Untitled Texas Attorney General Opinion ( 1959 )


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  •            THE      ATTORNEY            GENERAL
    OF     TEXAS
    Honorable Robert S. Calvert       Opinion No. WW-753
    Comptroller of Public Accounts
    Capitol Station                   Re:   May the Comptroller of
    Austin 11, Texas                        Public Accounts approve
    a certificate of can-
    cellation covering taxes
    which are actually de-
    linquent but which were
    not shown on a tax cer-
    tificate issued by a
    county tax assessor-
    Dear Mr. Calvert:                       collector?
    By two recent letters you have requested the opinion
    of this office on the above question. We quote your second
    letter:
    "This letter will give you additional information
    about an error that was made in compiling a Delin-
    quent Tax Record in Refugio County, asoutlined in
    a letter we wrote on July 16, 1959, but did not
    deliver to you until a few days ago. The first
    error in describing the lots as being located in
    St. Mary's Addition to the town of Bayside, Texas,
    was made in compiling two year supplements, begin-
    ning with the year 1919 or the first recompiled
    record covering the period 1919 to 193Li,inclusive.
    After a supplement or recompiled record has been
    completed and approved by the Commissioners' Court
    it is forwarded to this Department for approval.
    When a record has been recompiled It is used by
    the Tax Assessor-Collector until another record is
    recompiled in the County; see Article 7336f, Re-
    vised Civil Statutes. After the two year supple-
    ments or the record covering the years 1919 to 1934
    were completed the Tax Assessor-Collector of Refu-
    gio County wrote and filed with this Department
    recompiled records; one for 1919 to 1940, inclusive;
    another for 1919 to 1947, inclusive; and one for
    1919 to 1954, inclusive. The description of the
    lots in question was erroneously carried on the de-
    linquent records after the first error was made
    until the last record covering the years 1919 to
    Honorable Robert S. Calvert, Page 2     (Opinion No. WW-753)
    1954 was compiled. During the time the lots were
    incorrectly described on the delinquent record the
    Tax Assessor-Collector executed certificates cer-
    tifying that no taxes were delinquent on the lots
    in question in the original town of Bayside.
    "Article 7258a, . . .reads in part as follows:
    Bar clarity we quote more fully from Art. 7258aJ’
    "Section 1. On and after October 1, 1953, the
    Tax Collector or his deputy of any county in this
    State, or any city or political subdivision or tax
    assessing district within any such county shall,
    upon request, issue a certificate showing the
    amount of taxes, interest, penalty and costs due,
    if any, on the property described in said certifi-
    cate. A charge of not to exceed One Dollar ($1)
    may be made for each such certificate issued. When
    any certificate so issued shows all taxes, inter-
    est, penalty and costs on the property therein
    described to be paid in full to and including the
    year therein stated, the said certificate shall
    be conclusive evidence of the full payment of
    all taxes, interest, penalty and costs due on the
    property described in said certificate for all
    years to and including the year stated therein.
    Said certificate showing all taxes paid shall be
    admissible in evidence on the trial of any case
    involving taxes for any year or years covered by
    such certificate, and the introduction of the same
    shall be conclusive proof of the payment in full
    of all taxes, interest, penalty and costs covered
    by the same.
    "Sec. 2. ,If any such certificate is issued or
    secured through fraud or collusion, the same shall
    be void and of no force and effect, and any such
    Tax Collector or his deputy shall be liable upon
    his official bond for any loss resulting to any
    such County or city or political subdivision or
    tax assessing district or the State of Texas,
    through the fraudulent or collusive or negligent
    issuance of any such certificate.
    "As stated in the third paragraph of our letter of
    ~uly~16th our question is: Does this Department
    have the authority to approve a certificate can-
    celling the taxes that are actually delinquent
    because the Tax Assessor-Collector during the time
    the property was erroneously described on the cur-
    Honorable Robert S. Calvert, Page 3    (Opinion No. WW-753)
    rent delinquent tax records executed a certificate
    certifying that no taxes were due on the property?
    The certificate of cancellation form is prescribed
    and furnished to the Tax Assessor-Collector by
    this Department to be used in cancelling taxes
    that have been erroneously reported delinquent by
    the Tax Assessor-Collector, and the certificate
    after being prepared by the Tax Assessor-Collector
    is approved by the Commissioners~ Court and for-
    warded to this Department for approval. A sample
    of the certificate is enclosed.
    "We are also quite often requested to approve cer-
    tificates cancelling delinquent taxes where a Tax
    Assessor-Collector has apparently been negligent
    in checking his Delinquent Tax Records and has is-
    sued a certificate certifying that no delinquent
    taxes are due on a piece of property. In other
    words the Delinquent Tax Record actually shows
    taxes delinquent on a piece of property, but the
    Tax Assessor-Collector overlooks the delinquency
    and writes a certificate certifying that the taxes
    have been paid and at a later date he or his suc-
    cessor discovers that the taxes are due and exe-
    cutes another certificate covering the delinquency.
    From this statement of facts, does the Comptroller
    have the authority to approve a certificate can-
    celling the taxes even though they are actually
    delinquent?"
    You have given us the substance of a brief furnished
    your office advocating approval of the cancellation certifi-
    cate, which cites Arts. 7346 and 7347, V.C.S., in support of
    the proposition that such delinquent tax is unenforceable as
    against the real estate in the hands of an innocent purchaser
    who relied upon the erroneous delinquent tax record (previous
    to the latest recompilation), or upon the Assessor-Collector's
    certificate showing no tax due. Those articles read as
    follows:
    Article 7346:
    "Whenever any commissioners court shall dis-
    cover through notice from the tax collector or
    otherwise that any real property has been omitted
    from the tax rolls for any year or years since
    1884, or shall find that any previous assessments
    on any real property for the years mentioned are
    invalid, or have been declared invalid for any
    Honorable Robert S. Calvert, Page 4    (Opinion No. WW-753)
    reason by any district court in a suit to enforce
    the collection of taxes on said properttes, they
    may, at any meeting of the court, order a list of
    such properties to be made in triplicate and fix a
    compensation therefor; the said list to show a
    complete description of such properties and for
    what years such properties were omitted from the
    tax rolls, or for what years the assessments are
    found to be invalid and should be canceled and
    reassessed, or to have been declared invalid and
    thereby canceled by any district court in a suit
    to enforce the collection of taxes. No re-assess-
    ment of any property shall be held against any
    innocent purchaser of the same if the tax records
    of any county fail to show any assessment (for any
    year so re-assessed) by which said property can be
    identified and that the taxes are unpaid. The
    above exception, with the same limitation, shall
    also apply as to all past judgments of district
    courts canceling invalid assessments. Acts 1905,
    p. 318”
    Article 7347:
    "When said list has been so made up the commis-
    sioners court may, at any meeting, order a cancel-
    lation of such properties in said list that are
    shown to have been previously assessed, but which
    assessments are found to be invalid and have not
    hepn canne3.4 by any former order of the corn-..
    missioners.court:;?
    .;or;,by
    ~,~'deoreel:,rof;.;:any
    :L;~
    district court; and shall then refer such iist of
    properties to be assessed or re-assessed to the tax
    assessor who shall proceed at once to make an as-
    sessment of all said properties, from the data
    given by said list. . . .provided, that the certi-
    ficate of any tax collector given during his term
    of office that all taxes have been paid to the date
    of such certificate on any certain piece of prop-
    erty, which is fully described in such certificate,
    or if the tax rolls of any county fail to show any
    assessments against such property sufficient to
    identify it, and that the same was unpaid at the
    dates such rolls may have been examined to ascer-
    tain the condition of any property a8 to taxes
    unpaid, this shall be a bar to any reassessment of
    such property under this law for any years prior to
    the date of such certificate, or such examinations;
    provided, that the property referred to, when re-
    assessed, shall be held by an innocent purchaser,
    Honorable Robert S. Calvert, Page 5     (Opinion No. WW-753)
    who has relied upon the correctness of such certi-
    ficate, or the tax rolls heretofore referred to.
    Id."
    We do not believe that these two articles apply to
    situations such as the one under discussion, involving delin-
    quent taxes. These articles were intended to provide a
    method for the counties to tax property which had (1) esca_>ed
    taxation because omitted from the tax rolls or (2) on which a
    previous assessment had been found invalid. Neither such
    event has occurred here. Even should they be thought to be
    applicable, protection thereunder is afforded to innocent
    purchasers only in certain cases from a reassessment of prop-
    erty which had previously been Invalidly assessed, but not in
    any case where the property was omitted from the tax rolls.
    Attorney General's Opinion No. v-180. The present fact situ-
    ation would, if anything, fall wlth!~nthat category wherein
    there was an omission from the rolls~ (a search of the rolls
    would reveal no such lots listed in the Town of Bayside),
    therefore an innocent purchaser would not be relieved from
    liability for such taxes. These articles, then, furnish no
    basis for authority to approve a certificate canceling the
    taxes.
    We now turn to a consideration of the effect of Art.
    7258a upon this and, as mentioned in your last paragraph,
    similar situations.
    Art. 7258a was first enacted in 1929. Its provi-
    sions were specifically made applicable to counties contain-
    ing 210,000 population or more. (Acts 1929, 41st Leg., 2nd
    C.S., p. 153, Ch. 77) This deminlmus limitation was removed
    by amendment of the 53rd Leg. (1953), and it was thereby made
    applicable to every county in the State "On and after October
    1, 1953. . . .I' (Acts 1953, 53rd Leg., p. 1052, ch. 436, 811
    In substance, insofar as pertinent here, it otherwise remained
    the same. The constitutionality of the article was upheld by
    Amerada Petroleum Corporation v. 1010.61 Acres of Land, etc.,
    
    146 F.2d 99
    (C.C.A. 5th 1944)    In conformity with this
    decision and basing its'conclusion thereon, Attorney General's
    Opinion No. V-1143 (1951) overruled two opinions of this
    office written during prior administrations which had declared
    the Act in violation of two provisions of the Constitution of
    Texas. See Attorney General's Opinion No. 2780 (1929) and
    Attorney General's Opinion Book 383, page 394 (1938).
    In the Amerada case, the statute had been attacked
    as violating the constitutional provisions which prohibit the
    legislature from releasing any inhabitants or property from
    Honorable Robert S. Calvert, Page 6     (Opinion No. WW-753)
    payment of taxes (Art. VIII, Sets. 10 and 15) and from re-
    leasin any indebtedness, liability or obligation to the
    State ?Art. III, Sec. 55).   The question before the court
    was the liability of a purchaser who had relied upon a cer-
    tificate of the Assessor-Collector, showing no taxes due,,
    for payment of taxes which were actually delinquent.   In
    negativing a constitutional violation, the Court said:
    "The statute under construction here does not
    purport -to surrender -or release to anybod-
    xh t i          d           t is r-GE ?TiiGi&%-
    iX%a~,%&e%ot'o~e~ate           as a violation of
    the invoked provisions of the Constitution against
    releasing debts or obligations." (Emphasis ours.)
    "When the purpose of the statute in question
    here, to protect innocent purchasers against.'.I,
    secret liens, is considered in the light of its
    strong terms, completely avoiding all collusive or
    fraudulent certificates and making the collectors
    liable on their bonds for losses resulting from
    their collusive, fraudulent, or negligent issuance,
    it is quite plain that the Legislature did not
    intend to release or extinguish, the act does not
    have the effect of releasing, taxes."
    The court thereby upheld the validity of the statute
    by looking to Its purpose of enactment, that is, the protec-
    tion of an Innocent purchaser, who relies upon the correctness
    of a tax certificate, from,undisclosed tax claims. It oper-
    ates to import absolute verity to such certificate for the
    sole purpose of protecting this purchaser. But the act of
    issuing an erroneous certificate does not, cannot, erase from
    the record taxes which are actually due. The claim is still
    a claim. It may be enforced against the person who owned the
    property at the time such delinquent taxes accrued. Winters
    v. Independent School Dist. of Evant, 
    208 S.W. 574
    (Tex.civ.
    .   18)       dl 'd . Humble OiI & Refining Co. v. State,
    3Pg.W.2d 5jge$x.C``.Ap~.   192'0, err. dlsm'd. By its very
    terms, the statute declares the Issuing collector liable on
    his bond for the loss if the certificate was issued through
    fraud, c.ollusion,or negligence.
    It is a cardinal rule of statutory interpretation
    that the construction which would uphold a statute!0 conatl-
    tutionality should be preferred over an alternative which
    would render it void. Greene Y. Roblson, 
    117 Tex. 516
    , 
    8 S.W.2d 655
    1928); McKinney v. Blankenship,       Tex.
    
    292 S.W.2d 91
    (1955); 39 Tex.Jur., Statuteszc.     IllXG
    Honorable Robert S. Calvert, Page 7         (Opinion No. WW-753)
    declare that Article 7258a has the effect of canceling delin-
    quent taxes from the record would place it within that class
    of Acts specifically forbidden by the Constitution. Ollivier
    v. City of Houston, 
    54 S.W. 940
    (18gg), aff'd. 
    54 S.W. 943
    (1900) .
    You are therefore advised that the Comptroller is
    not authorized to approve a certificate canceling taxes which
    are actually delinquent but which were not shown on a tax
    certificate issued by a tax assessor-collector.
    What we have said necessarily also applies to the
    specific fact situation which you set forth, even though
    there was an error in the current recompiled delinquent tax
    record of the county at the time such certificate was issued.
    We do not pass upon the question of liability for these
    particular taxes. We merely point out in passing that Art.
    7336F, V.C.S. > places primary responsibility upon the tax
    assessor-collector to make or have made such recompilations
    of delinquent taxes, provision being made where he is unable
    to do so. We also point out that, if these particular cer-
    tificates showing no taxes due, were issued prior to October
    1, 1953, none of the provisions of Art. 7258a are applicable
    to the situation, since Ref'ugioCounty, according to ~the last
    preceding Federal census contained less than 210,000 popula-
    tion, the minimum required for the article to apply prior to
    that date.
    SUMMARY
    Where County Tax Assessor-Collector
    issued erroneous certificate showing no
    taxes due on certain property but in fact
    delinquent taxes were due, Comptroller of
    Public Accounts is not authorized to
    approve a certificate canceling such de-
    linquent taxes from the record.
    Very truly,yours,
    APPROVED:
    WILL WILSON
    OPINION COMMITTEE:                  Attorney General
    W. V. Geppert, Chairman
    Houghton Brownlee, Jr.
    JRI:bct
    REVIEWED FOR THE ATTORNEY GENERAL:
    By: Leonard Passmore
    

Document Info

Docket Number: WW-753

Judges: Will Wilson

Filed Date: 7/2/1959

Precedential Status: Precedential

Modified Date: 2/18/2017