Untitled Texas Attorney General Opinion

The Honorable Joe Resweber Opinion No. H-851
Harris County Attorney
Harris County Courthouse Re: Whether sheriff should
Houston, Texas 77002 bid for city or school
district at tax foreclosure
sale of realty.
Dear Mr. Resweber:
you have asked:
Where there is a lack of bids at a tax
foreclosure sale [of realty], which is
being conducted on behalf of a school
district or city, and the property
cannot otherwise be sold, is the sheriff
authorized to bid in the property on
:behalf of the public? Should the
property be bid on behalf of and conveyed
to the agency requesting the sale . . .
or to the State?
The situation with which you are concerned is apparently
one where the city or school district is the only judgment
creditor, and neither the State nor county is party to the
suit. Further, your question presumes that no bid is made;
that no one acting on behalf of the judgment creditor taxing
unit is present at the saie to bid in the property for such
unit; that no request or instruction to bid in the property
for the taxing unit has been given to the sheriff: and that
the judgment or order for sale contain no such instruction.
Article 7320, V.T.C.S., requires the sheriff or other
officer selling land under an execution sale for state or
county taxes to bid the property off to the State if there
is no bid. Article 1062, V.T.C.S., provides that the assessor
and collector of taxes for cities, towns and villages selling
any real or personal property for taxes shall strike the
property off to the city if there is no bid.
p. 3591
The Honorable Joe Resweber - page 2 (H-851)
The laws for the collection of delinquent state and county
taxes are made available to cities and school districts, but
are not made mandatory or exclusive. Thus, article 7337,
V.T.C.S., makes chapter 10 of Title 122, within which chapter
article 7328 is contained, available to school districts by
providing that such a district "shall have the right to
enforce the collection of delinquent taxes due it under the
provisions of this chapter." See Cit of San Antonio v.
Berry, 48 S.W. 496 (Tex. Sup. ~8~T~t~same ef fe% are
articles 1060a, 7343, V.T.C.S.
In the case of Houston Crane Rentals, Inc. v. Cit of
Houston, 454 S.W.2d 2-x. Civ. App. -- --TEE-
Houston
Dist.] 1970, writ ref'd n.r.e.), the court held at page 218:
While the state statutes authorize munici-
palities to use the state laws they are
not required to do so. Article 1060a,
V.A.T.S., is permissive and not mandatory.
The case of Danciger v. State, 166 S.W.2d 914 (Tex. Sup.
19421, was a delinquent taxsuit brought by the State for
itself, a county, and various districts. The Texas Supreme
Court held that under the provision of article 7328, V.T.C.S.,
if there is no bidder who bids the amount of the judgment
against the land, it is the duty of the officer making the
sale to .buy the property in for the State for the full amount
of the judgment. The Court said that the apparent object of
the statutory provisionwas-to prevent the officer making the
sale from sacrificing the State's security without collecting
the full amount of the taxes due. - Id. at 915.
1n an earlier case involving a suit by the State for
state and county taxes, the Supreme Court held that the
provision in article 7328, V.T.C.S. is not self-executing,
and that the State cannot be held to have bought the property
unless someone actually bid therefor on behalf of the State.
Weinfield v. Cocke, 92 S.W.Zd 1017 (Tex. Sup. 1936). See
Allen v. SGte Mortgage Carp:, 19 S.W.2d 109, 110 (Texxiv.
APP. --San Antonio 1929, writ dism'd w.o.j.)(holding statute
merely directory].
The Honorable Joe Resweber - page 3 (M-851)
We do not believe that article 7328, V.T.C.S. is applica-
ble when the State or county have no interest in a suit, or when
its provisions have not been invoked by a city or school
district. Neither do we believe that article 1062, V.T.C.S.,
is applicable to a sale conducted by the sheriff on behalf of
a city or school district in a tax foreclosure sale pursuant
to judicial order.
We can find no statute or other authority which imposes
a duty upon, or authorizes, the sheriff to bid property off
to a city or school district in a tax foreclosure sale, when
the city or school district has not affirmatively requested
or directed such action.
you have also asked:
Is a school district or city required
to pay the costs of the tax foreclosure
sale which it requires in the event that
the property is not sold due to the lack
of bids or is sold to a public agency as
trustee?
A school district or city may avail itself of all laws
of the state designed for the collection of delinquent state
and county taxes, including those laws exempting the State
and county from liability for fees incurred in foreclosing tax
liens. V.T.C.S. arts. 7343, 7337, 1333, 7328; Nacogdoches
hind.
-.- Sch. Dist. v. McKinney 513 S.W.2d 5 (Tex. Sup. 1974);
Lubbock Ind SchFDist. v. &ens 217 S.W.2d 186 ITex. Civ.
App. -- AmariTTal949,writYFFd). Article 7333 provides:
In each case such fees shall be taxed
as costs against the lands to be sold under
judgment for taxes, and paid out of the
proceeds of sale of same after the taxes,
penalty, and interest due therein are paid,
and in no case shall the [taxing unit] be
liable therefor . . . .
We answer your last question in the negative. See V.T.C.S.
art. 7345b, 9 9: State v. Moak, 207 S.W.2d 894 mx. Sup.
1948); Attorney GeneralOpinions WW-1379 (19621, O-1695 (19401,
0-1695A (1940).
p. 3593
The Honorable Joe Resweber - page 4 (H-851)
SUMMARY
Where a city or school district taxing unit
is the only judgment creditor, and no bids
are received in the conduct of a sale of
realty to satisfy its tax lien, and no
request is made by the city or school
district, the sheriff has no authority to
bid the property off to the State or the
judgment creditor taxing unit. Such taxing
units are not liable for costs of the tax
foreclosure sale.
ery truly yours,
dD&
L.-HILL
Attorney General of Texas
jwb
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