Untitled Texas Attorney General Opinion ( 1946 )

Hon. Geo. H. Sheppard
Comptroller‘ofPublic Accounts
Austin, Texas
Dear Mr. Sheppard: Opinion No.'0-7076
In Re: Does a purchaser in a tax
foreclosure sale take such
property free and clear of
the.taxes that became de-
linquent after the suit was
f llea?
In your letter of Jan. 29, 1946, you request the
oplnlon of this department upon the question contained
therein, whFch for the purpose of giving the facts upon
which our opinion is based we quote:
"The Delinquent Tax Collector for'Floyd County
filed suit forall delinquent taxes on a certain
piece of property In Floyd County up to and inclua-
ing the year 1942. The suit was filed in the fall
of 1943. The current taxes for 1943 became aelin-
~quentin February of 1944. The Delinquent Tax Col-
'lector in August, 1944, prosecuted his suit for
judgment without amending hLs petitlon or including
the taxes that became delinquent February 1, and
his judgment taken in August, 1944, aid not include
the taxes for that year.
"Everythingin the proceedings was regular, except
for that one particular. The property in this case
sold for the adjudged value which was less than the
totaliamount of del!nquent taxes against the property.
"Question: Was such judgment a valid judgment and
did the purchaser of said judgment take such property
free and clear of the taxes that became delinquent after
the 1943 suit was'filed?
"In another case the suit was filed after February
1, 1945, but before July 1, 1945, and the 1944 taxes
were not included in the petition in-this suit. Judg-
ment~was not obteined 5.nthis suit until after July
1, 1945. Would the same rule apply in this case?"
Hon. Geo. H. Sheppard, page 2 .o-7o;i
.
For the purpose of this opinion It is only necessary
that we consider your questions in the 1lghtYof the prod-
Qio``~of_Art+le 7345b or V. A. c. s. The last amendments
to Article 7345b were enacted by the 47th Legislature, and
are codified as Sections 2, 5 'and-10 in the pocket supple-
ment of V. R. C. S., page 147; Section 10 is the pertinent
provision applicable to the questions posed In your request.
.._ -- :
The validity of Article 7345b and the presently ex-
isting amendments thereto, and especially Sections 2, 5 and
10, Is no longer an open question. They have successfully
withstood all attacks, and the public policy of the State
emanating from these statutes Is now definitely defined ati
.well.understood. The primary purpose of this article was to
prevent multlpllclty of suits by the inclusion of all taxing
units in a suit brought by any one or more of such units,
ana In addition to this to afford purchasers of tax titles
security from a alversity of claims of numerous taxing units.
City of El Paso v. Fortl, 181 S. W. (26) 579.
Of.course the primary concern of a purchaser at a
tax sale foreclosingthe lien of the respective taxing units,
parties to the suit, is that the ~propertyso purchased shall
thereafter be free from the liens fixed under the Constitu-
tion and'the statutes to secure the payment of the tax.
-Sec. 10 of this article reads as follows:
"The purchaser of prbperty sola for taxes in such,
foreclosure suit shall take title free and clear of all-
liens and claims for taxes against such nroverts delin-
quent at the time of iudnment in said suit to anv taxlnq-
unit which was a Dart7 to said suit or which had been
.servedwith citation In sata suit as reauired br this
Act." (Emphasis ours)
Note that the statute says, "delinquentat the time
of judgment." We think this means just what It says, and
Includes all taxes delinquent at the time of the judgment,
whether embraced In the petition or not as to the taxing
units, parties to the suit or which had been served with
citation In said suit. We said In opinion No. O-2175:
"The County and State will lose their liens for
1939 delinquent taxes In those cases where they (tax-
ing units) are parties to a suit wherein a.judgment
1s taken that excluded the sala 1939 delinquent taxes
unde3 'theplain provlsion of Sec. 10 of Art. 7345,
supra." (parenthesisours)
.`` r
.
Bon:Geo. H. Sheppard, page 3 4-7076
.
We have not departed from that statement In any opinion
subsequentlywritten upon the subject; but to the above
statement should be adde&that the purchaser also takes
the property free and clear of all liens and claims for
taxes in those cases where they, the taxing units, have
been served with citation in said suit..
,The case of Mexla IndependentSchool District v.
City of Mexla, (Supreme Court) 133 S. W. (2d) 118, is
helpful ln~unaerstandlngthe problem involved in your
questlon, and from this opinion we quote: _.
."Werecognize that it is po~dslble.underthe act
in huestlon, for such-representatives, by their care-
lessness or otherwise, to fall to properly foreclose
the liens held by the 'taxingunits which they r~epre-
sent, but this is a danger inherent ln all e;overn-
mental functions performed.byhuman agents.
It is presumed that all public officials-w111honestly
perform their official duties, (Andersonv. Polk, 117 Tex.
73, 297 S. W:219; and Mexia Inaepenaent.School District v.
City of Mexla, supra) and these statutes.shtiuldbe construed
in the light of that presumption. A good falth,purchaser
.?maerthe mandates of Sec. 10; supra, has a right, we think,
to rely upon this well recognized presumption. We are not
to be understood as condoning derelictionand carelessness
of public officials in the performanceof their duties, but
such cannot be given the effect to override the plain terms
of Sec. lO;supra, that "The purchaser of property sold.for
taxes Ln such foreclosure suit shall take title free and
clear of all liens."
Since you state that everything ltithe proceedings
was regular except the omlsslon of one year's delinquent
taxes omltted from the petition upon which the judgment
was predicated, It follows from what we have heretofore
said th&the judgmentwas valid, and the purchaser under
sqld judgment took the property free and clear of all liens,
including the delinquency not included,which occurred after
the suit was filed as to the taxing units, parties to said
suit or which had been served with citation in said suit.
You state:
"In another case the suit was filed after
February 1, 1945, but before July 1, 1945, and the
1944 taxes were not included in the petition in
this suit. Judgment wa'snot obtaineh.lnthis suit
until after July 1, 1945. Would the same rule apply
:. .: : q
?
- . .
.
1
.
Hon. Geo. H. Sheppard, page 4 0-7076
in this case?"
The same rule would apply as in the first instake.
Yours very truly
:ATTORNEYGHNERAL OF iE.XAS
_.
By ah. P. Lollar
L. P. Lollar
Assistant
LPL:AMM:wc
APPROfW MARCR 15, l&j
s/Grover Sellers
ATTORNEY'GENERALOF TEXAS. _.
Approved Oplkon Committee BY $I@ Chairman
.