Opinion issued July 26, = 2007
For=20 The
HOUSTON =
INDEPENDENT=20
SCHOOL DISTRICT, CITY OF HOUSTON, HARRIS COUNTY, HARRIS COUNTY =
EDUCATION=20
DEPARTMENT, PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, HARRIS =
COUNTY=20
FLOOD CONTROL DISTRICT, HARRIS COUNTY HOSPITAL DISTRICT, AND =
HOUSTON=20
COMMUNITY COLLEGE SYSTEM, Appellants OLD =
FARMS OWNERS=20
ASSOCIATION, INC., WESTHEIMER OLD FARMS I, LTD., SUSAN C. LEE, =
TRUSTEE OF=20
THE TRUST CREATED UNDER ARTICLE IV OF THE WILL OF KATHERINE P. =
BARNHART,=20
DECEASED, AND DAVID NGUYEN INDIVIDUALLY AND D/B/A DAVID NGUYEN=20
CONSTRUCTION, Appellees
On =
Appeal from the=20
270th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2002-15418
DISSENTING=20
OPINION I respectfully dissent because =
I believe=20
the majority's opinion erroneously undoes the savings clause in =
amended=20
section 33.04 of the Tax Code and invites tax collection suits for =
old=20
delinquent taxes that are uncollectible under the savings clause.=20
As the majority states, in this =
ad=20
valorem tax case, the appellant taxing authorities, which include =
Harris=20
County and other taxing units, HCAD then=20
provided the incorrect address to the Harris County tax =
collector's office=20
for use in mailing out tax notices on the property for the taxing =
units,=20
which had previously been taxing the property at the correct =
address. As a=20
result, the 1997 tax bill for the property was mailed by the =
Harris County=20
tax collector to Lee at the incorrect 4550 Post Oak Place address. =
Lee did=20
not receive the 1997 tax bill, and it was returned to the Harris =
County=20
tax office as "undeliverable." The Trust did not pay the 1997 =
taxes on the=20
property. In 1999, the taxing units corrected their records to =
reflect the=20
Trust's correct address, but there is no evidence that any of the=20
delinquent tax statements were ever mailed to the =
Trust. Following=20
trial, the tax master found that the trustee did not receive tax=20
statements in 1997, 1998, 1999, 2000, and 2001 and that the Trust =
never=20
received the five-year section 33.04(b) notice for the 1997 =
delinquent=20
taxes in 2000. These findings and the 1985 version of section =
33.04 of the=20
Tax Code were the basis for the tax master's recommendation that =
judgment=20
be entered that the taxing units had waived penalties and interest =
for the=20
1997 delinquent tax year. The tax master based that recommendation =
on this=20
Court's holding in Aldine Independent School District v. =
Ogg, 122=20
S.W.3d 257, 268 (Tex. App.--Houston [1st Dist.] 2003, no pet.) =
(holding=20
that "[w]hen a fiduciary is appointed by a tax-payer under section =
1.11=20
[of the Tax Code], The 1985 version of section =
33.04 of the=20
Tax Code, in effect in 1997 and still in effect on December 30, =
1999, when=20
the taxing units sued the Trust for taxes, penalties, and =
interest,=20
provided in relevant part: Notice of Delinquency. (a) =
At least=20
once each year the collector for a taxing unit shall deliver a =
notice of=20
delinquency to each person whose name appears on the current =
delinquent=20
tax roll. However, the notice need not be delivered =
if: (1) a bill for the tax was not =
mailed=20
pursuant to the authorization provided by Section 31.01(f) of this =
code;=20
or (2) the collector does not know =
and by=20
exercising reasonable diligence cannot determine the delinquent =
taxpayer's=20
name and address. (b) In addition to the =
notice=20
required by Subsection (a) of this section, the tax collector for =
each=20
taxing unit in each year divisible by five shall deliver by mail a =
written=20
notice of delinquency to each person who owes a tax that has been=20
delinquent more than one year and whose name and mailing address =
are known=20
to the collector or can be determined by the exercise of =
reasonable=20
diligence. . . . (c) Penalties and interest =
on a tax=20
delinquent more than five years or a multiple of five years are =
cancelled=20
and may not be collected if the collector has not delivered the =
notice=20
required by Subsection (b) of this section in each year that is =
divisible=20
by five following the date on which the tax became delinquent for =
one=20
year. Act of May 26, 1985, 69th Leg., =
R.S., ch.=20
761, =A7 1, sec. 33.40, 1985 Tex. Gen. Laws 2600, 2601 (quoted at=20
Ogg, 122 S.W.3d at 262-63) (emphasis added). The 1985 =
version of=20
the statute became effective August 26, 1985. See Ogg, =
122 S.W.3d=20
at 263. Section 33.04 was amended in =
1999,=20
effective January 1, 2000. The taxing=20
authorities dismissed the collection suit they had filed against =
the Trust=20
in 1999 for delinquent 1997 taxes. Then, in 2002, after the =
effective=20
September 1, 2002 date of the current version of section 34.001, =
the=20
taxing authorities refiled their suit. Applying the 1985 Act, the =
tax=20
master found that the taxing units were not entitled to collect =
penalties=20
and interest on the Trust's 1997 delinquent taxes, and the trial =
court=20
affirmed that finding. I =
agree=20
with the tax master and the trial court that penalties and =
interest are=20
not collectable on the Trust's 1997 taxes under the plain language =
of the=20
1985 version of section 33.04 because there is no evidence in the =
record=20
that either notice of the 1997 taxes or the five-year notice of=20
delinquency of those taxes deliverable in 2000 was ever delivered =
to the=20
Trust, the taxpayer, even though the taxing units had the correct =
address=20
for the trustee, Lee, in their files and because the failure to =
send the=20
required notices to the trustee's correct address was entirely due =
to the=20
taxing units' own unilateral mistakes. Because the taxing units =
did not=20
deliver the notice required by subsection (b) of the 1985 version =
of=20
section 33.04 to the trustee, whose name and correct address were =
known to=20
the taxing units, penalties and interest on the Trust's 1997 taxes =
were=20
cancelled pursuant to section (c) of the 1985 version of section =
33.04 and=20
could not be collected. The=20
majority, however, does not apply the 1985 version of section =
33.04 that=20
governed the December 30, 1999 collection suit against the Trust. =
Nor does=20
it apply the 1999 version of section 33.04 as it existed in 2001,=20
immediately prior to the effective date of the 2001 amendments. =
Rather,=20
relying upon excerpts from the amendatory language to the 2001 =
Act, the=20
majority accepts the taxing units' argument that the =
current=20
version of section 33.04 governs this suit--which was refiled in =
2002,=20
after the September 1, 2002 effective date of the current version =
of=20
section 33.04--and that the current statute permits them to =
collect=20
penalties and interest on the Trust's 1997 taxes because, under =
the=20
current statute, penalties and interest on delinquent taxes are =
not=20
excused by a taxing unit's failure to send a five-year delinquency =
notice. In deciding=20
that the 2001 version of section 33.04 governs, the majority =
relies on its=20
construction of the 2001 Act amending section 33.04, which states, =
in=20
section 40, "Section 33.04, Tax Code, as amended by this Act, does =
not=20
apply to taxes subject to a delinquent tax suit pending =
before=20
the effective date of this Act." Act of May 17, 2001, 77th Leg., =
R.S., ch.=20
1430, =A7 40, 2001 Tex. Gen. Laws 5109, 5122 (emphasis added). =
That sentence=20
is followed immediately by the statement, "Section 33.04, Tax =
Code, as=20
amended by this Act, applies to all other taxes that became =
delinquent=20
before the effective date of this Act or that become delinquent on =
or=20
after that date." Id. The=20
majority overlooks, however, the rest of the paragraph in which =
the=20
foregoing language is found, which states: "A delinquent tax =
that is=20
the subject of a collection suit filed before the effective date =
of this=20
Act is governed by Section 33.04, Tax Code, as that section =
existed=20
immediately before the effective date of this Act, and the former =
law is=20
continued in effect for that purpose." Act of May 17, 2001, =
77th=20
Leg., R.S., ch. 1430, =A7 40, 2001 Tex. Gen. Laws 5109, 5122 =
(emphasis=20
added). This sentence--which contains no qualifier that the =
collection=20
suit still be pending as of the effective date of the 2001=20
amendments--follows the language relied on by the majority as =
grounds for=20
applying the 2001 version of section 33.04 and is clearly not =
intended to=20
be superfluous. Rather, it is a savings clause, and it can only be =
reasonably interpreted as exempting from collection penalties and =
interest=20
on delinquent taxes that became due before September 1, 2001 that =
were the=20
subject of any collection suit filed before September 1, =
2001,=20
regardless of whether that suit was prosecuted to completion, =
dismissed,=20
or pending on September 1, 2001. The savings clause expressly =
states that=20
the previous law is continued in effect for that =
purpose--not=20
just to exempt from collection delinquent taxes that were the =
subject of a=20
suit pending on September 1, 2001. The reason=20
for the broad language in the savings clause in the 2001 Act that =
amended=20
section 34.001 is clear: the clause was intended to prevent taxing =
authorities from fashioning an end-run around the preclusions to=20
collection in the prior law by non-suiting suits it had filed =
prior to the=20
September 1, 2001 effective date of the amendments and then (as =
here)=20
resurrecting those suits under the new law and collecting the =
previously=20
non-collectable interest and penalties. The savings clause cannot =
be=20
reasonably read to bar the prosecution only of suits taxing =
authorities=20
had prosecuted to completion under prior law because =
these suits=20
were already barred by the law of res judicata. =
Indeed,=20
to interpret the savings clause as having any purpose other than =
to=20
prevent suits, like the present one, that resurrect claims to =
penalties=20
and interest not collectable under prior law renders the savings =
clause=20
null. The rules=20
of statutory construction provided by the Texas Legislature for =
the=20
guidance of courts require that every statement in the application =
clause=20
of a statute be given effect and that the result be just and =
reasonable.=20
See Tex. Gov't Code Ann. =A7 311.021(2), (3) (Vernon =
2005) (stating=20
that "the entire statute is intended to be effective"; "a just and =
reasonable result is intended"). Moreover, just as it is presumed =
that an=20
entire statute is intended to be effective, so it should be =
presumed that=20
an entire legislative act is intended to be effective. HCAD v. =
Dincans, 882 S.W.2d 75, 77 (Tex. App.--Houston [14th Dist.] =
1994, no=20
writ); Allegheny Mut. Cas. v. State, 710 S.W.2d 139, 141 =
(Tex.=20
App.--Houston [14th Dist.] 1986, writ ref'd) (same). In construing =
a=20
statute, whether it is considered ambiguous or not, the court may =
consider=20
among other matters the "consequences of a particular =
construction." Tex.=20
Gov't Code Ann. =A7 311.023(5); H & C Commc'ns v. Reed's =
Food Int'l,=20
Inc., 887 S.W.2d 475, 477 (Tex. App.--San Antonio 1994, no =
writ).=20
Amendments=20
to the same statute enacted at the same session of the legislature =
must=20
also be harmonized, if possible, so that effect may be given to =
each, and=20
the provisions in a statute must be harmonized such that if a =
general=20
provision appears to conflict with a special provision, "the =
provisions=20
shall be construed, if possible, so that effect is given to both." =
Tex.=20
Gov't Code Ann. =A7=A7 311.025(b), 311.026. In this regard, the =
Texas Supreme=20
Court has repeatedly held that "we 'give effect to all the words =
of a=20
statute and [do] not treat any statutory language as surplusage[,] =
if=20
possible.'" Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d =
578,=20
580 (Tex. 2000) (quoting Chevron Corp. v. Redmon, 745 =
S.W.2d 314,=20
316 (Tex. 1987)). The court should not construe statutory language =
"in a=20
way that renders it idle or inoperative"; it cannot presume that =
the=20
legislature intended "a blatant redundancy." Spradlin, 34 =
S.W.3d=20
at 580; Hanson v. Jordan, 145 Tex. 320, 198 S.W. 262, 263 =
(1946)). Statutory provisions must be irreconcilable before one =
will take=20
precedence over the other. H & C Commc'ns, 887 S.W.2d =
at 478.=20
Nor may a court insert additional words into a statutory provision =
unless=20
it is necessary to give effect to clear legislative intent. =
Cameron v.=20
Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981); =
H=20
& C Commc'ns, 887 S.W.2d at 478. Finally, "[a] statute is =
presumed to be prospective in its operation unless expressly made=20
retrospective." Tex. Gov't Code Ann. =A7 311.022 (Vernon =
2005).=20
Here,=20
section 33.04 as amended--effective September 1, 2001--is =
expressly made=20
retrospective only for collection suits for penalties and =
interest that were not the subject of collection suits =
filed=20
before September 1, 2001; penalties and interest sought in suits =
filed=20
under the old law are expressly saved from collection by the =
savings=20
clause to the 2001 Act. By reading=20
into the savings clause of the 2001 amending Act the requirement =
that a=20
suit be pending as of September 1, 2001 in order for the savings =
clause to=20
apply, the majority reads restrictive language into the clause =
that is not=20
there and that makes the actual savings clause redundant, in =
violation of=20
the rules of statutory construction, which require that every =
statement in=20
a statute--and, by extension, every statement in the application =
clause of=20
a statute--be given effect, that none be added unless absolutely=20
necessary, and that the provisions in a statute be harmonized. =
Even more=20
critically, the majority fails to take into account the =
consequences of=20
its construction of the savings clause to the 2001 amendments.=20
Specifically, its construction of the 2001 amending Act as saving =
from=20
prosecution only those collection suits that were pending on =
September 1,=20
2001 eviscerates the savings clause by effectively inviting the =
taxing=20
units to refile--or to continue the prosecution of--all =
the=20
collection suits for taxes and penalties it dismissed prior to =
September=20
1, 2001 because they were uncollectible under the prior law. In =
other=20
words, the opinion invites the end-run around the prohibitions =
against=20
suits for the collection of penalties and interests on delinquent =
taxes=20
uncollectible under prior law that the savings clause to the =
current=20
version of section 34.001 is designed to preclude. Because the=20
taxing units filed suit in 1999 against the Trust to collect =
penalties and=20
interest on the Trust's delinquent 1997 taxes, I would hold that =
their=20
2002 suit for penalties and interest on the same 1997 taxes is =
barred by=20
the plain language of the savings clause to the 2001 amendments to =
section=20
33.04 of the Tax Code. I would further hold that the tax master =
correctly=20
construed and applied the law set out in prior section 33.04 of =
the Tax=20
Code and the savings clause in the 2001 Act, which amended section =
33.04,=20
and that the trial court correctly entered judgment on the tax =
master's=20
recommendation that appellants are not entitled to collect =
penalties and=20
interest on appellees' 1997 taxes.
Evelyn V.=20
Keyes Panel=20
consists of Chief Justice Radack and Justices Keyes and=20
Higley. Justice=20
Keyes, dissenting. 1. The other taxing units are Houston =
Independent=20
School District, the City of Houston, 2. Section 1.11, in effect since 1981,=20
provides: (a) On the=20
written request of a property owner, an appraisal office or an =
assessor or=20
collector shall deliver all notices, tax bills, and other =
communications=20
relating to the owner's property or taxes to the owner's=20
fiduciary. (b) A=20
request pursuant to this section remains in effect until revoked =
by the=20
owner. Tex. Tax=20
Code Ann. =A7 1.11 (Vernon 2001); see also Aldine Indep. Sch. =
Dist. v.=20
Ogg, 122 S.W.3d 257, 268 (Tex. App.--Houston [1st Dist.] =
2003, no=20
pet.).=20
3. The amended version applied only to =
section=20
33.04(b) notices given in and after 2000, so that notices required =
to be=20
given under the section in 1997 were governed by the 1985 version =
of=20
section 33.04. See Act of May 30, 1999, 76th Leg., R.S., =
ch.=20
1481, =A7 45, 1999 Tex. Gen. Laws 5097, 5114; Ogg, 122 =
S.W.3d at=20
263. As amended effective January 1, 2000, section 33.04=20
provided: NOTICE OF DELINQUENCY. (a) =
At least=20
once each year the collector for a taxing unit shall deliver a =
notice of=20
delinquency to each person whose name appears on the current =
delinquent=20
tax roll. . . . (b) In addition to the =
notice=20
required by Subsection (a), the collector for each taxing unit =
in each=20
year divisible by five shall deliver by mail a written notice of=20
delinquency to: (1) each person whose name =
and=20
mailing address are listed on the most recent certified appraisal =
roll, if=20
the taxes on the property of that person are shown on the =
collector's=20
records as having been delinquent more than one year; . .=20
. . . . . (d) In a suit brought against a =
person=20
entitled to receive notice under Subsection (b) for the collection =
of=20
penalties and interest on a tax delinquent more than five years or =
a=20
multiple of five years, it is an affirmative defense available =
to the=20
person that the collector did not deliver the notice required by=20
Subsection (b). . . . . (f) A notice under this =
section is=20
presumed to be delivered when it is deposited in regular =
first-class mail,=20
postage prepaid, and addressed to the appropriate person under =
Subsection=20
(b). Notwithstanding Section 1.07, the presumption of =
delivery under=20
this section may not be rebutted with evidence of failure to =
receive the=20
notice. Act of May 30, 1999, 76th Leg., =
R.S., ch.=20
1481, =A7 16, sec. 33.04, 1999 Tex. Gen. Laws 5097, 5101. This =
version of=20
section 33.04 remained in effect until the effective date of the =
2001=20
amending Act, September 1, 2001.=20
Likewise, had=20
the tax master applied the 1999 version of section 33.04 to this =
case, the=20
taxing units would still be unable to collect penalties and =
interest on=20
the trust's 1997 taxes because the Trust proved up the affirmative =
defense=20
of non-delivery of the five-year notice provided by subsection (d) =
of the=20
1999 version of section 33.04. Specifically, no evidence shows =
that either=20
notice of the Trust's 1997 taxes or the five-year notice of =
delinquency of=20
those taxes deliverable in 2000 was ever "deposited in regular =
first-class=20
mail, postage prepaid, and addressed to the appropriate person =
under=20
Subsection (b)," namely, the trustee.=20
The 2001=20
amending Act eliminated subsections (b) through (f) of section =
33.04,=20
stating in section 40 that "[p]enalties and interest on a =
delinquent tax=20
are not cancelled under Section 33.04, Tax Code, for failure to =
deliver=20
any notice under that section as it existed immediately before the =
effective date of this Act." Act of May 17, 2001, 77th Leg., R.S., =
ch.=20
1430, =A7 40, 2001 Tex. Gen. Laws 5109, 5122.=20