Honorable- Weldon Hart Opinion No. S-115 

Chairman and Executive Director 

Texas Employment Commission Re: Necessity that 

Brown Building property acquired 

Austin, Texas fob the State at a 

sheriff's sale be 

disposed of ‘ins the 

Dear Mr. Hart: manner acquired." 

You have requested'our opinion on certain questians dealing with' the sale or disposition of 'property 

acquired by-the estate at a kherlff’s sale PoUowing~judgment for unemployment taxes. 

We quote a portton of your letter: 

"The Texas Employment Commission has in the 

past proceeded in accordance'with 'Opinion of the 

Attorney'General of'Texas No. C-1115, dated August.5, 1939'. A copy' of.that.opinion is attache&. 

A question has been raised; however;ab to the 

propriety of' the Coinmission% contemplated sale 

of certain real property acquired for'the State 

by'the Commlssion's'attorney at a.aherlff's sale G 

following the levy'of execution under a $7,558 

judgments for unemployment taxes against the owner 

of the land. . . . 

"Our attention has been directed to that 

language in Article 4403 V.A.C.S., which seems to 

require that property acquired for the State at a 

sheriff’s sale be sold or otherwise disposed of 

‘in the manner acquired'. At the same time, the 

article directs that the disposition be made, with 

the advice and consent of the Attorney General, 

upon such terms and conditions as are deemed most 

advantageous to the State by the agent or attorney 

of the State who bought Fn the property at the 

sheriff's sale. There appears to be ~direct conflict between the quoted portion of Article 4433 

and its other terms. 
Honorable Weldon Hart, p a g e 2 (S-115) 

"I respectfully request that ~you furnish us 

your answers to~tlie'six specific questions treated~ 

by Opinion No. 0-1115,"mentloned above, with special 

attention to question~nuniber (4): 'How is such sale 

to a subsequent purchaser accomplished?'" 

The questions treated by Opinion No. O-1115 follows 

"(1) Is a representative of the Texas Unemployment Compensation Commission authorized by 

law to bid In In the name of the State the property levied upon? 

"(2) If a representative of the Texas Unemployment Compensation Commission is not authorized to 

bid in the property, who is so authorized to bid in 

the property under the laws of this state? 

"(3) When property is bid in at a sheriff's 

sale'in the name of the State, who is'authorised 

to pass title to a subsequent purchaser from the 

State? 

"(4) How is such sale to a subsequent purchaser 

accomplished? 

"(5) What disposition must be made of purchase 

money realized from such sale? 

"(6) Would the answer to the above questions 

apply to real property a8 well as personal property?" 

We affirm Opinion No. O-1115 in so far as the 

answers to questions (l), (2), (5), and (6) are concerned. 

We reform and affirm the answer to question (3) 

by stating that when property Is bid in at a sheriff's sale 

In the name of the State, pursuant to,Article J~401, Vernon's 

Civil Statutes, the Attorney General is authorleed to pass 

title to a subsequent purchaser from the State upon compliance with the provisions of Article 4403. 

A careful reading of the "answerIt to question (4) 

in Opinion No. O-1115 will disclose that question (4) was 

not really answered. Article 4403 Is paraphrased but the 

word "acquired" after "manner" Is omitted. This word is 

vital to the proper construction of Article 4403. 
Honorable Weldon Hart, page 3 (s-115) 

principal 

Articles 4401 and 

statutes involved 

--- 

-... 

4403, as amended, 

herein. They dare 

are the 

derived 

from Chapterlj, General Laws, 16th Legislature, Special 

Session, 1879, p. 9, being Sections 1 and 3, respectively. 

Article 4401 provides: 

*If any'prdperty shall be sold by virtue of 

any execution, .order.or (sic) sale issued upon 

any judgment in favdraf the State or sale by 

virtue of~any deed of trust -- except executions 

issued upon judgments in cases of scire faclas 

the ageht representing the State by and'with the 

advice and consent of the Attorney General is 

hereby'authoriaedand required to attend such 

sales and bid on and buy in for the State said 

property when it shall be deemed ~proper'td protect the interest. of the State In the collection. 

of such judgment and debt. His bid.Bhall not 

exceed the amount necessary to satikfy'aaid judgment and debt and all costs due thereon." 

. I 

Article 4403 provides: 

"The agent or attorney of the State buying 

for the State such property at such sales shall 

be authorized by and with the advice and consent 

of the Attorney General, at any time to sell or 

otherwise dispose of said property so purchased 

In the manner acquired and upon such terma and' 

conditions as he may deem most advantageous to ~- 

the State. If sold or disposed of for a greater 

amount than is necess?ry to pay off the amount 

due upon the judgment or debt, and all costs 

accrued thereon, the remainder shall be paid into 

the State Treasury to the credit of the general 

revenue. When such sale is made, the Attorney 

General shall, in the name of the State,.execute 

and deliver to the purchaser a deed of conveyance 

to said 'property, which deed shall vest all the 

rights and title to the same,in the purchaser 

thereof.* (Emphasis added throughout.) 

Articles 4401 and 4403 were amended by Chapter 

243, Acts of the 40th Legislature, Regular Session, 1927, 

P. 361. 
Honorable Weldon Hart, page 4 (S~115) 

The material change -in Article 4401was the 

additionof the phrase 

of trust." 

"or sale by virtue of any deed 

: .'. 

The addition to Article 4403'was the word 

"acquiredn after "manner;" thereupon causing theamended 

portion to read.". ; .~ to sell or otherwise dispose~of 

said property so purchased in the manner acquired. 

and the words "or debt" after "judgment." 

. .,' 

It should be noted-that Article.4401 concerns 

property "sold.by virtue'of 'any execution, order or (sic) 

sale issued upon shy judgment in favor of the StaG or 

sale by virtue of any deed of trust" except executions 

issued uponjudgments in cases of scire facias. . .._ ~~ . 

In conhection.with.the~foregoing' paragraph it 

is elementary ~that'any property sold in the manner described therein would~necessarily have to be sold at public 

sale. '(Rules-647-650 Texas Rules of Civil Procedure and 

Article 3810, V;C.S.j This being'true; the on1 manner 

in which-the State could acquire property un + er Am 

4401 is at public sale. 

The phrase 'such property at such sales'! in 

Article 4403 refers to the 'property" sold under the 

provisions of Article 4401. Inasmuch as property bought 

by the State under the provisions of this last named 

article would be property "acquired" at a public sale; ' 

for m9 

the on1 manner In which the agent or attorney "buying 

e State such property at such sales* can "sell ore, 

otherwise dispose of said property so purchased in the 

manner acquired" is at public sale. Surely the legislature could have intended no less when It amended Article 

4403 by inserting "acquired" after nmanner.n 

By the foregoing we do not mean that a sheriff 

must sell the property at public sale. The agent or 

attorney of the State, by and with the.advice and consent 

of the Attorney General, is authorized to sell it at public 

sale after proper advertisement as in the case of a sheriff's 

sale under execution. 

The requirement "upon such terms and conditions 

as he may deem most advantageous to the State" does not 

conflict with any other portion of Article 4403, nor prevent the agent or attorney of the State from selling the 

property "in the manner acquired." The fact that the sale 

would be public would In no way prohibit the agent or attorney of the State from agreeing with the purchaser on the 
- 

, 

Honorable Weldon Hart, page 5 (S-115) 

terms and conditions- ofthe sale; If the sale were unsatisfactory to the agents or attorney of the State; there 

is no-reason why the property could notbe'withdrawn from 

the sale and another sale attempted after proper advertisement, if so desired.~ 

There is a serious constitutional question as 

to the sufficiency of the caption of the Amendatory Act' 

in so far as the.addition of the word'"acqulrcdn is concerned. However, IIn order that purchasers may be fully 

protected'it is believed that all sales made by virtue 

of Article 4403 should be by public sale until the statute 

is otherwise construed by the courts or until it is clarifled by legislative action. 

SUMMARY 

'Property boughtlnthe ~name of,the State 

pursuant to~provis~ons of Artkle 4401, V.C.S., 

if sold to a'subsequent purchaser ~froni the'state, 

should be,sold at public sale. Article 4403, 

V.C.S. 

Yours very truly, 

APPROVED: 

L. P. Lollar 

Taxation Division 

JOHN BEN SHEPPERD 

Attorney General 

John Atchison 

Reviewer 

Mary K. Wall 

Reviewer 

Robert S. Trotti 

First Assistant 

John Ben Shepperd 

Attorney General 

JAA:amm