Honorable David

County Attorney Shelby County Center, Texas

Dear Sir: McNelll, Jr.

Opinion No. O-6277 Ret Procedure to be followed in rtdtemlng land sold to the State for delln Uent taxes in the year 1156, and related questions.

We acknowledgereceipt of your recent letter requesting our opinionupon the above captionedmatter. Your letter reads as follows:

“Thedeed records of Panola County, Texas, Volume E, Page 394, show that Elisha Williams, assessor of Panel? County during the year 1856, levied on several tracts of land amongwhich was 98 acres of the Bailey Anderson Survey lyingEast of the Sablne River for State and County taxes assessed for the year 1854 against Samuel McFaddlnq There being no bidders at the public sale of said lands, the said ElishaWllllams bid off the same for the State of Texas by bidding thtrefor the amount Of taxes due thereonand costs of sale, and executeda deed conveying said lands, to the State of Texas on July 26, 1,856, which deed rec’lted that in accordancewith law and after notice of such salehad been givenmore than 30 days before the date of sale by advertising In writing posted at the Courthousedoor and at two other public places in said County,naming said piss.

“Therecords do not show that the said Elisha Wllliams or any ofhis succtssors in officehave executed a deed to the said 98 acres of land to any one since that date.

‘Hon.Qeo. H. Sheppardhas advised that the records ofhis office reveal that this propertywas levied onHonorable David McNelll, Jr. - page 2 (o-6277)

and sold to the State as set forth above, and that no redemptionreceipthas been issued, or any actionhas been taken In regard to the sale. Therefore, there remains a valid charge against said land, according to Mr. Sheppard.
"Articles7288-7291, Inclusive,and Articles 73o6- 7318, inclusive,of the Revised Civil Statutes of Texas deal with this type of proposition,but they are not clear to thewriter as to the exactprocedure te follow to perfect title to this 98 acres.
"(1)Please advise the exact steps to be taken by the present owntr of the land tm clearhis title to the 98 acres. (2) What Interestdmes the State of Texas claim Is said 98 acres? (3) Could the State Comptroller issue proper redemption' certificateupon payment of all taxes and costs? (4) Could the County Tax Collector make proper deed to present land Ownerupon payment Qf taxes and costs?

"UnderArticle 7290 If such landshave not been redeemed as provided InArticle 7289, then the samemay be sold as provided InArticle 7288. (5) What does this mean? (6)How would the State sell the land? (7) a whom?

"InVol. 40 of Texas Jurisprudenceat the top 0r Page 223, I find 'Wherelandhad been sold off to the State of Texas for taxes assessed subsequentlyto December 31, 1876, the ownerhaving failed to redeem, SUM landmight be reoffered for saleby the collector On receipt of a list from the Comptroller.' The land under investigationwas sold off to the State of ,Texas in 1856. (8) What effectdoes thishave?

"I am assuming that the'aale by said Elisha Williams
was In strict conformitywith the laws exlatlng as of the date of sale. However, I note that the deed recites that notice was posted at the courthouseand two other public places In the County. (9) Did the law zulre posting at the Courthouseand three other ubllc p does today? (10) If so, and notices were posted only at two places except the Courthouse,what effectwould that have on the deed to the State of Texas?"

Your letterpropounds ten separate questions for ourHonorable David McNclll, Jr. - page 3 (0-6277)

opinion and you will note that In your letter,as quoted above,
we have numbered said questions for convenience from (1) to (10)> and have underscored each question. We will first answer your questionsand then present a review of the various statutes we think are applicableand our reasons and authorities for our answers.

Answer to Question No. 1: The present owner, Ifhe Is either an heir. lenal representat,lve orasaianee of the owner of the tract of land in question at the time of-the sale In the year 1856, can at this time redeem said land from the State by paying to the Tax Collector of Panola County, Texas, an amount ofmoney equal to the amount of the 1854 tax, togetherwith all costs,penalties and interestnow requiredby law, and also the payment of all taxes, Interest,penalties and costs on or against said lands since December 31, 1919.

Answer to QuestionNo. 2: The State of Texas has the title to said tract of land, subjec,t to the right of redemption which may be exercisedat any time before the State of Texas makes a sale of said tract to a third party.

Answer to Queation No. 3: Upon payment as provided for in above answer to QuestionNo. 1, it will be the duty of the Comptroller,

to Issue to the owner-of said tract of land a proper redemption certificate,which the ownermay place of record in the deed, records of Panola County.

Answer to QuestionNo. 4: The County Tax Collector has no authority to execute a deed to,present land owner upon payment of taxes and coats (aeerecent opinion of Justice 0. C. Funderburk, Court of Civil Appeals of the Eastland District in Cause No. 2473, styledH. D. Dennis, et al, v. 0. H. Little; not yet reported.)

Answer to QuestionNo. 5: Articles 7288, 7289, and 7290 as codified and brought forward InVernon's Annotated Revised Statuteswere taken from fanAct of the 16th Legislature, 1879,p. 36. Article 4759 of said -1879 Act Is now Article 7288 ofVernon's Annotated Civil Statutes;Article 4759a of said 1879Act is now Article 7289 ofV. A. C. S.; Article 4759b of said 1879Act reads as follows:.

'?n case said land shallnot have been,redeemed
as provided in Article 4759a, then the same'maybe sold as providedby an Act entitled 'anActto provide for the sale of all real estatebid off to the StateHonorable David McNelll, Jr. - page 4 (o-6277)

by Collectors of taxes at tax sales, the owners of which have not redeemed the same," approvedApril 7, 1879."
The Act referred to above, approvedApril 7, 1879, is found in General Laws of Texas, 1879 to 1885, Chapter 70, pa 79, and Sets. 1, 2 and 3 which provide for a second sale have been brought forwardby the codifiers In Articles 7306, 7307 and 7308,V. A. C. S. Evidently, the codifier inhaving Article 7290 to read as follows:

"In case said land shall not have been redeemed
as provided in Article 728gh then the same may be sold
as provided inArticle 7288 , intended it to read as folloWs:

"In case said land shall not have been redeemed
as provided In Article 7289, then the samemay be sold as provided in Articles 7306, 7307 and 7308."
Otherwise,Article 7290 does not make sense and Is meanlinglessO

Answer to QuestionNo. 6: The State would sell the land under Article 7290 as provided for InArticles 7306, 7307 and 7308.

Answer to QuestionNo. 7: The Tax CoJlectorwould make the sale as providedby Article 7308.

Answer to QuestionNo. 8: As the land In question
was sold to the State prior to December 31, 1876,we are of the opinion thatArticle 7306 of the Revised Statutes of 1925 from which the writers ofVolume 40, Texas Jurisprudencewere quoting, at the top of p0 223 Is not applicable.

Answer to QuestionNo. 9: The law did not require posting of the notices at the Courthouse and three other pubilc places In the year 1856,but only at the Courthouse and two otherpublic places. -
AnBWer to QUeStiOnNo. 10: Our answer to above Question No. 9 obviatesthe necessity of our answeringyour question No. 10.

In our recent OpinionNo. 0-6173,we held that the Legislature in prescri'bing a two year redemptionperiod, did notHonorable David McNeill, Jr. - page 5 (0-6277)

do so for the purpose of settinga date beyond which redemption may~not be had but that this period was established to insure the original owner thathe possesses an absolute right of redemption during such two year period and that during such period the State will not interferewith such right by selling the land to a third person. In otherwords, this Opinionheld that the original ownerwould have a vested right to redeemhis land from the State even after the two year redemptionperiod at any timebefore the State actually exercised its right, by making a sale to a third person. We are enclosinga copy of said OpinionNo. o-6173 for your lnfor.mation.

Article 5187, Paschal'sDigest, Laws of Texas,Vol. 1, p. 877 (Actof February 11, 1850)provides in part as follows:

%very Assessor and Collector of taxes shall give notice of the time and place of sale of property so levied on, at least thirty days previous to the day of sale,by advertisement in writing, to be posted up, one on the Courthousedoor ofhis county!, and in two

- otherpublic places inhis county;

. . . Article 5204, Paschal'sDigest, Laws of Texas;Vol. 1, p0 880 (Act of February 9, 1854) reads as follows:.

"Whenany land or tenement shallbe advertised for sale by theAssessor and Collector of Taxes, for any taxes accruing to the State, and such lands or tenements cannotbe sold for the want of bidders, it shallbe the duty of the Assessor and Collector to bid off the same for the State, for the amount of taxes due; and such landsmay be redeemedwithin two years from the date of sale,by the owner or owners, or some other person for him, paying the amount of taxes, and onehundred percentum thereon, together with the costs of sale. When propertyhas been sold for the taxes of any year, and purchasedby the State, and remained unredeemed such property shall not be again assessed or sold for the taxes of any succeedingyear; but on the redemption of said property by the owner,he shallbe required to pay the 'taxes which~wouldhave accrued on said property; for each successiveyear, as though the samehad been regularly assessed." (Underscoringours)

The Legislature in the years 1856, 1858, 1860, 1863 and at various times sincehave passed legislation extendingHonorable David McNeill, Jr. - page 6 (o-6277)

the timeby which former ownersmight redeem lands that had been sold for taxes and purchasedby the State, and each of said acts provide for various terms and conditionsupon which the land ownermight redeem. A careful examination ofVernon"5 Annotated Civil Statute5 discloses that none of these Acts have been brought forward and IncorporatedIn the 1925 revision, except those brought forward In Articles 7289, 7291, and '7340, V. A. C. 9.

Article 7289 ‘1.A. C. S., was brought forward from Acts 1879, S. S, p. 36; and reads as follow5:

"Theowner of any lands thatmay have been conveyed to the State under the provisions of the foregoing article,
or his agent, desiring to redeem the same,may do so by depositingwith the collector of the county in which ,the landswere sold double the amount of the purehasemoney ,andall accrued taxes thereon,within two years from the date of the deed to the State; and such collector shall execute a receipt to such owner, or agents, giving therein the amount of money received, and a description of the land so as to identify the same, and sign and seal the
same officially;and, upon presentation of such receipt to the Comptroller,he shall execute to the owner a relinquishmentunderhis signature and seal of office, which may be admitted to record in like manner with other conveyancesof land."

Itwill be noted that this articleprovides practically the same terms and conditionsof redemptionas Article 5204, Paschal'sDigest (supra).

Article 7291,V. A. C. S., according toVernon25 Compilation shows to have come from the same source as Article 7289,V. A. C. S., vfz. fromActs 187g,.S. 9. p. 36. However, an examinationof said 1879Act discloses this to be an error, Article 7291,V. A. C. 5. was taken from Chapter XIX, p0 31, 9. 9. of the 18th Leg., 1883. This 1883Act amended Section 3 of said 1879Act (Sectfon3 of said 1879 act is now lneorporated in saidArticle 7289,V. A. C. S.) so that same read
as Article 7291,V. A. C. S., now reads. Article 7291,V. A.
c. s., reads as follows:

WTheowner of real estatewhich has been bought in by the State for taxes, orhis heirs or assigns,may redeem the same at any time prior to the sale thereof, by the payment to the collector of the county inwhichHczorabie David McNelll, Jr. -page 7 (o-6277)

s,&?h real estate 15 situated, or to the Comptroller, if in an unorganized county, of the amount deslgnated by ths Comptroller as due thereonwith costs of adver'tisement;

landif It shall at any time appear to the aatisfactfon of the Comptroller thatany land has been sold to the State for taxeswhich have be1E.n paid, or that the sale has not been made in aecordance with the law authorizing the sale of land for taxes,he shall upon the payment of the amount that may be due thereon, cancel suoh sale3 and deliver to the owner of the land, OP his agent, a certificate uWer seal of his department, setting' forth the fact th,atsu.ohlandhas been redeemed, or that such sale has ken cancelled;which certificate shall release the fnterest of the State and the samk may be,recorded fn the proper county as other conveyances of real e&ate are recorded."

Inasmuch as the provisions ofArtiole 7289 and 7291
are in canfllct,and the Legislature in 1883 in effect repealed Section 3 of the 1879Act (whlahIs now Article 7289, V. A. C. 9.) by amending same 50 that it read as our present Article 7291, V. A. C. S., it is our opinion thatArticle 7291 should oontrol ever* Article 7289, notwithstanding the fact that the 1925 codlffersbrought both the 1879provisions and the provisions of 1883, that amEnded same, int.0 the 1925 codification. Our opinioz that ArthZe 7291 controls overArticle 7289 15 further strexgtkicmed 'bythe fast thatArticle 7289 15 limitedby its own terms toWsale made "underthe provisions of the preceding ar.k'-'inle

0 ThisAct was passed In 1879. The sale in question 'was msdc I,nthe year 1856g and was not made "under the provisions cf tk preaedingArticle.

The other redemptionArticle aboVe~ referred to is Art :Fc:;;e

7340, V, A. C. 9. This Article Is a later expression of the Lsgd.slat;ore

and read8 as follows:

%here land5 or lots shall hereafterbe sold to the State or to any city or town for taxes under decree of court 1.n any suft or suitsbrought for the aolleotlon of taxes thereon OP by a collectorof taxes, or otherwise, the
owner or any one having an Interest In such land5 or SX%S shallhave the right at any timewithin two years Fran the date of sale to redeem the same upon payment c; the amount of taxes for which sale was made, ,tcget,her

with all costs and penalties required by law, ard sksopayment of all taxes; interest,penalties andHonorable David McMelll, Jr. - page 8 (0-6277)

costs on or against said land or lots at the tlme of the redemption. Acts 1897, p. 132, Sec. 14;Alzts
go? p. 323;Acts 1907,p. 282;Acts 2nd C. S. 1909, 00;Acts 1st c. 3. 1913,p. 25;Acts 1st c. s. 1915,p* 58;Aots 4th C. S. 1918, p. 155;Acts 3rd
c. s. 1920, p. 103*

It wfXIbe noted that thisArticle 7340 la llmltedby its own terms to lands that shallhereafter be sold to the State, etc. Article 7340, was taken from Vernonfa Civil Statutes Supp. 1922,Acts 1920, 36th Leg., 3rd C. 9. Ch. 59, p. IO3,? Set:.I,, Article 7597, which reads as follows:

“‘That the owner or any one having an Interest In land or lotsheretofore sold to the State, or any city or town, under the decrees of oourt, in any suit
or suits brought for the collectionof the taxen thereon,
or by the collectorof taxea, or otherwise, shall have the right at any timewlthln two years after the taking effect of thisAct to redeem the same upon the payment of the amount of taxes for which salewas made, togeth,er with all costa,penalties and Interestnow requiredby law, and also the payment of aPI taxes, interest,penalties and costs on or against said lands or lots at the time of said redemption. And where lands or lots shall hereafterbe sold to the State or to any city or town for taxesunder decree of court ln any suit or sults brought for collectionof taxes thereon or by a aoPle<?- tor of taxes, otherwise, the owner having an interest fn such lands or lots shallhave the right at any time within two years from date of sale upon pay-meat of the amount of taxes for which sale was made, togetherwith all costs and penalties req4red by law, and also the pa-ymentof all taxes, interest,penaltlea and casts cr. or against said lands or lots at the time of redemptlon.‘s

It wlI.1

be observed that the codifiers In I.925 omitted the first portion of said Article 7697 which provided for the
owner to redeem his lands thathad theretoforebeen sold t.othe State. However, upon the authority of an Opinion by the Commission ofAppeals of Texas,written by Judge Ocle Speer In Rose et al v. Turner et al. 7 5. W. (26)70, In answering certified questions from the Court of Civil Appeals for the First Supreme Judicial District,we are of the opinion that said omittedportion of the 1920Act Is now In full force and effect. Judge Speer Inholding thatArticle 7696 had not been repealed by reason of Its omission from the 1925 codificationhad the following to sayrHonorable David McNeill, Jr. - page 9 (O-6277)

"BySec. 2 of the CodificationAbt (V.A. C. S. 1925, final title) there is this repealing clause: 'Thatall civil statutes of a general~nature, In force when the revised statutes take e~ffect;andwhich are not Includedherein, or which are not,.herebyexpressly continued in force,,arehereby repealed.'
nBySet

. 9 It Is expressly;,pr~ovlded,,: ,!:iY;;;:.:~ 1~: ,' ,,;::+ in 'Thatall laws * * * vesting a time llmlt In which to redeem lands sold for taxes * + * are continued In force.'"

In order for us to determine the amount the owner of the land in questionwouldhave to pay to the State of Texas in order to redeem said tract of land,$wlll .bb~necessaryfor us to determinewhether the land shouldbe~‘kedeetied.under Art. 5204, Paschal'sDigest,Vol. 1,which was In force 'at, the time the landwas sold, OP Article 7289, V. A. C. 3,, cir Art. 7291, V, A. C. S., or Art. 7697, Vernon's Civil Stats. Supp. 1922, which was omitted In the 1925 codification. As stated above,
we are of the opinion thatArt. 7291would take precedence over Art. 7289. It is our opinion that at the time the landwas purchasedby the State of Texas in 1856 that the thenowner of the landhad a vested right to redeem same acco~lng to the terms and provisions of the redemption Iaw as then In force and effect, (See 61 C. J. Sec. 1687 et seq. p. 1243 ax-&authorities there cited,) and that the Legislature could notdivest said

owner of such vested right by latermaking the terms and‘conditions of redemptionmore onerous. However, if the Legislature by later enactmentsmade the terms and conditions of redemption less onerous to the land owner,we are of the opinion that the Iand owner could take advantage thereof. We will therefore compare the various redemptiveacts to ascertainwhich one or ones are less onerous to the land owner.

The origlnal act, being Art. 5204,would on Its face
seem to be less onerousby reason of the fact that it only provides for the paying to the State the amount of taxes and one hundred percentum thereon togetherwith costs of sale, and the payment of all taxes that wouldhave:accumulated on said property for each year since 1856 as though the same~ had been regularly assessed. But our Supreme Court in the cas,e of, F. R. Dean v. State of Texas reported in 54 Tex.'313, inconst~rulngthe redemption statute of 1876which did not provide for the land owner to pay interest on the taxes and costs,held that the State would
oe entitled to six percent Interestup to the time of the redemption. Thus we see that the land owner under this original act would have to pay double the amount of the 1854 taxes and allHonorable David McNeill, Jr. - page 10 (O-6277)

costs and interestthereon at the rate of six percent from 1856 to this date, as well as all other delinquent taxes.

Under Article 7289, the land ownerwould have to pay the State in order to redeem double the amount of the purchase money, (which included the 1854 tax and the costs)with six percent thereon to this date as well as all other delinquent taxes. Under this article the land ownerwould not onlyhave to pay double the amount of taxesbut also double the amount of costs, under the authority of an opinionby James S. Hogg, Attorney General of Texas, dated November 14, 1887, recorded inVol. 12, p0 237 of theAttorney General's Opinions. So it is seen that this statute ismore onerous to the land owner than said article 5204, Paschal'sDigest (supra).

Art. 7291,V. A. C. S., provides that the land owner should pay to the State the "amountdesignatedby the Comptroller as due thereonwith costs of advertisement." This statute within itself)

does not statehow the Comptroller is to arrive at the amount "duethereonwith costs of advertisement." We do not believe this article conflictswith that portion of Art, 7697, Vernon's Civil Stats. Supp. 1922,which was omittedby the 1925 codifiersand are of the opinion that they shouldbe construed together,and thereforehold that the Comptroller should be guided'by the terms of Article 7697,V. C. S. Supp. 1922, in designating the amount due by the land owner. This statuteprovides that the land ownermay redeemhis land upon the payment of the amount of taxes for which sale was made, togetherwith all costs,penalties and interestnow requiredby law and also ~thepayment of all taxes, interest,penalties and costs on or against said lands or lots at the time of said redemption, It clearly appears that the statute quoted from next above Is less
onerous than either of the other redemption statutes and that the land owner could at his election either redeemhis landby paying to the State the amount therein designated or redeem his landby paying to the State the amounts designated in the redemption statute in force at the time the salewas made in the year 1856. It will be noted thatArt. 7291, (supra)provides that the owner of real estatewhich has been bought by the State may redeem the same at any time prior to the sale thereof and does not limithis right of redemption to a 2-year period. We believe that this statute strengthens the conclusionsreached in our OpinionNo. o-6173which isherewith enclosed.

The Legislature in 1935, 44th Leg.,pi.355, Ch. 128 acting in pursuance of the Constitutionalamendment of November 8, 1932 in amending Sec. 55 of Art. 3 of our Constitution,Honorable David McNeill, Jr. - page 11 (O-6277)

provided that "the collectionof all delinquent ad,valorem taxes due ,thestate, County,Municipalltg or other defined subdivision thatwere delinquentprior to December 31, 1919, is forever barred." By virtue of the above act It is our opinion that the land ownermay redeem his landwithout paying the State any delinquent taxes that were delinquentprior to Depember 31, l$lg.

As stated above in answer to quastionNo. 1, the land
owner in order to redeemmust pay to the Tax Collectos~as provided inArt. 7697,V. C. C. Supp. 1922 the "amountof taxes for which salewas made, togetherwith all costs and penaltiesnow requiredby law, and also the payment of all taxes, interest, penalties and costs on or against said landsarts at the time of redemption." You will note that this statute does not provide for the landowner to pay the taxes for which the sale
was made, but provides for the landowner to pay the "amountof the taxes for which the sale was made." It,Is our opinion that the Legislature in so providingwas merely using the amount of the taxes as a measuring rod to determinewhat amount the land;
owner shouldpay the State In order to redeem his land. We are led to the above construction by the fact that the Legislature stated inplain and unambiguous terms that in addition to the "amountof the taxes for which the sale was made," the landowner should pay "all taxes,

. . .

- at the time of redemption." on or against said lands or lots So we hold that in 1935 the Legislature "foreverbarred" 'all taxes

. . ;, on or against said lands or lots at the time of redemption which were delinquent prior to December 31, 1919,but that the taxpayer should pay to the State an amount of money equal to the taxes forwhich the sale was made. Rm,ea~uring

rod-" The 1935 tax remissionAct did not repeal the

Trusting that the above satisfactorilyanswers your inquiries,we are
Very truly yours

ATTORNEY GENERAL OF TEXAS

By /s/ W. V. Geppert

W. V. Qeppert Assistant WVG:iw EnclD APPROVED JAN 4, 1945 APPROVED Opinion /s/ Carlos Ashley Committee

FIRST ASSISTANT ATTORNEY GENERAL 23y /%/ Qw3

~.f2hairman