THE ATTORNEY GENERAL 

OF TEXAS 

Jim MAA-WEY -ERAI. 

October'9, 1990 

Honorable Jim Mapel Opinion No. JM-1232 

Criminal District Attorney 

Brazoria County Courthouse Re: Authority of a county to 

Angleton, Texas 77515 conduct a private resale of 

property under section 34.05 

of the Tax Code (RQ-1913) 

Dear Mr. Mapel: 

If property upon which delinquent taxes are owed is 

sold at a tax sale to a taxing unit that is a party to the 

delinquent tax judgment, the taxing unit may resell that 

property, subject to any right of redemption existing at the 

time of the sale. You ask about the proper method by which 

such a resale of real property bye a taxing unit may be 

effected. Specifically, you ask: 

1. Is a county authorized to conduct a 

private resale of property pursuant to the 

provisions of V.T.C.A. Tax Code Section 

34.05? and the the related question, 

2. If a county does not elect to resell the 

property pursuant to the provisions of 

Section 34.05(c) and (d) at a Sheriff's sale, 

must a county conduct a resale of such 

property pursuant to the competitive (sealed 

bids) bidding procedure or public sale 

provisions of V.T.C.A. Local Government Code, 

Section 263.001 or 272.0017 

By Yprivate sale" we understand you to mean a sale that 

is conducted without the necessary compliance with the 

procedural requirements of the following statutes: (1) Rule 

646a of the Rules of Civil Procedure,~which governs execution sales and requires the sheriff to sell property at a 

public auction: (2) chapter 263 of the Local Government 

Code, which permits the sale of property at a public 

auction; or (3) chapter 272 of the Local Government Code, 

which permits the sale of property by a sealed-bid 

P. 6552 
Honorable Jim Mapel - Page 2 @M-1232) 

procedure.1 we answer your first question in the 

affirmative; section 34.05 of the Tax Codes impliedly 

authorizes a private resale of real property purchased by a 

taxing unit at a tax sale. We answer your second question 

in the negative, because subsections (a) and (b) of 34.05 of 

the Tax Code provides a means for the county to sell real 

property other than those set forth in chapters 263 and 272 

of the Local Government Code; those chapters are not controlling. 

The Tax Code specifies three methods by which the 

collection of delinquent ad valorem taxes are enforced. 

First, a delinquent taxpayer's personal property may be 

seized and sold by a .taxing unit, with the proceeds intended 

to offset the accrued taxes, penalty, and interest. Tax 

Code 50 33.21 - 33.25. Second, a taxing unit may file suit 

for judicial foreclosure of the tax lien securing the tax. 

Id. SJ 33.41 - 33.54. And third, a taxing unit may file 

suit to enforce personal liability for the tax. & 

§S 32.01, 33.41 - 33.54. 

In the event that delinquent tax collection is enforced 

by either of the first two methods, collection is effected 

1. Generally, counties are governed in the sale of 

county realty by only two statutory provisions: 

The sale of property owned by counties and other 

political subdivisions is governed strictly by 

statute. The conveyance of such property in any other 

manner is void. There are, respectively, two sets of 

Code provisions now appearing in title 8 of the Local 

Government Code which apply to counties and other 

political subdivisions: Code 5 263.001 et sec. and 

Code § 272.001 et sea. 

35 D. Brooks, County and Special District Law § 9.24 (Texas 

Practice 1989). However, subsection (d) of section 34.05 of 

the Tax Code states that except as provided by that subsection, all public sales requested by subsection (c) of 

that section shall be conducted in the manner prescribed by 

the Rules of Civil Procedure for the sale of property under 

execution. Thus, the procedures by 'which counties convey 

real property at public sale may be governed by one of three 

different, statutory provisions, depending upon the nature of 

the transaction involved. 

p. 6553 
Honorable Jim Mapel - Page 3 (JM-1232) 

by a tax sale; such sales are governed by subchapter A of 

chapter 34 of the Tax Code. Tax Code 0 34.01. Property 

seized or ordered sold pursuant to foreclosure of a tax lien 

must be sold in the manner that similar property is sold 

under execution, except as provided in that subchapter. & 

0 34.01(a). If a sufficient bid is not received, the 

officer making the sale must bid the property off to a 

taxing unit that is a party to the judgment. Id. 

0 34.01(C). Section 34.05 of the Tax Code governs the 

subsequent resale of such property by the purchasing taxing 

unit. It is with this section that you are concerned. 

Section 34.05 of the Tax Code provides the following: 

(a! If nronertv is sold to a taxina unit 

is a D& to the iudcment. the tau 

subject to any right of redemption exist& 

at the time of the sale. 

(b) Unless the nronertv is sold D~~s&x& 

to Subsections ICI and (d) of this sectiit may not be sold for less than the marked 

value specified in the judgment of foreclosure or the total amount of the judgments 

against the property, whichever is ,less, 

without the consent of each taxing unit 

entitled to receive proceeds of the sale 

under the judgment. Joinder of the taxing 

units in the conveyance of the property 

constitutes consent. The presiding officer 

of the governing body of a taxing unit may 

consent in behalf of the taxing unit. 

(c) The taxing unit purchasing the property by resolution of its governing body may 

request the sheriff to sell the property at a 

public sale. If the purchasing taxing unit 

has not sold the property within six months 

after the date on which the owner's right of 

redemption terminates, any taxing unit that 

is entitled to receives proceeds of the sale 

by resolution of its governing body may 

request the sheriff in writing to sell the 

property at a public sale. On receipt of a 

request made under this subsection, the 

sheriff shall sell the property as provided 

by Subsection (d) of this section. 

p. 6554 
Honorable Jim Mapel - Page 4 (JM-1232) 

(d) Except as provided by this subsection, all public sales requested as provided 

by Subsection (c) of this section shall be 

conducted in the manner prescribed by the 

Rules of Civil Procedure for the sale of 

property under execution. The notice of the 

sale must contain a description of the 

property to be sold, which must be a legal 

description in the case of real property, the 

number and style of the suit under which the 

property was sold at the tax foreclosure 

sale, and the date of the tax foreclosure 

sale. The officer conducting the sale shall 

reject any bid for the property if it is his 

judgment that the amount bid is insufficient. 

If all bids are insufficient, the property 

shall be readvertised and offered for sale 

again. The acceptance of a bid by the 

officer conducting the sale is conclusive and 

binding on the question of its sufficiency. 

An action to set aside the sale on the 

grounds that the bid is insufficient may not 

be sustained in court, except that a taxing 

unit that participates in distribution of 

proceeds of the sale may file an action 

within one year after the date of the sale to 

set aside the sale on the grounds of fraud or 

collusion between the officer making the sale 

and the purchaser. 

(e) The presiding officer of a taxing 

unit or the sheriff selling real property 

pursuant to this section shall execute a deed 

to the property conveying to the purchaser 

the right, title, and interest acquired or 

held by each taxing unit that was a party to 

the judgment foreclosing tax liens on the 

property. The conveyances shall be made 

subject to any remaining right of redemption 

at the time of the sale. 

(f) An action attacking the validity of a 

resale of property pursuant to this section 

may be not instituted after the expiration of 

one year after the date of the resale. 

(Emphasis added.) 

Prior to 1947, section 9 of article 734533, V.T.C.S., 

one of the predecessor statutes to section 34.05, did not 

p. 6555 
Honorable Jim Mapel - Page 5 (JM-1232) 

expressly authorize a private resale by a taxing unit of 

real property purchased at a tax sale; indeed, it was 

construed as nnf, authorizing a private sale. Attorney 

General Opinions V-124 (1947); O-5056 (1943). But ee 

Attorney General Opinion O-6978 (1946).2 Section 9 t:en 

provided only that any such property could not be sold for 

less than its adjudged value or the amount of the judgments 

against the property in the suit, whichever was lower, 

without the written consent of all taxing .units having tax 

liens against the property. 

After amendment in 1947, section 9 of article 734513, 

V.T.C.S., provided explicitly that a resale could be 

effected either at a public or a private sale: 

The taxing unit may sell and convey said 

property so purchased by it, or which has 

heretofore been purchased in the name of any 

officer thereof, at any time in any manner 

determined to be most advantageous to said 

taxing unit or units either at DUbliC or 

private sale subject to 

right of red&ption . . . 

any then existing 

but such property 

shall not be sold by the taxing unit purchasing the same, at nrivate sale, for less 

than the adjudged value thereof, if any, as 

established in the tax judgment, or the total 

amount for which such judgment was rendered 

against the property in said suit, whichever 

. 1s lower, without the written consent of all 

taxing units which in said judgment shall 

have been found to have tax liens against 

said property. (Emphasis added.) 

2. Prior to the enactment in 1937 of article 734533, 

V.T.C.S., each taxing unit could independently enforce its 

tax lien against the same property with different suits, 

judgments, executions, sales and conveyances. See V.T.C.S. 

art. 7328. Article 7345b permitted the consolidation of 

such lawsuits. Though article 7328 was not repealed until 

1979, ~SS Acts 1979, 66th Leg., ch. 841, § 6(a)(l), at 2329, 

section 12 of article 734533 provided that its remedies were 

cumulative and that its provisions controlled in the event 

of conflict with other statutes. Article 7328 was also 

construed not to authorize a private sale. Little v. 

Dennis, 187 S.W.Zd 76 (Tex. 1945). 

p. 6556 
Honorable Jim Mapel - Page 6 (JM-1232) 

m Attorney General Opinion V-576 (1948). 

It is the absence in section 34.05 of any reference to 

a private sale that concerns you. You suggest that even in 

the absence of any express authority to conduct a private 

sale, the legislature intended that private sales be permitted. We agree. 

Subsections (c) and (d) of section 34.05 of the Tax 

Code set forth detailed procedures for the resale by a 

taxing unit of property purchased at a tax sale that must be 

followed in the event that a resale is not effected pursuant 

to subsection (a) and (b) of that section. It is clear then 

that the legislature intended that some means for conducting 

a resale of such property be permitted other than the one 

set forth in subsections (c) and (d). Subsection (a). of 

section 34.05 permits a taxing unit that purchases property 

at a tax sale to sell that property "at any time," subject 

to any right of redemption existing at the time of the sale. 

If subsections (a) and (b) of section 34.05 were construed 

not to permit private sales, then a county that purchases 

such real property and seeks to resell it perforce would be 

required to comply with the provisions of chapters 263 and 

272 of the Local Government Code.3 See. e.a., Attorney 

3. Chapter 263 of the Local Government Code governs 

the sale or lease of property by counties: its predecessor 

statute was article 1577, V.T.C.S., which was codified in 

the 1925 codification of Texas statutes from a previous 

statute. Chapter 272 of the Local Government Code governs 

the sale or lease of property by municipalities, counties, 

and certain other local governments; its predecessor statute 

was article 5421c-12, V.T.C.S., which was first enacted in 

1969. 

In Attorney General Opinion M-524 (1969), this office 

held that the enactment of the later statute did not have 

the effect of superseding either article 1577 or article 

734533: 

This does not mean, however, that [article 

5421c-121 has no effect. It is a well established 

rule that when a general intention is expressed Ci.e, 

the enactment of article 5421c-121 and also a particular intention which is i~ncompatible with the general 

(Footnote Continued) 

p. 6557 
Honorable Jim Mapel - Page 7 (JM-1232) 

General opinions JM-1197 (1990); JM-335 (1985); V-124 

(1947); 0-5056-A (1943). The issue is whether the 

requirements of chapters 263 and 272 of the Local Government 

Code act to permit a county to resell property "at any 

time." If they do not, it is reasonable to assume that the 

legislature, by the use of the quoted phrase, did not intend 

that those chapters control and intended that counties be 

permitted to conduct a private sale. 

Section 263.001 of the Local Government Code provides: 

(a) The commissioners court of a county, 

by an order entered in its minutes, may 

appoint a commissioner to sell or lease real 

property owned by the county. The sale or 

lease must be made at a public auction held 

in accordance with this section unless this 

chapter provides otherwise. 

(b) The appointed commissioner must 

publish notice of the auction before the 20th 

day before the date the auction is held. The 

notice must be ,published in English in a 

newspaper in the county in which the, real 

property is located and in the county that 

owns the real property if not the same 

county. The notice must be published once a 

(Footnote Continued) ' 

one [i.e. the provisions of articles 1577 and 

the particular intention which 

7245331, 

is incompatible with 

the general one shall be considered an exception to 

the general and in such cases, full effect may be 

given to the general rule beyond the scope of the 

local or special law and by allowing the latter to 

operate according to its special purposes and aims the 

two acts can stand together. 

. . . . 

Therefore, on the basis of the foregoing authorities, it is our opinion that [article 5421c-121 is 

operable outside the scope of Article 1577, Vernon's 

Civil Statutes, and Article 7345b, Section 9, Vernon's 

Civil Statutes. 

p. 6558 
Honorable Jim Mapel - Page 8 (JM-1232) 

week for three consecutive weeks before the 

date the auction is held. 

(c) If the real property is sold, a deed 

that is made on behalf of the county by the 

appointed commissioner in conformance with 

the order entered under Subsection (a) and 

that is properly acknowledged, proved, and 

recorded is sufficient to convey the county's 

interest in the property. 

Section 272.001 of the Local Government Code provides: 

(a) Except for the types of land and 

interests described by Subsection (b), before 

land owned by a political subdivision of the 

state may be sold or exchanged for other 

land, notice to the general public of ~the 

offer of the land for sale or exchange must 

be published in a newspaper of general 

circulation in either the county in which the 

land is located or, if there is no such 

newspaper, in an adjoining county. The 

notice must include a description of the 

land, including its location, and the 

procedure by which sealed bids to 'purchase 

the land or offers to exchange the land may 

be submitted. The notice must be published 

on two separate dates and the sale or 

exchange may not be made until after the 14th 

day after the date of the second publication. 

(b) [Contains list of types of land and 

real property interests to which the notice 

and billing requirements of subsection (a) do 

not apply.] 

It is apparent that neither section 263.001 nor section 

272.001 of the Local Government Code permits a county to 

resell real property "at any time.' Therefore, it is 

apparent that the legislature did not intend for those 

sections to control a resale by 

purchased at a tax sale. 

a county, of p,~;~~~~ 

Accordingly, we 

subsections (a) and (b) of section 34.05 of the Tax Code 

impliedly to permit a private sale; chapters 263 and 272 of 

the Local Government Code do not apply in an instance in 

which a county resells real property purchased at a tax 

sale. 

p. 6559 
* 

i 

. 

Honorable Jim Mapel - Page 9 (JM-1232) 

of 

to 

Subsections (a) and (b) of section 34.05 

the Tax Code impliedly authorizes a county 

resell real property that it purchases at 

a tax sale: chapters 263 and 272 of the Local 

Government Code do not apply in such situations. 

Very truly yo J-h . 

MARYKELLER 

JIM MATTOX 

Attorney General of Texas 

First Assistant Attorney General 

Lou Mx!REARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STENZLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 6560