Untitled Texas Attorney General Opinion ( 1950 )

Hon. Murray L. Harris
County Attorney
Wood County
Quitman, Texas
Attention: Hon. James Hartfield
Assistant County Attorney
Opinion No. V-1058.
Re: The validity of delinquent tax
foreclosure sales by a Con-
stable under the submitted
Dear Mr. Harris: facts.
You request an opinion upon the questions presented in
your letter dated April 26, 1950. Your letter and comments clear-
ly state the problem, hence we quote it in full as follows:
“The Tax Collector of Wood County has request-
ed of this office an opinion as to the validity of proceed-
ings had in certain delinquent tax suit foreclosure sales
and subsequent resales, purportedly made under Art.
7345b. in order to determine whether he is legally author-
ized to issue judgment receipts evidencing discharge of
the State and County tax liens sought to be foreclosed in
the said suits.
“The facts are as follows:
“In 1939, the City of Mineola, Texas, and the Min-
cola Independent School District, as plaintiffs, filed some
seventeen suits seeking to foreclose tax liens upon real
estate located within the City of Mineola for delinquent
taxes for various years. The State of Texas and Wood
County, being impleaded, intervened and filed answers
asserting their liens on the said real estate for delin-
quent taxes due them for the years involved. On Novem-
ber 2, 1939, jlldgment was rendered in all of the suits in
favor of all of the taxing units, foreclosing their liens.
On April 6, 1940, orders of sale were issued in all of
said suits, and on May 1, 1940, such orders were execut-
ed by public sale at the courthouse in Quitman, Texas,
Hon. Murray L. Harris, Page 2 (V-1058)
by the Constable of Precinct Two of Wood County, Tex-
8.S. At these sales all of the property involved in the
suits were struck off to the City of Mineola, one of the
taxing suits concerned. Subsequently. on August 3rd,
1942, after expiration of more than six months after
the redemption period, and after notice duly published,
all of said property was sold at public outcry at the
courthouse in Quitman, Texas, by the Constable of Prec
cinct Two of Wood County, Texas, to various parties.
“The City of Mineola has recently presented to
the Tax Collector a check representing the State’s and
the County’s pro rata share of the sums realized from
the above-mentioned final sales made by the Constable
on August 3rd, 1943.
“We have carefully examined the records and
files in these suits and find that the proceedings had
were in compliance with the statutes applicable to tax
suit sales as of the dates indicated, except the Consta-
ble, instead of the Sheriff, executed the foreclosure
sales and the deeds to purchasers at such sales, and
that the Constable rather than the Sheriff, made the
sales at public outcry after the redemption period (as
authorized in Sec. 9, Art. 7345b) and executed the deeds
to the purchasers at those sales.
“We have concluded that the foreclosure sales by
the Constable to the City of Mineola were valid under
authority of Art. 7345b, Sec. 7 and Art. 7328. However,
with no case directly in point, there remains a question
inasmuch as Art. 7328, though providing for sales pro-
cedure ‘as in other cases of foreclosure’, makes ref-
erence to the ‘Sheriff’ implying him to be the proper of-
ficer and specifically provides that the ‘Sheriff’ execute
the deed where property is bid off to the State. By im-
plication Art. 7330, providing that the Sheriff or his suc-
cessors shall execute deeds to purchasers of land sold
for default in payment of taxes, casts doubt as to valid-
ity of tax foreclosure sale and deed executed by a Con-
s table.
“The more serious question, however, is that of
the validity of the sales by the Constable on August 3rd,
1943, more than six months after the redemption peri-
od, made at the instance of the City of Mineola, purport-
edly under authority of Sec. 9, Art. 7345b which specif-
ically provides that the Sheriff make such sales. It ap-
pears to us that the holding of the Supreme Court in
t
Hon. Murray L. Harris, Page 3 (V-1058)
Little vs. Dennis, 187 S.W. 2nd 76, stamps these latter
sales by the Constable as void. Unless these sales can
be considered to have been validated by amendment to
Art. 7345b (Act 1947, 50th Leg., p. 1061, Ch. 454, Sec.
I), in our opinion the Tax Collector cannot legally issue
judgment receipts covering delinquent taxes involved in
these suits.
“Therefore, we respectfully submit the following
questions in light of the above facts and request your
opinion on them:
“1. Could the Constable legally execute the or-
ders of sale in these tax foreclosure suits?
“2. Could a Constable legally make the sale au-
thorized in Sec. 9, Art. 7345b, to be made at request of
one of taxing units concerned after six months after re-
demption period?
“3. If either of the above described types of sales
were invalid, were they subsequently confirmed and val-
idated by amendment to Art. 7345b (Act 1947, 50th Leg.,
p. 1061, Ch. 454 Sec. l), so that the Tax Collector can
issue valid judgment receipts for State and County de-
linquent tax liens foreclosed in these suits? ”
The first question, briefly restated, is: May the Con-
stable legally execute the order of sale and give a valid deed to the
purchaser at the first sale in a tax foreclosure suit. We think the
answer to this question must be in the affirmative for the follow-
ing reasons.
Section 7 of Article 7345b, supra, provides:
“In the case of foreclosure, an order of sale shall
issue, and, except as herein otherwise provided, the
land shall be sold thereunder as in other cases of fore-
closure of tax liens.”
Justice Greenwood, speaking for the Supreme Court,
said in the case of State Mortgage Corporation v. Ludwig, 121 Tex.
268, 48 S.W.2d 950 (1932):
““It seems to us not to admit of reasonable doubt
that the validity of the sale under judicial foreclosure
of a tax lien is to be determined by the rules govern-
ing judicial sales, and not sales pirely statutory and
summary.
Hon. Murray I,. Harris, Page 4 (V-1058)
Chief Justice Leslie of the Eastland Court of Civil Ap-
peals in the case of Love v. R. S. Allday Supply Co., 106 S.W.2d 830
(1937), in citing the case of State Mortgage Corporation v. Ludwig,
supra, as authority upon the same pomt, said:
“Further, it must be borne in mind that tax fore-
closure sales are governed by the same rules govern-
ing judicial sales generally. This is due to the statute
and authorities construing same. w
The Supreme Court has never departed from the law as
laid down in the foregoing cases. Judge Taylor of the Commission
of Appeals, in an opinion adopted by the Supreme Court in Gamble
v. Banneyer, 137 Tex. 7, 151 S.W.2d 586 (1941), said:
“It is settled in this state that the ‘decrees of the
district court entered in suits to foreclose tax liens are
supported by all the presumptions which uphold judg-
ments of domestir courts of general jurisdiction * * *’
and that the remedy is to throw around the owner’s right
and title ‘every safeguard furnished by due and orderly
judicial precedure,’ and to put ‘the tax sale, in consum-
mation of a valid judicial foreclosure, on the same plane,
with respect to collateral attack as other execution sales.’
State Mtg. Corp. v. Ludwig, 121 Tex. 268, 48 S.W.Zd 950,
952, 953.”
Prior to the adoption of the present rules of civil pro-
cedure Article 2218, V.C.S., provided, in part, as follows:
“Judgments for the foreclosure of mortgages and
other liens shall be that the plaintiff recover his debt,
damages and costs, with a foreclosure of the plaintiff’s
lien on the property subject thereto, and, except in judg-
ments against executors, administrators and guardians,
that an order of sale shall issue to the sheriff or any
constable of the county where such property may
dlrectmg him to seize and sell the same as under exe-
cution, in satisfaction of the judgment; . . ,”
This statute has been superseded by Rule 309 of the Rules of Prac-
tice and Procedure in Civil Actions adopted by the Supreme Court,
which rule is in part as follows:
“Judgments for the foreclosure of mortgages and
other liens shall be that the plaintiff recover his debt,
damages and costs, with a foreclosure of the plaintiff’s
lien on the property subject thereto, and, except in judg-
ments against executors, administrators and guardians,
t
Hon. Murray I,. Harris, Page 5 (V-1058)
that an order of sale shall issue to the sheriff or any
constable of any county of the State of Texas, directing
him to seize and sell the same as under execution, in
satisfaction of the judgment; . . ,‘*
Thus it is observed pbat the rule provides that the order of sale ’
shall issue to the sheriff or any constable of any county of the State
of Texas in lieu of the provision in the statutes which provided that
an order of sale shall issue to the sheriff or any constable of the
county where such property may be. The force of the statute and
the ru,le are the same in so far as applicable to the problem here
involved.
Concededly, in none of the cases we have cited above
was there directly involved the question of the coordinate power of
the sheriff and constable to execute an order of sale in a delinquent
tax suit. But we perceive no reason why the principle of law stat-
ed in these cases would not be applicable to the questions here con-
sidered. We have found no case, either under foreclosure of liens
generally, or tax liens, holding that a constable in executing writs
of execution and making sales thereunder does not possess the same
power and authority as the sheriff. The case of Little v. Dennis,
143 Tex. 582, 187 S.W.2.d 76 (1945), which we shall presently dis-
cuss in connection with our answer to your second question, is not
contrary in so far as first sales are concerned.
We believe the foregoing is sufficient to show that the
constable has the same power as the sheriff in executing an order
of sale and issuing a deed thereunder to the purchaser in tax fore-
closures as to the first sale, and you are accordingly so advised.
Passing next to your second question which, briefly re-
stated, is as follows: Has a constable authority to make a second
sale and issue a deed to the purchaser at such~ sale for and on be-
half of the taxing units purchasing at the first sale under the provi-
sions of Section 9, Article 7345b. We think the answer to this ques-
tion must be in the negative.
As to the sales made by taxing units after title has been
perfected in them by operation of law arising from the expiration
of the redemption period, a different situation prevails ~than that at-
tending the first sale. Section 9 of Article 7345b, supra, does not
purport further to deal with judicial sales, but prescribes the meth-
od, conditions, and manner of sales by the taxing units of property
previously acquired by the taxing units at first sales which they then
own and hold for the purpose of sale to collect the taxes owing to the
various participating taxing units in the suit.
The judicial power had ceased and come to an end upon
the final consummation of the first sale. Section 9 of Article 7345b
Hon. Murray L. Harris, Page 6 (V-1058)
merely prescribed the conditions and method of sales made by the
taxing units of property purchased at the prior judicial sale. Un-
der the terms of this section of the ‘statute, the power to make a
public sale in behalf of the taxing units is expressly conferred up-
on the sheriff. Nowhere in said section of the statute is the consta-
ble mentioned or is there any inference that he may have coordi-
nate power with the sheriff in making such sales. True. the stat-
ute says, “All sales contemplated herein shall be made in the man-
ner prescribed for the sale of real estate under execution, except
that they must be made between the hours of two o’clock p.m. and
four d’clock p.m.“; but this deals specifically with the manner of
making the sale and does not warrant the inference that the consta-
ble would have the same power as the sheriff. Whatever may have
prompted the Legislature to designate only the sheriff as the offi-
cer to make these sales, the Legislature undoubtedly had that pow-
er; and we are not warranted in adding by construction what the
Legislature has omitted.
The case of Dennis v. Little, supra, is direct authority
in support of the conclusion we have reached. Justice Sharp in that
case said:
“Whether such property is sold under the provi-
sions of Article 7328 or under the provIsIons of Sectlon
9 of Artxle 7345b, the sheriff IS the only person author-
ized to execute a deed conveying such property to the
purchaser thereof at such sale.”
Section 9 of Article 7345b deals only with second sales.
You are, therefore, respectfully advised that the sec-
ond sales made by the constable in behalf of the taxing units were
unauthorized, and the purchasers acquired no title thereunder. But
did the amendment to Section 9 of Article 7345b by the 50th Legis-
lature (H.B. 695, Acts 50th Leg., p. 1061), to which we shall now
turn in answer to your third question, have the effect of validating
such titles?
Section 9 of Article 7345b was materially amended by
the 50th Legislature (H.B. 695, 1. 1061). We think it quite evident
that the legislative intent in the enactment of House Bill 695 was to
accomplish a dual purpose: First, to clarify the law by specifical-
ly authorizing resale by public or private sale or property sold un-
der foreclosure for delinquent taxes and acquired by the taxing units
under the provisions of Article 7345b; and, second, to confirm and
validate such sales as had been made prior thereto but which thro,ugh
lack of an express statutory authority or erroneous construction of
the law had rendered such sales and the conveyances made there-
under invalid, even though the sales and conveyances were made by
the taxing units in the utmost good faith.
Hon. Murray 1,. Harris, Pa8e 7 (V-1058)
We are only concerned here with the validating portion
of this act, for all the proceedings with which we are here concern-
ed transpired prior to this amendment. Judge Atwell in the case
of In re American Rio Grande Land & Irrigation Co., 21 F. Supp. 492,
has well stated the scope of a validat.ing act in the following language:
“Validating, seems to me, to cure something that
was intended but which was done imperfectly. . . .
“Validate is a derivative of valid, and means to
make valid; to confirm. . . .
“These definitions presuppose antecedent facts
which, in themselves, though attempting validity, had
been insufficient to accomplish it. . . . ”
As said by the Superior Court of Pennsylvania in the case
of Petition of Miller, Appeal of Borough of Northampton, 28 A.2d 257:
“The purpose of a validating statute is to cure
past errors, omissions and neglects, and thus to make
valid what, before its enactment, was invalid.”
There is no reason why the Legislature might not have
designated the sheriff or constable, either or both, as the proper of-
ficial to make second public sales of land held or acquired by tax-
ing units in tax foreclosure suits, but it chose to designate only the
sheriff. What the Legislature may have legally done in the first in-
stance it may ratify, validate, and confirm by a validating act, such
as now provided in Section 9 of Article 7345b, supra. There is noth-
ing in this validating portion of the amendment to Section 9 forbidden
by the Constitution or public policy. It is expressed in plain and un-
ambiguous language, and we must give it effect as a valid act in the
absence of any constitutional provision to the contrary.
You are therefore advised that it is our opinion that these
sales, although made by the constable and not the sheriff, must be
treated as valid under the express terms of the validating act (H.B.
695, Acts 50th Leg., p. 1061), and that the tax assessor-collector is
authorized to receive the correct proportion of the State and county
taxes tendered by the City of Mineola, and issue receipt according-
ly.
Opinions Nos. O-6479 and O-7159 heretofore rendered
by this office, in so far as in conflict with this opinion, are express-
ly overruled.
Hon. Murray I,. Harris, Page 8 (v-1058)
SUMMARY
A constable has coordinate power with the sher-
iff to execute an order of sale in making first sales in
delinquent tax foreclosures and to make a deed to the
purchaser pursuant thereto, but does not have author-
ity to make a second sale in behalf of purchasing taxing
units as provided in Section 9 of Article 734513, V.C.S.
Only the sheriff may make such sales. The amendment
to Section 9 of Article 7345b by House Bill 695, 50th
Legislature, page 1061, has the effect of validating such
second sales made by constables. The assessor-collec-
tor is authorized to receive the State and county taxes
from the purchasing taxing unit as a result of second
sales by constables.
Yours very truly,
PRICE DANIEL
Attorney General
APPROVED: BY
W. V. Geppert Assistant
Taxation Division
Joe Greenhill
First Assistant
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