Untitled Texas Attorney General Opinion ( 1945 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GROVERSELLERS
*Tm”“n Gcnr”*L
Honorable BFuoe L. Parker
County Attorney
oray Oouaty
Pnmpa, Texar
Ibar 8lrr Oplalon no. O-6848
Re, ~Whother pot-m
torest ou de
am a valid
the
a de
You have requeoted the opialon o
‘on the followlagSaotual
“The tax oollecto
his delinquent
emltles oud
oalorcm tax
ntorost are
ot ooat laue
<@&islon (Ls to Mhether s&h ‘,
ate are n valid lien analnat
t e pro rt or agalast *the e&ate of the-de-
08 sed 1 d wner.”
of the Ooastltutlou of ‘Zexea,
"The atuwal deseasmont made upon landed
property shall be a special lion thereon;
- _ end
all DfODerty. both rocll end uo~son~l. Dcroilp$n&
to any delinquent tnxveyynr shnll be llublctito
seizure and sole for the payment of all the
.-.. __..- ^.. ^” -.-_- .__.. ..-
231
Bonorable Bruc~e L. Parker, page 2
texes
and
=----T naltles due by such delinquent;
such property may e sold for the payment of
the taxes and penalties
and
due by such delinquent,
under uu$h regulations as the Legislature may
pr ovlde . (Bnphasls ours)
Under the deolrlon of the Supreme Court of Texas
in Jones v. Wllllanis, 45 3.W. (26) 130, 136, it was held that 1.
“section 15 of Article 8 of the Constltu-
tlon provides a desorlptlve legal term for ex-
actions which maybe imposed by the Legislature
Sor failure to pay property taxen, namely, ‘Den-
altles, I’a oommon-law term ,,lmplylng punishment.
The questlcnthere involved was whether or not In-
terest end penalties oonstituted a part of the tax which-
wature oould not remit by general law, in violation of
Seotion 56, Article 3, Constitution of Texas. The court held
thst lntsrest was a penalty end that gelther formed a part of
the tgx so es to pr,event their .reysaion by genaral lawi .
In the case OS City of San Antonio v. Toepperwlen,
104 Tax.’ 43, 133 S.bl. 416, the question was involved es to
- whether the provio5ons of Section 15 of Article 8. of thei
Constitution, supra, created such a lien aa.would attach to
s homestead despite the provisions of 3ectlon 50, Article 16,
of the Constitution. There was also involved the question
ss to whether or not the purchaser of a homestead belonglog
to a deoti.dent UDOOwhloh delinquent taxes. lntcrest end penal-
ties had aoorueh and who purchased suoh h&nestcad, subject to
the lien for all taxes which had accrued thereon, uas person-
ally, lla@le for the payment. of such taxes and penalties.
Th8 oourt ,held es followsr
“3eotlon 15 of article 8 of the Constltutlon
.of this state reads as follows: ‘The annual as-
sesament made upon landed property shall be a
speolal lien thereon, and all property, both reel
and gersonal, belonging to any delinquent tax-
payer shall be liable to seizure and sale for
the payment of all the taxes atid panalties due
by ouoh delinquent 1 and such property may be
sold for the payment of the taxes end pcnalt 18s
due. by suoh delinquent, under euoh regulations
’
#
. 252
Hoaornble Bruoe L:Pmker, page 3
as the ~&lalF&tuFe m8y pPOVld8.’ The plain nnd
: unmlatakable meaning of the language quoted sub-
.' jeots all landed property in this state to sale
for assessment of taxes lawfully made thereon
and for all pannltles provided by law which may
noorue ou account of delinquencies in the pay-
ment of such taX8S. 'All landed property' is a
comprehensive phrase, end the Constitution makes
no dlstlnotlon 8s to the use which ma be made
3 0r it. The language comprehends all 1 and8
whether it be 8 homestead or not. th3 pZ'8SUme
that it would Boot be contended that seotlon 15,
art. 8, Would not be suffloleut to make the home-
stend liable Sor the penalties if the Conatltu-
tloa did not contain seotloa 50, art. 16. . . i" r-,
After dit%poslng of the question of the validity of
the oonstltutlonal lien for both the taxes and penalties, the
aourt holds aa follows es to the personal lleblllty of the
QliPOh8lWr.I
I The purohaser of property lncumber-
8d Wit'ikOiloe always buys it subject to a pre-
vious valid lieu, but he does not, although he
mny express.the 8fSeot of his purchase la terms
by saying that he purchased It subject to the -~
lien, become per8Onally liable for the debt.
Onrss Y. &umond, 39 9.W.. 610.*
In the case of Rlohey, et al., v. Hoor, 249 3.W.
'172, 173, (Sup.) Chief Juetloe C\ireton, after quoting ‘&ctlon
15, Artiole 8, of the present Constitution, supra, end sirnil-
ar provlsioas of the Oonstltutlon of 1869, states es followat
'The dlfferenoe between these two provisions
1s apparent, but, in so far 88 a lien 1s given oa
lnnd for taxes,, the language used 15 aubstantlal-
ly identical, ehd in mo8nlng precisely the name.
Prior to the incorporation of the language uoed
in aeotion 20, just quotbd, with reference to a
lien on land for taXe8, in the Constitution of
1876, its meanin& had been definitely doolared
b this court. As used ln the Constitution of
18 69 it was held to mean that the lien provided
iOr ettnohed, not to the property Of the taxpayer
- --
-7- ’
!
f ’ 233
Ronorable Bruoe Li Parker, page 4
generally,but only to each separate tract or par-
cel of land for the taxes assessed agalnst'lt. ...
~.(Citing cases) By.lnoorporatlngthis language in
: 'the Constltutlm of,1876 wlthout~mtorlal'change ~.:
. '~or modlfloatlon, the people la adoptlng the Con-
" stltutlon neoessarllyadopted the oonetruotlon
.~ "."prevlously given it by the hlghest~court.ofthe -.~
state, and the language of'the present Constltu- '.."
tlon has the sama meaning which it had la that'
'of1869 as declared by the Supreme Court. ...
(Cltiug onses)'
Therefore, it la the opinion of this department
that the peualtles and lnttorestconstitute a lien against
the land, ilthoUgh the delinquent Humphry 1s deceased. How-
ever, such lien attaches only against the portloular tract
OS land upon which the taxes were delinquent, and does not
attach to other lands or property of tho sstate. In other
words, a lien sttachea against esoh tract of Land oalg for
the taxes, interest and penalties against it.
Benoe, there 1s no valid lien against the remainder
of the estate of the d&cadent, if any, unless the estate la
or beoomss insolvent, la whloh event Article 7269, Revised
Civil Statutes,.would be applioable. The entire estate of
the decedent la liable for any deflol8nog judgzeat which
might, exist rite~foreolosure sad aale of the landed
property for thq delillQU8Ilt t8.x8Unlldpennltles.
Very truly yours
. ATTORNEY GEMERALOFTEXAS
‘, .c
BY
Aeelstant'