January 16, 1939 

/ 

Honorable Charles T. Banister 

Criminal District Attorney 

Corsioana, Texas 

Dear Hr. Banister: / 

opinion No. f3-60 

Re: Suit &yState to set aside.' , 1' 

tax sale., 

Your letter of January 10, 1939, in regard to the State 

setting aside a tax sale beoause of a grossly Inadequate price, 

was duly received by this oftioe. 

'Xe interpret your question to be whet~her or not the 

district or county attorney oan maintain a suit, or set aside 

a tax sale of real estate because the sale Frioe was grossly 

inadequate, it being less than the taxes due in this case. 

Fe understand that the sale in questioo was made under 

the proceeding prescribed in Article 7320 of the Revised Civil 

Statutes of Texas, in view of the fact that you any "that the 

sherirr had a right to refuse to acoept the bid." 

The on17 refarenoe to this question in any oi the 'statutes is in Article 7328 where it says: 

” . . ..the acceptance by the sheriff of the bid 

shall be conclusive and binding on the question 

of the suffioienoy of the bid, and no action 

shall be sustained in any court of this State 

to set aside said sale on grounds of the insufficiency of the amount bid and accepted. 

Nothing herein shall be oonstrued as prohibiting the State, aotlng through the oounty attorney 

of the county wherein the laud lies, or its Attorney General, from instituting an action to 

set aside the said sale on the grounds of fraud 

or collusion between the officer making the sale 

and the Furchaser...." 
(’ 

, 

Honorable Charles T. Banister, January 16, 1939, Page 2 

We feel that this provision oonolusively prohibits the 

bringing of' a suit by the district or county attorney to set 

aside a tax sale on the grounds of inadequaoy of price alone. 

Rut, this would have been the laws if this provision had not been 

put in the statute. There are no Texas cases, as far as we can 

find, that hold that the State can bring a suit to set aside a 

tax sale under any circumstances. The only Texas oases in ivhioh 

tax sales have been annulled have b$en suits brought by lndividual persons with an interest in the land. Cooley on Taxation 

indioates tbnt a person with an interest can bring suoh a suit 

but that the State cannot 

oh Taxation, 4 ed., 7 

intain this kind of suit. 4 Cooley 

2949,~ says: 

"Aotions relating to tax-titles may be brought 

eithar by the tax purchaser or his assigns or 

repxesentative, or by the owner of the property 

sold‘lor taxes or his assigns or representative. 

The former are to reco,ver.,possesslon in aid of 

the tax-title or to confirm or quiet the tax-title. 

The latter are an attaoh on the tax-title....11 

In Article 7328, quoted above, it is provided that a 

suit may be brought by the State to set aside the sale *on the 

ground of fraud or collusion between the officer making the 

sale and the urcbaser...." If you could bring your suit under 

this provision and allege and Drove fraud or oolluslon between 

the offioer and the purchaser, you then could probabLy prove 

as evidence of the fraud and collusion the faot of inadsquaoy 

of price. W8 make this statement because the Texas cases in 

which individuals with an interest in the land have brought 

suits to set aside tax sales hold that inadequaoy of prioe 

alose will not set aside a tax sale, but that inadequaoy of 

prioe will be considered along with other irreguls~Xties. 

Rogers v. Moore, 100 Tex. 220, 97 S. W. 685; Ross v. arouilhet, 

00 3. W. 241: Crosby v. Bonnowskv (Ct. Civ. ADD.) 69 S. %'. 212: 

Crosby v. Bo$owsky ISup. Ct.), 9s 'i!ex. 449, Sk-& W. 47, and 

40 Tex. Jur. 263. 

Our answer to your question is that the distriot or 

oounty attorney cannot maintain a suit to set aside a tax sale 

of real estate on the grounds of :Tross inadequno7 of sale prioe 

alone; but we do hold that in a su:t by the State to set aside 

a tax sale *on the ground of fraud or.collusion between the 

officer making the sale and the purchaser*, it would be proper 

to show inadequacy ol sale price as evidence of the fraud 
Iionomble Charles T. Banister, January 16, 1939, Pa* 3 

or collusion. 

,_~- 

Yours very truly 

-ATTORNEY CiG=GR& OF TEXAS 

BY 

Cecil C. Rotsah 

ksistant 

ATTXXEYGEXWL 01 TQdS