May the Harris County tax assessor-collector accept an application for a residence bonestead for the yei~r 1981 which is submitted to the tax assessor-collector prior to February 1, 1983, or within one year after the 1981 taxes on said residence were paid, whichever is earlier. and refund to the applicant the difference between the amount pa:Ld and the amount that would have been due if the homestead application had been sub- mitted prfor to May 1. 19812 Section 11.43 ‘,:I the Tax Code requires Initial applications for residence homestead exemptions to be filed prior to May 1. The section also permits a 60-day extension. In 1981, the legislature amended the Tax Code, by adding section 11.431, which provides: (a) T1.e chief appraiser shall accept and approve or deny an application for a residence homestead exemption after the deadline for filing it has paszsed if it is filed not later than one year after the date the taxes on the homestead were paic, or became delinquent, whichever is earlier. (b) If’ a late application is approved after approval elf the appraisal records by the appraisal review boz.rd, the chief appraiser shall notify the collector for each unit In which the residence is located. The collector shall deduct from the person’s ls,x bill the amount of tax imposed on the exempted ilmount if the tax has not been paid. If D. 992 Eonarable Mike Driscoll - Pa(:e! 2 (JM-221) the tax has been paid. the collector shall refund the amount of tax imposed on the exempted amount. The effective date of sectian 11.431 was January 1, 1982. Acts 1981, ,67th Leg., 1st C.S., ch. 13, 5168. at 182. You wish to know whether section 11.431 permits late applications for residence homestead exemptions beginning with the 1981 tax year or the 1982 tax year. Since you raise no constlt,utlonal issue, we raise nz here. We conclude that section 11.431 permits the filing of late applications beginning vith the 1982 tax year. The guiding principl~r of statutory interpretation is the ascertains&t of-legislative! intent. State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex. 1972); State v. Jackson, 376 S.W.2d 341 (Tex. 1964). We conclude for two different reasons that the legislature clearly intended for sectilan 11.431 of the Tax Code to become effective beginning with the 1982 tax year. First, the legislature clearly could not have intended for only one section of the Tax Code’s administration of exemptions provisions to take effect and reach tares implied in a year earlier than that in which the remaining sections take effect. Subsection (a) of section 11.431 requires the chief appraiser to accept and approve or deny an application for a residence homestead exemption If it is filed within a specified time. Subsection (b) provides that, if a late application is approved after approval of the appraisal records by the appraisal review board, the chief apI,raiser must notify the collector for each affected taxing unit. The collector Is then required to recalculate the taxpayer’s tax liability If the tax has not yet been paid; if the tax has been paid, the coll.ector is required to refund the amount of tax on the exempted amount. It would make no sense for us to conclude that section 11.431 would reach the 1981 tar: year, because tax appraisal districts administered by chrappr;r!;sers came into being on January 1, 1982 with the beginning of the 1982 tax year. Acts 1979, 66th Leg., ch. 841. 53, at 2313. .-- Chief appraisers never had authority to accept exemption applications for the 1981 tax year. Applications in 1980 and 1981 were submitted to the tax assessor-collectors for the respective taxing units offering them. Appraisal review boards did no; review and approve sapraissl records for the 1981 tax year; appraisal review boards were created beginning with the 1982 tax year. Such records were reviewed in 1981 by local boards of equalization who, unlike the appraisal re’view boards created after January 1, 1982, did not possess the authority to review and approve or reject the granzg of exemptions by ,:he local tax assessor-collectors. Compare repealed V.T.C.S. art. 72(16 (and cases decided thereunder) and Tax Code 1541.01, 41;02. The legislature could not have intended that appraisal review boards rer::lew and approve appraisal records in 1982 of 1981 tax rolls which ha*rc: already been approved by local boards of equalization. Rather, the 1,egislature intended for section 11.431 to P. 993 Ilonorable Mike Driscoll - Page 3 (m-221) reach only tax years beginning with 1982, Just as it intended the reaalnder of the administration of exemptions provisions, A. subchapter C of chapter 11 c~f the code, to reach only those tax years beginning with 1982. By the ve:ry terms which the legislature employed .in section 11.431. it is clear that the legislature intended the prevision to become effecti,ve and reach those taxes imposed in the sase year in which the rest: of the new code became effective. I.e., 1982. Second, we must ‘construe s’:atutes in a manner which is not forced or strained, but is supporl:ei: by the words of the statute. See Rai,lroad Commissj.on of Tex,ls ‘1. Miller, 434 S.W.2d 670, 672 (TK 19t8). We shculd, if posXle, give effect to every part of a statute, Cerst v. Oak Cliff Sa’rings and Loan Association, 432 S.W.2d 702 (Tex. 1968). and avoid Tz.pting a construction that will render any part inoperative or superfluous. Spence v. Fenchler, lE0 S.W. 597 (Tc.x. 1915). In our opinion, concluding that section 11.431 of the Tax Code permits the filing of late applications for the 1981 tax year would eff’ectively render the section superfluous. We believe the legisla- ture could only have intended for the section 11.431 application extension to apply to the 1581 tax year if there was applicable during that year some filing deadline which section 11.431 could validly or effectively extend. There was in 1980 and 1981, however, no statutory deadline. And because we co,nclude that the “administrative” deadline discussed in Attorney General Opinion MU-259 (1980) would snot permit the filing of an application for the 1981 tax year as late as January of 1982, we conclude that there was no non-statutory deadline which could have been extended past the January 1, 1982 effecti.ve date of section 11.431. Sfnce therr? ws.8 no deadline, statutory or otherwise, for claiming homestead exemptions for the 1981 tax year which could have been extended into 198.1, section 11.431 cannot apply to that tax year. To conclude otherwi:,e is to conclude that section 11.431 expanded a deadline when, in 1981, there~ was no legal principle upon wh;ch it could validly operate to produce this effect. In 1978. the voters of Texas added subsections (c) and (d) to article VIII, section l-b of: the Texas Constitution. Subsection (c) created a self-executing asl valorem tax exemption of $5,000 of the market value of residence homesteads from elementary and secondary public school taxes. It al!lo permitted the legislature by general law to exempt from elementary aud secondary public school taxes $10,000 of the market value of residerze homesteads of persons who are disabled as defined by article VIII. section l-b(b) of the constitution and who are 65 years of age or olde!r. In 1979. during the same session in which the Tax Code was passed, Acts 1979. 66th Leg., ch. 841, .at 2217 [hereinafter Senate Bi:Ll No. 6211, the legjslature passed implementing legislation creating the disabled and the elderly residence homestead exemptions. Honorable Mike Driscoll - Page 4 (JM-221) Acts 1979, 66th Leg., ch. 302, art. 7, II, at 690 [hereinafter House Bill No. 10601. Both bills contemplated annusl filing requirements; however, Senate Bill No. li2l’s effective date provision section provided that subchapter C of chapter 11 of the Tax Code, the subchapter setting forth the administration of exemptions provisions, was not to become effective until January 1, 1982. even though the portions of Senate Bill No. 621 creating the exemption became effective on January 1, 1990. -.--w See Senate Bill No. 621, supra. at 231.3-2315. In 1981, the legislature amended subchapter C of chapter 11 by providing essentially for a one-time-only application; this amendment became effective ou January 1, 1982. Acts 1981, 67th Leg., 1st C.S., ch. 13, 9540, 168,, at 131, 182. During the same session, section 11.431 was also added to subchapter C. Id. 142, at 132. - The thrust of the foregoing is that the original implementing legislatfon, coupled with the Tax Code, created three periods during which different requirements for filing applications for residence homestead exemptions existed. In 1979, House Bill No. 1060 controlled and required that application,s be flied yearly. House Bill No. 1060 was repealed effective January 1, 1980, however, and was replaced by the Tax Code. The code Implemented the constitutional exemption beginning on January 1, 19M. but it contained filing application requirements which became effective on January 1, 1982. As noted above, these requirements wel’e amended in 1981. Acts 1981. 67th Leg., 1st C.S.. ch. 13. 540, at 1.31. In 1980 and 1981. therefore. there were no specific statutorr provisions requiring the filing of applications for exemptions, nor were there any .provisions imposing a deadline for filing. It would make sense tc. conclude that the legislature intended that section 11.431 permits late application for residence homestead exemptions for the 1981 ta:c year only if an applicant could have applied for such exemption M late as January 1. 1982. If such an application was possible, then it would arguably make sense to conclude that the legislature ~intended for the deadline extension to also apply to the 1981 tax year. We conclude, however, that such was not the case; whatever the C,eadline was for application for the 1981 tax year, January 1, 1982 war; too late. I It has heen suggested that Attorney General Opinion Mu-259 (1980) effectively created an “admlu%strative” filing deadline. This opinion addressed the effect of a taxpayer’s failure to timely apply for a residence homestead exemption during 1980 and 1981. when there were no s - statutory filing requirement:%;;, it concluded that a taxpayer may become estopped to claim the exemption if his delay makes its recognition “administratively impractlcab3.e.” Attorney General Opinion MW-259 relied inter alla on Gragg v. Cayuga Independent School District, 539 S.W.?d 861 (Tex. 19761, appeal dlsm’d, 429 U.S. 973 (1976); Moore v. White, 569 S.W.2d 533 (Tex. Civ. APP. - Corpus Christi 1978, rGmref’d.1; and Jay v. Devers, 563 . I Honorable Mike Dtiscoll - Page 5 (JM-221) S.W.Zd 880 (Tex. Civ. App. ‘- Eastland 1978, no writ). These cases concerned applicants for special ad valorem valuation of land under the “agricultural use” prov::sions of article VIII, section l-d of the Texas Constitution. Articlsr VIII, section l-d is self-executing and contains no language regal,d,ing its administration or establishing .deadlines for filing affidavits therefor. In each of the three cases cited above, however, the cc’urts determined, by considering the entire enactment, that applicationr, deemed “untimely” were not intended to be allowed. In Moore v. White,, =ra at 536, the court declared that an application for special vcl,uatG under article ‘VIII, section l-d filed in December was not timely and should not be accepted by the taxing jurisdiction, becaurie the applicant “waited until after the [taxing jurisdiction’s] plans of taxation were put into effect before filing her claim for exemption.” In Gragg v. Cayuga Independent Sch,>ol District, supra at E’rO, the supreme court held that a taxpayer G not entitled to special valuation under article VIII, section l-d, because the applicant “sat by and permitted the assessments to be madma, the tax . . . to be prepared, and this suit for taxes to be fil.ad against him before challenging the refusal by the tax assessor to give his land ths agricultural use designation.” See a@, Jay v. Devars, supra; Attorney Genc!ral Opinion H-988 (1977). -- Where the constitution does not by its own terms exempt a particular kind of property but merely permits its exemption without prescription, the legislature may ordinarily prescribe reasonable conditions for the exemption’s receipt. Dlckison v. Woodmen of the World. Life Insurance Socies!, 280 S.W.Zd 315 (Tex. Civ. App. - San Antonio 1955. writ ref’d). Bet in this instance, as with article VIII, section l-d, the. :isgislature prescribed no dead:llnes for application during 1980 and 1.981. We are therefore left wi.th the rule set -forth in a, Moore, ;nld il -- namely, that taxpayers may estop themselves through tardiness from claiming the benefits conferred by the constitution and statutes. In Attorney General Opinion Mu-259 this office declared that a “taxpayer may become estopped to claim the exemption if his delay makes its recognition administratively impracticable” (emphasis adcled). The opinion did not, however, define what constitutes “administ~cstively impracticable,” saying only that each case would turn on Its own facts. In our opinion, the cases cited above; coupled with the statutes in effect during 1980 and 1981, i.e.. V.T.C.S. articles 7111. 7112 (governing the authority ard responsibilities of a board of equaliza- don), indicate that in alt l.ikelihood. granting an exemption at any point after the board of ec,ualization has certified the values on the tax roll would be “administratively impracticable.” It was a rule of long standing under now-repealed articles 7111 and 7112 that once the valuation of property had heen determined and entered upon the roll, the board of equalization had no power to increase or reduce such valuation. Bass v. Aransas County Independent School District, 389 S.W.2d 165 (Tex. Civ. App. 1, Corpus Christi 1965, writ ref’d n.r.e.1; Chicago R.I. (L G. Railway CD. v. State, 241 S.W. 255 (Tex. Civ. App. - n. 996 Honorable Mike Drlscoll - Pa@! 6 (JM-221) Texarkana 1922). aff’d 263 S.W. 249 (Tex. Comm’n App. 1924, judgmt adopted); Attorneyzral Opinion H-988 (1977). At the very least, relying on Gragg. Moore, and %, we believe we can safely state that an application is xely :.i’ it is filed as late as December of the tax year in which the benef:lt is sought. In this instance, then, we conclude that an applicant who filed for a residence homestead exemption for the 1981 tax Irear as late as January of 1982 would not be entitled to receive the benefits of the exemption for 1981. Accordingly, since the granting of any application for a residence homestead exemption for 1981 would, at least after December 31. 1981, be “administratively impracticable,” we conclude that the legislature could not have intended for the section 11.431 application extension to apply to the 1981 tax yes. Thus, section 11.431 of the Tax Code could reasonably permit only the granting of refunds and the filing of late applications for residence homestead exemptions beginning with the 1982 tax year. .SUMMARY Section 11.431 of the Tax Code p.ermits the granting of refunds and the filing of late applications for residence homestead exemptions beginning with the 1982 tax year. Attorney General of Texas TOM GREEN First Assistant Attorney Cereral DAVID R. RICHARD8 Executive Assistant Attorney, General RICK GILPIN Chairman. Opinion Committee Prepared by Jim Moellinger Assistant Attorney General APPROVED: OPINION COMNITTEE Rick Gilpin. Chairman Susan Garrison Jim Hoellinger Nancy Sutton