. 

Hon. A. C. Winborn 

District Attorney 

HaPrls County 

Civil Courts Building 

Houston 2, Texas 

Dear Sir: Attention: Mr. Robert R. Casey. 

Opinion No. O-7159 

Re: Is it mandatory for citation by publication to be returned to a term 

of court in tax suits in Harrls 

County in citation by publicatl.on 

under Article 7345b? And related 

questions. 

You request the opinion of this Department upon the 

questions contained in your letter, which we quote in part 

below : 

“The present statutes covering delinquent taxes, 

as set forth in Chapter X, Title 122 of the Revised 

Statutes of the State of Texas, are, to say the least, 

very confusing. It Is difficult to determine under 

which of the various provisions of these statutes suits 

may bB brought and property redeemed after tax sales. 

“We desire to submit these various statutes to your 

office for a ruling interpreting the same, and respectfully request that the various questivns be answered. 

‘IArtIcle 7330 provides that the Sheriff shall make 

a deed or deeds to the purchaser In all cases In which 

lands have been sold or may be sold for default In the 

payment of taxes. 

“( 1) Question: Does this statute limit the executions 

to be levied under tax sales to be made by sheriffs only, 

or may a constable levg an execiatlon under a valid tax suit 

and execute the deeds provided for therein? 

9, 

. . . . . . 

“(2) Question: We desire an explanation and 
I-Ion, A. C. Winborn, page 2 o-7159 

interpretation of these several statutes, and request 

that you advise us underwhich of these various provisions we should proceed to permit redemptions to 

be made. 

II . . . . . . 

"(3) Question: In Harris County where we have 

continuous terms of Court which run from January to July 

and from July to January, is it mandatory that our cltations by publication be returnable to the next term of 

Court? 

"( 4) Questlon: Does the citation by publication 

Issued under the suit by the City under the provisions 

of Subdivision d, Section III, Article 7345b make It 

necessary that these notices show the amount of the 

taxes due the State and County? 

"(5) Question: What Is the effect of the failure of 

the notice to so show the amount of the taxes due the 

State and County under Its Intervention In the suit 

flied by the City? 

"(6) Question: What 1s the effect of the judgment 

rendered by the Court in favor of the State and County's 

claim for taxes where the property has been sold to a 

private purchaser at the foreclosure tax sale? 

"Article 734513, Section X, as amended by the 47th 

Legislature of 1941, states: 'The purchaser of property 

sold for taxes In such foreclosure suit shall take title 

free and clear of all liens for ad valorem taxes against 

such property delinquent at the time of judgment in said 

suit to any taxing unit which was a party to such suit 

or which had been served citation In said suit, as required 

by this Act.' 

"(7) Question: Does this act mean that If the State 

and County have failed to interven.e In a pending tax suit 

that In the event judgment for foreclosure Is rendered in 

such tax suit and the property sold at tax sale, the State 

and County would lose Its right to the tax liens heretofore 

existing against said property?" 

We answer your questions 'in the order presented. 

~(1) Under Article 7330, V.R.C.S., the sheriff Is the 

only officer authorized to execute a deed, hence It follows that 

he only may serve the execution In tax foreclosure sales. 
Hon. A.C. Winborn, page 3 O-7159 

(2) Your second question raises the construction to 

be placed upon various statutes mentioned by you as to the 

rights of redemption by the tax debtor or others having an interest inthe land foreclosed upon. (Articles 7340 - 7345b 

Section 9. Article 7345b, Section 12; and Articles 7283, 7284 

and 7284bj 

We think most of the confusion that arises upon this 

question may be dispelled by the simple statement thatsince 

the enactment of Art. 7345b, the provisions of this statute 

govern as to the method of redemption, with the possible exception of a suit where there Is only one taxing unit and no other 

taxing unit has a claim for delinquent taxes. This exception, 

however, If It exists need not require further attention here 

for we do not conceive It to be Involved In your request. The 

rule is thus stated In the case of City of El Paso v. Fort1 

(S. Ct.) 181 S.W. (2d) 579: 

"It Is not necessar 

t 

for us to decide lnthls case 

whether or not Article 73 5b, Section 12,~~repealed and 

made wholly inoperative Article 7340 or any other article 

relating to redemption from tax foreclosures. It might 

be held in cases where only one taxing unit Is a party 

and no other taxing unit has a claim for delinquent taxes 

that such articles are still In effect but that they do 

not operate in a case brought under 73&jb, but we~do not 

pass on that question. Article 7345b prescribes a method 

of redemption in all cases brought under that article under 

which, If one taxing unit bids In the property, it takes 

same as trustee for the other taxing units In whose favor 

judgment ran In the foreclosure suit. Until Article 7345b 

was enacted a suit like the instant one, In which all taxing 

units became partles, was unauthorized. Prior to Its enactment there were various statutes with reference to 

redemptlon. For example, these articles may be cited: 

Articles 1065, 7284a and 7340, Vernon's Clv. St., each 

being applicable In the character of suit to which it 

related. Their provisions varied widely. It seems clear 

to us that when the Legislature enacted 7345b, whereby 

all taxing units could be joined. In one unit and the 

property bid In by one such unit for the benefit of all, 

and prescrlblng the terms upon which same might be 

redeemed, it intended that those terms should govern 

In all cases of redemption In that character of sult 

regardless of who became the purchaser at the sale. The 

confusion which would result from a contrary holding 

In a case like the instant one, Is obvious. To determine 

the amount to be paid to the various units, If possible to 

do so, when under the statutes above cited different terms 

were prescribed would bring Into play some highly Involved 
. 

Hon. A. C. Wlnborn, page 4 o-7159 

computations. We cannot ascribe to the Legislature the 

intent to create confusion when Its evident purpose was 

simplification and clarity,” 

It Is, therefore, our conclusion that under all the 

conditions presented by you, redemption should be under the 

terms of Art. 7345b, regardless of whether a private individual 

becomes the purchaser or one of the taxing units for the benefit 

of all, and this regardless of whether the redemption is by the 

owner, his assigness, or anyone merely having an interest therein, 

or their heirs or assigns or legal representatives. 

We come now to your third question, which frankly has 

given us no small concern, because of the provisions of Sec. 3, 

Subdivision d of Art. 7345b, requlrlng citation by publication 

to be returned to the first day of the next term of court In 

which the suit Is filed. 

The third paragraph of S.B. No. 271, Acts of the 46th 

Legislature, page 184, which created the 127th District Court of 

Harris Cauntg, provides: 

"There shall be two terms of each of said six cfvll 

district courts In Harris County In each year, and the 

first term shall be known as the January-June term, shall 

begin on the first Monday In January, and shall continue 

until and Including Sunday next before the first Monday 

In July; and the second term shall be known as the JulyDecember term, shall begin on the first Monday In July 

and shall continue until and Including Sunday next before 

the first Monday In the following January." 

This is merely a restatement of the law with respect 

to terms of the civil district courts of Harris County, which 

has persisted since the enactment of what is commonly referred 

to as the Special Practice Act, first enacted in 1923, and 

applicable to Harris and some other dereleg populated counties 

in the same classification, Every dlstrlct court, In order 

to conform to Art, 5, Sec. 7, of the Constltutlon, must have 

at least two terms of court each gear. After providing for 

two terms of court as above stated, thus conforming to the 

Constitution, these terms of court had little further slgnlficance In the scheme of the Special Practice Act applicable to 

Harris County. The Special Practice Act was codlfled as Art. 

2092, V.R.C.S., and was last amended by the 46th Legislature, 

H.B. No. 1074, General Laws of that session, page 205, with 

no significant changes Insofar as the problem presently before 

us is concerned. 

Article 2092 provides: 
Hon. A. C. Winborn, page 5 o-7159 

"The following rules of practice and procedure shall 

govern and be followed In the civil district courts. s . a 

in all clvll litigation in ccuntles having five or more 

dls??%trts with either civil or crln$nal jurlsdlctlon 

or both clvll and criminal jurisdiction. 

Harris County has five or more district courts with civil jurlsdiction, hence operated under the provislons of Art. 2092. 

Certainly suits for delinquent taxes would come under "all civil 

lltlgatlon." 

Section 6, Art. 2092, provided: 

"Citation by Publication. If citation Is to be served 

by publication it shall be returnable forty-two (42) days 

after the date of issue and shall command the defendant 

to appear at or before ten o'clock a.m. of the Monday next 

following the expiration of forty-two (42) days after the 

citation was Issued, and shall specify the day of the week, 

the day of the month and the time of day the defendant Is 

required to appear and answer, and shall be served by being 

published in the manner and for the length of time reouired 

by law for cltatlons by ntbllcatlon In the same kind of 

cases or matters in other Dlstrlct Courts at the time the 

publication Is made and the first publication shall be at 

least twenty-eight (28) days before the return day of the 

citation." 

The rules of practice and procedure provided by Art. 

2092, V.R.C.S., prevailed In Harrls County and other counties 

In the same general classiflcatlon until repealed with minor 

exceptions, not Important here, by the rules of civil procedure, 

which became effective Sept. 1, 1941. Up to this date the foregoing quoted Section 6, Art.'2092, constituted the basis for 

service of citation In tax suits in Harris County by publication. 

We therefore say that Art. 7345b, Subset. d of Sec.; 3, 

construed In connection with Sec. 6, Art. 2092, constituted a 

le al basis for citation by publication In tax suits under Art. 

73 & 5b, without requiring the return to be made to the first day 

of the next term of court, so long as Harris County operated 

under the Special Practice Act. 

At this point we deem It helpful to consider the general scope of Art. 2092, the Special Practice Act, and we shall 

not be able to state It more comprehensively than was done by 

Judge Cody in the case of Walker Avenue Realty Co. v. Alaskan 

fir co., 123 S.W. (2d) 999, from which we quote: 

(1 

. . . The court below is ruled In its practice 
Hon. A. C. Wlnborn, page 6 o-7159 

and procedure by the special practice act, Article 2092, 

R.S. 1925, Vernon's Ann. Clv. St. art. 2092. 

"The care and skill with which Articles 2092 and 

2093 -- component parts of the same enactment -- are 

drawn Is what Is to be desired, rather than expected, 

in this type of legislature. The purpose of the enactment was to adjust the practice and procedure lh the 

civil district courts of certain of the populous counties 

to dispose of their continuous litigation, without lnterfering In any way with the practice and procedure of the 

other courts of the State. The validity of this special 

practice act, as a proper exercise by the Legislature of 

Its power to classify subjects, was upheld by our Supreme 

Court In Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 

263 S.W. 905. For the purpose of the practice and procedure established by Art. 2092, the clvil~dlstr~ct 

courts of Harris County (end of the other counties which 

are ruled by the statute) fDrm a separate and distinct 

class of courts from the other courts of the State; 

and such courts are placed In a class separate and 

distinct from that to which other courts of record 

(of the first instance) belong, for the avowed purpose 

of making It possible for the rules of practice and 

procedure which are applied in them, and which are 

inconsistent with the rules that are applied to other 

courts, to co-exist with such other rules, and yet not 

be In conflict. It Is perfectly clear that even though 

the rules bf practice and procedure established by 

Art. 2092 are different from and inconsistent with the 

rules established to regulate the practice and procedure 

In other courts of the State, these two separate sets 

of rules do not conflict. And this, simply because such 

courts as the civil district courts of Harris County 

have been formed into a ~separate class, wherein, by 

reason of Art. 2093, 'All lnconslstent laws and rules 

of practice and procedure shall be inoperative in the 

civil district courts of the class Included within this 

chapter (I.e. Chapter 6, Title 42), but shall not be 

affected~by this law in so far as they relate to other 

district courts.* * *I ('All Inconsistent laws and 

rules', etc., include future as well as existent lnconsistent laws and rules.)" 

In brief, what we now say consistent with Judge Cody's 

opinion from which we have just quoted Is that Art. 2092 Constituted a complete and harmonious system of procedure in Harrls 

County and other counties of the same classification, the provisions of which constituted the procedure In such counties to 

the exclusion of any conflicting or inconsistent laws applicable 
Hon. A. C. Winborn, page 7 o-7159 

to other courts In general. This applied to tax suits as well 

as other civil suits in general. It matters not how confllctlng or inconsistent such other statutes~ or parts thereof may be 

with Art. 2092, they were simply Inoperative under Art. 2092; 

said article provided Its own procedure applicable to Harris 

County In tax suits es well as other clvll suits. 

We now come to the crucial questlon in our problem, 

whether or not the rules of civil procedure, which repealed 

all of Art. 2092 except Sec. 18, Assignment Clerk, and Sec. 23, 

Judge Disqualified, require a different conclusion and constwction In tax suits in'Harris County than prevailed under Art. 

2092, the Special Practice Act. Rule No. 2 of the present rules 

of procedure In civil actions , pronmlgated by the Supreme Court 

of Texas, in part reeds as follows: 

"All statutes in effect Immediately prior to Sept. 1, 

1941, prescribing rules of procedure in tax suits, are hereby 

continued in effect es rules of procedure governing such cases, 

but where such statutes prescribe no rules of procedure in such 

cases, these rules apply." 

We are constralned to the view that Immediately prior 

to Sept. 1, 1941, the rule of procedure In tax suits In Harris 

County, in regard to citation by publication, was as firmly 

fixed. by Sec. 6 of Art. 2092, when construed in connection with 

Subsection d of Sec. 3, Art. 7345b, es any other rules of procedure with respect to tax suits, and these statutes constltuted an exclusive basls of procedure in tax suits where citation by publication was required, and by force of the above 

quoted portion of Rule 2 continued In effect as rules of procedure governing such cases in Harris County. To hold otherwlse 

would In our view be in effect to say that Immediately prior 

to Sept. 1, 1941, Harris County did not have~~eny rules of procedure in tax suits under Art. 2092, except as might be-~provlded 

by general statutes outside the scope of said article, and this 

we think is not the case. Subdivision 19 of the Special Practice Act as originally enacted provided "All Inconsistent laws 

and rules of practice end procedure shall be Inoperative ln the 

Civil District Courts of the class included within this act.' 

Language simller to this has been employed in subsequent amendments to the,ect, the latest being Art. 2093 (Acts 

1939, 46th Leg., page 205, Sec. 1) which reads es follows,: 

"All Inconsistent laws and rules of practice and 

procedure shall be lnoperatlve In the clvll district courts 

of the class Included wlthln this chapter, but shall not be 

affected by this 1aw"lnsofar as they relate to other dlstrlct courts. ~11 laws and rules of practice end procedure 
Hon. A.C. Wlnborn, page 8 o-7159 

provided for other district courts shall continue In 

effect end operate end be observed In the civil dlstrlct courts of the class covered by this law." 

We feel justified In concluding that Sec. 6 of Art. 

2092, construed In connection with Art. 7345b, Subset. d, Sec. 

3, and Rule 2 of the rules of civil procedure, constitute a 

sufflclentbesls for citation by publication under said article 

without requiring the citation to be returned to the first day 

of the next term of court. To hold otherwise we would be compelled to say that citation by publication, as provided In Subsec. d, Sec. 3, Art. 7345b, would require citation to be returned to the first day of the next term of court, that Is; either 

to the first Monday in January or the first Monday In July, and 

would render the collection of delinquent taxes by suit, where 

service by publication was necessary, confusing, and would defeat the very purpose of the act, which is to expedite suits 

for dellnquent taxes, as is made clear by Sec. 11 of Art. 7345b, 

which provides: 

"Suits for delinquent taxes shall have precedence 

end priority In the dlstrlct courts of this State, and 

In the appellate courts thereof." 

We cannot see any cogent reason why we should not 

give the same effect to what we conceive to be the statutes 

governing citation by publication in tax suits under Art: 2092, 

applicable to Harris County and other densely populated counties 

in the same classification, that would be given to any other 

statute with respect to tax suits under the above quoted portion 

of Rule 2, which continued In effect the statutes governing tax 

suits In existence Sept~. 1, 1941, at which time Sec. 6 was under 

the terms of Art. 2092 applicable to tax suits es well as other 

civil suits In general. It Is not so much a question of repeal 

as It Is that the rules continue all statutes in effect immedlately prior to Sept. 1, 1941, prescribing rules of procedure 

in tax suits, and to this ext-ent we think these statutes continue In effect as rules of procedure In tax suits in Harris 

County and other counties in the same classiflcatlon. 

The purpose of the present rules of civil procedure 

was to simplify end expedite litigation, and not to retard or 

prolong It. It Is slgniflcent that the rules have definitely 

sought to get away from terms of court as the objective to 

which process should be returned, and we should not reach any 

conclusion contrary to this wholesome purpose of the rules unless compelled to do so. The Special Practice Act, Articles 

2092 and 2093, V.R.C.S,, end the present Rules of Civil Procedure 

are remedial in nature. They are, therefore, entitled to a 

liberal construction end appllcetlon In order properly to effect- 
Hon. A. C. Wlnborn, page 9 o-7159 

uate the legislative Intent to simplify end expedite court 

procedure thereunder. Indeed the Rules of Civil Procedure declare that the rules are to be liberally construed. See Rule 

No. 1. As applied to the problem here considered, we think 

strict construction must yield to the evident spirit end purpose 

of the statute and Rules of Civil Procedure when this is necessary to give effect to the intent of the Legislature. Ab surb 

and unjust results would follow to say that since the adoption 

of the rules of civil procedure Harris County and other densely 

populated counties in the same classification are relegated to 

having process returned in tax suits, when citation by publlcation is necessary, to a term of court, e procedure abandoned 

in such~ courts by virtue of the Special Practice Act in 1923. 

Unjust and absurd consequences are, if possible, to be avoided. 

No less en authority than the Supreme Court of the United 

States has pronounced this rule. Lau Ow Bew v. United States, 

144 U.S. 47, 59, 12 S. Ct. 517, 36 L. Rd. 340; Hawaii V. 

Mankichl, 190 U.S. 197, 213, 23 S. Ct. 787, 47 L. Rd. 1016. The 

courts of our State have likewise adhered to this rule. Only 

a few cases, all by the Supreme Court need be noted; State 

Hi 

16 2 

hway Dept. v. Gorham, 162 S.W. (2df 934; Cramer v. Sheppard, 

S.W. (2d) 147; Kllday v. Germany, 163 S.W. (2d) 184. We 

thfnk this was never the intention of the Legislature nor the 

Intention of the Supreme Court in promulgating the rules. If 

we should say that Art. 7342 is still in effect and should be 

followed, we would still be faced with the question of the process being returned to the next term of court, for a reading of 

lt we think clearly Implies that the return is to be made to 

the next term of court. 

We therefore summarize our answer to your third question es follows: First, that citation by publication may be 

had In Harris County In delinquent tax suits under Subset. d of 

Sec. 3, Art. 7345b, wlthout return being made to the first Monday of the next term of court, but should be as prescribed In 

Set, 6 of Art. 2092, which Is the same as prescribed by Rule 

114 of the rules of civil procedure, requiring the defendant 

to appear and answer it or before 10 o'clock A.M. of the Monday 

next after the expiration of forty-two days after Issuance. 

Second, that If citation should be issued under the ~provlslons 

of Rule 114 of the rules of clvll procedure, the same result 

would be accomplished for the source of Rule 114 Is Section 6 

of the Special Practice Act. 

We restate your questlon No. 4: 

"Does the citation by publication issued under the 

suit by the city under the provlsions of Subdivision d, 

Sec. 3, Art. 7345b, make It necessary that these notlces 

show the amount of taxes due the State end county?" 
Hon. A, C. Wlnborn, page 10 O-7159 

We answer this question in the affirmative with the 

qualifications hereinafter stated. Said section provldes: 

"Such notices shall show the amount of taxes alleged 

to be due each plaintiff and lntervenor, exclusive of 

interest, penalties,~and costs, and shall recite that 

all interest, penalties and costs allowed by law are 

included in the suit." 

It is observed that this section of the statute is 

applicable only to plaintiffs and interveners, which means the 

plaintiffs and interveners, which are partles to the suit at 

the time such citation issued. If a taxing unit Is made a party 

defendant by the city or any other taxing unit filing the suit, 

as It may be under the terms of the statute, it is not necessary 

that the citation show the amount of taxes alleged to be due 

such taxing unit made a defendant. If, however, a taxing unit 

Intervenes In a sult where the defendants are cited under Art. 

7345b, after the citation provided by the statute has been given, 

and is not a party to the suit at the time the citation issued, 

either as plaintiff, intervenor OP defendant,the court would not 

have jurisdiction to adjudicate the delinquent tax claim of such 

taxing unit without the Issuance of service in Its own behalf 

upon the defendant or defendants. 

This is su 

Estate, 126 S.W. (2d P 

ported by the case of State v. Bagby's 

687, from which we quote: 

II 

. . . Section 3(c), Article 7345b require8 a citation 

by publication to state 'the amount of the taxes due each 

party plaintiff and intervener, exclusive of Interest, 

penalties, and costs l * *0' It Is observed that this 

citation did not state the amount of taxes due each of the 

plaintiffs, but, on the contrary, stated the gross amount 

due plaintiffs jointly. This did not meet the requirements 

oft said Section 3(c) supra. Section 13 of Article 7345b 

states: 'The provisions of this Act shall be cumulative of 

and in addition to all other rights and remedies to which 

any taxing unit may be entitled, but as to any proceeding 

brought under this Act, If any part or portion of this Act 

be in conflict with any part or portion of anylaw of the 

State, the terms and provisions of this Act shall govern 

a8 to such proceeding. * * *' In 33 T,J. p. 851, supported 

by abundant authorities-there cited, it Is said: 'Since 

authority for citation by publication comes solely from the 

statutes, enactments authorizing that mode of service are 

strictly construed; In cases falling within the provisions 

of the statutes there must be a strict compliance with 

every essential requirement in respect of sexvice.' 

See Borden v. City of Bouaton, 26 Tex. Clv. pp. 29, 
Hon. A. C. Winborn, page 11 o-7159 

62 S.W. 426, and authorities there discussed. The 

failure of this citation to state the amount of taxes 

due each plalntlff, under the foregolng authorltiest, 

warranted the action of the court in quashing same. 

We restate your question No. 5: 

"What is the effect of the failure of the notice 

to so show the amount of the taxes due the State and 

County under its intervention in the suit filed by the 

City? 

If we interpret this question, construed in connection 

with the explanatory part of your letter, to call for an answer 

as to the effect of the failure of the city to make the State 

and county parties to a suit where citation by publication is 

required, but after citation had Issued the State and county In 

response to the notice of the pendency of the suit, intervenes 

and sets up its claim for taxes, stating in such Intervention 

the amount of the taxes due, then it is our opinion that the 

court would not have jurisdiction to adjudicate the claim of 

such taxing unit without service upon its claim; but if such 

taxing unit has been made a party defendant, then and in that 

event the court would have jurisdiction to adjudicate the claim 

of such defendant, a taxing unit, without the amount of the 

taxes~ owing to such taxing unit being stated In the citation. 

As stated in our answer to question No. 4, the statute requiring 

the amount of taxes to be stated In the citation owing to each 

unit is applicable only to plaintiffs and lntervenors at the 

time of the citation's issuance. 

This, we think, Is in accord with the holding in the 

case of State v. Bagby's Estate, supra, from which we quote as 

follows: 

"The action of the trial court in refusing to render 

judgment In favor of intervenor, Clarksville Independent 

School District, against the unknown heirs of Ada Bagby. - -_ 

deceased, is sustained. This intervention was filed after 

service of citation had been had on the defendant. Intervenor did not cause citation to issue on Its cause of 

action. Defendants made no appearance in this suit. 

The trial court did not have jurisdiction to enter judgment 

in favor of intervenor as to any defendants named." (Emphas 

ours) 

We are therefore of the opinion that the court would 

be without jurisdiction to adjudicate the tax llablllty in 

favor of the State and county, which intervened subsequent to 

the issuance of citation, unless another citation is issued 

is 
Hon. A.C. Winborn, page 12 o-7159 

upon the cause of action of the State and county. This would 

not be true, however, If the State and county were made defendants before the issuance of citation. 

We restate your question No. 6: 

"What Is the effect of the judgment rendered by the 

Court in favor of the State and County's claim for taxes 

where the property has been sold to a private purchaser 

at the foreclosure tax sale?" 

If this question calls for an answer as to the effect 

of a judgment rendered by the court In favor of the State and 

county's claimfbr taxes upon an intervention in a case where 

citation by publication Is necessary upon defendant or defendants, 

and the State and county were not plaintiffs, intervenors or 

defendants at the time of the Issuance of citation as prescribed 

by the statute, then we are of the opinion that a judgment 

rendered by the court upon the intervention of the State and 

county would, be void for lack of service in behalf of the State 

and county upon the defendant or defendants. If, however, the 

State and county were made defendants by the city before issuance 

of citation, and set up their claim by answer and Intervention, 

the court would have jurisdiction to adjudicate the claim of the 

State and county, and this regardless of whether or not the 

citation showed the amount of taxes owning to the State Andy 

county. In other words, subsection d of Sec. 3, Art. 7345b, 

does not apply insofar as notice of the amount of taxes Is concerned owning to a taxing unit that Is made a defendant, as 

distinguished from a plaintiff and lntervenor. In the latter 

instance judgment would be valid, and the State and county 

would share proportionately wfth all other taxing units, parties 

to the judgment, as prescribed by Art. 7345b. A purchaser at 

such foreclosure sale under the last stated conditions would 

purchase free and clear of the State and county lien for taxes 

under.the judgment as prescribed In Sec. 10 of ARt. 734513. 

The same would be true in the first condition mentioned above 

also; the only difference being that the State and county would 

share proportionately In the taxes collected under the judgment 

in the last instance, but would not be entitled to collect in 

the first instance, because based upon avoid judgment insofar 

as the State and county is concerned. In other words the private 

purchaser takes title free and clear of State and county lien 

for taxes in either instance, for the State and county are 

partles to the suit, notwithstanding the judgment in their 

behalf might be void. They are nevertheless precluded by the 

~exnress terms of Sec. 10 of Art. 7345b from subsequently 

asserting a lien against the purchaser at such foreclosure sale. 

We restate your question No. 7: 
_ . . . 

Hon. A. C. Wlnborn, page 13 o-7159 

%oes this act mean that If the State and County have 

failed to Intervene in a pending tax suit that in the event 

judgment for foreclosure Is rendered in such tax suit and 

the property sold at tax sale, the State and county would 

lose its right to the tax liens heretofore existing against 

said property?" 

This we have heretofore answered by our opinion No. 

0-7076, a copy of which is herewith enclosed. We call to your 

attention, however, that Sectlon 10 of Art. 7345b is by its 

express terms limited to "any taxing unit which was a party 

to said suit OP which had been served with citation in said suit." 

We have attempted to clear up a troublesome and complex 

questlon, and we frankly state that our efforts have not been 

altogether satisfactory to us, but we think the views here expressed are in accord with the practice and procedure which 

has heretofore been substantially followed in Harris County, 

and which we would be very reluctant to upset unless compelled 

to do 80 by the plain and explicit provisions of the statutes 

and Rules of Civil Procedure. We believe our construction of 

the statutes and the present Rules of Civil Procedure, insofar 

as said Rules of Civil Procedure are applicable to tax suits, 

is reasonable and justified. 

Very truly your8 

ATTORNEY GENERAL OF TEXAS 

LPL:AMM:wc 

Enclosure 

By s/L,P, Lollar 

L. P, Lollar 

Assistant 

APPROVED J'UL 17, 1946 

s/Carlo8 C. Ashley 

FIRST ASSISTANT 

ATTORNEY GENERAL 

This opinion considered and approved in limited conference.