¶1On Motion for Rehearing.
¶2In our original opinion it was stated that the opinion of this Court in Lally v. State, Tex.Civ.App., 138 S.W.2d 1111, no writ history, had been cited and approved in many opinions by the Supreme Court and the Courts of Civil Appeals of Texas “but only upon the questions of venue and the holding that the contributions due under the Texas Unemployment Act are ‘excise’ taxes.” *918Such statement was erroneous in part since in the Motion for Rehearing filed by the State of Texas our attention is directed to the opinion by the El Paso Court of Civil Appeals in Harry Kestner v. State of Texas et al. in which application for writ of error was filed in the Supreme Court of Texas October 11, 1942 and was refused for want of merit. In this opinion, which was not reported at the request of the Court of Civil Appeals, the Lally case is cited and approved. Since the opinion in the Kestner case was not reported, reference thereto • could not be found either in the Texas Writ of Error Tables or in Shepard’s Citator, as a result of which the erroneous statement has at least some justification.
¶3The opinion of the El Paso Court of Civil Appeals is in part as follows:
“The suit was to recover $101.01 unemployment contributions and $12.88 interest and penalties alleged to be due for the year 1938 under Art. 5221b, Vernon’s Statutes, 1925.”
¶4The opinion then recites that among other defenses the defendant filed a plea to the jurisdiction which was overruled and states that :
“Under the authority of Lally v. State, supra, there is no error in overruling the plea to the jurisdiction. It is there held the sum sued for are penalties and the jurisdiction fixed by sec-. 5, Art. 8 [art. 5, § 8] of the Constitution of the State.”
¶5After the Court of Civil Appeals had affirmed the judgment in favor of the State, Kestner filed an application for writ of error in the Supreme Court of Texas, docketed as Application No. 26602. The application for writ of error contained forty assignments of error, only the first six of which were briefed. The 21st assignment of error was directed to the error of the Trial Court in overruling the plea to the jurisdiction and the .25th assignment of error was directed to the action of the Trial Court in overruling the special exception directed to the jurisdiction of the Trial Court.. Neither of these assignments of error were-briefed.
¶6The application for writ of error being-filed after the effective date of the Texas-Rules of Civil Procedure, we must presume that since the 21st and 25th assignments were not briefed as required by Rules-418 and 469, the Supreme Court of Texas did not consider either assignment since they were not properly briefed and therefore-were waived. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 401. Since the Supreme-Court refused the application for want of merit and not by straight refusal, it is presumed that the quoted holding on the jurisdictional question in the opinion of the-Court of Civil Appeals was not approved..
¶7Appellant also cites the case of Erwin v. Blanks, 60 Tex. 583, in which it was held that the provision in Sec. 8, Art. V of the-Texas Constitution giving the District Courts jurisdiction of all suits for trial of right to property levied upon by virtue of any writ of execution, sequestration or attachment, when the property levied on shall be equal to or exceed in value $500.00 is not controlled by Sec. 16, Art. V providing that-the County Court shall have exclusive jurisdiction in all civil cases where the matter in controversy shall exceed in value $200.00' and not exceed $500.00, exclusive of interest. The Supreme Court held that under the rules of construction that where a conflict exists the general provision shall yield' to a special provision, the special provision, governing suits for trial of right to property contained in Sec. 8, Art. V controlled..
¶8Appellant contends that under the foregoing rule the provision contained in Sec. 8, Art. V that the District Court shall have-original jurisdiction “in all suits in behalf of the State to recover penalties, forfeitures and escheatsis a special provision which-prevails over the general provision contained in Sec. 16, Art. V giving the County-Courts exclusive jurisdiction of civil cases-where the amount in controversy exceeds-*919the sum of $200.00 and does not exceed $500.00 exclusive of interest.
¶9As stated in the original opinion, it affirmatively appears from the petition filed by the State of Texas that it is a suit for taxes other than ad valorem. The penalties sought to be recovered by the State are penalties which are imposed by operation of law because of appellee’s failure to pay the taxes when they became due. It is axiomatic that if a tax is paid when it becomes due under the law no penalty is imposed or can be recovered but when the taxpayer fails to pay a tax when it becomes due under the law, the penalty for failure to comply with, the law is automatically assessed against the taxpayer. Conversely stated, if the tax is not delinquent, no penalty attaches or can be recovered.
¶10If the State here sought the recovery of the penalties alone without seeking to recover the delinquent taxes, there would be no question that the suit, regardless of the amount involved, must be filed in the District Court. Or if the suit was for the recovery of ad valorem taxes on real property secured by a statutory lien for which foreclosure is sought, only the District Court would have original jurisdiction thereof under Sec. 8, Art. V. But here, there is no statutory provision giving the State any lien upon property, real or personal, for delinquent taxes or penalties, State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238, and therefore the suit is primarily a suit for personal debt and should be brought in the court having jurisdiction of the amount involved.
¶11We adhere to the conclusion of law stated in the original opinion and appellant’s motion for rehearing is overruled.
¶12Motion Overruled.