6 \ 

THEATTORNEYGENERAL 

OF-TEXAS 

PRICE DANIEL 

ATTORNEY OENERAL 

Hon. Dennis Zimmerman Opinion No, V-1393. 

County Attorney 

Swisher County Re: Effect on outstanding State 

Tulia, Texas and County ad valorem taxes 

of purchasing the land for 

highway right-of-way for a 

price less than the outstandDear Mr. Zimmerman: ing taxes. 

Your request for an opinion reads in part as follows: 

“Swisher County is acquiring the right of way 

needed to widen the State Highway passing through 

the town of Kress, Texas. 

: 

“Some of these lots have back taxes unpaid both 

to Kress School District and to State and County for 

more than the value of the lot or the price that the 

county should pay for the lots. 

“In my opinion the amount paid the owner by the 

county for any lot should be first applied pro rata to 

the taxes due the State, county and school district.” 

Based on the above you have presented the following 

two questions: 

(1) How should the award or consideration paid for 

right-of-way needed by the State for highway construction be applied to taxes due by the landowner when the property is acquired? 

(2) If the award or consideration is not sufficient to 

satisfy all the taxes, how should the deficit be treated? 

In answering your questions no distinction will be 

made between property acquired by private purchase or condemnation proceedings. In either event the answer is the same. The 

State is primarily interested in acquiring a clear title to the property free from all liens or claims. and this includes tax liens. 

The consideration or award should therefore be first applied to 

discharging these tax obligations of the landowner between all of 

the taxing units to which taxes are owing upon a pro rata basis. 

If the award or consideration is sufficient to satisfy all the taxes, 
Hon. Dennis Zimmerman, Page 2 (V-1393) 

there remains no further problem. If it is not sufficient, the 

State is nevertheless protected in its title freetand clear of any 

tax liens, as we. shall proceed to point out. 

State is for a public pur$se. 

Property bc .uired for highway right-of-wa,y by the 

20 C.J. 559, Eminent Domain, Sec. 

43. T’his brings us to a consideration of the lien for the taxes 

which attaches, to each tract, of land for the taxes a’ssessed against 

it.’ Tex. Const. Ant. VIII, Se’c.~ 15; Art. 7172, V,C.S.; Richey v. 

Moor, 112 Te%. 493; 249 SW. 172 (192 ). We assume that the 

liensinvoived:to secure,the payment o 3 ,-the taxes, whether they 

be in favor of the State, county, municipality ok school district, 

attach by virtue of valid assessments. 1nState.v. Stovall, 76 S. 

W.2d.,.206 (Tex. Civ. App. 1934, .eiror ref.), it was held that ‘“when 

thereafter the legal title to such property is acquired by or vests 

in the state, and the same is used by it for a public purpose, all 

subsequent proceedings to collect’s,uch tax by enforcing such liens 

are without effect and void.” State v. City of San’Antonio, 147 Tex. 

1, 209”S.W,2d 756 (1948), is, to the’same effect’ add It was there 

stated: , 

“Although the’state and county did have a’lien 

against the lot for taxes due them while the lot was , 

privately owned by Barnes and other.s, the lien became unenforceable ,after the city and school district ‘. ~acquired title to it by the tax saie in 1938 and while 

they continue to.hold il?for public ,purposes; and the 

lot, while so, held, was not subject to seizure and sale 

to satisfy a judgment for taxes levied.by the state and 

county during the time it was so privately owned; and 

any proceeding~attempting ,to accomplish that is void. 

State vf~ Stovall; Tex. Civ. App., 76 S.W.2d 206, error 

refused;‘Childress County v. State et al., 127 Texr 343, 

92 S.W.2d 1011; City’of Marlin vi State, Tex. Civ. App., 

205 S.W.2d 809.” r 

‘,So long, therefore, as the property is acquired for a 

publi’c purpose, all prior tax liens for-taxes accruing during the 

time’ it~wds privately owned a:re unenforceable. While the State is 

protecfied against enforcement of the tax liens ,which become fixed 

to secure the taxes accruing during the’period of private ownership, .QriS does\ not mea’n tha,t the property owner is permitted to 

receive the cons,ideratiod or award free’from the claim of the taxing units for the taxes which have accrued against/the private owner. The fund arising from the consideration or the award is subject to the payment and discharge of the taaxks~ which the private 

owner owes or is liable fo,r at the time of the acquisition of ,title 

by the.State. This is, fn effe t; the holding of the court in State of 

Texas v. Moody’s Estate, 15 6 F.2d 698 (C.C.A. 5th 1946), and 

expressed in this language: 
Hon. Dennis Zimmerman, Page 3 (‘G1393) 

“We agree with the appellants: 

a. 

. . . 

“(2) That ordinarily any valid lien on lands 

which existed at the time such lands were acquired 

by the United States should,be satisfied out of the 

compensation paid to the owner for the taking of 

such lands.” 

The same rule has been announced by the courts in 

other jurisdictions. United States v. 412.715 Acres of Land in 

Contra Costa County 60 F.Supp. 516 (N . D . C 1 1945); U ‘t d 

States v. Certain I-‘ai&els of Land in City of iaitimore,?%?61 

* .S~PP. 164 (D Md 1945) . . ; Umted States v. 111,000 Acres of Land 

in Polk and Highland Counties, Fl a., . 683(CCA 5h1946); 

United States v. Alberts, 55 F.Supp. 217 (E.D. Wash.‘1644), t 

. . : 

In the Alberts case, supra, the court said: 

,a 

. . o Regardless of the statutory change, the 

lien had attached prior to the filing of the declaration 

of taking. [Under Federal law this is the date that 

the title vests in condemnation proceedings.] That 

being true, the award stands in the place of the property. . . .w 

It is therefore apparent from the authority of t!?e foregoing cases that the insufficiency of the award or consideration to 

satisfy all the taxes does not have the effect of leaving the property charged with the lien for the balance. The lien for all of the unpaid portion of the,taxes becomes merged with the State’s title and 

this precludes any further proceedings to collect the taxes by the 

enforcement of the lien. We think, however, that the owner or owners of the land against whom the taxes were assessed would be 

personally liable for any unpaid taxes lawfully assessed, and that 

it would be proper for the assessment rolls to continue to show 

this personal liability against the owner or owners. 

SUMMARY 

Taxes on property acquired by the State either 

by condemnation or purchase due by the owner at the 

time of acquiring the title should be prorated between 

the taxing units to which taxes are owing upon a pro 

rtta basis from the consideration or award. If the 

consideration or award be not sufficient to satisfy the 

taxes, the State nevertheless acquired the property 
Hon. Dennis Zimmerman, Page 4 (V-1393) 

free from tax liens. The lien to secure the unpaid 

portion of the taxes becomes merged with the title of 

the State and the State’s title is free and clear of any 

tax liens. Liability for the unpaid portion of taxes 

continues, however, as a personal obligation of the 

owner or owners against whom the taxes were assessed and should be continued m the tax rolls until 

the owner pays the same. 

Yours very truly, 

PRICE DANIEL 

Attorney General 

APPROVED: 

W. V. Geppert 

Taxation Division 

E.Jacobson 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

L. P. Lollar 

Assistant 

LPL/mwb