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# 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 advalorem 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 ofway needed towiden 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 ofthe 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?

Inanswering 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 towhich taxes are owing upon apro 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 20C.J. 559, Eminent Domain, Sec. 43. T’his brings us to a consideration of the lien for the taxes which attaches, to each tract, ofland for the taxes a’ssessed against it.’ Tex. Const. Ant. VIII, Se’c.~15;Art. 7172, V,C.S.; Richey v. Moor, 112Te%. 493; 249 SW. 172 (192 ). We assume that the liensinvoived:to secure,the payment o,-the taxes, whether they 3 be in favor of the State, county, municipality okschool district, attach by virtue ofvalid assessments. 1nState.v. Stovall, 76S. W.2d.,.206 (Tex. Civ. App. 1934, .eiror ref.), it was held that ‘“when thereafter the legal title tosuch 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 ofSan’Antonio, 147Tex. 1,209”S.W,2d 756 (1948), is,to the’same effect’ add Itwas 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 itby the tax

# saiein 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 ajudgment for taxes levied.by the state and county during the time it was so privately owned; and any proceeding~attempting ,toaccomplish that is void. State vf~Stovall; Tex. Civ. App., 76S.W.2d 206, error refused;‘Childress County v. State et al., 127Texr 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 ofthe tax liens ,which become fixed to secure the taxes accruing during the’period of private ownership, .QriSdoes\not mea’n tha,tthe 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 ofthe taaxks~ which the private owner owes or is liable fo,r at the time ofthe 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 F.2d 698 (C.C.A. 5th 1946), and 6 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 ofthe 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 60F.Supp. 516 (N D C 1 1945); U ‘t d

. . States v. Certain I-‘ai&els of Land in City ofiaitimore,?%?61 * .S~PP. 164 (D Md 1945)

. . ;Umted States v. 111,000 Acres of Land in Polk and Highland Counties, Fla., . 683(CCA 5h1946); United States v. Alberts, 55F.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 ofthe declaration oftaking. [Under Federal law this is the date that the title vests in condemnation proceedings.] That being true, the award stands in the place ofthe property.
. . .w It is therefore apparent from the authority of t!?eforegoing cases that the insufficiency ofthe 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 ofthe 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 propertyHon. Dennis Zimmerman, Page 4 (V-1393)

**free** from tax liens. The lien to **secure** the unpaid portion ofthe taxes becomes merged with the title of the State and the State’s title is free and clear ofany tax liens. Liability for theunpaid portion oftaxes continues, however, as a personal obligation ofthe 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

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