Untitled Texas Attorney General Opinion ( 1971 )

Hon. Jules Damiani, Jr. Opinion Ho. M-982
Criminal District Attorney
405 County Courthouses Re: May Sec. 3 of Art. 725813,
Galveston, Texas 77550 V.C.S. be applied retro-
actively?
Dear Mr. Damlanl:
We have received your request for an official opinion
on the following question:
“Except as to litigation pending when it
came into effect, does Article 7258b, Section 3.
V.A.T.C.S., operate retrospectively, so that if
a tax certificate showing no taxes due (whereas
in fact taxes were due) was Issued prior to the
date such Article took effect, and under either
Article 7258b or Article 7258a /i;epealedT,V.A.
T.C.S., the Tax-Assessor CollecTor mighT never-
theless issue upon request a cancellation certi-
ficate, relieving the current owner and the
property of the tax liability, such owner not
being the pprson in whose name the taxes became
delinquent?"
Your question asks whether the procedure provided by
Article 7258b is available for periods prior to the effec-
tive date of the statute. Our answer is Yes.
This Sec. 3, In its relevant portion, reads a8 follows:
"In the event a tax certificate la issued
showing no taxes, interest, penalty, and costs
due, when in fact taxes, interest, or penalties
were due, and the owner of the land is not that
person under whom the taxes, interest, penalty,
and costs became delinquent, the tax collector
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Hon. Jules Eamiani, Jr., page 2 (M-982)
may issue, on request, a certificate relieving
the property from liability and stipulating that
the delinquent taxes, interes.t,penalty, and
costs are thereafter the personal liability of
the person under whom the taxes became delin-
quent. . . . Thereafter, this cancellation certi-
ficate shall be conclusive proof for all purposes
that neither the land nor the present owner is
liable for the delinquent taxes, interest, pen-
alty, and costs."
Article 7258b Is a remedial statute. It repealed and
replaced Article 7258a which was very similar In nature and
which had been expressly declared by two court decisions to
be remedial and equitable in nature. International Paper
Co. v. State, 380 S.W.2d 18 (Tex.Civ.App. 1964, error ref.
n.r.e.), and Amerada Petroleum Corp. v. 1010.61 Acres of Land,
146 F.2d 99 (5th Cir. . These factors amply support
retroactive application of Section 3 and an affirmative an-
swer to your question.
The presumption against retroactive application is not
applicable under the circumstances here presented. See
please: May v. C;f";io;~5vS.$;~16,"~ $g``;y;;~g~lq$@J;.
error ref. n.r.e.
Civ.App. 1957, error dlsm.);
'``u?~ds5?~
(Tex.Clv.App. 1925, error diam. %itutes,
Sec..28: also 21 A.L.R. 2d 1278, 1280-1282 and 107 A.L.R. 578,
et.seq.
The only exclusion from the relief afforded concerns
matters in litigation. Article 7258b, Sec. 6. Our holding
allows all property owners who have relied upon tax certi-
ficates lawfully issued under both Articles i’258a and 7258b
to relieve themselves from the claim and their property from
the undisclosed tax lien against which they had used all the
diligence that both the law and equity required of them.
This purpose is stated by the Court in the International
Paper Co. case, supra, wherein the Court held,
II
. . . It appears that Article 7258a is
actually a remedial statute. It gives the
citizens of Texas a conclusive right to be-
lieve in and rely upon the acts of their
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. .
Ron. Jules Damianl, Jr., page 3 (M-982)
officers. At the same time, It does not
release or diecharge anything except the
tax lien. It gives the State the exclusive
right to proceed against the Tax Collector
and their bondsmen for the taxes, penalty,
interest and costs. The purpose of the
statute was to relieve the purchasers of
property from the secret tax liens upon
property for which they have purchased and
paid, or obligated themselves to pay for.
This relieves the purchaser of the respon-
sibility of buying property and later having
a tax lien forced upon the same and requiring
him to pay off the tax lien in order to keep
his property." (at p. 22).
SUMMARY
The provisions of Sec. 3 of Article 7258b,
V.C.S. should be applied retrospectively to
authorize issuance of the cancellation certi-
ficate therein authorized, and when authorized,
to cover all tax certificates showing no taxes
due which had been previously and lawfully
issued under both Article 7258a V.C.S. /i;epealedT,
and Article 7258b, V.C.S.
Y
Prepared by S. J. Aronson
Assistant Attorney General
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Hon. Jules Damiani, Jr., page 4 (M-982)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Harriet Burke
William Craig
Max P. Flusche
Robert Lemens
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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