Untitled Texas Attorney General Opinion ( 1952 )

6 \
THEATTORNEYGENERAL
OF-TEXAS
PRICE DANIEL
ATTORNEYOENERAL
Hon. Dennis Zimmerman Opinion No, V-1393.
County Attorney
Swisher County Re: Effect on outstanding State
Tulia, Texas and County ad valorem taxes
of purchasing the land for
highway right-of-way for a
price less than the outstand-
Dear Mr. Zimmerman: ing taxes.
Your request for an opinion reads in part as follows:
“Swisher County is acquiring the right of way
needed to widen the State Highway passing through
the town of Kress, Texas.
:
“Some of these lots have back taxes unpaid both
to Kress School District and to State and County for
more than the value of the lot or the price that the
county should pay for the lots.
“In my opinion the amount paid the owner by the
county for any lot should be first applied pro rata to
the taxes due the State, county and school district.”
Based on the above you have presented the following
two questions:
(1) How should the award or consideration paid for
right-of-way needed by the State for highway construction be ap-
plied to taxes due by the landowner when the property is acquired?
(2) If the award or consideration is not sufficient to
satisfy all the taxes, how should the deficit be treated?
In answering your questions no distinction will be
made between property acquired by private purchase or condem-
nation proceedings. In either event the answer is the same. The
State is primarily interested in acquiring a clear title to the prop-
erty free from all liens or claims. and this includes tax liens.
The consideration or award should therefore be first applied to
discharging these tax obligations of the landowner between all of
the taxing units to which taxes are owing upon a pro rata basis.
If the award or consideration is sufficient to satisfy all the taxes,
Hon. Dennis Zimmerman, Page 2 (V-1393)
there remains no further problem. If it is not sufficient, the
State is nevertheless protected in its title freetand clear of any
tax liens, as we. shall proceed to point out.
Property bc .uired for highway right-of-wa,y by the
State is for a public pur$se. 20 C.J. 559, Eminent Domain, Sec.
43. T’his brings us to a consideration of the lien for the taxes
which attaches, to each tract, of land for the taxes a’ssessed against
it.’ Tex. Const. Ant. VIII, Se’c.~ 15; Art. 7172, V,C.S.; Richey v.
Moor, 112 Te%. 493; 249 SW. 172 (192 ). We assume that the
liensinvoived:to secure,the payment o 3,-the taxes, whether they
be in favor of the State, county, municipality ok school district,
attach by virtue of valid assessments. 1nState.v. Stovall, 76 S.
W.2d.,.206 (Tex. Civ. App. 1934, .eiror ref.), it was held that ‘“when
thereafter the legal title to such property is acquired by or vests
in the state, and the same is used by it for a public purpose, all
subsequent proceedings to collect’s,uch tax by enforcing such liens
are without effect and void.” State v. City of San’Antonio, 147 Tex.
1, 209”S.W,2d 756 (1948), is, to the’same effect’ add It was there
stated: ,
“Although the’state and county did have a’lien
against the lot for taxes due them while the lot was ,
privately owned by Barnes and other.s, the lien be-
came unenforceable ,after the city and school district
‘.
~acquired title to it by the tax saie in 1938 and while
they continue to.hold il?for public ,purposes; and the
lot, while so, held, was not subject to seizure and sale
to satisfy a judgment for taxes levied.by the state and
county during the time it was so privately owned; and
any proceeding~attempting ,to accomplish that is void.
State vf~ Stovall; Tex. Civ. App., 76 S.W.2d 206, error
refused;‘Childress County v. State et al., 127 Texr 343,
92 S.W.2d 1011; City’of Marlin vi State, Tex. Civ. App.,
r
205 S.W.2d 809.”
‘,So long, therefore, as the property is acquired for a
publi’c purpose, all prior tax liens for-taxes accruing during the
time’ it~wds privately owned a:re unenforceable. While the State is
protecfied against enforcement of the tax liens ,which become fixed
to secure the taxes accruing during the’period of private owner-
ship, .QriS does\ not mea’n tha,t the property owner is permitted to
receive the cons,ideratiod or award free’from the claim of the tax-
ing units for the taxes which have accrued against/the private own-
er. The fund arising from the consideration or the award is sub-
ject to the payment and discharge of the taaxks~which the private
owner owes or is liable fo,r at the time of the acquisition of ,title
by the.State. This is, fn effe t; the holding of the court in State of
Texas v. Moody’s Estate, 15 6 F.2d 698 (C.C.A. 5th 1946), and
expressed in this language:
Hon. Dennis Zimmerman, Page 3 (‘G1393)
“We agree with the appellants:
a.
. . .
“(2) That ordinarily any valid lien on lands
which existed at the time such lands were acquired
by the United States should,be satisfied out of the
compensation paid to the owner for the taking of
such lands.”
The same rule has been announced by the courts in
other jurisdictions. United States v. 412.715 Acres of Land in
Contra Costa County 60 F. Supp. 516 (N . D . C 1 1945); U ‘t d
States v. Certain I-‘ai&els of Land in City of iaitimore,?%?61
* .S~PP. 164 (D . Md . 1945) ; Umted States v. 111,000 Acres of Land
in Polk and Highland Counties, Fl a., . 683(CCA 5h1946);
United States v. Alberts, 55 F. Supp. 217 (E.D. Wash.‘1644), t
.. :
In the Alberts case, supra, the court said:
,a
. . o Regardless of the statutory change, the
lien had attached prior to the filing of the declaration
of taking. [Under Federal law this is the date that
the title vests in condemnation proceedings.] That
being true, the award stands in the place of the prop-
erty. . . .w
It is therefore apparent from the authority of t!?e fore-
going cases that the insufficiency of the award or consideration to
satisfy all the taxes does not have the effect of leaving the proper-
ty charged with the lien for the balance. The lien for all of the un-
paid portion of the,taxes becomes merged with the State’s title and
this precludes any further proceedings to collect the taxes by the
enforcement of the lien. We think, however, that the owner or own-
ers of the land against whom the taxes were assessed would be
personally liable for any unpaid taxes lawfully assessed, and that
it would be proper for the assessment rolls to continue to show
this personal liability against the owner or owners.
SUMMARY
Taxes on property acquired by the State either
by condemnation or purchase due by the owner at the
time of acquiring the title should be prorated between
the taxing units to which taxes are owing upon a pro
rtta basis from the consideration or award. If the
consideration or award be not sufficient to satisfy the
taxes, the State nevertheless acquired the property
Hon. Dennis Zimmerman, Page 4 (V-1393)
free from tax liens. The lien to secure the unpaid
portion of the taxes becomes merged with the title of
the State and the State’s title is free and clear of any
tax liens. Liability for the unpaid portion of taxes
continues, however, as a personal obligation of the
owner or owners against whom the taxes were as-
sessed and should be continued m the tax rolls until
the owner pays the same.
Yours very truly,
PRICE DANIEL
Attorney General
APPROVED:
L. P. Lollar
W. V. Geppert Assistant
Taxation Division
E.Jacobson
Reviewing Assistant
Charles D. Mathews
First Assistant
LPL/mwb