Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY QENERAL OF TEXAS AUSTIN

Eoaorablo C+eoao H. Bhoppard Oomptrollar of Publ.lo Aooounts hwtln, Texnr

Doar Slrr Opinion x0. 0-9~ ROI A ralo

Thlr ir in en8wor to Mstriot Court af t COlItB,WNllIting y fhs tax jud@wNlt sd in Ravarro

flnt rals bid not bring tha y and interest, 1s rush ealo

these additional qgestlonrt a Slate hate a llan on the land, by o tax judgment, for the amognt et taxar still unpeiat wDoe8 ths State have thr right to hold another tax sale, under the tax judgment, end sell tho land ror the amouritof taxes rtlll unpaldTn

krebls horgo IX.Woppard, Peg0 8

Aa you hare not msntlonsdany other taring nnlts, ws easum that this was a suit for State aud Countrtexos end thet EO other taxlag units w6re la lsedsd 8sdsr tha toru d Artiole 9348b, Vorno~'8hnotatea 01vl1 StetutoB. NO undorstan4 that the oourt did not inoorporato in its judgment a flndlng of the reasonable fairvalue of the lsnd In qusstlon,rhioh it 1s aothor- lred to do ia scme eea88 andor Ssotlon 5 of said Artiolo 7848b. Ths ltatutos we en ooneornsd wlth en Artlolw VW!6 and 7328, Rsrlssd Clril Statutes af foxas,whloh are Qisoaswd later in this oplnlon. FO ieel that oar 8nswsr to your qatoationm must be eon- tmlld by the eeso of WIlli- t. Mmtin, 85 8. Y. (24) lC8b (writ or 6rror refused). In that oaso land that had bssn fon- olossd on In a tax suit was offomd for sale by ths aharlftat l ta x sels, and l party nansd WiUis aedo a bid ln an emuat lesr than the taxes duo, and thersupon ths County Attorney made l Beoond and higher bid for the State in tho amount OS the taxes due, but the Sheriff rsfossd thr CountyAttorneps bid on ths ground that the County Attorney oculd only bid in the event thsre ras *no bidder,' and the Sheriffaooeptsdthe lorer bid b 8'11118,but ths Sheriff then changed his rind indrefusod to eueouto l doed to Xillis; end Vi11118broughten action for maabau8 egahmt the Shedft asking the cant to 6ompslths Sheriff to ls8outa tho dead. The DlstriotCourt refused. to madama the Sheriffi and that judg- wnt we8 afflrmsdby the Court of Oirll Appeals (et Beeu~t)~ e& . without &ring any othsr rseBon8 Ghisf Yustiob Walker, who note the oourt’s opinion, relfed 8ol0ly on Attorney Gonsrel's oplalon Ho. 2884, dated Mny 16, 19S2 br Xr. r. 0. EoKenrlm, A.ssiatant under AttirneyGeneral All.&, lsd qpote4 lxtensl~~4 fmr lt end mlda Ve hro &TOD r a r tiul lo nsider +tio to thisn opinion by Mr. Hooi6..and bsll'svs that hs has oorrsotlfoonstnamd Artlsls . . . In rlsw of ths feat that thr oourt in th6 ease of Ufllls v. Hertln SO wholo-heartsdly,approrrd Hr. bE6nslr18 gplnlon,ws bellrre we ars sntltlsd to rely on ths rsasonlng ia that opinion; and as it 1s nooessery to read nearly all of the opinion In order to fully appreoiate it, wo will quota from it extenskrely, as fol- 1orsx *Deer Sir: Your oommunioatlonot the 4th instant, addressed to the Attorney tin4Uel is es follow~t "10 are hereby requesting an opinion from your de, pertmat with reference to the following question on texetlonr

Bonorsblo Ooorgo Ii. hoppsrd, Pago S

g*Undor Artlolos 9326 and 93e8 1985, Rovlsad Stat&es, iB the Stata of Taxes, thrOU&l it8 dtir lth Or i2.d ~OntB, arnLtt+d to bid the amount of texos, ooBt8, paelty and Pntoroet fnoludd in e judgont of foro~los~, w&on en oatolda bidder bids a aam 1~8 then the emtmt of seid jag- merit?’ Vho question you iB a dlfiloult ono to enswu. Article 7326 for tho bringing ot suit8 for the rocorery of al Intsrost, ponelt~ and oosts dw end for tho foroolosuro of the tax lion upon hid8 which ero liable for t&o sa&. Said article also providea that suoh suits shell be brought a8 an ordinary foreclosure for debt with averments a8 to the oxistehao of a lion upon such laud for suoh taxes, and shall pra for jud - aont for the for8olosuro0r sail lien and maf e of se lf lands es under ordinary oxooutien. ~Artfole 7328, or so &uoh thorooi es 18 portlnoet to your Inquiry, Is aa follows: **The propar parsons, Inoluding all rooord lion holders, shall be made partiee defendant In 8uoh suit&K, and shell be sorvod with proooataand othor brooo8dIhgB had therein as provldod by law In ordinary foroolosuro alto In the district oourts of this stats; end in ease Of forob~osure an order of sale shall issue end the land Bold thorouedor as in other aa8ol of ~oreolo8taro but if tho dofondant or his attorney rhell, at ehr t Lo boforo the sale, file with the offloer In whoso hands any suoh ardor of sale shall be pleaed, a written ro- quest that the roporty dosorIbod thorsdn shall bo dl- ridod and sold PIIsmllor tracts thon (than) the wholo, together with the doeo?I~tIan of suoh mallor traots. thon 8Wh offioor shell roll ths lends in moh uub- dItIBIon8 a8 defendant mar roqwft, and fn moh sees shall sell only as many subdirlslon8,as near as mey be, as are noooseary to ratisty the judgment, Intorost, naltp and oosts; end after the papant of the taxes, rntorost, penalty and oosta ddjodgod against it, the remainder of the purohaae prloo, It any, ahall bs paid by the sheriff to the clerk of the oourt, out of whioh said oxooutlorior other final pmoess issued to be ro- mined by hie BQbbjOOtto the order of the aourt for a perlod of two years, UnleB8 otherwIse ordered by the oourt, after whioh time the louft mey order the same to be paid to the State Treasurer,who shall hold aano In truet to be paid to the owner against whom said taxes

Efononbl8 Ooorgo E. 8hopperd. Peg0 4

,_.. were asso8sed;pmrlded, My one ol&&ming the 8sm0lh01l make proof of his olain to the sati~eotlon of the State Trmsuror dthin three Jams after tie ralo of said land or late, after which the aaao shall be governed by the law ngulating osohaat. **If there shell be no blddor for Buoh laud tho bounty ettornoy, Sheriff or other 0rri00r selling the seam, shall bid said property off to th8 State for tho amount of all taX88, penalty, Intorost and oosts ad- judged againat such property, and the district clerk shall lmnodfately maLo report of such sale in du&ioato, one to the.Ooaptroller and one to the oomissioaers oourt, on blanks to be proscribed and furnished by the Conp- troller. Where the property is bid off to the State, the sheriff shall make and execute a deed to the State, using forma to be prosoribod and furnished by the Camp- troller, 8howlng in oaoh case the amount of taxes, Interapt, penalty end ooete for whioh Bold, and the clerk*s fess for recordlne deeda. He ehnll oauso such deeds to be recorded In the records of deeds by the county clerk In hi8 county, and rhea SO reoordod, shall forward the same to the Comptroller. The county Olork shall be entitled to a fee of one dollar for reoording each suoh deed to the State to be taxed as other ooets. When land thus Bold to the &ate shall bo rodeomed the tax collector shall mnko the proper dl8trIbutlon of the mmoeys received by hIn In such redemption, paying to leoh offleor the amount of eostr found to be due, and to the State and Bounty the taxes, interest sad penalty found to be dua oaoh rospeotirely.* -ThO qU.OtiOIl fIlTOlT.8 t&O Pl-OpOr OOKIBtNOtiOU Of th. language, *If there shall bo no bidder for such land. * This msens, of owrao, the partioular land which Is being sold under ardor of sale issued on a tax foreclosure &d&- ment . Doe8 the aord, ‘ bidder’ mean one who bidr for the land althou& he bids less than the amount of the judgment; or does it moan or lsply one who bids a sum equal to or exceeding the account of the State.8 Judgment? I have been lurab,lo to find a case where the question ha8 been passed on by the caurte, and hence will undertake to answer the same In accordance with what 1 oonoelro to be adopted rules of UOIl8tNOtiOll. “‘Another ocoaslon fcr con8truln~ a statute Is whore un- certainty as to its meaning arises not alone from mbiguity of langua-;e employed, but f ram the faot that &ring a literal Interpretation to the xords ~111 lead to such unreasonable,

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Bonorablo Ooor60 s. 8hOPpa?d, Page 6

unjust or ab8urd ronoepuonora u to amp.1 a aonviotly that ip .ao"l; not ham been Intended by the Le6ialaturo. h . ., 8.0. 214, p. 959. We quote the above baoauso It may be aaid that tha laagusga of the statute, *If than ahall ba no bidder' Ia parfaotly plain and unambiguous and nquirr no oonatruotion. In this oonneotion, I aall attention to the hollowing taken from ths aams authority,--)rIa: **It orten happen that thtr tm4 intention or the lawmaking body, though obvious, Is not expraaaad by thr language amployad In a ltatuta vhsn that languaga la given Ita literal msa515g. In auoh oaM8, the oarrying out of the lagtalatlre intaat, rhioh, aa witbava seen, ia the prima and aole objaot of all rules of 0058tNOtiO5, oan only be acoompliahed by dapartura from tha literal Intarpretation0r tha language employad. Hame, tha oourta are not always oonfinod to the literal maaning 0r a statute; the real grpoee and Intent o< the lagia- ;~t~eGwil$ prevail over the literal import or ths worda.v . l .) sso. 222, page 967.

?7umerou8 authorltiea from other at&es and tha United Stats8 and $0188 from Texas arm oited in support Or ths above dootrlne of tba taxt. "'The peaELOU5t rti0 Of 0058tNOtiOn iS t0 rind out the 1aglalatWm Intuat, rhiah la tha law aad muat prevail.' Xllia County v. Tbomp~osk,95 Texas 28, 32. "m LO6iSlatiVO intbnt 005#titUtO8 the hr.' HoXaarr ~a. City or Galveston, 58 Taxaa 554; Ruaaall la. hrquhar, 55 Tesaa 955; Boo1 va. Uedamyar, 50 Texas W9; Dada05ta. Bunton, 81 Texam 374, 28 8. W. 1061. =*8trIotly apeaking, tbsre la but ona rula or oon- atruotloo, and that is the legialatire intent imat govern; all other aanona or interprstatioa,80 oalled, are but bruunda or argumnts reaortad to for the pur?oas of aa- asrtainlng the true 0r the In.* ttil1.s County ~6. Lam ounty, 90 *x68 606, 40 S. 111. 404; Imparial Irrigatioa ~a. Ham, 104 kxaa 396, 138 S. U. 575, 581; lcoy VS. Sohneidar, 110 Texaa 369, 221 9. Y. 880. l*Tha intention 0r the Legislature in enftotinga law la the law Itam.' Edward ~a. Xorten, 92 Texas 152, 153, 48 s. 1. 792.

Konorable &or60 E. -ppd. age g

wfTha greet fundeiaaetal rule in oonatrulagstatutes la to aaaarteln end gito erfeot to the Intent or tha lagIaletw .* 36 CIC 1106, 2. aTa ara unable to bring ouraalroa to tha belier that 15ell oeeaa whore the stat0 has a jud(asnt oondaaeihg land to br sold for thr payment of taxes, the Legiatituro Intended the Stata should be rlthout the paw to protaot lta Intaraat and that of the oouhty. But it la our opinion that whet la meant by the languego or the a tatuto, ‘Ii there shell be no Qiddar for auoh lead* the oouaty attorney, ahariff or other oftlosr selling the aem, shell bid said propaxtp 0fr to the Stat0 ror the amount or a11 texaa, panelty, Ihtaraat and oorta adjudgedageinat auoh propartr, aeesa that if them iu ao person who bids the amount or the judguant agelnat said leml. Although ha mey bid leas, It la mad8 thb duty or ona or tha orrloara mimed to protaot the Intareata of thr State by bidding to tha extant authorlaad by tha statute abort quoted. Ii any biddar should bid the amunt of tha State*8 judgrnant egainst the land or mra, the State than cannot bid; ror In rruoh oiroumateaoaathe Mate rould be oo;apstlng as a pBre aurohaaar when it Is authorized to go no farther then la nacasaary to protect Its interesta. pla think there la language IA raid Artlcla rhioh tends to support thla conatruotion. the artlole ateto that in aaa8 0r roraoloatue, en order 0r sale shell Irsua and the land sold theraundar es In other eaaaa or roraolomre. It further provider,after tha offioar axaoutiag the ardor of ma10 her raoelrsdthe prooaeds ead rroa tham paid the taxes, Interest, pentitr and ooata adjudged against the land, a8 to what bs shall do with the excess. nowhere la there any prorialon praaoribing the proaadure to be followed in a oear whara the lend does not bring the a-mountof tha udgaant against it. In a5 ordinary foraolosura aalo, t tiols 2212, rhloh ralataa thereto, provide8 a prooednra In avant the pro- oaada of the property sold doss not aatiaiy the judguaat, directln~ the aherlrr to rake tha balanoaas under oxa- cution, using the unaatlarlsd order or aala as M ax80u- tionl lo auoh alternative I8 prorldad for In the atatuto governing delinquent tax aalra under order of Bela. From the pro~Ialona 0r the 8tatutaa direeating the sherirr to pay rrou tha proceeds the taxae, lntaraat, penalty and ooat4, and the *raneIndar or the 2urohaaa price, If any* to tha olark of the OSUrt, there arises the clear ispliaa- tlon that the land la to bring at least enough to satlafy the judguant. IA case the land la bid In for the &i&a,

fir0 . ; .. .ml Eonorable @aorge H. Sheppard, Page 7

tha bid mat be ror the ruli amount agal5st the la5d, and provisionla rurthermade that when said land #hall be redeemed,‘the tax eollootorshell Wr the pmpar distribution of the mone~a rooeired by him in auoh aedeap- tiOA, paying to aaoh ofrioar the almunt of eoata foUAd to be due, and to the State and county the taxaa, Interest and penalty r0UAdto b4 due eaoh reepeQt:Vely.’ so it appear8 that whether the land la sold to an outside bidder or bid In ror the State, prorialon la rude ror the ultimata payment I5 full of the taxes, interest and penalty. *It la obvious that in the event the land 16 sold to en outside bidder ror less than the amount adjudged agalnat it, oomplloatlona and dIffloultleawill erlse, and the Legislature has rurniahad no gUide ror their eolution. 054 pert or tha Judgment la State taxe8, aaothar part oounty taxes, and still other sums whloh go to maka up tha total oi the luwent ara aonpoeed or 40Ot.s0r dirrerent orrioera. In Such a oaae the judgment aould not be paid In full and all the parties at lntaraat oould not get all their money. Whet should be done in tbqt oasa? Is the State’s Interest superior to the oounty’a interest or will the ~monaybe prorated between them? Are the orrloers to be paid firat, or are thair alaim to be postponed AAt tha olaIa8 of the Stat0 and oau5ty bare been paid? xi paid rirst, it night result tlut there would not be enough to pay even the oaat8 going to the otiIoer8, and there would not be anough lart to l atiaty the olalmaboth of the State and the oounty. I think it masonable to e8auma that the LegIf!laturaintendedno auoh eompliaatioas; othanisa, it would by appropriate anaotznenthara pro- vided ror than. abo are awara tbst thI6 0pIAIon la In amfliot with an opl5lon sent out I’romthis department on tha 6th day of February, 1923, but with such opinion we oannot agree and rrom It we respactrully dissent. . . . -Assuma that the Stata has Judgment ror4OloSlAg a tax lien to the ano>nt of $250.00 05 land worth $5,000.00. Suppose that at the aherIrt*a sale the 8u.mof $10.00 la bid by a~ autsldar, and the land is kaookad oii ta him. Under the oaastructlonwhioh we are oombatfng, and in 4cOOrdaAO4 with what laaybe the literal 1anJuage of the

Honorable George 8. She-:perd,Page 0

BtstUtO, the Stata~a hands mu13 be tied aad Its offioarm OoUd only stand by, ~alplaaa, and no the $tato*e interests aeorlflq#dIn that manner. After the aalo, It would be the duty of tha lherlfi to exeouti a dead M the Jur*haaer and thbn the taxpayer rould hare two years in vhl*h to redeem his land and he could redeem It by paying double the amount of ouch bid. Suoh a thing oould easily happen and no doubt has happened heretorora. We cannot bellere that the Legislature intended any auoh absurd resulta, *-%areiterate our conoiuaion, In enawar to your question, that by the term ‘bidder l used In tha stat-to giving the State the right to bid 15 lands sold under a tax Judgment, the Legislature meant a person who bids at least the amount of the Judgment against the land taxes, interest, penalty and ooata, and If no auoh bidder appaar6, then the groper officer may bid In the land ror the State as the law provides; and that no person would nacasaarily be considerede *bidder*, within the meaning of the statute, so as to preclude the propar offlear iron? bidding same in for the State, mlaaa his bid Is for a au9 at least sufficient to aatlary the judg- ment agalnat the land.” Hr. YoKanzle*aopinion was written berore the passage of meld Artlole 7345b, prorldin- for the Impleadingoi other taxing uaita, and ror the aourt Incorporating lr.its jadgment a finding of the reasonable ralr value of the land, but thoaa matters are not Iarolved in this case, and m ballare the reaaonln~:of hIa opinion applies to the question b8fOre us. To construe his opinion es hold- ing that a bid et a tax 8aIa la void if It 18 for leas than the amount or taxes due. The bid in this case was clearly void, the would-be pur- chaser being e private person and not a taxing u5lt, and it naturally follow8 that the sale was void, and therefore invalid, because there oould not hare bean e sale without s bid. It likewIse tollows that the sheriff had 50 authority to execute the deed. The atatua Or tha parties :a the sme as it was barore the sale, and the State ltil has its lien and the right to hold a tax sale under the judg- oa5t I5 the sage oacnar as If the other asla had never been held. or oouraa, this opinion doss not apply in a casa in which the court inaorporated in its judgment a finding Of tke reasonable

Eonorablr G8orgr 8. Shopperd, Pago 9

;~~g=ftum or tha land at an mount lam than the aacunt of the .

me brlisve that the ioregoing answers your questlonr. Your* very truly Al-TORlW GEEEiAL OF TEXAS

.,l%--f@& Caoil C. Rotech Assistant

CCBrOO

ATTORNEY GECZ'~',03 TEXAS