.

Honorable Cecil M. Pruett

CountyAttorney Hutchinson County 526 Weatherly ~Borger,Texas OpinionNo. WW-953 Re: (1) satisfectlon of a tax judgmentbasedupon taxes assessed against personal property by executionupon and sale of other personal property belonglrg to same owner- and within the statutory exemption from forced saleD

Dear Mr. Pruett: (2) Authorlzatlon of tax collector and officers servingWrits OS Exectitionto levyupon, seize and sell certain assessed personal property within statutotiy exemption from forced aale.

As yoilr

recent letter request5 our opinionupon two questionsas above referenced,we.shall consider them Ln turn. The first part of your letter reads as follows:

"The collection of delinquent ad valorem taxes Leviedupon automobiles has become an issue of concern both to the citizens of this commnlty and to the taxingunits involved. There are certain questions which, when answered,may provide a feasible and.economi.cal basis for the solution to the problem encountered in, connectionwith this matter. "The taxingunit Involved is an independent schooldistrict and the situationw,hichexists is thatmany of the citizens no lohger own the automobileupon which the tax was levied. Judgments are being taken against the persons by

.. whom the tax is owed, which juagment lxicludes.‘a f’orsclosure of the tax 1l.m upon the. particular automobile involved.
“CANAN EXECUTION ON A TAX JUDGMENTBASED UPONw ASSBSSXD AQAINST PERSONAIiPROPERTYHonorable Cecil M. Pruett.purge2 Opinion No. WW-953

BE SATISFIED THROUGH THE EXECUTION UPON AND SALE OF PERSONAL PROPERTYNOT ASSESSEDAS SUCH. BELONOING TO THE SAME OWNER,AND WITHIN THE EKEMPTION FROM FORCED SALE UNDER THE HOMESTEAD LAWS?"
We ansuer this question in the negative. Concerning protection of property from forced sale, the Texas Constlt,utlon by Art. 16, sec. 49, conferred a power and a dutyupon the Legislature as foll.ows:

"The Legislature shal.1 have power and it shal.1 be its du~tg,to pro!.e?t by law from forced sa1.e

a ce,r?:ain

portion of the personal property of all.neads of Samllles,, er#.d also ofunmarried adults,ma1.eand femal~e."

In partial execution of this ,provislon,the Legislature specifiedcertain personal property es exempt,by Article 3832, R.C.S.,which we quote in pert.:

"The following property shail be reserved to everg~

family, exempt-

from attackiect or execu.tion

and ever-p other specles,.of So;ced sale Sot:the payment of debts, except as hereinafterprovided:
"1.. The homeskead of the family. *

The teijm"carriage"as used in Art. 3832 has been deftied to lEn,lude

an crutomoblle. Parkei? v. Sweet.,I.27

S.W. 881 (Tex. Civ. App. 1.910); I&inn v. Lenaford Inv:Co.., 36 S.W. 2d 1079 (Tex.Clv-.

App, 1931)* In the case of a hx. ?iRIUiz,an apparent conflict exists between tills

exemptlon statute cm>3 Art. 7272, R.C.S., the pertinent part of which is es Soilovs:

"All real and personal property held or OUn6d by any person In this Skte shall b6 liablefor all State end County Taxes due bg the owner thereoS,~lncludir~~tax

### on real 

### estate, personalproperty and poll tax; anilthe Tax Collectorshall levy or; spy personal or real proper~ky

to be Sound lfi

his county ~tosatisfy all del.lnquent

taxes, any law .tothe contrary~ notvlthster:dFng; " ~ " ~ " UNHonorable Cecil M. Pr,irs?.i., page 3 OpinionNo. WW-953


# d rts. 7273 and 7274 provide for sales of personal property. We have found no authorities either In Texas or'.ln any other jurisdictiondiscussing the precise question you ask. As pointed out in. an annotation at 159 A,L.R, 461 there is a distlnctFonbetween exemptingproperty from taxation and exempting It from seizure and sale to satisfy a ju.dgment for taxes. The general rule 18 that an exemptlon of property from taxation daes not lmpliedly exempt it from seizure and sale to satisfy taxes validly leviedupon otherproperty or upon the person ownlx-&the tax-exemptproperty. u at p* 464.. This is the rule in Texas, Ring v. Williams, 35 S.W, 733 (Tex. Clv.App. 1896).~ However, statutes exemptingproperty from forced sale, such as Art, 3832, have been accordeduniformly liberal constructions In order to effectuate their purposess as contemplated by the Constitution. See Smlthv. McBrvde, 173 S.W. 234 (Tex. 'Civ. App. 1915);Rodgers v. Feruueon, 32 Ten. 533 (1870). Had the Legislature Intended to remove the protection from seizure and forced sale afforded by Art. 3832 in the case.of a tax debt>- it would certainly have used specific language so indicating. In the absence of s-sch language,we see no basis for reading in such an exception..
The second part of your letter reads as follows:
"In SRUGARTVS. NOCONA INDEPENDENT SCHOOL DISTRICT, 288 S.W. 2d 243 on Page 246, the Fort Worth Court of Xvi1 Appeals states, 'Inpartiqular,

In 1929 the 4lst Legislature, by an act codified ab Art. 7328a, R.C.S., lmpliedlg repealed conflicting parts of Arts, 

## 7272to 7283 authorleirg summary sales of real property for collection of delinquent taxeso plncan v. ffabler,215 S.W. 26 155 (Tex. Civ.App. 1948);Amaimo v. Carter, 212 S.W. 26 950 (Tex. Clv. App. 1948, err. ref. n.r.e.). Apparently the provisions of these Articlesdeal- wfth personal property were unaffected. See Shugart v. Nocona IndeDendent School District, 288 S.W. 26 243 vex. Clv. App. 1956)e
2 As further zm~batantlatlon of this opinion, it Is pointed out that the last amendment of Art+ 7272 was by Act of the 42iid Leg. In 1931 (p- 237, ch..141, sec. lj, whereas Article 3832 was amended to Its pre8en.t. form In 1.935 I.egisla.ture amended $0 Ita-pre8en.t. 1.935by the 44th I.egisla.ture (p. 384, ch. 145, sec. 1').

sec. 1’). thereby constltutlng It the latest legthereby constltutlng islatl.ve

expressionupon the matter. 39 Tex. Jur, Statutes, islatl.ve

expression matter. Statutes, SbC. 74. As further zm~batantlatlon of this opinion, it Is pointed out that the last amendment of Art+ 7272 was by Act of the 42iid Leg. In 1931 (pGl

237. ch..141. sec. 1). whereas Article 3832 wasHonorable Cecil M. P,rue.tt, page 4 OpinionNo. WW-953

the tax collector can levyupon and seize and sell any personal property of the tax debtor, applying the proceeds of the sale upon the debtor's tax indebtedness, secured or not by a tax lien.' "Uy second question relates to this statement.
"AREBOlR TRE TAXCOLkTOR AND OFFICERS SERVINGWRITS AUTHORIZED TO LEVY UPON AND SEIZE AND SELL SUCH PBRSONAL PROPERTYWREN SUCR PERSONAL PROPERTY IS WITHIN TRE EXCEPTIONS FROM FORCED SALE ALLOWED BY HOMESTEAD LAWS?"
We also answer this quesklon in the negative.
The ShuRart c.aseinvolvedno question of exemption of propertyunder homessead laws. There, non-exempt personal property of the plalritlff was seized by the schooldistrict, which was ~thetaxing authority, and its tax assessor-collectorto satisfya tax which had been leviedupon plaintiff's 011 and gas lease,while a foreclosure suit was pending.

As pointed out above, personal propertywithin the exemption from forced sale providedby Art. 3832 Is not subject to seizure and sale for a tax debt. Therefore, a speclflc, enforceable lien against the property assessed vould be required to subject it to seizure and sale.

In the case of real property, a lien Is specifically given for taxes due thereon. Art. 8, sec. 15, Constitution of Texas.Art. 7172, R~.C.S. -a Under these provisions the homestead of a familymay be sold for taxes due thereon, not.wlthstan.dlng its exemptionfrom forced sale provided by Art. 16, sec. 50 of the Texas ConstFtu.tlon.. Clt of S Antonio v. TosDDemein 104 Tex. 43 133 S.W. 416 (lgw%er there is no general'lien upon pehonal property‘for taxes due ttbreon. 62 F. 26 959 (C.C.A.. Tex..1.9333.3 See In re Bra-on,

Except for specific situations, a taxingauthority has only the right to sell after judgment on an ordinarywrft of execution,the levy of which will create a lien. Mar0 Co., Inc. v. 1943, em; State, 168,S.W.. 2d 510 40 Taxation,, sec. 1 Tex. Clv. App.

e

3 There are tax liens created on personalty in specific sltuatlons. See Arts. 7048 and 7269; In re Br'annon,supra.. .

Honorable Cec:il 14.Pr:.l::t

i,, page 5 Opinion No, WW-953

Art ICY?, R .C,S

_1provider that tares Levied by a citg "shall be h lien upon the propertyupon which they are assessed' and glves the assessor and collector'power "to l.evy upon any personal property to satisfy" such taxes. Tflereis, therefore,
a lien UpOn specific personalproperty Which has been assessed for city taxes, co., See City of Lubbock v, South_PlalnsHardware 111 S.W. 2d 343 (Tex. Civ, App. 1937). It was determined in Mission IndependentSchool District v. Armstrong 222 3,W. 201 (Tex...Com.

App..1920) that ~theprovlslons of this article were adopted by,reference and made avalIable to independent 3 districts by Ar-t:. 2853,R,C;S,, 19X (nowA?t:.~2.758, R.c.s.),~hool which then read as follows:

"The t;-~3:scees

el.ected

In accorda::ce

~l'.h the preceding arrlcle shall be yessed ~10l ,p1d3.1 management and control,of the free sch<>ois of such lnco,rporaced t;owo~ oc village, and shall in general be vested with Ellathe powers. r.lghts end duties lr?

regard to t.he

establishmentand maintaining of free schools, inCl?Jding T!xe powers end manner of t&x:a~l.lw for free school,

pur-poses that are corlfewej by tne lavs of thlv state upon then

Co~Jx:~'i~

m Ward of aldermen of irwor~- poreted cltlas end tonnes"'

carried forward frem. %he o:d Art+ 2853 IR.C.,S. 1911),wr.lch adopted by reference the p.rovlalor:.s of A;'5.1.

.i%if; ,and upon which. the MiSSiOn I.3=.D~. isc.lslon

was based, 

## rt tnerafore appears that the cr.;y1161;

up~3~1 speclfl::

personal property assessed by aschool d,lstrrcf-

was le.glsIaied

out.of existence. Unti' the Legislature sees fit to provlde a method for flxlng a t.axlienupon person.el propertynhlch 13 erempt: from forced saie. r;i: method exists for enforcing the 'tax aglirimt

3uc.Q pr0pert.y... .

Honorable Cecil M. Pruett, page 6 OpinionNo. WW-953

SUMMARY
An Independentschool district's personal property tax a*sessmentupon propertywhich 13 exempt from forced saleunder Art. 3832, R.C.S., evenwhen reduced to judgment,carries.wlth It no enforceable lien upon the specificproperty assessed end may not be enforcedby seizure and sale of that property or exempt propertywhich replaces It.

Yours very truly,
WILL WILSON Attorney General of Texas By s/JamesR. Irlon James R. Irion Assistant

JRI:cm:wc
APPROVED:
OPINION COMMITTEB: W.V. Geppert, Chairman
Robert Walls Bob Eric Shannon W.E. Allen
REVIEWJZD

FOR THE ATTORNEY GENERAL .By: Leonard Pessmore