Hon. Gee. H. Sheppard 

Comptroller of F-‘ublic Accounts 

Austin, Texas Opinion No, V-702 

Re: The effect of condemnation of land 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, I talked to you about 

whether or not taxes on certain property located 

in Taylor County should be paid for the year 1944. 

You suggestdd that I obtain 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 2 exhibits in 

regard to the matter. One of the exhibits Skteg 

that the Federal Government filed the petition condemning certain lands in Taylor County on Sept. i, 

1943, and a judgment as to Tract B R -4 was entered during the year 1945. The exhibit referring to 

the judgment States that the petitiener filed its 

Declaration of Taking No. 1 on July 25, 1944 on 

certain pnopertios beionging to M. A. Horton and 

wife, Minnie D. Hori:on. 

“For your further information we are encIoS* 

ing a copy of a letter written to us by Judge Caffey 

on Augi 6th, 194g1 

“You will please advise uS whether or not the 

taxes oki the 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, but title to which was not 

acquired by the Government in such proceedings until July 25, 1944, 

by filing a declaration of taking, is liable for the 1944 State and 

County taxes: 

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

“Upon the filing said declaration of taking and of 

the deposit in the court, to the use of the person en-‘. 

titled thereto, of the amount of the 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 of America, and said lands shall 

be deemed to be condemned and taken for the use of 

the United States, and the right to just compensation 

for the same shall vest in the persons entitled thereto.. . *” 

Immediately upon the filing of a declaration of taking by 

the Federal Government and the deposit of the estimated award in 

the registry of the court, in compliance with the foregoing statute, 

the fee simple title becomes immediately vested in the Government. Saucier v. Crighton, 147 Fed. (Zd) 430 (5th Cir.); City of 

Oakland v. United States, 124 Fed, (2d) 959 (9th Cir.); United States 

v. Sunset Cemetery Co., 132 Fed. (2d) 163 (2nd Cir.). 

It therefore follows from the foregoing statute and authorities that the owner was not divested of the title to the land in the 

instant situation until July 25, 1944, and was the owner on January 

1 of 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 of this, 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, 92 S.W. (2d) 1011 (Sup, Ct.). 

This brings us to the practical result as applied to the 

question presented. The owner is personally liable for the 1944 

taxes if assessed against him, But the lien securing the same 

can,not be enforced agai~nst the Federal Government as long as it 

remains t:he owner. This is consistent withi the opinion of Justice Brewster in the case of State v. City of San Antonio, et al, 

209 S. W. (2d) 756 (Sup. Ct.), expressed as follows: 
Hen. Cf4e4 I-i, Sheppard, Page 3 @IG82) 

. 

r 

“Althou8h the state and c.eunty did have a lien 

against the lot for taxes due them while the lot was 

p,rivatcly ewnezd by Barnes and others, the lien became unenforceable after the city and school distr’fct acquired title to it by the tax sale, in, 1938 and 

while they continued to hold it for public ,purposcs; 

a$id the lot, whil,e so held, was not subject to seizure 

OT %sle to satisfy a judgment for taxes levied by the 

state and county during the time it was so private& 

own&; end any proceeding attempted a acc,ornpEis K 

this is voidd, n 

Therefore. the owx~er of tbie property is personally liable fer the 1944 State and Cou&y taxes, bqt the t;iea $ec%&ng the 

same is unenkrceable so lon8 as then Fad&al Csverment rtmains the owner, 

We consider next the effect of the judgment rendered 

by the Court in the condemnation praceedings based upon a disclaimer filed by the Tax Collector of Taylor 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 a j:udgment against the State and County for 

the 1944 taxe,s ,even if the judgment be construed to have that effect. This for the obvious reason that&e, State, and County cannot be bound by the unauthorized acts of their efficers in the performance of the sovereign power 5f &Nation, clearly a governmental function. This is made quite olear by Justice Brewster 

in the case of State v. City of San Antonfa, supro, from which we 

quote: 

“The stipulation was a,nullity, therefore it afforded no suppart whatever for the judgment 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-f this court that in the collection of taxes 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 of their officers in the perfcrmance 

of that function. City of San Angelo v. Deutsch, 126 

Tex. 532, 91 S,W. (2d) 388; Republic Ins. Co. v. Highland Park Ind. .&heel Dist., 141 Tex. 224, 171 S.W. (2d) 

342; City of San Antonio v. Earne&,, 144 Tex. 83, 188 

S.W. (Zd) 775; Rolksen et al v. Puckett et al, 145 Tex. 

366, 198 S.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 1944 or that the Tax Collector’s disclaimer would constitute a legal,basis for such a 

judgment. 

In reaching the foregoing conclusions we are not unmindful of the amendment to Article 7151, V.C.S. by ~the 48th~ 

Legislature; but we have heretofore held this amendment unconstitutional in our Opinion o-5290, a copy of which 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 of such land as of January 1, 1944, is liable 

for the 1944 taxes. But the lien therefor was unenforceable as long as the Federal Government remained the owner. 

A take-nothing judgment against a tax collector 

upon a disclaimer filed in a condemnation proceeding reciting no taxes were due for 1944, does .not release the owner as of January 1, 1944, for the 1944 

State and County taxes, A disclaimer filed by the 

tax collector, reciting that there were no taxes due, 

was erroneous. And since he was acting in a governmental capacity, such disclaimer would not work 

an estoppel or constitute the basis for a judgment 

against the State and County as to said taxes for said 

year. 

APPROVED: 

LPL/JCP 

ENCS. (3) 

Yours very truly 

ATTORNEYGENERALOFTEXAS 

BY 

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