PRICE DANIEL

October 29, 1947

Honorable Ceorgc H. Sheppard Comptroller of Public Accounts Austin, Texas Opinion No. V-k20

Re:

Dear Sir: Authority of the Comptroller to issue, under Arti

### cles 729;eg;f;308, V.C.S. $ catesof cancellation of sales to the State of property sold in 

### tax foreclosureproceedings.

Your O)IAIOA requost dated October 8, 1947, ir 

### a8 follouo:,

eI am enclosing letter and file from Mr, Thurman L, Mulhollan, Lampasas, Taxas, in which ho requests this department to MA- : ccl 

### a firllt

Solo to certain property iA,tho 

### townof hnpasas made in 1911 and issue P * cartlficatd of relinquishment as the law provides,

"Since this department 

### isundecideda8 to the validity of the judgment entered against this property in 1911 and the officer's return reporting sale of tht 

### property aentioned, I shall thank you to advise
me the proper reply to make to Mr, Mulhollan's letter,"

In order to make clear the full import of JOUr request, it is necessary to quote the letter of Mr. Thurman L. Mulhollan,,Attornay,to you under date Of October A, 1947, which is as follows:

"Pursuant to the provisions of Articles 7291 and 7308, VernonOs Toxas Civil.- ,

Honorable ~GeorgeH. Sheppard, Page 2

Statutes, request is here made for the cancellation of a certain tax sale of Lots Nos. 7, 8, and 9, in block go. 15e of the Matthews & Wilkes Addition to the town of Lampasas, Lampasas county, Texas, held by virtue of a certain judgment, rendered in the District Court of Lampasas county, Texas, on the 11th day of April, 1911, in Cause No. 2808, styled, The State of Texas vs The Unknown Owner or Owners. (Said judgment is shown in the Statement of Facts, hereto attached, on page 02.) Upon which judgment an order of sale was issued, upon which the sheriff of Lampasasmade his return thereon on June 6, 1911, reciting that the lands and premiseswere struck off to the State of Texas. (said Return is shown
on page 03 of the Statement of fact)

"It is believed that the sale is irregular in the following particulars, to-wit:

"(1) The last record owners, in fact no record owners,were not cited in said suit the defendants were merely designatedas pfhe Unknown Owner or Owners,'

"(2) The pdp ent does not contain the recital that t e efendantswere even cited
as required by law.
"(3) The Officer"6Return merely states that the lands and premises were struck off to the State of Texas; no deed to the state appears of record and none b%>,thereports, required by law to be made to 'thecommissionerws court, or to the tax assessor and collector of said county appears to have been made. This fact is strongly borne out by the fact that the tax collector continued to carry this property on his rolls as $Unknown' or 'Unrendered'.

"As favoring the cancellation of said sale, on September 22, 19448 the State of Texas, for itself and Lampasas County tofether with the City of ,Lampasas and eampasas ndependent School District as impleaded defendant taxing units, brought another suit for taxes on said identicalproperty, citing

### HonorableGeorge 

### H0~Sheppard, Page 3

toia8trecordownersthereof I,,P.. Ws Smithandwife,M&o at

IMO thepiarchsom of raid Lot@ 

### 'Md 9, fAblock15 

### of thoUatthows idditlon

to tho townof Lampaaas, iounty, Toxaa o ThO jUd@ltOAt

iA thi8 tthor with ita.aubse.queAt ordor 

### of U-8iA the St4ithlOAtOf Facts 811 

### lad,lO.

-TherightaefA0 thlrJ,)rrty ha born’ injostod 

### iAto,thoaitXlat$@A boWo@n 

### tho tiAo of the, firatsaleand the laat aPlop
"The urohaaor.s 

### at the laat'sale 'that la' P.wo !Li

th pnd tifo MattieSmith both acdod 

### iA good 

### faithin 

### t&O purOha00of'aald 1Pndeat aaideale.

-I~the overt,

saidfirstsaleis ,ca~- celledby your office;the purchasers Bf 

### tho secondsalewouldhave succeededto the poclitlonof the last'rocordownerof saidlpnd, to-wit: J, B, Freeman.


### eTherefore,It 

### is requestedt&t, iA the interestsof justice,thatthe, firatsale shouldbe 

### caAcellcdand a CertPflcateof relinquisbmont

be issuedout of youroffice,a8 the lawprovides, to the succeodiAg partfee to the lastrecordowners.
What over costs,intenet **and** 

### taxes might be 

### dueby virtueof the canaellation of aaid aalewillbo paiduponreceiptof noticeof the PmouAttheroofow

Your requestis reducedto the simpleprop@&- 

### tion of yourauthorityto issuea certificateof cancellationas requestedbyMpOMulhollanof the salein a tax foreclosuresuit in the DistrictCourtof Lampasas County in CauseNo, 2808,styledThe Stateof Texasv. The Uaihovm 

### Owneror Owners,in 1911,whereinthe Stat0 became 

### thepurchaser, Mr.MulhollanciteaIlrticlee '7291 and 7308, V.CoS., 

### asyour authority, for compliance

with, his request.

Thesearticlesof the statuteroepectlvely provide:Honorable George h. Sheppard, Page 4

Art. 7291

_ _ --. "Tnb Owner OS real estate which been boueht in bv the State for taxes. oy his heirs or assigns,m v redeem the same t anv time orior to thi sale thereof, by The vavment to the collector of the county I hi h such real estate is situated tz FheCComptroller, if in an unorgani:ez county, of the amount designatedby the Comptroller as due thereon with costs of advertisement; and if it shall at any time appear to the satisfaction of the Comptroller that any land has been sold to the State for taxeswhich have been paid, or that the sale has not been made in accordance with the law authorizing the sale of land for taxes, he shall upon the payment of the amount that may be due thereon, cancel such sale; and deliver to the owner of the land,
or his agent, a certifieeteunder seal of his department, setting forth the fact that such land has been redeemed, OP that such sale has been cancelled;which certificate shall release the interest of the State and the samemay be recorded in the proper county as other conveyances of real estate are recorded,"

"The tax collector shall, prior to the sale of any real estate that has been previously bid off to the State at tax sales, the owners of which have failed to redeem the same, advertise the real estate to be sold in some newspaper published in the county for six successiveweeks, if there be such newspaper published therein, otherwise he shall post advertisements of said sale at the courthouse door and at one public place in each justice'sprecinct of his county for at least six weeks, giving in said advertisement,whether published

or posted, such description of the lands to be sold as shall be given on the Comptrollergs list, and stating the time, place and terms of sale,which shall be between legal hours on the first Tuesday of some specified month at the courthousedoor at public Outcry, to the highest bidder for cash; providedHonorable George H, Sheppard, Page 5

that no real estate shall in any casebe sold for 18s~ than the amount designated by 

### the Comptroller as due thereon, together with all coats of advertisementsand sale gwner of anv such real estate. his e

of the nated by the county,

Comptroller as due thereon, with costs of advertisement. If it shall at any time appear to the satisfaction of the Comptroller that any land has been sold to the State for tax86 which have been paid, or that the sale has not been made in accordancewith the law authorizing the sale of land for taxes, he ohall, upon the payment of the amount,that may be due thereon, cancel such sale; and in all 

### caseshe shall deliver to the owner of the land, or his agent, a certificateunder the seal of his department, setting forth the fact that such land has been redeemed, or that such sale has been canceled,which certificate shall release the interest of the State, and the
same may be recorded in the proper county as other conveyances of real estate are recerded.,” (Emphasis supplied)

These statutes have reference only to summary sales by the Tax Collector authorized at the time of their passage and have no reference to judicial sales, as is the case here, Hence, if we should hold that the sale under Cause No, 2808, in 1911, is void for lack of proper service or for the other matters suggested by Mr. Mulhellan--a questionwe need not and do not decide--itwould not aid Mr, Smith, the purchaser at the tax sale in 1944 of the same property in whose behalf MrO Mulhollan desires a certificate of cancellation, This for the sirple reason that the statutes relied upon b him are not applicable to judicial sales. Moreover 1: the statutes
were applicable to judicial sales, stflf Mr, Smith could get no relief from them, for they a terns to the owner of real estatew in b the State for taxes, or his heirs or assigns. tiO Smitiii s neither an owner, an heir or assignee as speeffied fn Article 7291 nor a former owne~~ or heir or PSsignee as specified in Article 7308, These statutes clearly refer to the owner or former owner of the real. .

Honorable George Ho Sheppard, Page 6

eotate at the time sale is made to the State. Ml-0Smltli, the purchaser at the tax sale of the same property in the 1944 suit, cannot by any reasonable constructionbe auoh an 

### owneror former owner0

The 

### foregoingis sufficient to show that you have no authority to ccmplywith Mr. Mulhollan's request in behalf of his client, and you are ac,cordlngly 80 advised.

The Comptroller has no authorityby virtue of Artlcles 7291 and 7308 V.C,S. to issue a certificateof cancelfation 0P sale of property bought in b tax foreclosure sale, as suaz the State at articles appl 1 to summary sales but not to judicial
sa es, The purchaser at a subsequent sale of the same property in a tax foreclosure suit is neither an owner, a former owner, an heir or assignee as provided in said 

### statutes.
Very truly yours

ATTORNEY GENERAL OF TEXAS



### LPL/JCP/erc By -a - PT 

### L P, Lo lar Assistant



### APPROVED: