Untitled Texas Attorney General Opinion ( 1946 )

.
Hon. A. C. Winborn
District Attorney
HaPrls County
Civil Courts Building
Houston 2, Texas
Dear Sir: Attention: Mr. Robert R. Casey.
Opinion No. O-7159
Re: Is it mandatory for citation by pub-
lication to be returned to a term
of court in tax suits in Harrls
County in citation by publicatl.on
under Article 7345b? And related
questions.
You request the opinion of this Department upon the
questions contained in your letter, which we quote in part
below :
“The present statutes covering delinquent taxes,
as set forth in Chapter X, Title 122 of the Revised
Statutes of the State of Texas, are, to say the least,
very confusing. It Is difficult to determine under
which of the various provisions of these statutes suits
may bB brought and property redeemed after tax sales.
“We desire to submit these various statutes to your
office for a ruling interpreting the same, and respect-
fully request that the various questivns be answered.
‘IArtIcle7330 provides that the Sheriff shall make
a deed or deeds to the purchaser In all cases In which
lands have been sold or may be sold for default In the
payment of taxes.
“(1) Question: Does this statute limit the executions
to be levied under tax sales to be made by sheriffs only,
or may a constable levg an execiatlonunder a valid tax suit
and execute the deeds provided for therein?
9,
. . . . . .
“(2) Question: We desire an explanation and
I-Ion,
A. C. Winborn, page 2 o-7159
interpretation of these several statutes, and request
that you advise us underwhich of these various pro-
visions we should proceed to permit redemptions to
be made.
II
. . . . . .
"(3) Question: In Harris County where we have
continuous terms of Court which run from January to July
and from July to January, is it mandatory that our clta-
tions by publication be returnable to the next term of
Court?
"(4) Questlon: Does the citation by publication
Issued under the suit by the City under the provisions
of Subdivision d, Section III, Article 7345b make It
necessary that these notices show the amount of the
taxes due the State and County?
"(5) Question: What Is the effect of the failure of
the notice to so show the amount of the taxes due the
State and County under Its Intervention In the suit
flied by the City?
"(6) Question: What 1s the effect of the judgment
rendered by the Court in favor of the State and County's
claim for taxes where the property has been sold to a
private purchaser at the foreclosure tax sale?
"Article 734513,Section X, as amended by the 47th
Legislature of 1941, states: 'The purchaser of property
sold for taxes In such foreclosure suit shall take title
free and clear of all liens 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 such suit
or which had been served citation In said suit, as required
by this Act.'
"(7) Question: Does this act mean that If the State
and County have failed to interven.eIn a pending tax suit
that In the event judgment for foreclosure Is rendered in
such tax suit and the property sold at tax sale, the State
and County would lose Its right to the tax liens heretofore
existing against said property?"
We answer your questions 'in the order presented.
~(1) Under Article 7330, V.R.C.S., the sheriff Is the
only officer authorized to execute a deed, hence It follows that
he only may serve the execution In tax foreclosure sales.
Hon. A.C. Winborn, page 3 O-7159
(2) Your second question raises the construction to
be placed upon various statutes mentioned by you as to the
rights of redemption by the tax debtor or others having an in-
terest inthe land foreclosed upon. (Articles 7340 - 7345b
Section 9. Article 7345b, Section 12; and Articles 7283, 7284
and 7284bj
We think most of the confusion that arises upon this
question may be dispelled by the simple statement thatsince
the enactment of Art. 7345b, the provisions of this statute
govern as to the method of redemption, with the possible excep-
tion of a suit where there Is only one taxing unit and no other
taxing unit has a claim for delinquent taxes. This exception,
however, If It exists need not require further attention here
for we do not conceive It to be Involved In your request. The
rule is thus stated In the case of City of El Paso v. Fort1
(S. Ct.) 181 S.W. (2d) 579:
"It Is not necessar for us to decide lnthls case
whether or not Article 73 t5b, Section 12,~~repealedand
made wholly inoperative Article 7340 or any other article
relating to redemption from tax foreclosures. It might
be held in cases where only one taxing unit Is a party
and no other taxing unit has a claim for delinquent taxes
that such articles are still In effect but that they do
not operate in a case brought under 73&jb, but we~do not
pass on that question. Article 7345b prescribes a method
of redemption in all cases brought under that article under
which, If one taxing unit bids In the property, it takes
same as trustee for the other taxing units In whose favor
judgment ran In the foreclosure suit. Until Article 7345b
was enacted a suit like the instant one, In which all taxing
units became partles, was unauthorized. Prior to Its en-
actment there were various statutes with reference to
redemptlon. For example, these articles may be cited:
Articles 1065, 7284a and 7340, Vernon's Clv. St., each
being applicable In the character of suit to which it
related. Their provisions varied widely. It seems clear
to us that when the Legislature enacted 7345b, whereby
all taxing units could be joined.In one unit and the
property bid In by one such unit for the benefit of all,
and prescrlblng the terms upon which same might be
redeemed, it intended that those terms should govern
In all cases of redemption In that character of sult
regardless of who became the purchaser at the sale. The
confusion which would result from a contrary holding
In a case like the instant one, Is obvious. To determine
the amount to be paid to the various units, If possible to
do so, when under the statutes above cited different terms
were prescribed would bring Into play some highly Involved
.
Hon. A. C. Wlnborn, page 4 o-7159
computations. We cannot ascribe to the Legislature the
intent to create confusion when Its evident purpose was
simplification and clarity,”
It Is, therefore, our conclusion that under all the
conditions presented by you, redemption should be under the
terms of Art. 7345b, regardless of whether a private individual
becomes the purchaser or one of the taxing units for the benefit
of all, and this regardless of whether the redemption is by the
owner, his assigness, or anyone merely having an interest therein,
or their heirs or assigns or legal representatives.
We come now to your third question, which frankly has
given us no small concern, because of the provisions of Sec. 3,
Subdivision d of Art. 7345b, requlrlng citation by publication
to be returned to the first day of the next term of court In
which the suit Is filed.
The third paragraph of S.B. No. 271, Acts of the 46th
Legislature, page 184, which created the 127th District Court of
Harris Cauntg, provides:
"There shall be two terms of each of said six cfvll
district courts In Harris County In each year, and the
first term shall be known as the January-June term, shall
begin on the first Monday In January, and shall continue
until and Including Sunday next before the first Monday
In July; and the second term shall be known as the July-
December term, shall begin on the first Monday In July
and shall continue until and Including Sunday next before
the first Monday In the following January."
This is merely a restatement of the law with respect
to terms of the civil district courts of Harris County, which
has persisted since the enactment of what is commonly referred
to as the Special Practice Act, first enacted in 1923, and
applicable to Harris and some other derelegpopulated counties
in the same classification, Every dlstrlct court, In order
to conform to Art, 5, Sec. 7, of the Constltutlon, must have
at least two terms of court each gear. After providing for
two terms of court as above stated, thus conforming to the
Constitution, these terms of court had little further slgnlfi-
cance In the scheme of the Special Practice Act applicable to
Harris County. The Special Practice Act was codlfled as Art.
2092, V.R.C.S., and was last amended by the 46th Legislature,
H.B. No. 1074, General Laws of that session, page 205, with
no significant changes Insofar as the problem presently before
us is concerned.
Article 2092 provides:
Hon. A. C. Winborn, page 5 o-7159
"The following rules of practice and procedure shall
govern and be followed In the civil district courts. s . a
in all clvll litigation in ccuntles having five or more
dls??%trts with either civil or crln$nal jurlsdlctlon
or both clvll and criminal jurisdiction.
Harris County has five or more district courts with civil jurls-
diction, hence operated under the provislons of Art. 2092.
Certainly suits for delinquent taxes would come under "all civil
lltlgatlon."
Section 6, Art. 2092, provided:
"Citation by Publication. If citation Is to be served
by publication it shall be returnable forty-two (42) days
after the date of issue and shall command the defendant
to appear at or before ten o'clock a.m. of the Monday next
following the expiration of forty-two (42) days after the
citation was Issued, and shall specify the day of the week,
the day of the month and the time of day the defendant Is
required to appear and answer, and shall be served by being
published in the manner and for the length of time reouired
by law for cltatlons by ntbllcatlon In the same kind of
cases or matters in other Dlstrlct Courts at the time the
publication Is made and the first publication shall be at
least twenty-eight (28) days before the return day of the
citation."
The rules of practice and procedure provided by Art.
2092, V.R.C.S., prevailed In Harrls County and other counties
In the same general classiflcatlon until repealed with minor
exceptions, not Important here, by the rules of civil procedure,
which became effective Sept. 1, 1941. Up to this date the fore-
going quoted Section 6, Art.'2092, constituted the basis for
service of citation In tax suits in Harris County by publication.
We therefore say that Art. 7345b, Subset. d of Sec.;3,
construed In connection with Sec. 6, Art. 2092, constituted a
le al basis for citation by publication In tax suits under Art.
73 &5b, without requiring the return to be made to the first day
of the next term of court, so long as Harris County operated
under the Special Practice Act.
At this point we deem It helpful to consider the gen-
eral scope of Art. 2092, the Special Practice Act, and we shall
not be able to state It more comprehensively than was done by
Judge Cody in the case of Walker Avenue Realty Co. v. Alaskan
fir co., 123 S.W. (2d) 999, from which we quote:
(1
. . . The court below is ruled In its practice
Hon. A. C. Wlnborn, page 6 o-7159
and procedure by the special practice act, Article 2092,
R.S. 1925, Vernon's Ann. Clv. St. art. 2092.
"The care and skill with which Articles 2092 and
2093 -- component parts of the same enactment -- are
drawn Is what Is to be desired, rather than expected,
in this type of legislature. The purpose of the enact-
ment was to adjust the practice and procedure lh the
civil district courts of certain of the populous counties
to dispose of their continuous litigation, without lnter-
fering In any way with the practice and procedure of the
other courts of the State. The validity of this special
practice act, as a proper exercise by the Legislature of
Its power to classify subjects, was upheld by our Supreme
Court In Phil H. Pierce Co. v. Watkins, 114 Tex. 153,
263 S.W. 905. For the purpose of the practice and pro-
cedure established by Art. 2092, the clvil~dlstr~ct
courts of Harris County (end of the other counties which
are ruled by the statute) fDrm a separate and distinct
class of courts from the other courts of the State;
and such courts are placed In a class separate and
distinct from that to which other courts of record
(of the first instance) belong, for the avowed purpose
of making It possible for the rules of practice and
procedure which are applied in them, and which are
inconsistent with the rules that are applied to other
courts, to co-exist with such other rules, and yet not
be In conflict. It Is perfectly clear that even though
the rules bf practice and procedure established by
Art. 2092 are different from and inconsistent with the
rules established to regulate the practice and procedure
In other courts of the State, these two separate sets
of rules do not conflict. And this, simply because such
courts as the civil district courts of Harris County
have been formed into a ~separate class, wherein, by
reason of Art. 2093, 'All lnconslstent laws and rules
of practice and procedure shall be inoperative in the
civil district courts of the class Included within this
chapter (I.e. Chapter 6, Title 42), but shall not be
affected~by this law in so far as they relate to other
district courts.* * *I ('All Inconsistent laws and
rules', etc., include future as well as existent lncon-
sistent laws and rules.)"
In brief, what we now say consistent with Judge Cody's
opinion from which we have just quoted Is that Art. 2092 Con-
stituted a complete and harmonious system of procedure in Harrls
County and other counties of the same classification, the pro-
visions of which constituted the procedure In such counties to
the exclusion of any conflicting or inconsistent laws applicable
Hon. A. C. Winborn, page 7 o-7159
to other courts In general. This applied to tax suits as well
as other civil suits in general. It matters not how confllct-
lng or inconsistent such other statutes~or parts thereof may be
with Art. 2092, they were simply Inoperative under Art. 2092;
said article provided Its own procedure applicable to Harris
County In tax suits es well as other clvll suits.
We now come to the crucial questlon in our problem,
whether or not the rules of civil procedure, which repealed
all of Art. 2092 except Sec. 18, Assignment Clerk, and Sec. 23,
Judge Disqualified, require a different conclusion and constwc-
tion In tax suits in'Harris County than prevailed under Art.
2092, the Special Practice Act. Rule No. 2 of the present rules
of procedure In civil actions , pronmlgated by the Supreme Court
of Texas, in part reeds as follows:
"All statutes in effect Immediately prior to Sept. 1,
1941, prescribing rules of procedure in tax suits, are hereby
continued in effect es rules of procedure governing such cases,
but where such statutes prescribe no rules of procedure in such
cases, these rules apply."
We are constralned to the view that Immediately prior
to Sept.1, 1941, the rule of procedure In tax suits In Harris
County, in regard to citation by publication, was as firmly
fixed.by Sec. 6 of Art. 2092, when construed in connection with
Subsection d of Sec. 3, Art. 7345b, es any other rules of pro-
cedure with respect to tax suits, and these statutes constl-
tuted an exclusive basls of procedure in tax suits where cita-
tion by publication was required, and by force of the above
quoted portion of Rule 2 continued In effect as rules of proce-
dure governing such cases in Harris County. To hold otherwlse
would In our view be in effect to say that Immediately prior
to Sept. 1, 1941, Harris County did not have~~enyrules of pro-
cedure in tax suits under Art. 2092, except as might be-~provlded
by general statutes outside the scope of said article, and this
we think is not the case. Subdivision 19 of the Special Prac-
tice Act as originally enacted provided "All Inconsistent laws
and rules of practice end procedure shall be Inoperative ln the
Civil District Courts of the class included within this act.'
Language simller to this has been employed in subse-
quent amendments to the,ect, the latest being Art. 2093 (Acts
1939, 46th Leg., page 205, Sec. 1) which reads es follows,:
"All Inconsistent laws and rules of practice and
procedure shall be lnoperatlve In the clvll district courts
of the class Included wlthln this chapter, but shall not be
affected by this 1aw"lnsofar as they relate to other dls-
trlct courts. ~11 laws and rules of practice end procedure
Hon. A.C. Wlnborn, page 8 o-7159
provided for other district courts shall continue In
effect end operate end be observed In the civil dls-
trlct courts of the class covered by this law."
We feel justified In concluding that Sec. 6 of Art.
2092, construed In connection with Art. 7345b, Subset. d, Sec.
3, and Rule 2 of the rules of civil procedure, constitute a
sufflclentbesls for citation by publication under said article
without requiring the citation to be returned to the first day
of the next term of court. To hold otherwise we would be com-
pelled to say that citation by publication, as provided In Sub-
sec. d, Sec. 3, Art. 7345b, would require citation to be re-
turned to the first day of the next term of court, that Is; either
to the first Monday in January or the first Monday In July, and
would render the collection of delinquent taxes by suit, where
service by publication was necessary, confusing, and would de-
feat the very purpose of the act, which is to expedite suits
for dellnquent taxes, as is made clear by Sec. 11 of Art. 7345b,
which provides:
"Suits for delinquent taxes shall have precedence
end priority In the dlstrlct courts of this State, and
In the appellate courts thereof."
We cannot see any cogent reason why we should not
give the same effect to what we conceive to be the statutes
governing citation by publication in tax suits under Art: 2092,
applicable to Harris County and other densely populated counties
in the same classification, that would be given to any other
statute with respect to tax suits under the above quoted portion
of Rule 2, which continued In effect the statutes governing tax
suits In existence Sept~.1, 1941, at which time Sec. 6 was under
the terms of Art. 2092 applicable to tax suits es well as other
civil suits In general. It Is not so much a question of repeal
as It Is that the rules continue all statutes in effect immed-
lately prior to Sept. 1, 1941, prescribing rules of procedure
in tax suits, and to this ext-entwe think these statutes con-
tinue In effect as rules of procedure In tax suits in Harris
County and other counties in the same classiflcatlon.
The purpose of the present rules of civil procedure
was to simplify end expedite litigation, and not to retard or
prolong It. It Is slgniflcent that the rules have definitely
sought to get away from terms of court as the objective to
which process should be returned, and we should not reach any
conclusion contrary to this wholesome purpose of the rules un-
less compelled to do so. The Special Practice Act, Articles
2092 and 2093, V.R.C.S,, end the present Rules of Civil Procedure
are remedial in nature. They are, therefore, entitled to a
liberal construction end appllcetlon In order properly to effect-
Hon. A. C. Wlnborn, page 9 o-7159
uate the legislative Intent to simplify end expedite court
procedure thereunder. Indeed the Rules of Civil Procedure de-
clare that the rules are to be liberally construed. See Rule
No. 1. As applied to the problem here considered, we think
strict construction must yield to the evident spirit end purpose
of the statute and Rules of Civil Procedure when this is neces-
sary to give effect to the intent of the Legislature. Ab surb
and unjust results would follow to say that since the adoption
of the rules of civil procedure Harris County and other densely
populated counties in the same classification are relegated to
having process returned in tax suits, when citation by publl-
cation is necessary, to a term of court, e procedure abandoned
in such~courts by virtue of the Special Practice Act in 1923.
Unjust and absurd consequences are, if possible, to be avoided.
No less en authority than the Supreme Court of the United
States has pronounced this rule. Lau Ow Bew v. United States,
144 U.S. 47, 59, 12 S. Ct. 517, 36 L. Rd. 340; Hawaii V.
Mankichl, 190 U.S. 197, 213, 23 S. Ct. 787, 47 L. Rd. 1016. The
courts of our State have likewise adhered to this rule. Only
a few cases, all by the Supreme Court need be noted; State
Hi hway Dept. v. Gorham, 162 S.W. (2df 934; Cramer v. Sheppard,
162 S.W. (2d) 147; Kllday v. Germany, 163 S.W. (2d) 184. We
thfnk this was never the intention of the Legislature nor the
Intention of the Supreme Court in promulgating the rules. If
we should say that Art. 7342 is still in effect and should be
followed, we would still be faced with the question of the pro-
cess being returned to the next term of court, for a reading of
lt we think clearly Implies that the return is to be made to
the next term of court.
We therefore summarize our answer to your third ques-
tion es follows: First, that citation by publication may be
had In Harris County In delinquent tax suits under Subset. d of
Sec. 3, Art. 7345b, wlthout return being made to the first Mon-
day of the next term of court, but should be as prescribed In
Set, 6 of Art. 2092, which Is the same as prescribed by Rule
114 of the rules of civil procedure, requiring the defendant
to appear and answer it or before 10 o'clock A.M. of the Monday
next after the expiration of forty-two days after Issuance.
Second, that If citation should be issued under the ~provlslons
of Rule 114 of the rules of clvll procedure, the same result
would be accomplished for the source of Rule 114 Is Section 6
of the Special Practice Act.
We restate your questlon No. 4:
"Does the citation by publication issued under the
suit by the city under the provlsions of Subdivision d,
Sec. 3, Art. 7345b, make It necessary that these notlces
show the amount of taxes due the State end county?"
Hon. A, C. Wlnborn, page 10 O-7159
We answer this question in the affirmative with the
qualifications hereinafter stated. Said section provldes:
"Such notices shall show the amount of taxes alleged
to be due each plaintiff and lntervenor, exclusive of
interest, penalties,~and costs, and shall recite that
all interest, penalties and costs allowed by law are
included in the suit."
It is observed that this section of the statute is
applicable only to plaintiffs and interveners, which means the
plaintiffs and interveners, which are partles to the suit at
the time such citation issued. If a taxing unit Is made a party
defendant by the city or any other taxing unit filing the suit,
as It may be under the terms of the statute, it is not necessary
that the citation show the amount of taxes alleged to be due
such taxing unit made a defendant. If, however, a taxing unit
Intervenes In a sult where the defendants are cited under Art.
7345b, after the citation provided by the statute has been given,
and is not a party to the suit at the time the citation issued,
either as plaintiff, intervenor OP defendant,the court would not
have jurisdiction to adjudicate the delinquent tax claim of such
taxing unit without the Issuance of service in Its own behalf
upon the defendant or defendants.
This is su ported by the case of State v. Bagby's
Estate, 126 S.W. (2dP 687, from which we quote:
II
. . . Section 3(c), Article 7345b require8 a citation
by publication to state 'the amount of the taxes due each
party plaintiff and intervener, exclusive of Interest,
penalties, and costs l * *0' It Is observed that this
citation did not state the amount of taxes due each of the
plaintiffs, but, on the contrary, stated the gross amount
due plaintiffs jointly. This did not meet the requirements
oftsaid Section 3(c) supra. Section 13 of Article 7345b
states: 'The provisions of this Act shall be cumulative of
and in addition to all other rights and remedies to which
any taxing unit may be entitled, but as to any proceeding
brought under this Act, If any part or portion of this Act
be in conflict with any part or portion of anylaw of the
State, the terms and provisions of this Act shall govern
a8 to such proceeding. * * *' In 33 T,J. p. 851, supported
by abundant authorities-there cited, it Is said: 'Since
authority for citation by publication comes solely from the
statutes, enactments authorizing that mode of service are
strictly construed; In cases falling within the provisions
of the statutes there must be a strict compliance with
every essential requirement in respect of sexvice.'
See Borden v. City of Bouaton, 26 Tex. Clv. pp. 29,
Hon. A. C. Winborn, page 11 o-7159
62 S.W. 426, and authorities there discussed. The
failure of this citation to state the amount of taxes
due each plalntlff, under the foregolng authorltiest,
warranted the action of the court in quashing same.
We restate your question No. 5:
"What is the effect of the failure of the notice
to so show the amount of the taxes due the State and
County under its intervention in the suit filed by the
City?
If we interpret this question, construed in connection
with the explanatory part of your letter, to call for an answer
as to the effect of the failure of the city to make the State
and county parties to a suit where citation by publication is
required, but after citation had Issued the State and county In
response to the notice of the pendency of the suit, intervenes
and sets up its claim for taxes, stating in such Intervention
the amount of the taxes due, then it is our opinion that the
court would not have jurisdiction to adjudicate the claim of
such taxing unit without service upon its claim; but if such
taxing unit has been made a party defendant, then and in that
event the court would have jurisdiction to adjudicate the claim
of such defendant, a taxing unit, without the amount of the
taxes~owing to such taxing unit being stated In the citation.
As stated in our answer to question No. 4, the statute requiring
the amount of taxes to be stated In the citation owing to each
unit is applicable only to plaintiffs and lntervenors at the
time of the citation's issuance.
This, we think, Is in accord with the holding in the
case of State v. Bagby's Estate, supra, from which we quote as
follows:
"The action of the trial court in refusing to render
judgment In favor of intervenor, Clarksville Independent
School District, against the unknown heirs of Ada Bagby.
- -_
deceased, is sustained. This intervention was filed after
service of citation had been had on the defendant. Inter-
venor did not cause citation to issue on Its cause of
action. Defendants made no appearance in this suit.
The trial court did not have jurisdiction to enter judgment
in favor of intervenor as to any defendants named." (Emphasis
ours)
We are therefore of the opinion that the court would
be without jurisdiction to adjudicate the tax llablllty in
favor of the State and county, which intervened subsequent to
the issuance of citation, unless another citation is issued
Hon. A.C. Winborn, page 12 o-7159
upon the cause of action of the State and county. This would
not be true, however, If the State and county were made defend-
ants before the issuance of citation.
We restate your question No. 6:
"What Is the effect of the judgment rendered by the
Court in favor of the State and County's claim for taxes
where the property has been sold to a private purchaser
at the foreclosure tax sale?"
If this question calls for an answer as to the effect
of a judgment rendered by the court In favor of the State and
county's claimfbr taxes upon an intervention in a case where
citation by publication Is necessary upon defendant or defendants,
and the State and county were not plaintiffs, intervenors or
defendants at the time of the Issuance of citation as prescribed
by the statute, then we are of the opinion that a judgment
rendered by the court upon the intervention of the State and
county would,be void for lack of service in behalf of the State
and county upon the defendant or defendants. If, however, the
State and county were made defendants by the city before issuance
of citation, and set up their claim by answer and Intervention,
the court would have jurisdiction to adjudicate the claim of the
State and county, and this regardless of whether or not the
citation showed the amount of taxes owning to the State Andy
county. In other words, subsection d of Sec. 3, Art. 7345b,
does not apply insofar as notice of the amount of taxes Is con-
cerned owning to a taxing unit that Is made a defendant, as
distinguished from a plaintiff and lntervenor. In the latter
instance judgment would be valid, and the State and county
would share proportionately wfth all other taxing units, parties
to the judgment, as prescribed by Art. 7345b. A purchaser at
such foreclosure sale under the last stated conditions would
purchase free and clear of the State and county lien for taxes
under.the judgment as prescribed In Sec. 10 of ARt. 734513.
The same would be true in the first condition mentioned above
also; the only difference being that the State and county would
share proportionately In the taxes collected under the judgment
in the last instance, but would not be entitled to collect in
the first instance, because based upon avoid judgment insofar
as the State and county is concerned. In other words the private
purchaser takes title free and clear of State and county lien
for taxes in either instance, for the State and county are
partles to the suit, notwithstanding the judgment in their
behalf might be void. They are nevertheless precluded by the
~exnressterms of Sec. 10 of Art. 7345b from subsequently
asserting a lien against the purchaser at such foreclosure sale.
We restate your question No. 7:
_ . . .
Hon. A. C. Wlnborn, page 13 o-7159
%oes this act mean that If the State and County have
failed to Intervene in a pending tax suit that in the event
judgment for foreclosure Is rendered in such tax suit and
the property sold at tax sale, the State and county would
lose its right to the tax liens heretofore existing against
said property?"
This we have heretofore answered by our opinion No.
0-7076, a copy of which is herewith enclosed. We call to your
attention, however, that Sectlon 10 of Art. 7345b is by its
express terms limited to "any taxing unit which was a party
to said suit OP which had been served with citationin said suit."
We have attempted to clear up a troublesome and complex
questlon, and we frankly state that our efforts have not been
altogether satisfactory to us, but we think the views here ex-
pressed are in accord with the practice and procedure which
has heretofore been substantially followed in Harris County,
and which we would be very reluctant to upset unless compelled
to do 80 by the plain and explicit provisions of the statutes
and Rules of Civil Procedure. We believe our construction of
the statutes and the present Rules of Civil Procedure, insofar
as said Rules of Civil Procedure are applicable to tax suits,
is reasonable and justified.
Very truly your8
ATTORNEY GENERAL OF TEXAS
By s/L,P, Lollar
L. P, Lollar
Assistant
LPL:AMM:wc
Enclosure
APPROVED J'UL17, 1946
s/Carlo8 C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
This opinion considered and approved in limited conference.