Honorable Ceo. H. Sheppard 

Comptroller of Public Accounts 

Austin, Texas 

Dear Slrt 

Opinion O-1670 

Re: would the rights of the 

State and county to collect taxes on a piece of 

property be destroyed 

where another taxing unit 

brings suit for taxes sni 

. toreclosure of its tax 

lien ir the State and county were impleeaea in said 

case but failed to answer 

whsn served with citation 

as required by Article 

734Sb of Vernon*8 Annotated 

Civil Statutes?. 

We are in receipt oi your letter of November 10, 

1939, in whloh you request an opinion of this Department as 

to whet&r or not the rights of the State and cdun+y to collect ‘taxes on a piece ti property would be destroyed where 

another taxing unit brings suit for the taxes and ioreclosure 

OS its tax lien and the ,State aha county have been impleaded 

in the case and properly served with citation as required by 

Article 734Sb of Vernon’s AMOtated Civil Statutes but fails 

to anmver in said suit. 

The delinquent tax statute in question was enacted 

in 1937 by the 4Sth Legislature as Chapter 506. The following sbctions thereof are pertinent to a discussion of your 

question: 

wSection 1. For all purposes of this 

Act, the term *taxing units,* shall include 

the State of Texae or any town, city or 

county in said State, or any aorporat Ion or 

district organized under the laws of the 
Honorable Ceo. .H. Sheppard, Page 2 

State with authority to levy and collect 

taxes. 

wSectlon 2. In any suit hereafter 

brought by or in behalf of any taxing unit 

as above defined, for d8llnqu8nt taxes 

levied against property by. any such taxing 

unit, the plaintiff msy implead as parties 

defendant any or all other taxing units 

having delinquent tax claims against such 

property, or any part thereof, and it 

shall be the duty of each d8f8ndant taxing 

unit., upon being served with citation as 

provided by law to appear ‘in Eaid cause 

and ‘file its claim for delinquent taxes 

against such property, or any part thereoi. 

It shall be sufficient service upon the 

State of Texas in any county in such suit 

to serve citation upon the County Tax Collector charged with the duty or collecting 

such delinquent taxes due .the State and 

county against such property and it shall 

be sufficient service upon any other taxing unity to serve citation upon the officer 

charged with the duty of collecting the 

taxes of such taxing unit or upon the Kayor, 

PL?%Sident, or Chairmn or the goveming 

body’ of such taxing unit, or upon the Secretary of such taxi,= unit; Any taxing unit 

having any claim for delinquent taxes’again& such property may waive the issuance 

and service of citation upon it. 

“secti.on 10. The purchaser of pr,operty sold for taxes in such foreclosure 

suit shall take title free and clear of 

all liens and claims for taxes against 

such property delinquent at the time of 

judgment in said suit to any taxing unit 

which was a party to said suit or which 

had been served with citati.on.in said 

suit a.8 required by this Act.w 

It is evident that Section 10, above quoted, answers 

your question. This Section provides that the purchaser at a 

foreolosure sale takes the property free and clear of all the 
Honorable Geo. H. Sheppard,.Fage 3 

liens and claims for taxes against the property which were delinquent at the time of the judgment in said suit as against 

any taxing unit which was either a party to the suit or which 

taxing unit had been served with citation in said suit as 

provided in Section 2. In your case, after the State and county were served with citation as required, said taxing units 

failed to answer in said suit. In such a case Section 10 provides that the purchaser at the foreclosure sale takes the 

title to the land free and clear of any lien which the State 

and county may have had for delinquent taxes for years prior 

to the date of the judgment in said suit. 

In answering your question there is one other matter 

which must of necessity be discussed. There is a question presented as to whether or not Section 10 is unconstitutional. 

Article 3, Section 55 of our Constitution provides as 

follows: 

"The Legislature shall have no power 

to release or extinguish, or to authorize 

the releasing or extinguishing, in whole or 

in pert, the indebtedness, liability or 

obligation of any corporation or individual, 

to this State or to any county or defined 

subdivision thereof, or other municipal 

corporation therein,, except delinquent taxes 

which have been due for a period of at least 

ten years." 

follows: 

Article S., Section 10 of our Constitution provides as 

"The Legislature shall have no power 

to release the inhabitants of, or property 

in, any county, city or town from the payment of taxes levied for State or county 

purposes, unless in case of great public 

calamity in any such county, city or town, 

when such release may be made by a vote of 

two-thirds of each House of the Legislature." 

The first case that discussed this proposition was the 

case of Willacy County Control & Improvement District No. 1 vs. 

Lewis, 119 S. W. (2) 159; Court of Civil Appeals, 5an Antonio. 

In discussing this problem, the court stated as follows: 
Honorable Ceo. H. Sheppard, Page 4 

"The District presses upon us the 

argument that because of the requirement 

of the statute for the taxing unit filing 

suit to.notify the tax collectors of the 

other taxing units of the pendency of the 

suit, and in the event such tax collectors 

by reason of neglect of duty or of their 

willful failure to file their tax claims 

in such suit, that such taxing unit wz)u$d+ 

by the act be deprived of its taxes. 

It is to be noticed, however, that the 

argument made is predicated upon the 

assumption that public officials will not 

perform their official duties. The law 

presumes that public officials will discharge their official duties. Anderson 

v. Polk, 117 Tex. 73, 297 2. W. 219, 

(Supreme Court). Arsuming that the officers of the various taxing units will 

perform their official duties, which we 

must under the law, It is not perceived 

how, in any manner, the act .will contravene 

Sec. 10, Art. S, or the Constitution of 

the State, Vernon's AM. Civ. St. Const. 

Art,. S., g 10." 

The seme contention was.raised before the Waco Court 

of Civil Appeals in the case of Mexia Independent School District v. City 0s Mexia. This question WLS then certified by 

said Court to the Supreme Court of this State. The Court cited 

the constitutional provisions which prohibit the Legislature 

frcaa releasing or extinguishing a liability to the Stste or 

county and construed this statute in accordance with said constitutional provisions; In enswer to-the contention that this 

Act is unconstitutional, the Court said as follows: 

"In this connection, it is not contended 

that the statute under consideration undertakes directly to release any taxes to any 

one but it is contended in effect that since 

the Act authorizes the plaintiff to join as 

defendants all other taxing units having 

liens against the property and further provides that the purchaser of the property 

sold at such foreclosure sale shall take 

title thereto free of all liens for taxea 
Honorable Ceo. H. Sheppard, Page 5 

owing the taxing units that were parties 

to the suit, it is possible for the representatives of a taxing unit by failing to 

appear and file claim for the taxes due to 

thereby waive and relesse to the property 

owner the lien for such taxes. We recognize that it is possible, under the Act 

in question, for such representatives, by 

their carelessness or otherwise, to fail 

to properly foreclose the liens held by 

the taxing units which. they represent, 

but this is a danger inherent in all governmental functions performed by human 

agents. It has always been possible for 

commissioners~ courts by failing to assess 

property at its ruii value, or for attorneys by failing to properly prove up their 

cases in tax suits, or for jurors by improperly resolving questions of fact in 

favor of the tax debtor, to thereby deprive a taxing unit of its just dues, 

but the mere existence of this possibility 

does not render all our tax laws unconstitutional. It is presumed that all 

public officials will honestly perform 

their official duties, Anderson vs. Polk, 

117 Tex. 73, 297 S. W. 219, snd the st'st' 

ute and constitutional provisions in question must be construed in the light of 

that presumption. When so construed, the 

statute is not unconstitutional on the 

grounds stated. This exact contention was 

made in the case of Willacy Water Control 

& Improvement Dist. No. 1. vs. Lewis, 119 

S. WV. (Zd), 159, and the San Antonio Court 

in that case, in an opinion by Associate 

Justice Slatton, overruled the contention. 

If the statute is followed and the officers 

perform their duty as they are presumed to 

do, it will be impossible to confer any 

special benefit on the tax debtor." 

The Supreme Court rendered this decision on November 

8, 1939, and the case is, therefore, unreported. The constitutionality of Section 10 of Article 7345b of Vernon's Annotated 

Civil Statutes has been definitely established by this case. 
, 

Honorable Gee: H: Sheppard,’ Page 6 

It’ is the opinion of this Department, therefore, in 

cases where the State and county have. been served with. oitab 

tion in a tax suit filed byanother taiing unit, that unless 

said Stat-e ana County, enter ma rile their tax claim as required, the property in question when sold at foreclosure sale 

will be taken by the purchaser free of the tax liens of said 

tbxing’units as of the date of the judgment. 

Yours very: truly. 

A?TORNEiY~GNNNRA& OF TEIXAi3 

.BY 

(8) Billy Goldberg 

Assistant 

BG:RS 

APPROVED RGV 29, IQ39 

&ala C . ?dann~ 

ATTORNEY GRRRRAL OF TRXAS 

APPRGVED 

opinion oommittee 

ByBWB 

chairman