Hon. Jules Damiani,Jr. Opinion Ho. M-982

Criminal DistrictAttorney 405 County Courthouses Re: May Sec. 3 of Art. 725813, Galveston,Texas 77550 V.C.S. be applied retroactively? Dear Mr. Damlanl: We have receivedyour request for an official opinion on the following question:

“Exceptas to litigationpending when it came into effect, does Article 7258b, Section 3. V.A.T.C.S., operate retrospectively, so that if a tax certificate showing no taxes due (whereas in fact taxeswere due) was Issued prior to the date such Article took effect, and under either Article 7258b or Article 7258a /i;epealedT, V.A. T.C.S., the Tax-Assessor CollecTormighT nevertheless issue upon request a cancellation certificate, relieving the current owner and the property of the tax liability, such owner not being thepprson in whose name the taxesbecame delinquent?" Your question asks whether theprocedure providedby Article 7258b is available for periods prior to the effective date of the statute. Our answer is Yes. This Sec. 3, In its relevantportion, reads a8 follows:
"In the event a tax certificate la issued showing no taxes, interest,penalty, and costs due, when in fact taxes, interest, or penalties were due, and the owner of the land is not that person under whom the taxes, interest,penalty, and costs became delinquent, the tax collector

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Hon. Jules Eamiani,Jr., page 2 (M-982)

may issue, on request, a certificaterelieving the property from liabilityand stipulating that the delinquent taxes, interes.t, penalty, and costs are thereafter the personal liability of theperson under whom the taxesbecame delinquent.
. . .Thereafter, this cancellation certificate shallbe conclusiveproof for all purposes that neither the land nor the present owner is liable for the delinquent taxes, interest,penalty, and costs." Article 7258b Is a remedial statute. It repealed and replacedArticle 7258a which was very similar In nature and which had been expresslydeclaredby two court decisions to be remedial and equitable in nature. InternationalPaper Co. v. State, 380 S.W.2d 18 (Tex.Civ.App.1964, error ref. n.r.e.), and Amerada Petroleum Corp. v. 1010.61Acres of Land, 146 F.2d 99 (5th Ci r. . These factors amply support retroactiveapplication of Section 3 and an affirmative answer to your question. The presumption against retroactiveapplication is not applicableunder the circumstanceshere presented. See please: May v. C;f";io;~5vS.$;~16,"~$g~~;y;;~g~lq$@J;. error ref. n.r.e. Civ.App. 1957, error dlsm.); '~~u?~ds5?~ %itutes, (Tex.Clv.App.1925, error diam. Sec.. 28: also 21 A.L.R.2d 1278, 1280-1282 and 107 A.L.R. 578, et.seq. The only exclusion from the relief afforded concerns matters in litigation. Article 7258b, Sec. 6. Our holding allows all property ownerswho have relied upon tax certificates lawfully issuedunder both Articles i’258a and 7258b to relieve themselves from the claim and theirproperty from the undisclosed tax lien againstwhich they had used all the diligence thatboth the law and equity required of them. This purpose is statedby the Court in the International Paper Co. case, supra,wherein the Courtheld,

II

. . . It appears that Article7258a is actually a remedial statute. It gives the citizens of Texas a conclusiveright tobelieve in and rely upon the acts of their

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officers. At the same time, It does not release or diecharge anything except the tax lien. It gives the State the exclusive right to proceed against the Tax Collector and theirbondsmen for the taxes,penalty, interest and costs. The purpose of the statutewas to relieve the purchasers of property from the secret tax liens upon property for which they have purchased and paid, or obligated themselves to pay for. This relieves thepurchaser of the responsibility of buying property and later having a tax lien forced upon the same and requiring him topay off the tax lien in order to keep his property." (atp. 22).

SUMMARY

The provisions of Sec. 3 of Article 7258b, V.C.S. shouldbe applied retrospectively to authorize issuance of the cancellation certificate therein authorized,and when authorized, to cover all tax certificates showing no taxes due which had been previously and lawfully issuedunder both Article 7258aV.C.S. /i;epealedT, and Article 7258b,V.C.S.

Y
Preparedby S. J. Aronson AssistantAttorney General

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APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Harriet Burke William Craig Max P. Flusche Robert Lemens SAM MCDANIEL Staff Legal Assistant
ALFREDWALKER ExecutiveAssistant NOLA WHITE First Assistant

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