Untitled Texas Attorney General Opinion ( 1993 )


Menu:
  •                            Office      of the JZlttornep      @emal
    Bbtate of Qexas
    DAN MORALES
    ATTORNEY
    GENERAL                              April 27,1993
    Honorable Ben W. Childers                     Opiion No. DM-220
    Fort Bend County Attorney
    309 South Fourth St., Suite 621              Re: Whether the Fort Bend County Tax
    Richmond, Texas 77469                        AssessorK!oUector may collect additional
    taxesforchangeofuseofagriadturallandin
    light of the 1989 amendment to section
    23.55(e) of the Tax Code (BQ-325)
    Dear Mr. Childers:
    You have requested an opinion regard@ the authority of the Fort Bend County
    Tax AmeasoKoLlector (the “tax assessol/couect~) to wllect certain additional’taxes in
    light of a 1989 amendmentto section 23.55(e) of the Tax Code.
    Subchapter D of chapter 23 of the Tax Code per&ins to the appraisal of
    a@‘kdtural land. Section 23.55 of the Tax Code sets forth the tax adjustment procedures
    that apply in the event of a change of use of agricultural land. The pertinent provisions of
    section 23.55 are as follows:
    (a) Iftheuseofkndthathasbanappraisedasprovidedbythis
    subchaptachangts,anadditionaltaxisimposedonthelandequalto
    thediffaencebaweenthetaxesimposedonthelandforeachofthe
    iiveyearsprecedhqtheyearinwhichthechangeofuseoccursthat
    thelandwasappraisedasprovidedbythissubchapterandthetax
    thatwouldhavebeenimposedhadthelandbeentaxedonthebasis
    of market value in each of those years, phrs interest an annual rate of
    seven percent calculated from the dates on which the differences
    would have become due.
    (b) AtsxLienanachestothelandonthedatethechangeofuse
    occurs to secure payment of the additional tax and interest imposed
    by this section and any penalties incurred. The hen exists in favor of
    all texing units for which the additionaltax is imposed.
    (c) The additional tax imposed by this section does not apply to
    a year for which the tax has already been imposed.
    'Yoo ldb lo theseaddiliooallaxcsas -mllw= taxes
    p. 1152
    Honorable Bar W. Childers - Page 2 (DM-220)
    (d) IfthechanBeofuseappU~toonlypartofapPrcelthatha9
    beenappraisedasprovidedbythis&&apter,theadditionaltax
    apptiesonlytothatpartoftheparcdMdequatsthediff~~
    behveenthetaxesimposedonthatpartoftheparcelandthetaxes
    thatwouldhavebeenimposedhadthatpartbeentaxedonthebasis
    of market value.
    (e)Adekrmi&onthatachangeinuseofthelandhas
    ouxrredismadebythechiefappraiser.         Thechiefappraisershall
    deliver a notice of the dekrm&tion to the owner of the land as soon
    as possible after making the dcmmiation       and shall include in the
    notice an explanation of the ow&s right to protest the
    detamdion.       If the owner does not file a timely protest or if the
    6nal determktion of the protest is that the additional taxes are due.
    theassessorforeach~unitshallprepareMddelivaabillfor
    the additional taxes plus interest as soon as practicable. The taxes
    audintexstaredueandbecomedekquentandincurpenaltiesand
    intaestasprovidedbylawforrdvalorrmtaxesimpo~bythe
    tslriagunitifnotpaidbcforethenadFcbruarylthatisatleast20
    &ysaftathedatethebillisdelivaedtotheownaoftheland.
    Subsection(e) of section 23.55 was amended in 1989. See Acts 1989,7lst Leg., I&. 7%.
    5 20, at 3598.   The amendment had an e&tive date of Septenkr 1, 1989. See 
    id. 8 49(a).
    prior to that date, subsection (e) provided es follows:
    The assesor shall prepare and deliver a smtemem for the
    additional taxes plus interest es soon as practicable after the change
    ofuseoccurs. Thetaxesandinterestaredueandbecomedelinquent
    ~~~tiesMdintaestuprovidedbylawforrdvalorem
    taxesimposedbythetaxingunitifnotpaidbeforeFebnrary             1 ofthe
    yearaikrtheyeerinwhichthechangeofuseoccurs.
    See Acts 1981, 67th Leg., 1st C.S.. ch. 13. 5 71, at 145. The amendment to subsection
    (e) not only shitkd the authority to determine that a change of use of land has occumd
    fromthetax assessor/collector to the chief appraiser, but also changed the date on which
    the additional taxes are due end become delinquent end incur penalties end interest fkom
    “February 1 of the year al&r the year in which the change of use occurs” to “the next
    February 1 that is at least 20 days after the date the bill is delivered.” Conrpme Acts 1981.
    67th Leg.. 1st C.S., ch.l3,§ 71 wiih Acts 1989.71s Leg.. ch. 7%, 5 20.
    According to your query, in 1984 the tax assessor/collector calculated additional
    taxes for change of use of land for a particular landowner for several past tax years. On
    September 1. 1989, the amendment to subsection (e) went into e&c& transferring the
    p. 1153
    Honorable Ben W. Childers - Page 3 (DM-220)
    autho&ytodetemioethatachmgeofuseoflandhasoccumdfiomthetax
    assessork&ctor to the chief appraiser of the Fort Bend Central Appraisal District. As of
    thatdat~theadditionaltmscalculatedbythetax             asesorMkctor     had not been paid.
    You state that thereafter “[t]he Fort Bend Central Appraisal District used August 8,199O
    for the date of the use change allowing the tax office to only collect rollback taxes for
    1984.* You ask whether the tax assessorkollector has the authority to collect the
    additional taxes fix the past tax years prior to 1984.
    The amendmentto subsection (e) was not enacted with a savings clause. See Acts
    1989,71st Leg., ch. 796, 8 49, at 3606. Therefore, its construction should be guided by
    the geoeral savings provision rretforth in section 3 11.031 of the Code Construction Act.
    See M      Code 5311.031; Tax Code F,1.03 (Code Construction Act applies to the
    wnstruction of Tax Code except as othenvk expressly provided). Section 311.031
    providesthatMamendmenttoastatutedoesnotaffeaanyprioractiontakenunderthe
    m       or any liabii previously accrued under it. Id 5 311.031(a)(l), (4). Therefow
    thameadmenttosubseaion(e)wouldnotimralidateatlyprioraction~~bythetax
    asessorMkctor under that provision or exti@sh en exkting Uabilhy for additional
    taxesowedasaresultofachangeofuseofland.
    In addition, section 3 11.03l(a)(4) provides that the amendment of a statute does
    not a&t “any ugation,           procadin& or remedy concerning my privikgc, ot&&-m,
    liability penalty, forfeiture, or punishment.” The investigation proceed& or remedy
    may he “insthut~ wntinu#l, or enforced, and the penalty, forfehure, or punishment
    impos4asifthestaMehadnotbeul...                amended.” Goti Code 5 3 11.031(a)(4); see
    ah &indlefcp Oil and Gas Co. v. Parker Comgv, 
    738 S.W.2d 715
    .720 (Tex. App.-
    Fort Worth 1987. writ denied). Therefore, the prmrisions of the pre-amendment version
    of subsection (e) will continue to apply to any proc&iq to collect additional taxes
    instituted prior to the dfective date of the amendment? Under the praamendment
    version of subsection (e), a proceeding to collect additional taxes would have been
    p. 1154
    Honorable Ben W. Childers - Page 4 (Dt+220)
    insthuted by delivering “a statement for the additional taxes plus interest” to the
    landowner. Ifthetax assessor/wllector did not deliver “a statement for the additional
    taxes plus interest” prior to the e&tive date of the amendment, however, the new
    provisions will apply, evw though the change of use ocwrred prior to the etktive date.
    On the basis of the foregoing principles, we conclude that the tax
    assessor/wUector has the authority to collect the additional taxes under the pre-
    amendment version of subsection (e) if prior to the etfective date of the amendment, i.e.,
    hefore September 1.1989, she sent the landowner a statement for additional taxes and
    interest in accordance with that provision. As of the e&ctive date of the amendmen&the
    authoritytodetaminethatachangeofuseoflandhasoclcurredand~tonotifjrthe
    landowner of the detmmination &i&d to the chief appraiser. In addition, the date on
    which the additional taxes are due and become delinquent and incur penalties changed. If
    the tax assessor/wUector did not send the landowner a statement for additional taxes and
    interest in accordance with the pm-amendment version of subsection (e) prior to
    September 1, 1989, then the current version of that provision govems. Only the chief
    appraisawouldbe~tod~ethatachangeofuseoflandhas~aad
    thetaxeswouldbedueonthenextFebnrarylthatisatl~20daysaftathedatethebill
    is ddivered. Moreover, in that case, the tax assessor/wllector would not be authoriaed to
    wllect any additional taxes based on a change of use of land absent the chief appraiser%
    determination, even ifthe change of use of land owutred prior to September 1.1989.
    There appears to be some question here whether the tax assessor/wllector act&y
    sentthelandownaastatanentforadditionaltaxesandiramstinaccordancewiththe
    pm-amendment version of subsection (e) prior to Septenkr 1.1989. You state that “[i]n
    Febmary of 1984, rollhack taxes were calculated for [the landowner] and mailed by a Fort
    Bend County Tax Research Clerk. During that time period rollback taxes were calwlated
    at the request of the @andowner].” You also state that in 1989 a representative of the
    landowner “acknowledged receiving the rollback taxes calculated by the tex office in
    1984.” Apparentty, “[t]he [tax assessor/wUector] believes that because [the landowner]
    was given notice of the change in land use and acknowledged same prior to the 1989
    amendment, she has the authority to wkct the rollback taxes.” The determination
    whether the wmmunication sent to the landowner in 1984 and the landown~s alleged
    acknowledgement of that wmnnmication in 1989 satisfy the pre-amendment version of
    subsection (e) would require the resolution of fact questions. We cannot resolve t&t
    questions in an attorney general opinion, Attorney General Opiion JM-495 (1986), and
    are the&ore unable to provide a detinitive response to your query.
    SUMMARY
    The 1989 amendment of section 23.55(e) of the Tax Code
    shifled the authority to determine that a change of use of agricultural
    land has occurred and to notify the landowner of the determiwtion
    from the Fort Bend County tax assessor/wUector to the chief
    p.   1155
    Honorable Ben W. Childas - Page 5 (DM-220)
    appraiser of the Fort Bend Central Appraisal District. The tax
    assessor/wUector has the authority to wllect thcadditional taxes at
    issue pursuant to the pre-amendmentversion of section 23.55(e) only
    if the tax assessor/wllector sent the landowner a statement for
    additional taxes and interest prior to September 1,1989, the elbtive
    date of the amendment.
    DAN      MORALES
    Attorney Oeneral of Texas
    WILL PRYOR
    FiiASSiSWAttOfllCyGenenl
    MARYKBLLER
    Deputy Attomey Oeneral for Litigation
    RENEAHJcm
    State Solicitor
    MADELEINE B. JOHNSON
    chair, opiion committee
    p.   1156
    

Document Info

Docket Number: DM-220

Judges: Dan Morales

Filed Date: 7/2/1993

Precedential Status: Precedential

Modified Date: 2/18/2017