‘%KsrIN    11.   Trzvas
PRICE    DANIEL
.\TTORXEY CF.NE”Al
                                       August 16, 1951


    Hon. John Ben SheDperd                       Ooinion No. V-1239
    Secretary of Statk’
    Austin, Texas                                Ae: Authority of the Sec-
                                                     retary of State to
                                                     waive, compromise,or
                                                     reduce the penalties
                                                     for late filing of
                                                     franchise tax reports
                                                     (Art. 7089) and fran-
    Dear Sir:                                        chise taxes (Art. 7091).
              You.have requested the opinion of this office
    on the folqowlng question:
                    “May the Secretary of State, under
             certain extenuating circumstances . . .
             accept late filing of the tax report and
             late payment of franchise tax without
             levying   the penalties of 10 per cent and
             25 per cent as provided for in Articles
             7089 and 7091, V.R.C.S.?”
              In connection with your request you have stated
    four examples of “extenuatingcircumstances”which are
    actual cases In your fiAes and you refer to a letter opln-
    ion of this office addressed to Hon. Paul Ii.Brown, Sec-
    retary of State, dated August 23, 1948, which you state
    psesents the answer to a different problem.
             ,The fact that the office of the Secretary of
    State was confronted with requests by various corporate
    taxpayers that under certain “extenuating circumstances”
    the Secretary of State should waive the penalty for late
    filing of the franchise tax report prescribed In Article
    7089, v.>c.s.,or the penalty for Late pajrm*nrof Qhe
    franchise tax prescribed by Article ~7091,V.,C
                                                 :.S
                                                   *, con-
    stituted the basis for the request by Hon. Paul.H. ~~r~+~-.
    .x thinssame subject He asked whether the penalties
    prwided           for’ln    each   of the    foregolng       Articles   were   man-
    :&tory  or whether ttieSecretary of Stare had the author-
     ity CG waive, compromise, or reduce the penalties upon
     z?plicationand for cause deemed sufficient in the dls-
    crezicn          cf the    Secretary    af State.
,



      Hon. John Ben Shepperd, P%gO 2          (V-1239)


                 In holding ihat & corporationnhigh 'failsto
       file Its franahiae tax report or falls to piryft.6f'ran-
       chiBe tax uhen due becoaes fmediatel liable for the
    .f POMltlea provided for fti&tfclea 707; 9 and 7091, V.C.S.,
       rOepeCtlvely,and that the Secretary of state has no
       aU%borlty to wafve, aompromlae,or reduce the pen ltier
       10 provided under any clrcwtancefJ, the opinion’ 4 o Hon.
       ?Bul H. Brown sta$es in part8
                “The queetion of whether or not the
           provielons of a statute are mandatory is
           one of statutory   constructfon.       39 .&,x0   .-::..w
                                                                ..A 9
           33* % 14. However, ft 1s settled that:tZ-?yz
           is no room for constructionwhen the sts%ce
                .--~~ ~-~ in Dlain and unamblnuous lan-
           is exoressed
           guage and its me&l      is clear aiidobvious.
           39 Tex.JW. 161, I 73 8 a
                   “me provisions of each of the statlrtes
           here in question are expressed in plain an,3
           unambiguous langvge. Article 7089, V.C.S.,
           clearly    providesqhat franchise tax reports
           are due between Jinuary 1st and March 15th
           of each yea-, but that the Secretary of St.a%
           may for good causs shown by any conporstioa,
           extend such time up to Mar lat. AK;~ccrpc-
           r&Ion failing to file Its report shall be
           assessed a penalty of ten per cent. *tic: f’
           7Ogl~~V.C.S.,Talaoprovides in clear and WA-
           tietakable    language tlzatI? a corporation
           falls    to pay its franchise  tax when due, ft
           ahall thereupon become liable to a penalty
           of twenty-five per cent oi the amoun% of
           ruch franchise tax due by euoh corporation.
           Bowever, even if'the statute6 were ambPguous
           and thus aubbjeotto conetructlon,     It fs no$ed
           that,~lthaa long been the departmentalcon-
           rtrmotlon pi the offfoe of the Secretary of
           State that'the penaltiee in question are man-
           datory and cannot be waived, oompromifacd    or
           reduoed. The Legislaturehas met aany time8
           s:nce such comtructlo~      was given the stat-
           utes by the SecretarT of State, but has not
           undertaken to change the statute 80 81)to                    .
           alter thla conatmct%on.       This offfce doe8
           not feel justfffed to held now that the Seo-
           retary of state wa6 i%ee:ppor1x1so ooanet37uf~~.
           the statute. See Iabell vs. QuIf Wnfan Of1
           co,, SUP6 C%., 209 S&(&3) 762.
Hon. John Ben Shepperd, Page 3   (V-1239)




          “Aa to the question of whether or not
     the Secretary of State has authority to
     waive, compromise or reduce these penalties,
     it is noted that no such authority is given
     the Secretary of State by the constitution
     or etatutes. It Is the settled law in this
     State that Public Officers possess only such.,
     authority as is conferredupon them by law,
     34 Tex. Jur. 440 8 67.  As no authority Is
     given the.~Secretaryof State to waive, com-
     promise or reduce the penalties provided for
     in Articles 7089 and 7091, V.C.S., he has no
     authority to do so."
          This office has carefully reconsidered the fore-
e;cMg opinion In the light of the factual examples of
 extenuating circumstances"referred to and it is the
opinion of 'thisoffice that the holdings of the,opfnion
addressed to Hon. Paul H. Brown, dated August 23, 1948,
are correct and should be reaffirmed. We are 'compelled
to reach this conclusion under the rule of law announced
by the Supreme Court in the case of Federal Crude 011 Com-
 any v. Yount-Lee 011 Company, 122 Tex. 21, 52 S.W.2C56,
 2 (1932),.as follows:
          ,"Mherethe officers of the state~govern-
     ment, dtifng a long period of years, have con-
     strued a statute of doubtful Import and the
     same Is later re-enacted by the Legislature in
     substantially the same form, it will be pre-
     sumed that the lawmaking body knew of the COE-
     structlon placed upon Its language by such
     officers, and that, if ft uas not aatlsfled
     t,hrtIts intention had been rightly interpreted,
     .it~uouldhave so changed the verbiage of the
     act as to have shown clearly,a contrary inten-
     tion.".
   ',!
        ; Since the ruling of this office on the ques-
tions i&lved on August 23# 1948, the Legislature has
met in Regular Session In the year 1949, In Called Ses-
sion in the year 1950, and again in Regular Session in
the year 1951. At Its Regular Session in 1949.the Legis-
lature amended Articles 7089 and 7091, V.C.S. 'Acts 51st
Leg,, ch. 536, pa 975, sets. 5 and 7. It must be pre-
sumed that the LecgfslatuPeknew ot the constsuction placed
upon its language by the Secretary OP State and by this
office. it'the Q&slat*@     had not been satisfied that
,   1.   _




             Iron:'
                  John Ben Shepperd, plr% :4 (V-1239)


             Its intention had been rightly Interpreted,it could have
             changed the verbiage of the'two Articles In question so
             as to authorize the Secretary of State In his discretion
             to walvir,compromise,or reduce the.penaltlesin question
             under such circumstancesas were found by the Secretary
             of State to be extenuating. This t e Legislature did not
             do, and therefore,under the forego Png rule of law, It
             must be presumed that the Legislature concurred In the de-
             partmental constructionby the Secretary of State and the
             opinion of this office.
                       It Is the opinion of this office that the-Sec-
             retary of State has no authority to waive, comp?omlse,or
             reduce the penalties provl#ed for failure to make and fl:e
             the franchise tax reports !a8required by the provisions
             of Article 7089, v.c.s., &d to pay the franchise tax due
             as prov%dUd In Artlcler7O+l,V.C.S., the liability for
             such penalties being mandatory.
                                      SUMMARY

                      The Secretary of State has no authority
                 to waive, compromise,or reduce the penalties
                 for late filing of tianchlse tax returns as
                 provided in Article 7089, V.C.S., or the pen-
                 alty for late payment of franchise taxes as
                 provided InArtIcle 7091, V.C.S., the liabii-
                 lty for such penalties being mandatory.
                                                very truly yours9

             APPROVED:                            PRICE DANIEL
                                                Attorney GeEal
             Everett Hutchlnson
             Executive Assistant
             Charles D, Mathews                   C. K:.Richards
             First Assistant                      Assistant

             CKFltwb:em