Untitled Texas Attorney General Opinion ( 1949 )

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April ~27; 1949’ ‘:
Hon. William S; Fly, Chairman
House Judiciary Committee
Fifty-first Legislature
Austin, Texas Opinion No. V-815.
,~:,
Re: The constitutionalityof
H. B. 484 to validate sum-
mary delinquent tan sales
previously.made by tax
collectors of counties, cit-
ies, and ~iithei ~gavernmen-
tal subdivisions. :
Dear Mr. Fly:
Your letter of April 12, 1949, is as follows’:
‘U
The Judiciary Committee ‘took up for considera-
tion H. B. 484 Monday, April 11, 1949,
“It is nay understanding that the City of Cleburne
and other &is’s have sold’certain properties for’ delin-
quent taxes under a 1931 Act of the Legislature per-
mitting summary sales.
“This legislation attempts to validate those sales
which I understand were declared invalid in several ’
decisions towit: Duncan,v. Cabler 21,5 S.W,Zd 155 and !
School District v. Mexia’l33 S.W.Zd 118,
“The Judiciary Committee asks you for your opin-
” io,n as to whether the Legislature has the power,to val-
idate th~ese summary sales t%ade under the invalid Act, ‘~
of 1931.~”
You thus present for the op’ini6n of this office the con-
rtitutfonality of H. D. 484, 5lst Legislature.
It has been definitely settled by the Supreme Court of
this State that since ,the effective date of Article 7320a,, V.%.S.,
Hon. William S. Fly, page 2 (V-815)
enacted in 1929, summary sales of real estate for delinquent taxes
are unauthorized. This statute is as follows:
“Section 1. 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 foreclos-
ure of tax liens in delinquent tax suits.
“Sec. 2. All laws and parts of laws in conflict with
the nrovisions of this Act be and the same are hereby
repealed.”
In the case of Duncan v. Gabler, 2,15 S.W.2d 155 (Tex.
Sup. 1948) Associate Justice Smedley said:
“The amendment of Section 13 in 1932 was not self-
executing. It contemplated and required lbgislation to
provide for ‘speedy sale, without the necessity of a suit
in Court’ . . . . There has been no such legislation since
the amendment was adopted. And since the Act of 1929
repealed all statutes then in effect that provided for sales
for the collection of delinquent taxes without suit and
foreclosure, there is now no statute authorizing the sale
of land for delinquent taxes except after foreclosure of
the tax lien in a court.”
It therefore necessarily follows that since the effective
date of Article 732ga, supra, which repealed all prior statutes
authorizing summary sales of real estate for delinquent taxes,
there has not existed in this State any statutory authority for sum-
mary sales. Summary sales made since the effective date of this
statute are therefore absolutely void, and pass no title to the pur-
chaser; add this regardless of whether a taxing unit or private
individual becomes the purchaser. Title remains vested in the
owner, unaffected by the sale or the execution and delivery of the
deed. This being true, we must hold that the Legislature does
not have the authority to validate summary tax sales which were
void at their inception. The Legislature has no power to pass a
law divesting the title to property out of one person and giving it
to another. Article XIV, Section 1, of the Constitution of the United
States, provides in part as follows:
1.
. . . nor shall any state deprive any person of life,
liberty, or propert without due process of law . , .II
(Ernphas~
Hon. Willtam S, Fly, page 3 (V-815)
Articl? I, Section 19, of the Constitution of t+ State of,.
Texas provides in~part as followst
“No citizen oflthis State shall be deprived of ., . .
, . except by the due course of the law of the
;;;~*:‘~ *
This bill violate8 both of the foregoing constitutional .pro-
vistons.
We are fortified in our conclusion by the .decislons of the
Supreme Court of this State and by th+Supremo Court:of the United
States.’ We direct attention to the case of .Eustis v. City of Henri-
etta, 90 Tsx. 468, 39 S,W, 567 (1097) in which a void tax sale was
Gi%lved, and the construction of a remedtal statute somewhat sim-
ilar in effect as this bill. The Supreme Court, speaking through
Asroclate Justice Brown, saidi
“If the sale was void, it was,,a.p If ne sale had been:
made i
4~ i Such a law, it upheld, world gtve to,a deed
which ;i void in itself, OD whtch is based upon, a void
sale, the ~effect to vest a good and perfect title in the
purchaser of the property,~ contrary td the provision
of section 13 of article 8 of the constitution, Ih so far
as article 51g, Rev. St. 1895, makes the payment of
taxes by the owner to the city, or to one who has pur-
chased at a void sale or claims the property under a
void deed, a condition predodent to his resisttng the
claim made upon his property under such void procead-
ing, it ir violative of the constitution of the state in the
several particulara befbrc mentioned, as well as of
section 1 of the fourteenth amendment of the conrtitta-
tion of the United States . . , 0*
Since the summary sale was made without authority of
law, the Leeislature could not divest title out of the then owner.
That would be a taking “without due process of law.”
The rule is stated in general terms in the case of Camp-
bell v. Holt, by the Supreme Court of the United States, 115n
?GTmpmq?
“It may, therefore, very well be held that in’an,
action to recover real. or pernonal property, where the
Hon. William 9. Fly, page 4 (V-815)
question is as to the removal of the bar of the Statute
of Limitations by a legislative Act passed after the bar
has become perfect, such Act deprives the party of his
property without due process of law. The reason is,
that, by the law in existence before the repealing Act,
the property had b&coma the defendant’s. Both the legal
title and the real ownership had become vested in him,
and to give the Act the effect of transferring this title
to plaintiff would be to deprive him of his property with-
out due process of law.”
We deem the foregoing sufficient clearly to show that this
bill ff passed would be unconstitutional, and you are, therefore,
accerdinply so advised.
~SUMMARY
Since the effective date of Article 732ga, V,C.S..
there has been no statutory authority In this State for
the sale of real estate for dsltnquent taxes by sum-
mary sa,les, and nuch sales are absolutely void and
pass no title to the purcharcr. The Legislature has
no constitutional power to validate such aales. The
same would violate Article XIV, Saction 1, of the Fed-
eral Constitution, and Article I, Section 19 ef the Cm-
rtitutlon of Texas. Duncan v. Gabler, 215 S.W.Zd 155;
Euatia v. City of Henrietta 90 Tex. 468, 39 S.W. 567;
Camp66Ilv.‘620.
Very truly yours
ATTOBNEYGENERALOF TEXAS
BY
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ATTORNEYGENERAL