Hon. Gee. H. Sheppard Comptroller of F-‘ublic Accounts Austin, Texas Opinion No, V-702

Re: The effect of condemnation ofland by the Federal Government upon State and County taxes for the year in which the land was taken.

Dear Mr. Sheppard:

You request our opinion upon the question presented in your letter as follows:

“On or about Aug. llth, Italked to you about whether or not taxes on certain property located in Taylor County should be paid for the year 1944. You suggestdd that Iobtain certain information in ,regard to the property from Hon. Wiley Caffey, County Judge, Taylor County, and then submit the question to you*
“We are, therefore, enclosing 2exhibits in regard to the matter. One ofthe exhibits Skteg that the Federal Government filed the petition condemning certain lands in Taylor County onSept. i, 1943,and ajudgment as to Tract B R -4 was entered during the year 1945. The exhibit referring to thejudgment States that the petitiener filed its Declaration of Taking No. 1on July 25, 1944on certain pnopertios beionging to M. A. Horton and wife, Minnie D. Hori:on.

“For your further information we are encIoS* ing a copy ofa letter written to us by Judge Caffey
onAugi 6th, 194g1

“You will please advise uSwhether or not the taxes okithe p~opecty mentioned in Judge Caffeyis letter should be paid for the year 1944.Hon. Geo. H. Sheppard, Page 2 (V-702)

The question reduced to simple terms is whether the owner of real property sought to be condemned by the Federal Government by petition filed September 1,1943, buttitle towhich was not acquired by the Government in such proceedings until July 25, 1944, by filing a declaration oftaking, is liable for the 1944State and County taxes:

40 U. S. C. A., 258a provides:

“Upon the filing said declaration oftaking and of the deposit in the court, to the use ofthe person en-‘

. titled thereto, ofthe amount ofthe estimated compensation stated in said declaration, title to the said lands in fee simple absolute, or such less estate or interest therein as is specified in said declaration, shall vest in the United States ofAmerica, and said lands shall be deemed to be condemned and taken for the use of the United States, and the right tojust compensation for the same shall vest in the persons entitled thereto..

.*” Immediately upon the filing ofa declaration oftaking by the Federal Government and the deposit ofthe estimated award in the registry ofthe court, in compliance with the foregoing statute, the fee simple title becomes immediately vested in the Government. Saucier v. Crighton, 147Fed. (Zd) 430 (5th Cir.); City of Oakland v. United States, 124Fed, (2d) 959 (9th Cir.); United States
v. Sunset Cemetery Co., 132Fed. (2d) 163(2nd Cir.).

It therefore follows from the foregoing statute and authorities that the owner was not divested ofthe title to the land inthe instant situation until July 25, 1944, and was the owner on January 1of said year, and as such owner was liable for the taxes regularly and legally assessed against him on said property for the year 1944. We need not multiply authorities in support ofthis, but the following are noted:

State of Texas v. Moody Estate, **156**Fed. (2d) 698; Winters v. Ind. School Dist. of Evant, 208 S.W. (Civ. App.) 574; Childers County v. State, 92S.W. (2d) 1011(Sup, Ct.).
This brings us tothe practical result as applied to the question presented. The owner is personally liable for the 1944 taxes ifassessed against him, But the lien securing the same can,not be enforced agai~nst the Federal Government as long as it remains t:heowner. This is consistent withi the opinion of Justice Brewster in the case ofState v. City ofSan Antonio, et al, 209 S. W. (2d) 756 (Sup. Ct.), expressed as follows:Hen. Cf4e4I-i,Sheppard, 

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r “Althou8h the state and c.eunty did have a lien against the lot for taxes due them while the lot was p,rivatcly ewnezdby Barnes 

### andothers, the lien became unenforceable after the city and school distr’fct acquired title to it by the tax sale, in,1938and while they continued to hold it for public ,purposcs; a$idthe lot, whil,e so held, was not subject to seizure OT%sle to satisfy ajudgment for taxes levied by the state and county during the time it was so private& own&; end any proceeding attempted a acc,ornpEisK this is voidd,n 

### Therefore. the owx~eroftbieproperty is personally liable fer the 1944State **and**Cou&y taxes, bqt the t;iea $ec%&ng the
same is unenkrceable so lon8 as thenFad&al 

### Csverment rtmains the owner,

We consider next the effect ofthejudgment rendered by the Court in the condemnation praceedings based upon a disclaimer filed by the Tax Collector ofTaylor County tc the effect that there were no taxes due for the year i944. The judgment merely recites that the Tax Collector take nothing based upon this disclaimer. This disclaimer by the Tax Collector affords no support for aj:udgment against the State and County for the 1944taxe,s ,even ifthejudgment be construed to have that effect. This for the obvious reason that&e, State, and County cannot be bound by the unauthorized acts oftheir efficers in the performance ofthe sovereign power 5f&Nation, clearly a governmental function. This is made quite olear by Justice Brewster in the case of State v. City ofSan Antonfa, supro, from which we quote:

“The stipulation was a,nullity, therefore it afforded no suppart whatever for thejudgment against the city bnd scheol district for taxes due the state and ceunty for the years 1930-1948. It is well settled by repeated decisions 0-fthis court that in the collection oftaxes the city and $chocl district, an arm of the government, are dischnrging a governmental function and cannot be baund or estopped by any unauthorizeel acte oftheir officers in the perfcrmance ofthat function. City ofSan Angelo v. Deutsch, 126 Tex. 532, 91S,W. (2d) 388; Republic Ins. Co. v. Highland Park Ind. .&heel Dist., 141Tex. 224, 171S.W. (2d) 342; City ofSan Antonio v. Earne&,, 144Tex. 83, 188 S.W. (Zd) 775; Rolksen et al v. Puckett et al, 145Tex. 366, 198S.W. (2d) 74.”-

Hon. Geo. H. Sheppard, Page 4 (V-702)

We therefore conclude that the “take-not&&ig” judgment against the Tax Collector does not have the effect to extinguish the State and County taxes for the year 1944or that the Tax Collector’s disclaimer would constitute a legal,basis for such a judgment.

In reaching the foregoing conclusions we are not unmindful ofthe amendment toArticle 7151, V.C.S. by~the48th~ Legislature; but we have heretofore held this amendment unconstitutional in our Opinion o-5290, a copy ofwhich is herewith ,enclosed, and we have notchanged our views therein expressed.

SUMMARY
Where land was condemned by the Federal Government and title was acquired July 25, 1944,the
owner ofsuch land as ofJanuary 1,1944, is liable for the 1944taxes. But the lien therefor was unenforceable as long as the Federal Government remained the owner.
A take-nothing judgment against atax collector upon a disclaimer filed in a condemnation proceeding reciting no taxes were due for 1944, does .not release the owner as ofJanuary 1,1944, for the 1944 State and County taxes, A disclaimer filed by the tax collector, reciting that there were notaxes due,
was erroneous. And since he was acting in a governmental capacity, such disclaimer would not work
an estoppel or constitute the basis for ajudgment against the State and County as to said taxes for said year.

APPROVED:

LPL/JCP ENCS. (3) Yours very truly

ATTORNEYGENERALOFTEXAS



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