Untitled Texas Attorney General Opinion ( 1957 )

November 12, 1957
Mr. C. W. Karlsch Opinion No. ``-316
County Attorney
Wailer County Re: Does the certificate of
Hempstead, Texas redemption Issued after
the two-year period
authorized by Article
7291 remove the State
from the title to the
land granted it in the
Dear Mr. Karlsch: foreclosure sale?
You request the opinion of this office upon the
above-captioned matter.
We quote the following from your letters as the
facts upon which your request is predicated:
. . .A taxpayer became delinquent in
the payment of her taxes. A foreclosure
suit for taxes was brought against her
and the land, and under a judgment and
order of sale the land was sold to the
State of Texas. It has never been re-
sold. Shortly after two years from date
of sale, she paid all taxes and costs of
every kind. Thereafter, the State Comp-
troller duly Issued his certificate of
redemption. That was in 1944. She has
been in possession, rendered and paid all
taxes on such property since that time. ...
II
. . .
'The suit ...was filed on May 10, 1940,
and covered taxes for the years 1929-1938.
...According to the Sheriff's return, the
property was sold on July 1, 1941, to the
State of Texas. The Sheriff's deed was dated
July 9, 1941, and was filed for record on
November 20, 1943. Apparently, from the
pleadings, the State of Texas was the only
plaintiff and Wailer County was the Impleaded
defendant. ..."
or. c. w. Karisch, page 2 (``-316)
Upon the foregoing facts you submitted the
following question:
"I would appreciate your opinion
as to whether or not the certificate
of redemption under the circumstances
divests the State of Texas of its title
acquired under the foreclosure proceeding."
Article 7291, V.C.S., was a part of the old
summary sales Act applicable to sales made by the Tax
Colle~ctor. Summary sales by the Tax Collector to col-
lect delinquent taxes is no longer authorized.
Article 7328a, V.C.S.,enacted in 1929, provides
as follows:
"That all sales of real estate made
for the collection of delinquent taxes
due thereon shall be made only after the
foreclosure of tax lien securing same
has been had in a court of competent
jurisdiction in accordance with existing
laws governing the foreclosure of tax
liens in delinquent tax suits."
In construing this Act the Supreme Court, in
the case of Duncan v. Gabler, 147 T. 229, 215 S.W.2d 155
said:
"The meaning of the 1929 Act is
plain. Its language clearly evidences
the intention of the legislature that
there shall be no sale of real estate
for the collection of delinquent taxes
until there has been foreclosure of the
lien In a court of competent jurisdiction.
If valiid,the Act necessarily repealed
Articles 7272 to 7283 and other statutes
then existing which authorized sales of
land for collection of delinquent taxes
without foreclosure of the tax lien in
court."
We think the~ruling of the court in this case is
in effect a ruling that all the old summary sales provisions,
including the right of redemption, are no longer applicable,
this for the reason that Article 7291, V.C.S., applied only
to sales made by the Tax Collector, hence not applicable to
judicial sales. Therefore, a redemption receipt Issued under
Mr. C. W. Karisch, page 3 (WW-316)
the authority of Article 7291, V.C.S. is a nullity and affords
no protection to the taxpayer in judicial sales. The tax suit,
as appears from the facts submitted, was filed under Article
7345b, V.C.S., and the right of redemption by the delinquent
taxpayer is governed by Section 12 of that Statute. At the
time this suit was filed and the sale thereunder, this Section
of the Statute provided, in part, 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 is sold under
judgment in such suit for taxes, the owner
of such property, or anyone having an inter-
est therein, or their heirs, assi ns or legal
representatjnes, may, within two 72) years
from the date of the sale have the right to
redeem said property from such purchaser on
the following basis, to wit:
"(1) Within the first year of the re-
demption period, upon the payment of the
amount of the bid for the property by the
purchaser at such sale, including a One Dollar
($1) tax deed recording fee and all taxes,
penalties, interest and costs thereafter paid
thereon, plus twenty-five per cent (25s) of
the aggregate total.
"(2) Within the last year of the re-
demption period, upon the payment of the
amount bid for the propert at such sale,
including a Cne Dollar ($17 tax deed recording
fee and all .tdxes,penalties, interest and
costs thereafter paid thereon, plus fifty per
cent (50%) of the aggregate total; and no
further or additional amount than herein apeci-
ffed shall be regulred to be paid to effect any
such redemption.
In construing this Section of the Statute, the
Supreme Court, in the case of the City of El Paso v. Forti,
142 Tex. 658, 181 S.W.2d 579, said:
Mr. C. W. Karisch, page 4 (``-316)
~ .It seems clear to us that when
the Legislature enacted 7345b, whereby
all taxing units could be joined in
one suit and the property bid In by
one , . .(sic)for the benefit of all,
and prescribing the terms upon which
same might be redeemed, it intended
that those terms should govern in all
cases of'redemntion in that character
of suitsregardless of who'became the
urchaser at the sale. . . .II
Emphasis supplied.)
The first paragraph of this Section of the Statute
was amended in 1947 to make the period of redemption two
years from the date of the recording of the purchaser's deed
and not two years from the date of the sale as it provided
prior to the 1947 amendment. This case is governed by the
Statute prior to the amendment, and the right of redemption
would begin~to run two years from the date of the sale.
The action of the Comptroller in issuing the re-
demption receipt does not have the effect of WIorking an
estooper or to constitute a waiver against the State to
assert title to the property. Rolison v. Puckett, 145 Tex.
366, 198 S.W.2d 74.
We are, therefore, compelled to hold that the
failure of the delinquent taxpayer to redeem the property
from the sale in the time and manner prescribed in Section
12 of Article 7345b, V.C.S., resulted in the title to the
uronertv becoming absolutels vested in the State, the pur-
A~- .
chaser at the delinquent tax sale. Rolison v. Puckett,
145 Tex. 366, 198 S.W.2d 74. State v. Moak, 146 Tex. 322,
207 S.W.2d 894. The land may now be sold by the State, as
provided in Section 9 of Article 7345b, V.C.S.
We are not unmindful of the equities in favor of
this taxpayer, but they do not alter the law as It has been
pronounced by the Supreme Court. It may be that the taxpayer
might obtain some relief upon a resale of the property by
becoming a purchaser if the sale is made In conformity with
the provisions of Section 9, Article 7345b, V.C.S.
Mr. C. W. Karisch, page 5 (``-316)
SUMMARY
Property purchased by the State at
delinquent tax sale in a delinquent
tax suit filed under Article 7345b,
V.C.S., must be redeemed within the
time and manner rescribed by Section
12 of Article 73 E 5b, V.C.S., before
amended in 1947, otherwise the title
becomes absolutely vested in the State-
the purchaser at the delinquent tax
sale. It may not be redeemed under
provisions of Article 7291, V.C.S.,
which was applicable only to summary
sales by the Tax Collector, and a
redemption certificate issued by
virtue of said Article is void and
affords no protection to the taxpayer
under judicial sales as provided in
Article 73&5b, V.C.S.
Very truly yours,
WILL WILSON
Attorney General
BY
Assistant
LPL:gs
APPROVED:
OPINION COMMITTEE
George P. Blackburn,
Mrs. Mary Kate Wall
B. H. Timmins, Jr.
John B. Webster
Galloway Calhoun, Jr.