Untitled Texas Attorney General Opinion ( 1967 )

Honorable Charles H. Bolton Opinion No. M-119
County Attorney
Meridian, Texas Re: Must a writ of possession
be issued within a period
of 20 days after the perlod
of redemption on property
sold attax sale has expired
and not thereafter under
the authority of Art. 73&b,
Sec. 12, V.C.S., and related
Dear Mr. Rolton: statutes.
You have requested the opinion of this Office In regard
to the following question:
Must a writ of possession be issued within
a period of 20 days after the period of
redemption on property sold at a tax sale
has expired, and not thereafter, under
the provisions of Article 7345b, Section
12, Vernon's Civil Statutes, and the
related statutes?
Section 12 of Article 7345b, provides as follows:
"In all suits heretofore or hereafter
filed ,to collect delinquent taxes against
property, judgment in said suit shall pro-
vide for the Issuance of writ of possession
within twenty (20) days after the period of
redemption shall have expired to the pur-
chaser at foreclosure sale or its or his
assigns; but whenever land fs sold under
judgment in such suit for taxes,'the owner
of such property, or anyone having an lnter-
est therein, or their heirs, assigns or
legal representatives, may, within two (2)
years from the date of the filing for record
of the purchaser's deed and not thereafter,
have the right to redeem said property from
such purchase on the following basis, . . .'I
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Honorable Charles H. Bolton, Page 2 (M-119)
The statute under consideration is a part of Chapter
10, Title 122, Vernon's Civil Statutes, dealing with the
collection of delinquent ad valorem taxes. In order to
arrive at a proper meaning of Section 12, It should be con-
sidered in connection with the purposes of Chapter 10, and,
in particular, with all of Article 7345b. In brief, this
Article deals with suits for delinquent taxes by taxing
units, the judgments, rights of redemption, and other related
matters.
Tht literal meaning of the phrase of Sectfon 12, whfch
provides . . , judgment In said suit shall provide for the
issuance of a writ of possession within twenty (20) days after
the period of redemption shall have expired to tl;fe
purchaser
at foreclosure sale or its or his assigns; . . . would be
that the "writ of possession" must Issue within 20 days after
the period of redemption has expired.
If the legislature had intended this as a limitation
to be strictly limited to the period state?, It would Gave
added after the words "shall have expired, the words and
not thereafter" or other language of similar meaning.
We find the following language In 53 Tex.Jur.2d 195,
196, Statutes, Sec. 134:
"Statutes are frequently given an lnterpre-
tatlon at variance with their llteral terms.
The court will depart from the exact and
literal import of a statute, or a particular
part, provision, or word thereof, if this is
necessary to effectuate or preserve the legls-
lative intent. Thus, worasor clauses will
not be given their literal meaning if such an
interpretation would thwart the plain purpose
of the legislature, or would lead 'to palpable
absurdity, contradiction, injustice, OP uncer-
tainty, and if such a construction can reason-
ably be avoided.
"In departing from the literal meaning of a
statute, its letter is sometimes enlarged,
sometimes restrained, and sometimes the con-
struction given Is contrary to the letter
of the law."
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Honorable Charles H. Bolton, Page 3 (M-119)
Clearly, it was the intent of the legislature in
making the detailed provisions of Article 7345b, dealing
with suits for delinquent ad valorem taxes, sales of the
property by the purchaser at the sales, and the redemption
thereof by the owners, to place the purchaser at such sales
in possession of the property so purchased after the period
of redemption has expired. To place the literal construc-
tion limiting the issuance of the writ of possession to the
period of "within 20 days after the period of redemption
shall have expired," would do violence to the purpose and
intent of all of Article 7345b, when considered as a whole.
In the case of Dolan v. Walker, Land Commissioner,
121 Tex. 361, 49 S.W.28 693 (1932) the Court used the fol-
iowing language relating to the co;struction of statutes:
'In the construction of statutes cer-
tain fundamental rules control. The
paramount rule In construing statutes
Is to ascertain and give effect to the
intention of the Legislature. If the
language or terms used in the statute
are uncertain or confusing in arriving
at the Intention, it is proper to con-
sider the general policy towards the
matter legislated upon, the purpose of
the legislation, the evils to be remedied,
and the object to be accomplished. Cannon's
Adm'r v. Vaughan, 12 Tex. 399; Higgins V.
Rinker, 47 Tex. 393; City of Austin v. Cahill,
99 Tex. 172, 88 S.W. 542, 89 S.W. 552; Clary
v. Hurst, 104 Tex. 423, 138 S.W. 566; article
10, subd. 6, R. S. 1925."
It is stated in 37 Tex.Jur.2d 83, Limitations, Sec. 3:
. . . statutes of limitation should be con-
strued In like manner as other statutes, and
should receive such Interpretation; consistent
with their terms, as will defeat the mischief
intended to be suppressed, and advance the
policy and remedy they were designed to promote."
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Honorable Charles H. Bolten, Page 4 (M-119)
We have been unable to find a case direct1
on the question involved. However, the case of &%&k?~.
Owens, 209 S.W.2d 622 (Tex.Civ.App., 1948, no writ hist.)
deals with the subject generally. One of the points of error
relied on by Appellant was to the effect that in one of the
suits (for delinquent ad valorem taxes) ,the Order of Sale
was issued'less than twenty days after the judgment was ren-
dered.
The Court, in disposing of this point, stated:
rr
. . . The fact that the Order of Sale
was issued less than twenty days after
judgment was rendered was but an irregu-
larity and it will be respected until
set aside by a direct proceeding. . , .)l
Further, it was stated:
11
. . . The purchase of the property
at the sheriff's sales, namely, the
State of Texas, was not bound to examine
into the regularity of the proceedings
under which the Orders of Sale were issued
and, however irregular they might have
been, the title of the purchaser was not
affected thereby. . . .'
Applying the proper rules of construction, as announced
by many decisions of the Supreme Court of Texas, it is the
opinion of this Office that the literal wording of Section 12,
Article 7345b, provides that the writ of possession is avail-
able to the purchaser within 20 days after the date of redemp-
tion, but that this is not a limitation statute, and such writ
may issue after the expmtion of 2mays aster the period of
redemption has expired.
SUMMARY
-------
Section 12 of Article 7345b, Vernon's
Civil Statutes, is not a statute of limi-
tation, and the writ of possession pro-
vided for therein may issue to the purchaser
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. .
. .
Honorable Charles H. Bolton, Page 5 (M-119)
after the expiration of 20 days
after the period of redemption
shall have expired.
truly yours,
Prepared by John R. Grace
Assistant Attorney General
JRG/dls
APPROVED:
OPINION COMMITTED
A.J. Carubbi, Jr., Chairman
Staff Legal Assistant
W.O. Shultz, Co-Chairman
John Reeves
Tom Mack
Tom Thurmond
Bob Flowers
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