Untitled Texas Attorney General Opinion ( 1958 )

Honorable Davis Bailey Oplnlon No. WW-421
County Attorney
Panola County Re: Whether or not County
Carthage, Texas Assessor and Collector
of Taxes may lawfully
collect taxes, penalty
and interest from true
owner of property when
property has been as-
seased in name of
Dear Mr. Bailey: deceased former owner.
We quote from your request for an opinion a8 follows:
"Prior to 1947, Mrs. H. T. Dwyer owned and
rendered for taxes 50 aores of land in the
Elizabeth Lewis Survey, Abstract No. 385, Panola
County, Texas; and Mrs. Dwyer died intestate;
and the Tax Assessor of Panola County, Texas,
without knowing that fact, continued to assess
this property to her, and in her name, through
1957. In that ssme year, 1947, the heirs of
Mrs. Dwyer sold the property to A. G. Cassity
and F. H. Markey, who never rendered the proper-
ty for taxes. In 1954, Markey aold his Interest
to Cassity, and recently, Casslty sold the land
to L. F. Wedgeworth, Sr. The Tax Assessor-
Collector advised that the present owner offers
to pay the taxes, but refuses to pay the penalty
and interest. Although said land has been ren-
dered by the Assessor-Collectorin the former
owner’s name, the tax rolls carrying such asseas-
ments have been approved through all of the years
by the Commissioners'Court; and I also under-
stand that during all of the years, said proper-
ty taxes were not paid, said property has been
entered on the delinquent roll, and such delln-
quent roll has likewise been approved by the
Commlsslonera~Court. It seems that Mr. Wedge-
worth offers to pay the taxes on the supplemen-
tal roll, or on the unrendered roll, but does
not desire to pay the penalty and Interest ac-
crued from the last payment of taxes in about
Honorable Davis Bailey, page 2 (WW-421)
l947. Mr. Wedgeworth c~onfendsthat the assees-
ment against Mrs. H. T. Dwyer is illegal, because
she did not own any property in the Elizabeth
Lewis Survey during the year from 1947 through
1957.
"QUESTION: Whether or not the Aesesaor and
Collector of Taxes may lawfully collect penalty
and interest from the present owner, L. F.
Wedgeworth, from 1947, when the last taxes were
paid, for all of the delinquentyears up to date."
PROCEDURE FOR RENDITION AND ASSESSMENT
All property not exempt from taxation ,whichis owned or
held on January 1 must be rendered for assessment between
January 1 and April 30 of each year. krticle 7151, V.A.C.S.
While it is contemplatedthat voluntary renditions of prop-
erty are to be made, there are detailed provisions which
require the assessor to call at the office, place of busl-
ness, or residence of each owner for the pu ose of aecur-
ing a list of taxable property. Articles 71 2 9, 7191,
V.A.C.S. The assessor Is further required to take the
initiative and prepare a list of all property which Is not
rendered to him and assess It for taxation in the neme of
the owner, or, if appropriate,In name "unknown." Articles
7193, 7205, 7208, V.W.C.S. The asaessor is to be furnished
abstracts of all lands in his cou&y by the Land Office and
is required to list for taxation all land so shown to be
within the county. Articles 7194-7202, V.W.Z.S.
ERRONEOUS ASSESSMENT
Article 7171, V.A.C.S., provides that "All real prop-
erty subject to taxation shall be assessed to the ownera
thereof in the manner herein provided; but no assessment
of real property shall be considered illegal by reason of
the same not being listed or assessed in the name of the
owner or owners thereof."
The case of Victory v. State, 158 S.W.2d 760 (Tex.
sup.ct., 1942), held that nn erroneous listing of property
in the name of the predecessor in title did not Invalidate
the assessment. The case of Young, et al. v. City of
Marshall, 199 S.W. 1180 (Tex. Clv. App., 1918, no writ
history) is directly analagous to the situationunder con-
sideration. In this case suit was brought by the City of
Marshall against Margaret Wright for collection of real
property taxes for the years lgo6-1glo. The evidence dls-
closed that Mrs. Wright had died In 1902, and that the
Honorable Davis Bailey, page 3 (WW-421)
property had continued to be assessed in her name. The
city amended its petition to inalude the heirs of Mrs.
Wright and those who had purahased the property from suoh
heirs; the city also amended to claim taxes for the years
1906 to 1915. As to the olalm for taxes not barred by a
four-year statute of limitationsimposed by the Marshall
City Charter, the Court of Civil Appeals upheld the judgment
of the trial court awarding the city recovery for taxes,
penalties, Interests and attorneys' fees, with forealosure
of the tax lien. The judgment was made a charge upon the
property alone; no personal judgment was rendered against
the defendants. The aourt, in disoussing the assessment,
said:
the undlaputed evidence shows that
tke'pGo;ertywas assessed in the name of
Margaret Wright, who died in 1902. It is con-
tended that by reason of that faat the assess-
ments were invalid and will not etipporta suit
for recovery of taxes. Artiale 7527 (now
Artiale 7171) of the Revised Civil Statutes
provides thatr
*All real property subject to taxation
shall be assessed to the owners thereof in the
manner herein provided; but no assessment of
real property shall be consideredIllegal by
reason of the same not being listed or assessed
in the name of the owner or owners thereof.'
1, under 'the,statuteabove referred to,
e&h if'the'rewas az'error in listing the prop-
erty in the name of a person who was not the
owner, that fact alone Is not sufficientto
vitiate the assessment. Taber v. State, 38 Tex.
Civ. App. 235, 85 S.W. 835. There is no con-
tention that the descriptionotherwise given
of the land in the assessmentIs Incorrect or
Insufficient."
PENALTIES AND INTERESTS
Article 7326, V.A.C.S., providea for the institution of
suits for collection of taxes, penalties, Interests, and
costs. Article 7336, V.A.C.S., details what such penalties
shall be and provides in part:
"Penalties, interests, and costs aacrued
against any land, lots, and/or property need
not be entered by the Assessor and Collector
.
Honorable Davis Bailey, page 4 (WW-421)
of Taxes on said list, but In each and eve&-y
instance all such penalties, Intereat and
costs shall.be.and,remaina.statutorychar e
with the same forae and-effeut as if entere
-%I
on said list, and the Assessor and Collector
It Is clear, therefore, that once taxes become delln-
quent, penalties and Interest become and constitutepart
of the charge against the property. The Tax Assessor
and Collector has no authority to release or remit any
portion of the penalties and/or Interest so owing. This
authority is even expressly denied the legislature. Arti-
cle 3, e 55, Vernon's Annotated Texas Constitution.
FAILURE TO RENDER PROPERTY
The applicationof the rule that an erroneous assess-
ment does not render the assessment Illegal under Artl-
cle 7171, V.A.C.S., is not limited to cases where the
property was rendered for taxation. No distinctionIs made
in situationswhere the true owner rendered the property
and where no rendition was made, Starnes v. Bledsoe, 27.5
S.W. 2d 826 (Tex. Clv. App., 1953, Ref. N.R.E.) on motion
forrehear%; Young v. City of Marshall, supra.-m6'-
assessi% made in the case being treated was valid though
the property was not rendered.
PERSONAL JUDGMENT AGAINST TRUE OWNER OF PROPERTY
No personal judgment can be given against a taxpayer
for delinquent taxes on property prior to the time he pur-
chased such property unless he expressly assumes those
taxes. Henson v. City of Corpus Chrlstl, 258 S.W.2d 343
(9?;9?c1~i;-v2~sEL;9:35 refused); Starnes v. Bledsoe, supra;
. The property is, however, subject to
foreclosureAf the lien for taxes, penalties, Interests, and
costs in the hands of the subsequentpurchaser. Young v.
Cfty of Marshall, aupra; Starnes v. Bledsoe, supra; Henson
v. City of Corpus Chrleti, supra. See also Victory v.
State, 158 S.W. 26 700 (Tex. Sup. Ct., 1942),
The present owner of the property in question will
not be personally liable for the taxes, penalties or
interesta except as such taxes, penalties or Interest
accrued during his ownership of the property.
Honorable Davis Bailey, page 5 (WW-421)
SUMMARY-
-..,.
The Assessor and Collector of Taxes may charge
all taxes, penalties and Interest against the prop-
erty In question in the hands of the present owner.
The fact that the property was erroneouslyassessed
in the name of the predecessor in title does not
vitiate the assessment; this rule Is applicable even
where the property was not rendered for taxation.
No personal judgment may be returned against the
present owner for taxes delinquent prior to the time
he purchased such property unless he expressly assumes
those taxes; but a tax lien for all.past due taxes,
penalties and interest may be foreclosed against the
property. Any personal judgment will have to run
against the person who owned the property at the time
the taxes became delinquent,and the penalties and
Interest accrued.
Yours very truly,
WILL WILSON
Attorney General of Texas
JNP:db
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
J. Mark McLaughlin
Harris Toler
Riley Fletcher
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert