A~¶vnlm~EY G;I1SEll.... 

April ~27; 1949’ ‘: 

Hon. William S; Fly, Chairman 

House Judiciary Committee 

Fifty-first Legislature 

Austin, Texas Opinion No. V-815. 

,~:, 

Re: The constitutionalityof 

H. B. 484 to validate summary delinquent tan sales 

previously.made by tax 

collectors of counties, cities, and ~iithei ~gavernmental subdivisions. : 

Dear Mr. Fly: 

Your letter of April 12, 1949, is as follows’: 

‘U The Judiciary Committee ‘took up for consideration H. B. 484 Monday, April 11, 1949, 

“It is nay understanding that the City of Cleburne 

and other &is’s have sold’certain properties for’ delinquent taxes under a 1931 Act of the Legislature permitting summary sales. 

“This legislation attempts to validate those sales 

which I understand were declared invalid in several ’ 

decisions towit: Duncan,v. Cabler 21,5 S.W,Zd 155 and ! 

School District v. Mexia’l33 S.W.Zd 118, 

“The Judiciary Committee asks you for your opin- 

” io,n as to whether the Legislature has the power,to validate th~ese summary sales t%ade under the invalid Act, ‘~ 

of 1931.~” 

You thus present for the op’ini6n of this office the conrtitutfonality of H. D. 484, 5lst Legislature. 

It has been definitely settled by the Supreme Court of 

this State that since ,the effective date of Article 7320a,, V.%.S., 
Hon. William S. Fly, page 2 (V-815) 

enacted in 1929, summary sales of real estate for delinquent taxes 

are unauthorized. This statute is as follows: 

“Section 1. That all sales of real estate made for 

the collection of delinquent taxes due thereon shall be 

made only after the foreclosure of tax lien securing 

same has been had in a court of competent jurisdiction 

in accordance with existing laws governing the foreclosure of tax liens in delinquent tax suits. 

“Sec. 2. All laws and parts of laws in conflict with 

the nrovisions of this Act be and the same are hereby 

repealed.” 

In the case of Duncan v. Gabler, 2 ,15 S.W.2d 155 (Tex. 

Sup. 1948) Associate Justice Smedley said: 

“The amendment of Section 13 in 1932 was not selfexecuting. It contemplated and required lbgislation to 

provide for ‘speedy sale, without the necessity of a suit 

in Court’ . . . . There has been no such legislation since 

the amendment was adopted. And since the Act of 1929 

repealed all statutes then in effect that provided for sales 

for the collection of delinquent taxes without suit and 

foreclosure, there is now no statute authorizing the sale 

of land for delinquent taxes except after foreclosure of 

the tax lien in a court.” 

It therefore necessarily follows that since the effective 

date of Article 732ga, supra, which repealed all prior statutes 

authorizing summary sales of real estate for delinquent taxes, 

there has not existed in this State any statutory authority for summary sales. Summary sales made since the effective date of this 

statute are therefore absolutely void, and pass no title to the purchaser; add this regardless of whether a taxing unit or private 

individual becomes the purchaser. Title remains vested in the 

owner, unaffected by the sale or the execution and delivery of the 

deed. This being true, we must hold that the Legislature does 

not have the authority to validate summary tax sales which were 

void at their inception. The Legislature has no power to pass a 

law divesting the title to property out of one person and giving it 

to another. Article XIV, Section 1, of the Constitution of the United 

States, provides in part as follows: 

1. 

. . . nor shall any state deprive any person of life, 

liberty, or propert without due process of law . , .II 

(Ernphas~ 
Hon. Willtam S, Fly, page 3 (V-815) 

Articl? I, Section 19, of the Constitution of t+ State of,. 

Texas provides in~part as followst 

“No citizen oflthis State shall be deprived of ., . . 

;;;~*:‘~ * , . except by the due course of the law of the 

This bill violate8 both of the foregoing constitutional .provistons. 

We are fortified in our conclusion by the .decislons of the 

Supreme Court of this State and by th+Supremo Court:of the United 

States.’ We direct attention to the case of .Eustis v. City of Henrietta, 90 Tsx. 468, 39 S,W, 567 (1097) in which a void tax sale was 

Gi%lved, and the construction of a remedtal statute somewhat similar in effect as this bill. The Supreme Court, speaking through 

Asroclate Justice Brown, saidi 

“If the sale was void, it was,,a.p If ne sale had been: 

made i 

4~ i Such a law, it upheld, world gtve to,a deed 

which ;i void in itself, OD whtch is based upon, a void 

sale, the ~effect to vest a good and perfect title in the 

purchaser of the property,~ contrary td the provision 

of section 13 of article 8 of the constitution, Ih so far 

as article 51g, Rev. St. 1895, makes the payment of 

taxes by the owner to the city, or to one who has purchased at a void sale or claims the property under a 

void deed, a condition predodent to his resisttng the 

claim made upon his property under such void proceading, it ir violative of the constitution of the state in the 

several particulara befbrc mentioned, as well as of 

section 1 of the fourteenth amendment of the conrtittation of the United States . . , 0 * 

Since the summary sale was made without authority of 

law, the Leeislature could not divest title out of the then owner. 

That would be a taking “without due process of law.” 

The rule is stated in general terms in the case of Campbell v. Holt, by the Supreme Court of the United States, 115n 

?GTmpmq? 

“It may, therefore, very well be held that in’an, 

action to recover real. or pernonal property, where the 
Hon. William 9. Fly, page 4 (V-815) 

question is as to the removal of the bar of the Statute 

of Limitations by a legislative Act passed after the bar 

has become perfect, such Act deprives the party of his 

property without due process of law. The reason is, 

that, by the law in existence before the repealing Act, 

the property had b&coma the defendant’s. Both the legal 

title and the real ownership had become vested in him, 

and to give the Act the effect of transferring this title 

to plaintiff would be to deprive him of his property without due process of law.” 

We deem the foregoing sufficient clearly to show that this 

bill ff passed would be unconstitutional, and you are, therefore, 

accerdinply so advised. 

~SUMMARY 

Since the effective date of Article 732ga, V,C.S.. 

there has been no statutory authority In this State for 

the sale of real estate for dsltnquent taxes by summary sa,les, and nuch sales are absolutely void and 

pass no title to the purcharcr. The Legislature has 

no constitutional power to validate such aales. The 

same would violate Article XIV, Saction 1, of the Federal Constitution, and Article I, Section 19 ef the Cmrtitutlon of Texas. Duncan v. Gabler, 215 S.W.Zd 155; 

Euatia v. City of Henrietta 90 Tex. 468, 39 S.W. 567; 

Camp66Ilv.‘620. 

Very truly yours 

ATTOBNEYGENERALOF TEXAS 

BY 

LRLtammtmwb 

*2?2& 

ATTORNEYGENERAL