Hon. Murray L. Harris County Attorney Wood County Quitman, Texas Attention: Hon. James Hartfield

Assistant County Attorney Opinion No. V-1058.

Dear Mr. Harris: Re: The validity ofdelinquent tax foreclosure sales by aConstable under the submitted facts. You request an opinion upon the questions presented in your letter dated April 26, 1950. Your letter and comments clearly state the problem, hence we quote it infull as follows:

“The Tax Collector ofWood County has requested ofthis office an opinion as to the validity of proceedings had in certain delinquent tax suit foreclosure sales and subsequent resales, purportedly made under Art. 7345b. in order todetermine whether he is legally authorized to issue judgment receipts evidencing discharge of the State and County tax liens sought to be foreclosed in the said suits.

“The facts are as follows:

“In 1939, the City ofMineola, Texas, and the Mincola Independent School District, as plaintiffs, filed some seventeen suits seeking toforeclose tax liens upon real estate located within the City ofMineola for delinquent taxes for various years. The State of Texas and Wood County, being impleaded, intervened and filed answers asserting their liens on the said real estate for delinquent taxes due them for the years involved. On November 2, 1939, jlldgment was rendered in all ofthe suits in favor ofall of the taxing units, foreclosing their liens. On April 6, 1940, orders of sale were issued in all of said suits, and on May 1, 1940, such orders were executed by public sale at the courthouse in Quitman, Texas,Hon. Murray L. Harris, Page 2 (V-1058)

by the Constable ofPrecinct Two ofWood County, Tex8.S. At these sales all ofthe property involved in the suits were struck off to the City ofMineola, one ofthe taxing suits concerned. Subsequently. onAugust 3rd, 1942, after expiration ofmore than six months after the redemption period, and after notice duly published, all of said property was sold at public outcry at the courthouse in Quitman, Texas, by the Constable of Prec cinct Two ofWood County, Texas, tovarious parties.

“The City ofMineola has recently presented to the Tax Collector a check representing the State’s and the County’s pro rata share ofthe sums realized from the above-mentioned final sales made by the Constable on August 3rd, 1943.

“We have carefully examined the records and files in these suits and find that the proceedings had were in compliance with the statutes applicable to tax suit sales as ofthe dates indicated, except the Constable, instead ofthe Sheriff, executed the foreclosure sales and the deeds to purchasers at such sales, and that the Constable rather than the Sheriff, made the sales at public outcry after the redemption period (as authorized in Sec. 9,Art. 7345b) and executed the deeds to the purchasers at those sales.

“We have concluded that the foreclosure sales by the Constable to the City ofMineola were valid under authority ofArt. 7345b, Sec. 7and Art. 7328. However, with no case directly in point, there remains aquestion inasmuch as Art. 7328, though providing for sales procedure ‘as in other cases offoreclosure’, makes reference to the ‘Sheriff ’ implying him to be the proper officer and specifically provides that the ‘Sheriff ’ execute the deed where property is bid off to the State. By implication Art. 7330, providing that the Sheriff or his successors shall execute deeds to purchasers of land sold for default in payment oftaxes, casts doubt as tovalidity oftax foreclosure sale and deed executed by aConstable.

“The more serious question, however, is that of the validity ofthe sales by the Constable onAugust 3rd, 1943, more than six months after the redemption period, made at the instance ofthe City ofMineola, purportedly under authority ofSec. 9,Art. 7345b which specifically provides that the Sheriff make such sales. Itappears to us that the holding ofthe Supreme Court int

Hon. Murray L. Harris, Page 3(V-1058)

Little vs. Dennis, 187 SW 2nd 76, stamps these latter sales by the Constable as void. Unless these sales can be considered to have been validated by amendment to Art. 7345b (Act 1947, 50th Leg., p. 1061, Ch. 454, Sec. I), in our opinion the Tax Collector cannot legally issue judgment receipts covering delinquent taxes involved in these suits.

“Therefore, we respectfully submit the following questions in light ofthe above facts and request your opinion on them:

“1. Could the Constable legally execute the orders ofsale in these tax foreclosure suits?

“2. Could aConstable legally make the sale authorized in Sec. 9,Art. 7345b, to be made at request of one oftaxing units concerned after six months after redemption period?

“3. Ifeither of the above described types ofsales were invalid, were they subsequently confirmed and validated by amendment toArt. 7345b (Act 1947, 50th Leg., p. 1061, Ch. 454 Sec. l), so that the Tax Collector can issue valid judgment receipts for State and County delinquent tax liens foreclosed in these suits? ”

The first question, briefly restated, is: May the Constable legally execute the order ofsale and give avalid deed to the purchaser at the first sale inatax foreclosure suit. We think the answer to this question must be in the affirmative for the following reasons. Section 7ofArticle 7345b, supra, provides:

“In the case offoreclosure, an order ofsale shall issue, and, except as herein otherwise provided, the land shall be sold thereunder as in other cases offoreclosure oftax liens.”

Justice Greenwood, speaking for the Supreme Court, said in the case ofState Mortgage Corporation v. Ludwig, 121 Tex. 268, 48 S.W.2d 950 (1932):

““It seems to us not to admit of reasonable doubt that the validity ofthe sale under judicial foreclosure ofatax lien is tobe determined by the rules governingjudicial sales, and not sales pirely statutory and summary.Hon. Murray I,. Harris, Page 4 (V-1058)

Chief Justice Leslie of the Eastland Court of Civil Appeals in the case of Love v. R. S.Allday Supply Co., 106S.W.2d 830 (1937), in citing the case ofState Mortgage Corporation v. Ludwig, supra, as authority upon the same pomt, said:

“Further, it must be borne in mind that tax foreclosure sales are governed by the same rules governingjudicial sales generally. This is due to the statute and authorities construing same. w

The Supreme Court has never departed from the law as laid down in the foregoing cases. Judge Taylor ofthe Commission ofAppeals, in an opinion adopted by the Supreme Court in Gamble v. Banneyer, 137 Tex. 7, 151 S.W.2d 586 (1941), said:

“It is settled in this state that the ‘decrees ofthe district court entered in suits to foreclose tax liens are supported by all the presumptions which uphold judgments ofdomestir courts ofgeneral jurisdiction * * *’ and that the remedy is to throw around the owner’s right and title ‘every safeguard furnished by due and orderly judicial precedure,’ and toput ‘the tax sale, in consummation ofavalid judicial foreclosure, on the same plane, with respect to collateral attack as other execution sales.’ State Mtg. Corp. v. Ludwig, 121 Tex. 268, 48 S.W.Zd 950, 952, 953.”

Prior to the adoption of the present rules ofcivil procedure Article 2218, V.C.S., provided, in part, as follows:

“Judgments for the foreclosure ofmortgages and other liens shall be that the plaintiff recover his debt, damages and costs, with aforeclosure of the plaintiff ’s lien on the property subject thereto, and, except injudgments against executors, administrators and guardians, that an order ofsale shall issue to the sheriff or any constable of the county where such property may dlrectmg him to seize and sell the same as under execution, in satisfaction ofthejudgment;

..,” This statute has been superseded by Rule 309 of the Rules of Practice and Procedure in Civil Actions adopted by the Supreme Court, which rule is in part as follows:

“Judgments for the foreclosure of mortgages and other liens shall be that the plaintiff recover his debt, damages and costs, with aforeclosure ofthe plaintiff ’s lien on the property subject thereto, and, except injudgments against executors, administrators and guardians,t

Hon. Murray I,. Harris, Page 5(V-1058)

that an order ofsale shall issue to the sheriff or any constable ofany county ofthe State of Texas, directing him to seize and sell the same as under execution, in satisfaction of thejudgment;

..,‘* Thus it is observed pbat the rule provides that the order ofsale ’ shall issue to the sheriff or any constable ofany county ofthe State of Texas in lieu ofthe provision in the statutes which provided that an order ofsale shall issue to the sheriff or any constable ofthe county where such property may be. The force ofthe statute and the ru,le are the same in so far as applicable to the problem here involved. Concededly, in none ofthe cases we have cited above was there directly involved the question ofthe coordinate power of the sheriff and constable toexecute an order of sale in adelinquent tax suit. But we perceive noreason why the principle of law stated in these cases would not be applicable to the questions here considered. We have found no case, either under foreclosure of liens generally, or tax liens, holding that aconstable in executing writs ofexecution and making sales thereunder does not possess the same power and authority as the sheriff. The case of Little v. Dennis, 143 Tex. 582, 187 S.W.2.d 76 (1945), which we shall presently discuss in connection with our answer to your second question, is not contrary in so far as first sales are concerned.

We believe the foregoing is sufficient to show that the constable has the same power as the sheriff in executing an order ofsale and issuing adeed thereunder to the purchaser in tax foreclosures as to the first sale, and you are accordingly so advised.

Passing next toyour second question which, briefly restated, is as follows: Has aconstable authority to make asecond sale and issue adeed to the purchaser at such~sale for and on behalf ofthetaxing units purchasing at the first sale under the provisions of Section 9,Article 7345b. We think the answer to this question must be in the negative.

As to the sales made by taxing units after title has been perfected in them by operation oflaw arising from the expiration ofthe redemption period, adifferent situation prevails ~thanthat attending the first sale. Section 9ofArticle 7345b, supra, does not purport further todeal with judicial sales, but prescribes the method, conditions, and manner ofsales by the taxing units ofproperty previously acquired by the taxing units at first sales which they then own and hold for the purpose ofsale tocollect the taxes owing to the various participating taxing units in the suit.

The judicial power had ceased and come toan end upon the final consummation ofthe first sale. Section 9ofArticle 7345bHon. Murray L. Harris, Page 6(V-1058)

merely prescribed the conditions and method ofsales made by the taxing units of property purchased at the prior judicial sale. Under the terms ofthis section ofthe ‘statute, the power to make a public sale in behalf ofthe taxing units is expressly conferred upon the sheriff. Nowhere in said section ofthe statute is the constable mentioned or is there any inference that he may have coordinate power with the sheriff in making such sales. True. the statute says, “All sales contemplated herein shall be made in the manner prescribed for the sale ofreal estate under execution, except that they must be made between the hours oftwo o’clock p.m. and four d’clock p.m.“; but this deals specifically with the manner of making the sale and does not warrant the inference that the constable would have the same power as the sheriff. Whatever may have prompted the Legislature to designate only the sheriff as the officer to make these sales, the Legislature undoubtedly had that power; and we are not warranted inadding by construction what the Legislature has omitted.

The case ofDennis v. Little, supra, is direct authority in support ofthe conclusion we have reached. Justice Sharp in that case said:

“Whether such property is sold under the provisions ofArticle 7328 or under the provIsIons ofSectlon 9ofArtxle 7345b, the sheriff IS the only person authorized toexecute adeed conveying such property to the purchaser thereof at such sale.” Section 9ofArticle 7345b deals only with second sales.

You are, therefore, respectfully advised that the second sales made by the constable in behalf ofthe taxing units were unauthorized, and the purchasers acquired no title thereunder. But did the amendment toSection 9ofArticle 7345b by the 50th Legislature (H.B. 695, Acts 50th Leg., p. 1061), towhich we shall now turn inanswer to your third question, have the effect ofvalidating such titles? Section 9ofArticle 7345b was materially amended by the 50th Legislature (H.B. 695, 1. 1061). We think it quite evident that the legislative intent in the enactment ofHouse Bill 695 was to accomplish adual purpose: First, to clarify the law by specifically authorizing resale by public or private sale or property sold under foreclosure for delinquent taxes and acquired by the taxing units under the provisions ofArticle 7345b; and, second, to confirm and validate such sales as had been made prior thereto but which thro,ugh lack ofan express statutory authority or erroneous construction of the law had rendered such sales and the conveyances made thereunder invalid, even though the sales and conveyances were made by the taxing units in the utmost good faith.Hon. Murray 1,.Harris, Pa8e 7(V-1058)

We are only concerned here with the validating portion ofthis act, for all the proceedings with which we are here concerned transpired prior to this amendment. Judge Atwell in the case ofIn re American Rio Grande Land &Irrigation Co., 21 F.Supp. 492, has well stated the scope ofavalidat.ing act in the following language:

“Validating, seems to me, to cure something that was intended but which was done imperfectly.

...

“Validate is aderivative ofvalid, and means to make valid; to confirm.

...

“These definitions presuppose antecedent facts which, in themselves, though attempting validity, had been insufficient toaccomplish it.
... ”

As said by the Superior Court of Pennsylvania in the case ofPetition ofMiller, Appeal of Borough ofNorthampton, 28A.2d 257:

“The purpose ofavalidating statute is tocure past errors, omissions and neglects, and thus to make valid what, before its enactment, was invalid.”

There is no reason why the Legislature might not have designated the sheriff or constable, either or both, as the proper official tomake second public sales of land held or acquired by taxing units in tax foreclosure suits, but it chose to designate only the sheriff. What the Legislature may have legally done in the first instance it may ratify, validate, and confirm by avalidating act, such as now provided in Section 

# 9ofArticle 7345b, supra. There is nothing in this validating portion ofthe amendment to Section 

# 9forbidden by the Constitution or public policy. It is expressed in plain and unambiguous language, and we must give it effect as avalid act in the absence ofany constitutional provision to the contrary.

You are therefore advised that it is our opinion that these sales, although made by the constable and not the sheriff, must be treated as valid under the express terms ofthe validating act (H.B. 695, Acts 50th Leg., p. 1061), and that the tax assessor-collector is authorized toreceive the correct proportion ofthe State and county taxes tendered by the City ofMineola, and issue receipt accordingly. Opinions Nos. O-6479 and O-7159 heretofore rendered by this office, in so far as in conflict with this opinion, are expressly overruled.Hon. Murray I,. Harris, Page 8(v-1058)

SUMMARY A constable has coordinate power with the sheriff to execute an order of sale in making first sales in delinquent tax foreclosures and to make adeed to the purchaser pursuant thereto, but does not have authority to make asecond sale in behalf ofpurchasing taxing units as provided in Section 9ofArticle 734513, V.C.S. Only the sheriff may make such sales. The amendment to Section 9ofArticle 7345b by House Bill 695, 50th Legislature, page 1061, has the effect ofvalidating such second sales made by constables. The assessor-collector is authorized toreceive the State and county taxes from the purchasing taxing unit as a result of second sales by constables. Yours very truly, PRICE DANIEL Attorney General

APPROVED: W. V. Geppert Taxation Division Joe Greenhill First Assistant **BY** Assistant

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