Untitled Texas Attorney General Opinion ( 1943 )

THEAYTORNEY GENERAL
OFTEXAS
Hon. Geo. H. Sheppard
Comptroller of Public Accounts
State of Texas
Austin, Texas
Dear Sir: Opinion No. O-5540
Re: HOW does the tax assessor-collec-
tor proceed In levying upon per-
sonal property when the property
has been assessed for taxes, and
the property is about to be removed
from the county, and the owner of
the property has not other property
In the county sufficient to satisfy
all assessments against him?
As we understand your request for opinion, you desire
to be advised as to just how a tax assessor-collector goes
about levying upon personal property, when the said property
has been assessed for taxes, and is about to be removed from
the county, and the owner has not sufficient other property in
the county to satisfy all assessments agalnst him.
Article 7268, V.A.C.S. of Texas, is as follows:
"If It comes to the knowledge of the tax collector
that any personal property assessed for taxes on the rolls
is about to be removed from the county, and the owner of
such property has not other property In the county suffi-
clent to satisfy all assessments against him, the collector
shall immediately levy upon a sufficiency of such property
to satisfy such taxes and all costs, and the same sell in
accordance with the law regulating sales of personal
property for taxes unless the owner of such property
shall give bond, with sufficient security payable to
and to be approved by the collector, and conditioned for
the payment of the taxes due on such property, on or
before the first day of January next succeeding."
Article 7267, V,A.C.S. of Texas, provides:
"If any person shall point out to,the tax collector
sufficient personal property belonging to him to pay all
taxes assessed against him before the first day of January
Hon. Geo. H. Sheppard, page 2 O-5540
of any year, the collector shall Immediately levy upon and
sell such property so pointed out, In accordance with the
laws regulatlng tax sales of a similar class of property."
Said Article 7268 contains no definition of the "levy"
thereln authorized to be made, and said "levy" is not further
defined by the legisiative acts dealing with the subject. The
statutes simply say . . . the collector shall immediately
m . . .I'
Absent any special definition of the word "levy" as
used in said Article 7268, we must have recourse to~accepted
rules of statutory construction in order to determine what is
meant by the word "levy" as so used.
It is an approved canon of statutory construction that
when the legislature, In enactIng a law, uses a word which has
a settled legal significance or meaning, it will be presumed
that the legislature used the word In question fn its settled
legal significance or sense as same obtains at the time of the
legislative enactment. (See Koy v. Schneider, 110 Tex. 369,
denying rehearin 110 Tex. 369; Blanscet v. Palo Duro Furniture
co., 68 S.W. (2d7 527; Hutstedler v. Harral, 54 S.W. (2d) 353,
error refused).
Said Article 7268, was enacted in 1887 (See Acts
1887, p. 127, General Laws, Volume 9, p. 128) At the time of
this enactment, the word "levy" had a well known and settled
legal significance and meaning Fn the law of Texas, having been
used in connection wi'ththe law pertaining to attachment and
execution from the earliest days of Texas jurisprudence. In
accordance with the rules of statutory construction above
alluded to, we must presume that the word "levy" as used in
said Article 7268, has the same meaning that had always been
attributed to that word in the laws of Texas.
Turning now to the construction of the word "levy" as
used in said laws of Texas pertaining to levying of an attach-
ment or execution on Texas property, we find that Texas author-
ities have declared that in order for the acts of the officer to
constitute a levy, he must seize the property, or bring it
under his immediate control. (See Bryan v. Bridge, 60 Tex.
137; Boelkel-McLain Co. v. First National Bank, 296 S.W. 970)
Some Texas cases say that in order for the officer's act to
constitute a lawful levy, his act must be one which would sub-
ject him to a successful prosecution for being a trespasser
If the act done by him had not been done in making a lawful levy.
(See Frelberg v. Johnson, 71 Tex, 558; Portis v. Parker, 8
Tex. 23; Bryan v. Bridge, 6 Tex. 137; Burch v. Mounts, 185 S.W.
889, error refused; Jones et al. v. First State Bank, 140 S.W.
116, affirmed in 173 S.W. 202)
Hon. Geo. H. Sheppard, page 3 O-5540
The officer making the levy must get the property
levied on within his view and power and control, and this he
must do when the levy on the property is made. (See Brown v.
Lane, 19 Tex. 203; Portis v. Parker, 8 Tex. 23; Bryan v.
Bridge, 6 Tex. 137; Burch v. Mounts, 185 S.W. 889, error re-
fused; Lynch va Payne, 49 S.W. 406) He must get the property
under his own control, and this control must be immediate,
and he must place it under his control in a manner which is
so open, public and unqualified as to put everyone on notice
that he is levying on the said personal property, and taking
control thereof by virtue of his levy on same. (See Portis v.
Parker, Bryan v. Bridge, Burch v. Mounts, supra) It ha,sbeen
held by the Texas courts, that no particular form of words is
required to be used by the person making the levy, in order
to constitute the act of levying. (See Taylor v. Evans, 29
S.W. 172) It Is the taking possession of, or the taking
control of the property levled upon, which constitutes the
levy.
The kind of act which constitutes the taking of con-
trol and possession of the property levied upon, has been said
to vary with the nature of the property levied upon. (See
Portis v. Parker, above referred to)
There have been Texas decisions which seem to hold
that where the nature of the property seized is such as to make
a manual seizure thereof practicable, manual seizure must be
made by the person making the levy in order to constitute the
act a legal levy. (See Jones and Nixon v. First State Bank,
140 S.W. 116, 173 S.W. 202; Osborn v. Paul, 27 S.W. (2d) 572,
error refused) Texas decisions also hold that where the one
making the levy can control the property at the time of making
the levy, it Is not essential to the legality of the levy that
he should take possession of the property or touch it. (See
Burch v. Mounts, supra)
A special procedure is set up by statute for the levg-
ing upon livestock running at large In a range. It is as follows~
Article 3794, Vernon's Revised Civil Statutes of Texas,
provides:
"A levy upon livestock running at large in a
range, and which cannot be herded and penned without
great inoonvenience and expense, may be made by deslg-
nating by reasonable estimate the number of animals
and describing them by their marks and brands, or either;
such levy shall be made in the presence of two or more
credible persons, and notice thereof shall be given in
writing to the owner or his herder or agent, if residing
Hon. Geo. H. Sheppard, page 4 O-5540
within the county and known to the officer."
A special procedure is also provided by statute for
the levy upon the stock of any corporation or joint stock
company. Such procedure is set out in Article 3795, V.R.C.S.
of Texas, which reads:
"A levy on the stock of any corporation or joint
stock company is made by lev$lng a notice thereof with
any officer of such company.
If the property levied upon is that kind of property
known as an interest in partnership property, then the levy
should be made in accordance with Article 3796, which Is as
follows:
"A levy upon the interest of a partner in partner-
ship property is made by leaving a notice with one or
more of the partners or with a clerk of the partnership."
Where the property levied upon is a mortgaged chattel
or pledged chattel, Texas Jurisprudence has this to say:
"An officer may not, under attachment or execution
against the mortgagor, take possession of mortgaged chat-
tels where the property is rightfully In possession of
the mortgagee, unless the mortgage debt is first paid;
if this is not done the levy may be made only by giving
notice thereof to the mortgagee. But where the property
is allowed to remain in the possession of the mortgagor
the officer may take it into his possession for the pur-
pose of sale; and upon a sale the purchaser would buy
subject to the mortgage lien, having notice thereof.
"The undivided interest of a pledgee is subject
only to a constructive levy of the attachment writ, that
Is to say, by giving the notice required by statute.
The officer levying the writ may not take the property
from 'the possession' then rightfully held by the pledgee;
and if the officer does take possession, there results an
illegal ouster of rightful possession held by the pledgee,
which can be regained in the statutory proceeding of
trial of right of property." (27 Tex. Jur., Section 26)
Where an undivided interest of a cotenant of personal
property is in the possession of another cotenant, it can be
levied on by the officer who makes the levy giving notice to
the cotenant who is in possession. The procedure is set forth
in R.C.3, of 1925, Article 3793. In case of such levy the of-
ficer who makes the levy has no authority of law to seize the
Hon. Geo. H. Sheppard, page 5 O-5540
property levled upon. HIS levy is perfected by making the
notlce as above mentioned.
Where several owners own property jointly and have
joint possession of the same, a levy is made upon the interest
of any one of the joint owners by the officer who levied tak-
ing into his possession the interest levied upon. (See
Hubert v. Hubert, 46 Civ. App. 503)
If the person whose property is levied upon has mixed
and Intermingled his goods with that of another person so
that the officer making the levy is unable to distinguish the
property of the one levied upon from the property of the other
person, the levy is made against the whole stock. (See Brown
v. Bacon, 63 Tex. 585)
If it is sought to make a levy upon a crop ungathered
in the field, such levy is made by taking possession of the
land for the purpose of gathering the crop, and then gathering
the crop; or the levy is made by selling the crop in an un-
gathered condition as it stands in the field, (See Moore v.
Graham, 29 Civ. App. 235; First Natlonal Bank v, Cooper, 12
S.W. (2d) 271, error refused; Coates v. Caldwell, 71 Tex. 19)
It is to be observed that where an ungathered crop Is levied
upon by the levying officer selling the crop In an ungathered
condition, the purchaser of the ungathered crop would have the
right to go upon the land and harvest the crop. (See Coates
v. Caldwell, and Moore v. Graham, supra)
From the foregoing discussion, you will gather that
generally{,and in the absence of a prescribed mode for making
the "levy a levy is made by the person levglng making a
seizure of'the property levied upon, and getting it openly
in his possession and control, being governed in his act of
levying by the nature of the property seized; that except in
the case of levying uponlivestock running at large upon a
range, it is not necessary to give any written notice of any
kind of the levy to the person upon whose property the levy
is made. Where any written notice to any person other than
the owner of the property levied upon is required, we have
pointed same out above,
It should also always be borne in mind by the officer
who makes the levy that in accordance with the law as same is
set forth in Article 7267, quoted above, If the taxpayer points
out to the tax collector sufficient personal property belonging
to him to pay all taxes assessed against him before the first
day of January of any year, the tax collector should levy upon
the personal property so pointed out, rather than upon some other
personal property.
Hon. Geo. H, Sheppard, page 6 O-5540
And in making the levy, while the officer levying
should levy upon sufficient property to satisfy the tax claim,
he should not make a levy which is either excessive on the
one hand or insufficient on the other; but he will not be
strictly required to take exactly enough property and no more;
a reasonable leeway as to the amount levied upon Is allowed..
(See Fatheree v, Williams, 13 Civ. App. 430; Bruce v. Hannon,
283 S,W. 862; Dewitt v, Oppenheimer, 51 Tex. 103).
After a legal levy has been accomplished and completed,
then the tax collector should advertise and sell the said
property In accordance with the directions contained in Article
7273, v.R.c.s., which is self-explanatory, and reads as follows:
"In making sales of personal property for
taxes the collector shall give notice of the time and
place of sale, together with a brief description of the
property levied on and to be sold, for at least ten days
previous to the day of sale, by advertisements in writing
to be posted at the courthouse door, and at two other
public places in the county; and such sale shall take
place at the courthouse door of the county in which the
assessment is made, by public auction."
Insomuch as when an officer makes a levy by authority of
a writ of attachment or execution in his hands, the courts have
held that the officer must have official possession or control
of the writ to justify him in making a levy by virtue of it,
we reason by analogy that the tax collector, when making his
levy under the provisions of said Article 7267, which he does
in order to protect 'thetax lien created by ,theassessment,
should have official possession or control of the assessment
rolls at the time of making ,thelevy, in order that he may be
fully justified in making the levy, (See Mission Independent
School Dfst. et al, v, Armstrong, Comm. of Appeals, 222 S.W.
201, as authori,tyfor 'thestatement t,hat,thetax assessor makes
the levy referred to in order to protect the lien created by
the assessment)
In your request for opinion you do not say whe'therthe
taxpayer whose property is to be levied upon Is a resident or
nonresident of the county Fn question" In the event said tax-
payer Is a nonresident of said cou~ntg,we respectfully call your
attention to the provisions of Article 7265, V,R.C.S. of Texas,
which applies to the payment of taxes by nonresidents of a
county, and is as follows:
"Non-residents of counties, owing State
or county ,taxes,are hereby authorized to pay the
same to ,theComptroller; provided that all taxes due
Hon. Geo. H. Sheppard, page 7 O-5540
by said non-residents shall be paid at the Comptroller's
office on or before the first day of January next after
the assessment of such taxes. The tax collectors shall
be entitled to the commissions on all moneys paid by
non-residents to the Comptroller, due their counties
respectively." (Acts 1879, p. 41; G.L., Vol. 8, p. 1341)
We suggest that should the taxpayer in question be a
nonresident of the county where the levy Is purposed to be
made, the tax collector, before making the levy, should care-
fully check with the Comptroller of Public Accounts in order
to make sure that the taxes he is making a levy to secure the
payment of, have not been paid by the taxpayer direct to the
Comptroller. If a levy should be made by a tax collector under
Article 7268 after the taxes had already been paid to the Comp-
troller under authority of said Article 7265, then the tax
collector, In making the levy, would be a mere naked trespasser
and would make himself liable in damages to the taxpayer whose
property was levied upon.
We wish to make it plain that this opinion, in its
entirety, is written upon the assumptlon, of course, that
prior to the making of the contemplated levy by the tax col-
lector, a valid assessment for the taxes In question has been
made which Is In every respect in full compliance with the
governing law applicable to the assessment of taxes; and that
the tax collector is correct in his assumption that the per-
sonal property so assessed for taxes is, in truth, about to be
removed from the county, and that the owner of the said prop-
erty has not other property in the county sufficient to satisfy
all assessments against him.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/Gee. P. Blackburn
GPB:AMM:wc Geo . P. Blackburn
Assistant
APPROVES AUG 31, 1943
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman