Untitled Texas Attorney General Opinion ( 1948 )

PRICE DANIEL
ATTORNEYGENERAL
Hon. F. T. Graham Opinion No. V-725
County Attorney
Cameron county Re: The necessity for 1947 State
Brownsville, Texas and County taxes to be plead
and proved in a consolidated
tax sui~t tried in February,
Dear Mr. Graham: 1948.
You request the opinion of this office upon three questions
presented in your letter as follows:
“1. In a consolidated tax suit involving real es-
tate, under Article 7345b. as amended, tried in
February, 1948, should ,the State and County have
pleaded and proved their taxes for the year 1947?
“2. If the State and County, having been serv-
ed with citation, or appeared in a tax suit tried in
February, 1948, failed to plead or prove their
taxes on real estate for the year 1947. does the
purchaser of the real estate involved at sheriff’s
sale, on order of sale based on the judgment in
that suit, take said land free of the taxes due the
State and County for the year 1947?
“3. Would the result be any different if the
suit were brought in the name of the State?
“4. For the purpose of the questions stated,
it is to be assumed that no part of the taxes for
1947 have been paid prior to February 1, 1948.”
We shall first answer your questions categorically. The
reasons for our conclusions which follow will require only a brief
discussion.
Question No. 1, “yes”; Question No. 2, “yes”; Question
No. 3, 5-m.”
We quote the following pertinent statutory provisions:
Art. 7336. “. . . all ad valorem taxes, unless
one-half (i) thereof have been paid on or before
November thirtieth as hereinabove provided,
Hon. F. T. Graham, Page 2 (V-725)
shall become delinquent if not paid prior to Feb-
ruary first ot the year next succeeding the year
for which the return of the assessment rolls of
the county are made to the Comptroller of Pub-
lic Accounts.. . .”
Art. 7345b. Sec. 1. “For all purposes of this
Act, the term ‘taxing units,’ shall include the
State of Texas or any town, city or county in
said State, or any corporation or dis:rict organ-
ized under the laws of the State with authority to
levy and collect taxes.”
“Sec. 2. In any suit hereafter brought by or
in behalf of any taxing unit as above defined, for
delinquent ad valorem taxes levied against prop-
erty by any such taxing unit, the plaintiff mayim-
plead as parties defendant any or all other taxing
units having delinquent ad valorem tax claims a-
gainst such property, or any part thereof, and it
shall be the duty of each defendant taxmg unit,
unon bema served with citation as arovided bv
L A~
law to appear in said cause and file its claim
for delinquent ad valorem taxes agams%-ZiiZi
property, or any part th ereo . . . .
“It shall be mandatory upon any such taxing
unit so filing such suit or suits, in all cases
where all other taxing units are not impleaded
to notify all such taxing units not so impleaded
of the filing of such suit or suits, such notice to
be given by depositing in the United States mail
a registered letter addressed to such taxing unit
or units giving the name or names of the plain-
tiff and defendants, the Court where filed, and a
short de’scription of the property involved in
said suit so that such taxing units not implead-
ed may have the opportunity to intervene as
herein provided. ”
“Sec. 10. The purchaser of property sold for
taxes in such foreclosure suit shall take title
free and clear of all liens and claims for ad
valorem taxes against such property delinquent
at the time of judgment in said suit to any taxing
unit which was a party to said suit, or which had
been served with crtatzon m said suit as requir-
ed by this Act. Provided, the term ‘all liens and
claims for ad valorem taxes’ shall never be con-
strued to include assessments for maintenance
Hon. F. T. Graham, Page 3 (V-725)
and operation purposes on a pro rata per acre,
basis against irrigable lands authorized by law
to be made by water improvement districts, or
water control and improvement districts, and
no judgment foreclosing such liens and claims
for ad valorem taxes shall ever prejudice the
collection of said assessmeilts or the liens se-
curing ‘same.” (Emphasis ours)
The foregoing provision of the statute, Article 7336,
clearly defines when State and County ad valorem taxes become
delinquent. For the purpose of this opinion we shall assume, as
you request, that the first half of the 1947 taxes were not paid on
or before November 30, 1947. Therefore, under the terms of the
statute the 1947 taxes became delinquent February 1, 1948.
Under Section 2 of Article 7345b, quoted above, the
plaintiff taxing unit initiating the suit may implead as party de-
fendant any and all other taxing units havimgdelinquent ad va-
lorem taxes claims against such property or any part of it: and
it shall be the duty of each defendant taxing unit, upon being
served with citation, to appear in said cause and file its claim
for delinquent ad valorem taxes against such property or any
part thereof.
It is mandatory under the express terms of said Sec-
tion 2 of Article 7345b for the taxing unit initiating the suit to
give notice to the other taxing units not impleaded of the filing
of such suit; and the statute prescribes the requirements as to
such notice which may be by registered mail addressed to such
taxing unit or units, giving the names of the plaintiff and defend-
ant, the courtwherofiied, ‘a short description of the property
involved in the suit. The purpose of this is to give to the taxing
unit or units not impleaded notice that a suit has been filed so
that they might have an opportunity to intervene in’the suit and
assert a claim for all taxes then delinquent.
The primary purpose of Article 7345b is to prevent a
multiplicity of suits, and in addition to afford purchasers of tax
titles, security from a diversity of claims of numerous taxing
units, which might have delinquent tax claims against the prop-
erty at the time of the judgment. City of El Paso v. Forti (Sup.
Ct.) 181 S.W.(Zd) 579.
We think the clear import of Section 10 of Article 7345b
quoted above is that all taxing units having delinquent tax claims,
which are parties to the suit or have been served withcitation in
the suit, must present and have their claims adjudicated in the
judgment; failing in this, such a taxing unit would lose the taxes
delinquent at the time of the judgment, and.the purchaser would
- -
Hon. F. T. Graham, Page 4 (V-725)
take title free and clear of the lien for such taxes.
Note that the statute says, “delinquent at the time of
judgment.” This means just what it says, and includes all taxes
delinquent at the time of the judgment, whether embraced in the
petition or not as to the taxing units, parties to the suit or which
had been served with citation in said suit,
The case of Mexia Independent School District, v. City
of Mexia (Sup. Ct.) 134 Tex. 95,
133 S.W.(Zd) 118, construing Ar-
ticle 7345b, said:
“We recognize that it is possible, under the
Act in question, for such representatives, by
their carelessness or otherwise, to fail to
properly foreclose the liens held by the taxing
units which they represent, but this is a danger
inherent in all governmental functions perform-
ed by human agents.. . .”
It is, of course, presumed that all public officials will honestly
perform their official duties, and these statutes should be con-
strued in the light of that presumption. A good faith purchaser
acquires under the plain terms of Section 10 title to such prop-
erty free and clear of all liens as to all taxes delinquent at the
tirr.e of judgment against all taxing units, parties to the suit, or
who have been served with citation in the suit.
Applying the conclusions here expressed specifically
to the 1947 taxes, which became delinquent February 1, 1948, it
is the duty of the county or district attorney, if the State and
County have become parties to the suit or have been served
with citation in the suit, to assert the claim of the State and
County for the 1947 taxes in a pending suit where judgment in
the suit is rendered in February 1948. The notices prescribed
by Article 7324 and 7326, V.C.S., have no application to the
1947 taxes in a suit pending February 1, 1948, filed under the
terms of Article 7345b, as to the 1947 taxes which became de-
linquent February 1. Judgme.nt may be rendered in such a suit
in February including the 1947 taxes. This would be true re-
gardless of what taxing unit initiated the suit.
SUMMARY
A suit for delinquent ad valorem taxes, filed
under the provisions of Art. 7345b. V.C.S., should
include in the judgment all delinquent taxes, includ-
ing the 1947 taxes, owing to any taxing unit which is
party to said suit or has been served with a cita-
tion in said suit, if the judgment is rendered in
Hon.,,F. T. Graham, Page 5 (V-725)
February, 1948, or anytime thereafter. The pur-
chaser at a tax foreclosure sale takes title free
and clear of all liens and claims for delinquent
taxes, including the 1947 taxes, as to such taxing
units as were parties to the suit or had been serv-
ed with citdtion in the suit, whether the judgment
is taken in February, 1948, or thereafter. The re-
sult~‘would be the same regardless of the taxing
unit which initiates the suit.
Very truly yours
ATTORNEY G?&lERAL OF TEXAS
Assistant’
LPL/JCP
APPROVED: