Untitled Texas Attorney General Opinion ( 1942 )

OFFICE OF THE AlTOtiNEY GENERAL OF TEXAS
AUSTIN
Honorable Shelby X. Long
Aarirtant Dirtriat Attorney
Beaumont, Texar
Dear Sir; opinion Ro. O-4 58
Rer Whether OP$\ et an independent
rsuant to a tax deed
e than the 8tatutox-y
of redemption.
U8 on 8 ntlmber: of pleoer
Xo other tax- sge~eles
08 to the suit and they
owaloaing thi iian, ‘ikeout-
ty sbld at a Sherlff’r eale,
*The attorney for the lndepsndent school Dietriot
In Port Arthur 08m Into oourt and filed a mation ln tha
ori&nal atit arkiag the Di8triQt UouTt to order the
sheriff to 8611 thio property for the Port Arthur Inde-
pendent School Dietrlct at a Sheriff’8 8ele3 ueld order
: Honorable Shelby K. LOW, Page 2
was delivered to the Sheriff, and the Sheriff quea-
tloned his authority to sell the property a second
tine under the original executions; therefore, it was
referred to this office. I advised the Sheriff, as
well aa the District Judge, that in my opinion the
Sheriff has no authority to sell this property at a
Sheriff's sale after Its havin& been parchased at a
Sheriff's sale by tha Port Arthur IndefiendentSchool
District; therefore, the District Judge directed the
Sheriff to hold his order in abeysnce until further
orders of the court. This question beins an lnterpre-
tation of the statutes, I am asking for an optiion
from your department for the proper procedure the In-
dependent school dlatrict should follow in selling
property alter it has been held by them aa purchasers
of the Sheriff's sale and foreoloaure of the tax lien
and execution thereunder znd held for a tit-eexcoedlng
the statutory requirements, to-wit: tvo years and six
ilonths."
Article 2791 of the Revised Civil Statutes of Texas pro-
tides :
' * + l provided that in the enforced collection
of taxes the Board of Trustees shall perfom the du-
ties vhich devolve In such cases upon the aity council
of an Incorporated city or tovn, the president of the
Bcmd of Trustees shall perform the duties which de-
volve in such cases upon the mayor of an lna6rporoted
city or tovn, and the county attorney of the county in
which the Independent school district is located shall
perform the duties which In such cases devolve upon
the city sttorney of an Incorporated city or toarj:
under
the provisions of lsw applicable thereto. l l l
We have been unable to find any case conatru the provisions of
the st%Wequoted above.
Article 7337 of the Revised Civil Statutes of Texas
provides:
"Any Incorporated city OP town or school district
shall hsve the right to enforce the oollectlon of de-
llnquent taxes due it under the provlaFona of thla
chapter."
Honorable Shelby X. Long, page 3
Artlole 7343 OS th6 Revised Civil Statutes provldesr
v l s l Independent school diatrlats may collect
thelr,delinquent taxes as above provided for oltiea
and towns, the school board perfomlng the duties a-
bove described for the eovernlng body of oltlea, and
the president of the school board perEomlng the du-
ties above pprssorlbed for the mayor or’other presiding
0friOt3r. The school board may, vhen the delinquent
tax lists and other reoorda are properly prepared and
ready for suits to be filed, lnetruut the county attor-
ney to file sald sulta. Ifthe school board lnstruots
the county attorney to file said suits and ho falls ox+
refuses ta do so vithln slxt$ days the school board may
employ some other *ttorney of the county to file suit.
Thti aouuty Bttorney, or other attorney, filing tax .aulta
for independent school dlstriota, shall be entitled to
the same fees as provided by lav in suita for State and
county taxes. Ho other county officer shall receive any
fees unless servloee are actually performed, and In t&at
8V8nt he shall. only receive such Sees as are nov alloved
hlx by lav for similar aervlcee In civil suits. The em-
ployment of an attorney to file suit for te;xee for oltlee,
towns or Independent sohool dlstrlcts ahall author&e
said-attorney to file said suits, wear to the petitions
and perfoma suoh other acta as are necessary In the ool-
leotlon of said taxoe.
‘All lt%WOf thh3 St6te for the p``p056 Of OOil6Qt-
ing delirguent.m3tate and county taxes are by this lav
made avtrllabls for, awl vhen Invoked shall be oRplIed
to, the oolleatlon of delinquent tares of cities and
towns and independent sohool districta In so afar as suoh
lava are applloable, ’
From the fact8 submitted by you In your rquest, ifa aon-
olude that the lndep~endent school dlstrlot has proceeded up to the
present time under the rtatutory prooedure authorizing the state
and aounty to bring suits fox delinquent taxes, obtain judgment
therefor and authorlzlng the sale of suoh property, all of vhleh
1s provided in Chapter 10 of Title 122 of the Revised Civil Stat-
utes of the State of Texas.
'honorable Shelby IS, Long, page 4
Chapter 10 of Title 122, I)uprfiB, epeclfloally deals vlth
"delinquent taxes.' The statutes therein founds se8m to be ooa-
plete, within themselves, or by rpeclflo reference to other appll-
aable statutes, ooncernLng the proaedure to be folloved by the
reepeotlve taxiag authorltioe and offlolals oharged vLth the duty
OS aolleotlng itate and county delinquent taxes. In this same
Uuapter is found Artlolee 7337 and 7343, a ra, vhloh, evidently
vexw meant to oonfer the saw rlghtr, prlvi "p eges and make available
the same prooedum for the benefit of oltles, towns and villages,
incorporated under the general lav, as veil a6 upon independent
eohool dlstriots, .lnsofar as the lava for suoh purpose, for the
benefit of the state and tounty, are applicable. If the provl-
slons of Chapter 10 are appliuable to Independent aahool diatrlota
and such districts oan properly avail thenselves of the procedure
therein pyovlded, then ve think Artlole 7328 of said Chapter 10,
supra, v1l.l ansver your question. The caae8 that have arisen in
the.oourte might be of some help in arrlvlng at a oonulusion on
this point.
In Duoloa vs. Harris County, (Co& App.) 298 9. Y. 417,
Barris County sued to reoov8F from Duolos, Dletrlot Clerk, exaess
'sea oharged by him in tax suita flled vith th8 Clerk vhiah suite
me fo~'taxes other than atate and oounty. The lame ‘~88 vhether
the Distrlot Clerk aould charge larger fees in rush suits than he
oould charge Ln regular state and county tax suita. The sourt said8
"In 1895 th8 Legislature ensated a statute mak-
lag provision for oolleotlon of delinquent, eto.,
et&s and cormty taxes; the statute van largely re-
written, and ita provision paada available to oities,
tome and sohool diatriats, in 1897g It was later a-
mended fir various pa??tlaulars, and its present fom
;g2hapte* 10, title 122, artiolea 7X9-795, R. 8.
IA artZole 7337 (o~iglna1l.y emoted in 18%‘) it
Is piovlded thatr
“*Any inoorporated oity or tom or sohool distrlot
&all have the right to enforce tb8 oolleotlon of de-
llnquent taxes due fh under the provisiona of this ahap-
ter.I
*And in artlcrle 7343 (enaoted In 1920 and amended
ln 1923) it is provided, inter alla, that:
“All lava of this state for the pumose of aol-
'lsatlng delinquent state and county taxee are by this
Honorable Shelby X. Long, page 5
lav made a*%lable IQ& and vhen invoked shall. be
applied to,‘the Oolleotlon of delinquent taxes of
altlea and touns and lndepeadant sabool dlstrlota
in 90 fau a8 suoh lava or0 applloable.’
‘Those provlsl~na gave thy authdtlty for t&e
sults~ out of vhtoh this oontrov~rsp arose. The chtlp-
~gGo~dn, bOa8me l~vallable for’ and, having been
1 t must ba apgllad to’ the subjeot matter
in 00 rar a8 relevant.
IR the oaf88of Dill va. City of Rising Star (Corn.. App,)
298 8. W. 41 , it vae held that in view of Article 7363, Articles
7321 wd 733i of the Revised Civil Statutes of Texas are made ap-
pllaable to oltles, 80 that ln an aotlon by the city for delinquent
taxes the ourrent tax roll and d8U.xiquOnt tax list prepared by the
olty Oounoll and aertlfled to as oorrect by the mayor nake a prUa
faote 0~843 as to the Fegularlty of esse8slng and levying the taxes.
In the 0ae.e of City of San Antonlo vs. BOrry, 92 Tex.
119, 48 s. I?. 496, the court oonsldered the pr~vislons oreArticle
7337 (vhlah var~then Artiols 52324, R. da s., 1895, t&.x& seotlon
11 of Lava, 1895, p. 53) and tha oourt ialdr
*Ia our opinlan, Siotlod 11 was not intmded to
take aitay: th0 exmmq authority given to any olty by
apeolal charter to bring an ordSnary ault to r&aover
its taxes. It0 purpors was merely ta authoriza altlOs,
tovna and school dlrtrlots to aooept the bctnefitr of’
th16~.~8Ot, shOuld they me propefl to ~I'OOSde ia tha man-
ller pointed Out theraln. ~+ l l
corporated olty and the 0-t lllcmrlee dlsouesed the enoral pouer
OS an lnoorgtorated oity, tovn, or IiuIepewlmC mhoal tl ttrlot to
manage its tax arraira. We quota from the opl~lonc.
n l * l obviously, this statute (Artiale 7335a)
has speolal appllcatlon to oontraots sntmed into by
Cormisslonerrt Court8 of countlea for aolleotion of
morable Shelby IL. hong, page 6
state and aounty tmsa, and has no beerIn& vhatever
on the right8 of altlsa, towne, and school dlstrlatrr
and other munloipalitlee, tmoept ea a oumlative pro-
vision authorized by artiole 7337, wadingr 'Any ln-
oorporated oltg or tovn or school dlotplot shall have
the right to enforus the colleotloti of delinquent tax-
ea due it uader the provZslone of this ohapter.’ Such
art1010 rar not intended,to take avay t@e authority
given to aitlea, tovne, and +ehools by speclalcbartera,
or othervise, to bring au ordinary suit to reoover
taxea and niake contraota for the asllectlon thereof.
Cities, towns, ad aohool districts have the rfght to
we and be sued, oontreat’and be oontraatsd vith and
donduot and aontrol all of its affairs, particularly
their Slmnoee and taxes.’
In the case of City of South Iioueton VII. Dab&w, (Corn.
~pp.) 120 3. tl. (Sd) 436, t5e oourt held that under the provision8
of Article 7343 the City OS 5outh Houston could contraot vlth an
attorney to collect its delinquent taxes and that in view of the
5pol.Plc limiting provisions of ‘the statute, relating to the com-
aaatlon of rruch attorney and llmltlng his componsatlon to the
A.IQ~ Seer as alloved the oounty attornoy or dlatrlat attorney ln
malts for colleotlon of stats and county taxes” the g&era1 oon-
aludlng paragraph of such statute did not authorize the exeoution
of a oontraot for a percent of the taxes, penaltier and intere8t
aolleoted 88 oontemplated In Artlalb 7335, Revieed Oivl.1 Sktutes
of Tam. The oourt made this observation:
“With referenoa to the language oontalned IR the
conoluding clause of this Article, it may be coWeded
for the purpose of dlaeuasion that such languag& stand-
ing alone, ia ouffloiently broad to bmbraab any.i$uthor-
lty provided by mme other statute for the ampl’oynent
au6 compensation of an ‘attorney for the oolleotlm of
state and county taxes whloh are deliuquent$ but hov- c
ever thla may be, * l + .”
ge of Bell VU. #+mSleld lnde endent Who01 Dls-
trlot, (Cc&? A%. pQ133 Tex. 403, 129 s. Y. (26) i&3, lb MB held-
that the ruling ia the Dabmy oafid, nxpra, YES not ampl.ioable to
oaupensatlon allowed la o&ntraots exeouted by FLUindependent aehool
dintriot tith an attorney to oolleot delioquent taxoa aad that the
provlslons of Artlole ‘T)35-a of the Revised Civil E+QtUte8 OS Texas
vas eppflaable to such aontraota. The oourt said, vlth reierenoe
to Artiole 7343, suprat
xonorable Shelby II;. Long, Fag! 7
‘Artiole 7343, It. $5. 1925, deals speolfioally
vlth the question before un for deolslon. l * *
“Rttfrrrlng baok to the partlons of Artlole 7343
above ab$Led, it vi11 be observed th+t oitler and in-
&gend~.tes~l dlstriots are dealt*vlth separately
Independent sohool distrlotir may lav-
fully o&ract to pay the fees provided by lav ln suits
for state and county ts;nea. * l l
’ l l* By the oonaludlng eentenoe of Artlole
73’13, above quoted, all lavs of thle state for the pur-
pose of collecting delinquent state and county taxes
shall be applied te the oolleotlon of delinquent taxes
of independent school $l)istrlots In so far as such lava
are applicable. * l l
Prom a oon6lderatlon of aald Articles 7337 and 7343,
supra, and the aonstruotlcns plaoed upon them by our ocurts, ve
have no doubt but that an independent sohoal dlstrlot may prooaed
to oolleot its delinqtlent taxes aooordiq to the exlstlng law
provided for the atatb and eaoaty to oolleot their delinquent tax-
It follcws, therefore, that it is our opinion that the avall-
%ie statutory prooedure provided ior the state and oounty in suoh
suits may be adopted and lollcued by an independent sohcal dlstrlot
lnaofar us the fwm? 1s ap lloable to its cvn oolleotlcn. Ub aed no
valid reason v& the pnov Pe&oar o? Artlole 7328 of Chapter 10 of
Title 122, supra, are not applioable and oeuld not be ioUoved by
the sohool distrlot ln your partloular care. The pertinent part of
that statute provldest
’ + at * Zf any of the land thw rold to the State
tr not redeemed vithln the time preaoribed W this lav,
the sheriff shall sell the saute at pub110 cutory to
the higheat bLdde* for aash at the p~4~olpal entramoe
to the oowt house in the oounty vhsrsln the land lies,
after &lvlng notloe of ssle in the manner ncv prb-
aoribed for sale of real estate undelr exeoutlon, prc-
vided when nctioe 15 given by porting notl~es, one of
the oald netloea ahall be ported in a aon8plouous place
Honorable 8helbyiC. Long, Page 8
upon the land to be aold. Said notioe shall oon-
t&n a legal deaoription of the land to be sold; the
date of its purchase by the State, the p~lcs for
which the land vaa aold to the state; that it will
be aold at pub110 outory to the hQheat bidder for
cash, date and plaoe of sale. All aslea contemplated
here- ahall be made In the manner preaaribed for the
#ale of real estate tider exeoutlon, iind tha sheriff
la hereby authorleed, and It Is hereby made hla duty
to rejeot any and all bids for said land vhen in his
judgment the amount bid la insuffioient or Inadequate,
mid In event said bid or bids are rejeoted the land
shall be re-advertised and offered for sale aa pro-
vided for herein, but the aooeptanoe by the sheriff
OS the bid ahalL be oonoluaive and bindIng on the quea-
tlon of the auffloienoy of the bid, and no aatlon shall
be auatalned in any court of this State to set aside
said aale on grounds of the ineufficienoy of the amount
bid and aoaepted. * + *. The sherL.ff aball aend the
amount received from auoh sale to the State Tr’eaauVgr
after deduotlng the amunt of the county t8xe8, interest
and penalty of the county tax vhioh he ahall pay to the
county treasurer . The ahnriff, in behalf of the Stats,
aball exeoute a deed oonvey&? title to said pro#ertp
vhen sold and paid for.’
We t.hZnk the Port Arthur &dependent sohool Dlstrlot o&u be aub-
atituted fop the vord. “a&ate in the applloeble part of the atat-
ute vithout oonaequence, We believe auah proosdure was olearly
oontemplated by the Leglalature In the emaotmmt of Artiolea
7337 and 7343, =Prai
Art~iole 7328, aupra, provide8 for a.aale of property bid
ln and held by the state vhere it haa not been “redeemed vithin.
thb time prescribed by law.” alearly under the holdlng vf the
oourt In the aaae of Hlnlcaon ~8, Lorenao Independent School Dia-
triat, 109 S, W. (26) 1008 (writ of error diamiased) and In vlev
of our Opinion Bo. o-817, Artiole 728&s, R. a. 8. of Texas,
governs the period of time alloved for redemption In inatarmea
au& .a8 are referred to by you in your request.
We have not by our oonolualon, exprsaaed In this opinion,
foIWOlO8ed the poaalbility that an lndepeadent sohool diatriot
might, under authority of Article 2791, m&we, and under tba h+lnga
.
Jionorable Shelby I. hong, peg.8 g
in the ease8 of Olty of San Anton%0 vs. Berry, aupr8, aad XcOal-
lam vu* Olty of Rlohardaoh, supra, properly prooeed to bring tax
aaita for delinquent taxas Ln acme other l.avM aanwr. We do
not find It necessary to oonaidar thla phase of the la*, alnob
under the faota submitted by you, It is evident to ua tbat the
indbpexuJent school dintriot has rlre84 prooeeded under the pro-
vlaiotta a? the lav relating to oolleatioa~ipf state and ootmty
delinquent taxes and that you only dealm to kmv If it la per-
missible, In our oplnlon, to sell the property under the statutory
procedure provided in 5UOh cattba for the aale of property held
W fh# state, by virtue of the school dlatrlot having bid it in
at a tax sale and aftbr having held the same by virtue of a
aheriff~a tax deed over and above th@ statutory rudemption period.
We have not ntentianed Article 7345-b in tbit oplnl&~
It VW enaoted and became effsotive In 1937. We find nothing in
the prcviaiona of that Act indtcatinp; that it vaa intended to ap-
ply in lnstancaa vhere f-1 ju@ent for deV.nquent taxes bad
alrbady been obtained. We think this point cimld be said to be
ruled by the hold.lnS in the ~888 of City of San Antonio OS. Berry,
aupra, vhbh oourt said:
*Aa vaa said in our or&irml statement the tram-
crlpt’ does not ahov when the erlgiDa1 petltlon vaa
filed. l + l It is alear, we tblak, that if the ault
ma brou&t before the statute vaa paaaed, the pro-
owdlnga .vould hot W ,affeated by Lt. Sot only is
there nothing to ahov that it vea inthaded to abrblge
any exiatlng renedi.ea oaaferred by lav l l + but it
ii clear that this saWh3n tt&a to have only a fu$we
e;$;t and uaa not intended to operate upon sxFbtl.116
.c
I-t la our f'urthk+ro inion, therefomi, l&&t Artiole 7345-b 1.8 not
oontrolling nor appPicable to the pmpoaM.on submitted by you.
In your request you have.referred ua to Artiolea 7308
and ‘7313 of Chapter 9 of Title 122 of the Raviaed Cfvil Statutes
of LPaxaavhlch you LndFoate in your opiaion al t ‘be atilloable
to the proposItion eubrpltted by you, Ue do no a”bsllevr~thoae
statutes are applloable. They are a part of Chapter 9 of Title
122 entitlbd %ok taxes on unmadered lands” and deal tith
Honorable Shelby X. Long, Page lo
instances of stmmary rale by the tax oollector. In our opinion
EO. o-683-~, a aopy of vhiah is enclosed, we held that the Tax
Ammssor-Colleator has no power to levy on nor sell real estate
for delinquent taxes exaept after foreclosure of the tax lien
by a court aa provided In Article 7328-A, R. C. S. of Texas. We
think the aonclualon therein expressed is llkewise applicable
to salea of real estate for delinquent taxes by an independent
sohool district.
We gather from the faatm stated in your letter of lnqulry
that the procedure outlined in that part of Article 7328, not
quoted above, vas iu all things followed and that at the aXI8 of
the land for taxes, the sohool district beeame~the purchaser, and
a deed vas made to it by the sheriff in’aaoordence with the statute.
It la made further to appear that elnce the ovner did not redea
the land within the period of redemption, uhlch has long aiuoe ex-
pired, the district nov desires to eel1 the laud. Pour question
is, what is the proper proaedure to be folloved in makiug the sale?
We think this question irr-alearly ansveredSb~c~ha&art
of Article 7328, which ve have f+ully quoted above.
Article only refers to land sold to the State, but which ve have
held also applicable to school districts, when lnvcaked~by tham,
ve believe It would be proper for the sohool board to pas6 a reoo-
lutlon and to atate therein the pertinent feats which are required
by the quoted portion of maid Article to be contained in the
sheriff’s publlehed notloe, and requesting him to sell said property
as the statute directs. A certified oopy of the resolution should
be furnished the sheriff. Suoh a reeolutlon may not be neoeasary,
but it Is undoubtedly not improper. The sheriff will prepare and
publish the notloe of sale in accordmoe with the statute; sell
the laud and, in behalf of the sahool dietriot, execute a deed
oonveying title to Bald laud to the puroharer.
With reference to the notice of sale required to be
given by the sheriff, under the Artlale above oonalderqd, ve oall
your attention to Aata 1941, 47th Leg., Reg. Qes., Oh. 303, H. B.
193, p. 480, and especially to aubd. 4 of Article 2ga thereof.
Ue trust that, in this manner, your Inquiry has been fully
answered.
Your8 very truly
ATTORNEY QEWBRALOF -8
BYtA--Qq*~h
Rarold l@Craoken
Aasiatant
&Ire.l
Encl.
%f$