Untitled Texas Attorney General Opinion ( 1944 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN.
Honorable George 8. Sheppard
Comptroller OS Pub116 Accounts
hl8tlR, TUXU
Dear sir:
MU h6V6 POW
l6tt , Ilr which you
6lrC1OU6 a COPY Of 8 16ttUr you, rrcal 3. II.
Ralsy, Assesror-Co1 J, ulth reference
to the dlrtributlon a tax sale 10
cost due 011 the
tt6r dated &In6
i0Wl faat8 6r6
n?aluy’8 16ttUr, as Sup-
, UP6 bri6flJa
by the State
of Tuxas
dlrtrlcts, filed a mm-
let court of uharton
066 tb6h’ tU lielli3. Judgmntr
the plaintiff8 f.or the aaouats
&?lU8 iRtUl’66t,, pU!lCLltJ aad 608t8.
16 VU lasusd alld iP 6OCUpliaIIC6
laarrd Va J ldvsrtixed and sold. Th6
property, in a0190 06868, uas prUraha86d by lrrdl-
ridualr vho paid 111Or6th8n th6 tU68, pUQalty,
tit6rUSt UId 606t dU6 OU the prOp6rty.
Your question is: What dlrpo8ltiorr should be R6d6
of th6 ex8sSa thus obtained? We pr66m6 that the tax 8alaa
to vhich you refer wee6 mad6 under the authority of jub@ents
IioaoraLle George ii. 3hepparC,, page 2
obtained In acccrdance with the prov?.aions of Article 73;i5b,
V6rn0a’S AMOtSCed Civil 3tStUteS.
Artlcla 7328, Revised Cirll Statutes of 1925, re-
lotlng to the disposition of the proceada received by the
shariif from the sale of land, sold under a Judgment Zore-
cloalng a lien for taxes, ;rrovldea in part, as follova:
0 and after tha payment of the taxes,
Interek; &x.``lt~ and costs adjudged against it,
the remfader of the purch886 price, if any,
shall be paid by the Sheriff to the clerk of
the court out of which said 6XeCUtiOn OX’other
flual proceaa loaued to bs rUtain8d by him Sub-
ject to the order of th6 court far a period of
tvo years, unless OthUrUiS6 ordered by th6 court,
aftur which tiIS6 th6 COWt rPay order the Sap)6
to be mid to the State Treaaurur, who Shall
hold 8tme In trust to be paid to tha owner
against whom said taxes uere aaaessed; provided
any on6 claiming the Same shall make proof of
his cLalm to the satiafaotloa of the 3tate
TruasU.rur Uithin thr6C y66P0 ait6r the Sale
of said land or lots, Sitter which th6 PUMB
Shall be goverued by the lav regulatlag US-
ChUat. . . .*
Arttalc 7328 ua8 6akaadud La 1927, and the words
we have above untieracored vtre omitted frca the bill au
passed by both houaca of the Ieglalatura. Said uorda uere
also omitted from the enrolled bill, and consequently from
the printed statutes. This omiSalou, bad same beea legally
done in accordance vlth the Conatitgtloa of Tex66* would
have had the effect of so amending tha Aat of 1927 a8 to
have caused same ts read as it aov appears in th6 prlatad
statutes of Sxas a6 Article 7328; lo other vorda, th6 lav
would nov be as same reads with ths words und6rraoruU by ua,
omit ted therefrom.
We have tad6 a CSrSfUl iIJv8stlgatlOn of the facts
surrounclug .&his omlsslon, and of th6 lar applicable there-
to. And from the applicable authorities we eW6 of th6 Qpin-
100 that this omls%ion of the uadaracored words from the
amendment of 1927 was of no legal force or effect, and that
Honorable George EL Sheppard, page 3
40
the under8cored vordr, ootvIth8teoding their omission from
the ameudatory act of 1927, cemeln, and mey be properly con-
sidered, a psrt of said lav.
We are forced to Mid conalusloa by the following:
The ceptiorr of said actr yof 1927 reads
lma nda to
es follovs;
*Aa Act to emsod Article 7328 (7689) of the
Revfred Civil Statute8 of 1925, vhIch Article r’b
late8 to and providea for proceedlugs ln tax 8uIta
atad the mallper provided by lav In ordinary fore-
olo8ure auIta Iu the dlatrlat aourta of th18 atatet
end vhiah Amendment to aeld Artiole 7328 provide8
that sales contemplated la tax foreclosure suits
shall be mede In the memer pzeacrlbed for the
8ala of real eatete under execution; and dealar-
lag an emerge~cy.~ (See lava of Texea 1927, Ch.
99, pa 260).
Au In8peotiou or eald title, or aeptiou, diraloaea
that the purpose of the amandatory sol, aa dlaaloaed by said
title, I8 the SIMiIE PURPOSE of proridlllg “that ulea con-
templated ia tax rorealosure auita ehall be made in the
!nenner prescribed for the aale of real ertate under exeau-
tloa.’
Said caption in uo rap mentiona or indlaatea any
purpose to amend the statute a8 the same vould rtand amead-
ed If the vorda underscored by ua vere left out of the lav.
We thua have berore u8 l a ituetlo n here ao a&sad-
etory aat expreiraea a purpo8e, In it8 oaptlon, to aaend a lav
in one SpeCifiC partiaular, thua 1imItIw the emendmaut to
that particular, but ootvlthstandiag thi8 lIaItatIon In the
caption, then etteapting to further mend the lav by the
omI88loa therefrom of a provl81on not meatloaed la the cap-
tion, and not germeae to any purpoae rumad In the oaptlon.
The rule of comtructlon applicable to thla 8itUa-
t1On 18 a8 fO;llOVS:
“Although an act mey be amended In aaj ger-
mane particular by an emendetory act, the title
of vhlch merely refers to the act or article
8OU.ght to be emended vlthout 8peCifyiUg In uhat
the CUIIendnSXIt
COn8iSt.8, y6t vhen such title 8t8ce8
the perticuler respect la vhlch the emendment
CoDslst8* any amendment not germme to that spe-
clfled 18 Invalid aa being repupenti to the Ia-
v3bed constitutional provision. (388 Rutlege,
et al. v. Atkinsc~, et al., 101 S.W. (2d) 376;
Ward Cattle end Pasture Co. v. Carpenter, 200
S.W. 521; Arnold v. Leonerd, 273 3.W. 7998
Texas-Louislane P. Co. v. Parneravllle (Tex.
Corn. App.) 67 3.W. 2d) 235~ EX parts Heart-
sell, 38 S.U. (2d) Lo 3; Landrum V. Centennial
Rural sigh School District go. 2, 134 S.W.
(2d) 363; Also see 39 Sex. Jur , rectloa 48,
end the ca8ea therein cited and In the aup-
plentents thereto; also see CcastiCutica of
Texas, Article 3, section 35).
It la pleln to ua that th8 omlsrlon referred toby
us is, under the authoritlea above citea, void end of no ef-
feat under the Conatltutioa of ?eULS, said omiaalou not be-
ing germane to the purpose of the amendment am aame was ex-
pr8888d in the captloa of the ameadatory Mt. It aeceaaexIly
follows that the omitted vorda (which ve have underscored
above) remela end are a pert of th.8 lav, notvlthateadiog
their 8eId onlraion from the aateodatmy act 0r 1327.
We &e fortified In the aonalualon juat atatia by
the decl8ion of the Austin Court Of Civil Appeala in the
ce8e of Booty, et al. v. State. Thl8 decision was rendered
la February of 1941. The opinion vaa urUtsn bg Mr. Justice
Blair. In the Booty ce8e, the court 8aid that the sole
question In the ca8e InV01~88 a aoaatruation Of Art. 7328
and the method8 of sales of property for taxea therein pro-
vlded.” IO the oplnioa, the court construed said Article
7328 to be end read es VB hava construed It in thla oplolon
to be end to read. The court, iP comment&g upon the provi-
sion of 8ald Article 7328, la pert saldr
” . Vh8r8 there are blddar8 for the prop-
erty dd*it 18 sold for more thra the amount 0r
the taxes, the excess Shall be depo8lted vith the
42
Honorable 'George H. Sheppard, page 5
clerk of the court pendlq the tvo gear period
for redsmptlon OS the lmd by the ovaer, to be
disposed of by the jUdpeAtj that IiAless it i8
redeemed vlthln that tire, then the clerk shall
depO8It the exce8a vlth the State 'Trea8urer, vho
ahall hold It In trust to be paid to the ovner
agaIa8t vhoa aald taxer v8re 888688ed, provltded
such ovner or the one olaIailllg the same ahall
meke proof of claim to the 8atIrractfoA of the
Treasurer vlthia three yeara after the sale of
the lead, after vhfah tf&e the fund is subject
to the lav of e8ahut.” (See Booty, et al. ‘1.
State, 149 S.W. (26) 216).
Hr. Ju8tlce Blair, IA said opinion, lrsigned Ao
reaaone for treatlog the rorda omitted from the 1927 uend-
meat aa beiag 8till a pert of the hr. But ve cannot ae-
sume that the Court of Civil Appeals 80 did vlthout good
reason. Rather, Ye shall am.vae that the aourt vaa Impelled
to ita aonclusion by the ame line of reasonlag vhlch her
guided w to the 8a.m conaluaIoA la thla opInIaa.
In 1937 the Legislature eluoted addltlmml legia-
latlon relatlq to the colleatIoA Or delinquent tuea Qhlch
la aov Article 7345b, V.A.C.S. IA regard to the diapoeItloA
of the exCe88 emount of money reoelved from the “float aale"
vhere the purchmer la other then a tulng uAIt, Seation 8
of the Act provIdesI
"Bo property aold for taxer uader decree IA
such 8Uit Shall be sold to the OYAOr Of raid prop-
erty, directly or Indirectly, or to anyone having
an lAtereat therein, or to any perty other than a
tulng unlt vhiah la a perty to the rult, for leaa
then the amouat OS the adQudged va luelforeaald of
said property or the &ggregatO UlOuOt Of the JUdg-
menta against the property la said rult, vbichever
18 lover, and the net proceeda Of any 8810 Of such
property racrdeunder decree of court IA lald rult
to cay perty other thm any rush tulRg Unit ahrll
belong aad be distributed to all t-IA& unit8
vhich
are parties to the ault vhlch by the judslaant IA
8ald suit have been found to hare tax lleaa *what
-
Honorable George H. Sheppard, page ci
43
such property, pro rata and ln proportion to the
mnouncs of their respective tax liens aa sstab-
llshed la raid judgment, but any excess lo the
proceeds of sale over and above the amouat aecea-
sary to defray the cost8 of suit and sals and other
experwes hereinabove erade chargeable agalnat such
proceeda, and to fully dlraharge the judgments
agaiasc aaid property, shall be pld co the portles
legally entitled to uuch exceaa.
3actlon 13 of the Act provides:
“The provisiona of ihls Act shall be cumula-
tive of and in addition co all other rights and
reaedler to which any taxing uolt may be entitled,
but as to any proaeediug brought under this Act, Lf
any part or portion of thl8 Act be in conflict
u1th say part or post%oa 01 aup law of the State,
the terms and provisions of this Aat shall govern
ae to such proceed3ng. Phe pr9vlsLoas oi Chapter
10, Title 122 of the Revised Civil Statute8 OS
1925 shall govern malts brought under this Act ex-
cept a8 herelo provided.’
In view of the $r9vlaloa8 of this aectloa it be-
comer apparent that Article 7328 aad Article E&5b should be
read and construed together. Section 8 of Article 7345b
provider, simply, that la thw case of any exams in the pro-
ceeds of sale over and above the amount necessary to pay the
cost of suit and sile and other expeaser and to fully dls-
charge the judgzeata against said property it shall be pld
to the parties legally cncltled to such excess. To determine
who Is legally entitled to such excey we must refer to
Article 7328. By the provislonu of that Article, ve flnd
that the sbcrLff must pay the exaeas tr, the Clerk of the
Court out of which said executlca or other final process is-
sued to be retainod by hire, subject to the order of the Court,
for a period of tvo yeam, mless otherwise ordered by the
Court, after which time the Court may order the saae to be
paid to the Stats Treasurer, vho rball hold the 8)Me la trust
to be paid to the cvncr against vhom aald ;axea were assessed;
provlded, any one claiming the ‘same shall s&e proof of bia
claim to the satisfaction of the State Treasurer withlo U-see
years after the sale of aald land or lofa, after vhlah the
aame shall be governed by the 1aU regulating awheat.
44
Eonorable George H. tieppard, page 7
We believe the procedure outlined above .fs to be
followed In all Instances where the sfieriff has an excess
of money derived from the “first sale,’
In regerd to the disposition of exceaa funds col-
lected where the property is. bid i;1 by one of the taxing
units at the “f,lrst sale* and held for the two-year period
and later sold at the “second sale,” we refer you to thle
department’s Opinion Ho. 0-6OG0, copy of uhlch is enclosed.
‘Trusting this Sully answers your inquiry, me are
Yours very truly
By Ax?. 4-d
ii. 9. Bob
biBD : db
Enolosure