### 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 tovalidate summary delinquent tan sales previously.made by tax collectors of counties, cities, and

### ~iithei

~gavernmental subdivisions. : Dear Mr. Fly:

Your letter ofApril 12, 1949, is as follows’:

‘UThe Judiciary Committee ‘took upfor consideration H. B. 484 Monday, April 11, 1949,

“It is nayunderstanding that the City of Cleburne and other &is’s have sold’certain properties for’ delinquent taxes under a 1931 Act ofthe Legislature permitting summary sales. “This legislation attempts to validate those sales which Iunderstand were declared invalid in several ’ decisions towit: Duncan,v. Cabler 21,5S.W,Zd 155 and ! School District v. Mexia’l33 S.W.Zd 118, “The Judiciary Committee asks you for your opin- ”io,nas to whether the Legislature has the power,to validate th~esesummary sales t%ade under the invalid Act, ‘~ of 1931.~” You thus present for the op’ini6n ofthis office the conrtitutfonality of H. D. 484, 5lst Legislature.

Ithas been definitely settled by the Supreme Court of this State that since ,theeffective date ofArticle 7320a,, V.%.S.,Hon. William S. Fly, page 2 (V-815)

enacted in 1929, summary sales ofreal estate for delinquent taxes are unauthorized. This statute is as follows:

“Section 1. That all sales of real estate made for the collection ofdelinquent taxes **due** thereon shall be made only after the foreclosure of tax lien securing same has been had in a court of competent jurisdiction inaccordance with existing laws governing the foreclosure oftax 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 All laws and parts of laws in conflict with the nrovisions of this Act be and the same are hereby repealed.” ,15S.W.2d 155 (Tex. Inthe case ofDuncan v. Gabler, 2 Sup. 1948) Associate Justice Smedley said:

“The amendment ofSection 13in 1932 was not selfexecuting. **It** contemplated and required lbgislation to provide for ‘speedy sale, without the necessity ofa 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 And since the Act of 1929 repealed all statutes then in effect that provided for sales for the collection ofdelinquent taxes without **suit** and foreclosure, there is now no statute authorizing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.” Ittherefore necessarily follows that since the effective date ofArticle 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 notitle to the purchaser; add this regardless ofwhether a taxing unit or private individual becomes the purchaser. Title remains vested in the owner, unaffected by the sale or the execution and delivery ofthe 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, ofthe Constitution ofthe 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, ofthe Constitution oft+ State of,. Texas provides in~part as followst

“No citizen oflthis State shall be deprived of .,. . ;;;~*:‘~ *, . except by the due course ofthe law ofthe

This bill violate8 both **of** the foregoing constitutional .provistons. We are fortified in our conclusion by the .decislons ofthe Supreme Court ofthis 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) inwhich a void tax sale was Gi%lved, and the construction ofa remedtal statute somewhat similar in effect as this bill. The Supreme Court, speaking through **Asroclate** Justice Brown, saidi

“If the sale was void, itwas,,a.p If ne sale had been: made i

4~ iSuch a law, itupheld, world gtve to,a deed which ;i void in itself, ODwhtch is based upon,avoid sale, the~effect tovest a **good** and perfect title in the purchaser ofthe property,~ contrary td the provision of section 13 ofarticle 8 ofthe 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 ofthe constitution of the state in the several particulara befbrc mentioned, as well as of section 1ofthe fourteenth amendment ofthe conrtittation ofthe United States *

. . , 0 Since the **summary** sale was made without authority of law, the Leeislature could not divest title out ofthe then owner. That would be a taking “without due process oflaw.”

The rule is stated in general terms in the case ofCampbell 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 theHon. William 9. Fly, page 4 (V-815)

question is as to the removal of the bar of theStatute of Limitations by a legislative Act passed after thebar has become perfect, such Act deprives the party ofhis 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 theAct the effect of transferring this title to plaintiff would be to deprive him of his property with**out** 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 ofArticle 732ga, V,C.S.. there has been no **statutory** authority Inthis State for the sale of real estate for dsltnquent taxes by summary sa,les, and nuch sales are absolutely void and pass notitle 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 efthe **Cm** rtitutlon 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