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 ofacounty to Angleton, Texas 77515 conduct a private resale of property under section 34.05 ofthe Tax Code (RQ-1913)

Dear Mr. Mapel:

Ifproperty upon which delinquent taxes are owed is sold atatax sale toa taxing unit that isaparty to the delinquent tax judgment, the taxing unit may resell that property, subject to any right ofredemption existing atthe time of the sale. You ask about the proper method by which such a resale of real property byea taxing unit may be effected. Specifically, you ask:

1. Is a county authorized to conduct a private resale ofproperty pursuant to the provisions of V.T.C.A. Tax Code Section 34.05? and the the related question,

2. Ifacounty does not elect to resell the property pursuant to the provisions of Section 34.05(c) and (d)at aSheriff's sale, must a county conduct a resale of such property pursuant tothe 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" weunderstand you tomean asale that isconducted without the necessary compliance with the procedural requirements ofthe 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

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procedure.1 we answer your first question in the affirmative; section 34.05 of the Tax Codes impliedly authorizes aprivate resale of real property purchased **by** a taxing unit atatax sale. Weanswer your second question inthe negative, because subsections (a)and (b)of 34.05 of the Tax Code provides ameans for the county to sell real property other than those set forth inchapters 263 and 272 ofthe Local Government Code; those chapters are not controlling.

The Tax Code specifies three methods by which the collection of delinquent advalorem taxes are enforced. First, a delinquent taxpayer's personal property may be seized and sold by a.taxingunit, with the proceeds intended tooffset the accrued taxes, penalty, and interest. Tax Code 50 33.21 -33.25. Second, **a taxing**  unit may file suit for judicial foreclosure ofthe tax lien securing the tax. Id. SJ 33.41 - 33.54. And third, ataxing 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 isenforced by either of the first twomethods, collection is effected

1. Generally, counties are governed inthe sale of county realty by only two statutory provisions:

The **sale** ofproperty owned by counties and other political subdivisions is governed strictly by statute. The conveyance of such property inany other
manner isvoid. There are, respectively, two sets of Code provisions now appearing intitle 8ofthe Local Government Code which apply to counties and other political subdivisions: Code 5263.001 et sec. and Code §272.001 et sea.

35D. **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 asprovided by that subsection, all public sales requested by subsection (c) of that section shall be conducted inthe manner prescribed by the Rules ofCivil Procedure for the sale ofproperty under execution. Thus, the procedures by 'which counties convey real property atpublic sale may **be**governed by

### oneof three different, statutory provisions, depending upon the nature of the transaction involved.

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byatax sale; such sales aregoverned by subchapter A of chapter 34of the Tax Code. Tax Code 034.01. Property seized orordered sold pursuant to foreclosure of atax lien must be sold inthe manner that similar property is sold under execution, except asprovided inthat subchapter. & 034.01(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. 034.01(C). Section 34.05 of the Tax Code governs the subsequent resale of such property **by**the purchasing taxing unit. It iswith this section that you are concerned.

Section 34.05 ofthe Tax Code provides the following:

(a! If nronertv issold toataxina unit isaD& tothe iudcment. the tau
subject toany right of redemption exist& at the time of the sale.

(b) Unless the nronertv is sold **D~~s&x&** to Subsections ICIand (d)ofthis sectiitmay not be sold for less than the marked value specified in the judgment 

### of **fore** closure 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 ofa taxing unit may consent inbehalf ofthe taxing unit.

(c) The taxing unit purchasing the property by resolution of itsgoverning 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 onwhich the owner's right of redemption terminates, any taxing unit that isentitled to receives proceeds **of** the sale by resolution of its governing body may request the sheriff inwriting to sell the property atapublic sale. On receipt of a 

### request made under this subsection, the sheriff shall sell the property as provided by Subsection (d)ofthis section.

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

### ofthis 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 tobe sold, which must bea legal description inthe case ofreal property, the number and style ofthe suit under which the property was sold at the tax foreclosure sale, and the date ofthe 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. Ifall bids are insufficient, the property shall be readvertised and offered for sale again. The acceptance of a bid by the officer conducting the sale isconclusive and binding onthe question of its sufficiency. An action to set aside the sale on the grounds that thebid is insufficient may not be sustained incourt, except that a taxing unit that participates in distribution of proceeds of the sale may file an action within one year after the date ofthe sale to set aside the sale onthe 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 adeed to the property conveying to the purchaser the right, title, and interest acquired or held by each taxing unit that was aparty to the judgment foreclosing tax liens on the property. The conveyances shall be made subject to any remaining right of redemption at the time ofthe sale.
(f) An action attacking the validity of a resale ofproperty pursuant tothis section may be not instituted after the expiration of
one year after the date of the resale. (Emphasis added.)

Prior to 1947, section 9of article 734533, V.T.C.S.,
one ofthe predecessor statutes to section 34.05, did not

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expressly authorize a private resale by a taxing unit of real property purchased at atax 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 orthe amount ofthe judgments against the property in the suit, whichever was lower, without thewritten consent of all taxing .unitshaving tax liens against the property.

After amendment in 1947, section 9 ofarticle 734513, V.T.C.S., provided explicitly that a resale could be effected either atapublic or aprivate sale:

The taxing unit may sell and convey said property so purchased by it, or which has heretofore been purchased inthe name of any officer thereof, at any time inany manner determined to bemost advantageous to said taxing unit or units either at DUbliC or private sale subject to right ofred&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, ifany, as established inthe tax judgment, orthe total amount forwhich such judgment was rendered against the property insaid suit, whichever

. 1s lower, without thewritten consent of all taxing units which in said judgment shall have been found to have tax liens against said property. (Emphasis added.)

2. Prior tothe 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 12of article 734533provided that its remedies were cumulative and that its provisions controlled inthe event ofconflict 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. 6556Honorable Jim Mapel -Page 6 (JM-1232)

m Attorney General Opinion V-576 (1948).

It isthe absence insection 34.05 of any reference to aprivate 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 ofthe Tax Code set forth detailed procedures for the resale by a taxing unit ofproperty purchased atatax sale that must be followed inthe event that aresale isnot effected pursuant to subsection (a)and (b)ofthat section. It isclear then that the legislature intended that some means for conducting
aresale of such property bepermitted other than the one set forth in subsections (c) and (d). Subsection (a).of section 34.05 permits ataxing unit that purchases property at atax sale to sell that property "at any time," subject to any right of redemption existing atthe time ofthe sale. If subsections (a)and (b) of section 34.05 were construed not topermit private sales, then acounty that purchases such real property and seeks to resell itperforce 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 ofproperty bymunicipalities, counties, and certain other local governments; itspredecessor statute
was article 5421c-12, V.T.C.S., which was first enacted in 1969.

InAttorney General Opinion M-524 (1969), this office held that the enactment ofthe 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 noeffect. It is awell established rule that when ageneral intention isexpressed Ci.e, the enactment ofarticle 5421c-121 and also a particular intention which is i~ncompatible with the general (Footnote Continued)

p. 6557Honorable 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 ofchapters 263 and 272 ofthe Local Government Code act topermit a county to resell property "at any time." Ifthey donot, it isreasonable toassume that the legislature, by the use ofthe quoted phrase, did not intend that those chapters control and intended that counties be permitted to conduct aprivate sale.

Section 263.001 ofthe Local Government Code provides:

(a) The commissioners court ofa county, by an order entered in its minutes, may appoint acommissioner to sell or lease real property owned by the county. The sale or lease must bemade atapublic auction held inaccordance with this section unless this chapter provides otherwise.

(b) The appointed commissioner must publish notice ofthe auction before the 20th day before the date the auction isheld. The notice must be ,published in English in a newspaper in the county inwhich the, real property islocated and in the county that
owns the real property if not the same county. The notice must bepublished once a

(Footnote Continued) '
one [i.e. the provisions ofarticles 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, onthe basis ofthe foregoing authorities, it isour opinion that [article 5421c-121 is operable outside the scope ofArticle 1577, Vernon's Civil Statutes, and Article 7345b, Section 9,Vernon's Civil Statutes.

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

week for three consecutive weeks before the date the auction isheld.
(c) Ifthe real property issold, a deed that ismade onbehalf ofthe county by the appointed commissioner in conformance with the order entered under Subsection (a) and that is properly acknowledged, proved, and recorded issufficient to convey the county's interest inthe property.

Section 272.001 ofthe Local Government Code provides:

(a) Except for the types of land and interests described by Subsection (b),before land owned by apolitical subdivision of the state may be sold or exchanged for other land, notice tothe general public of ~the offer ofthe land for sale orexchange must be published in a newspaper of general circulation ineither the county inwhich the land is located or, ifthere 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 oroffers to exchange the land may be submitted. The notice must be published
on two separate dates and the sale or exchange may not bemade until after the 14th day after the date ofthe second publication. **(b)** [Contains list of types of land and real property interests towhich the notice and billing requirements of subsection (a)do not apply.]

It isapparent that neither section 263.001 nor section 272.001 of the Local Government Code permits acounty 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 topermit aprivate 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 acounty resell real property that itpurchases at
atax sale: chapters 263 and 272

### ofthe Local Government Code donot apply insuch 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 byJim Moellinger Assistant Attorney General

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