HonorableCeo. H. Sheppard

Comptrollerof 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 servedwith citation

as required by Article 734Sb of Vernon*8 Annotated Civil Statutes?.

We are in receipt oi your letter of November 10, 1939, inwhloh you request an opinion of this Department as towhet&r or not the rights of the State and cdun+y to collect ‘taxeson a piece ti propertywould be destroyed where another taxing unit brings suit for the taxes and ioreclosure OS its tax lienand the ,Stateaha county have been impleaded in the case and properly servedwith citation as required by Article 734Sb of Vernon’s AMOtated Civil Statutes but fails to anmver in said suit.

The delinquent tax statute in questionwas enacted in 1937 by the 4Sth Legislature as Chapter 506. The following sbctionsthereof are pertinent to a discussion of your question:

wSection 1. For all purposes of this

Act, the term *taxingunits,* shall include the State of Texae or any town, city or county in said State, or any aorporatIon or district organizedunder the laws of theHonorable Ceo. .H.Sheppard, Page 2

State with authority to levy and collect taxes.

wSectlon 2. In any suithereafter brought by or in behalf of any taxingunit

as above 

### defined,for 

### d8llnqu8nttaxes levied againstproperty by.any such taxing unit, theplaintiffmsy 

### impleadas parties defendant any or all other taxing units having delinquenttax claims against such property, or any part thereof, and it shall be the duty of each 

### d8f8ndanttaxing unit., upon being served with citation as provided by law to appear‘inEaid cause and ‘fileitsclaim for delinquent taxes against suchproperty, or any part thereoi. It shall be sufficient serviceupon the State of Texas in any county in such suit to serve citationupon the County Tax Collector chargedwith the

### duty or collecting suchdelinquent taxes

### due .theState and county against suchproperty and it shall be sufficient serviceupon any other taxing unityto serve citation upon the officer chargedwith 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& suchpropertymay waive the issuance and serviceof 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 propertydelinquent at the time of judgment in said suit to any taxing unit which was a party to said suit or which had been servedwith citati.on.insaid suit a.8requiredby this Act.w

It is evident that Section 10, above quoted, answers your question. This Sectionprovides that the purchaser at a foreolosure sale takes the property free and clear of all theHonorable Geo. H. Sheppard,.Fage 3

liens and claims for taxes against thepropertywhich 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 taxingunit had been served with citation in said suit as provided in Section 2. In your case, after theState and countywere servedwith citation as required, said taxingunits failed to answer in said suit. In such a case Section 10 provides that the purchaserat the foreclosure sale takes the title to the land free and clear of any lienwhich the State and countymay have had for delinquent taxes foryears prior to the date of the judgment in said suit.

In answering your question there is one othermatter whichmust of necessity be discussed. There is a questionpresentedas to whether or not Section 10 is unconstitutional.

Article 3, Section 55 of our Constitutionprovides 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 othermunicipal corporation therein,, except delinquenttaxes which have been due for a period of at least ten years."

follows: Article S.,Section 10 of our Constitutionprovides as

"The Legislature shallhave 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 releasemay be made by a vote of two-thirds of each House of the Legislature."

The first case that discussed this propositionwas the
case ofWillacy County Control & ImprovementDistrictNo. 1 vs. Lewis, 119 S. W. (2) 159; Court of Civil Appeals, 5an Antonio. In discussing this problem, the court statedas follows:Honorable Ceo.H. Sheppard, Page 4

"The Districtpresses upon us the argument that because of the requirement of the statute for the taxingunit 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 argumentmade is predicatedupon the assumption that public officialswill not perform their official duties. The law presumes thatpublic officials will discharge their

### official duties. Anderson

v. Polk, 117 Tex. 73, 297 2. W. 219, (SupremeCourt). 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 anymanner, the act .willcontravene Sec. 10, Art. S, or the Constitution of the State,Vernon's 

### AM. Civ.St. Const. Art,. S., g 10."

The seme contentionwas.raised before the Waco Court of CivilAppeals in the case of Mexia Independent SchoolDistrictv. City 

### 0sMexia. This question WLS then certifiedby saidCourt to the Supreme Court of this State. The Court cited the constitutionalprovisions which prohibit the Legislature frcaa releasing or extinguishing a liability to the Stste or county and construed this statute in accordancewith said constitutionalprovisions; In enswer to-the contention that this Act is unconstitutional, the Court said as follows:

"In this connection, it is not contended that the statuteunder consideration undertakesdirectly to release any taxes to any one but it is contended in effect that since theAct 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 taxeaHonorable Ceo. H. Sheppard, Page 5

owing the taxingunits thatwere parties to the suit, it is possible for the representativesof a taxing unit by failing to appear and file claim for the taxes due to therebywaive and relesse to the property
owner the lien for such taxes. We recognize that it is possible, under theAct in question, for such representatives,by their carelessnessor otherwise, to fail to properly foreclose the liens held by the taxing unitswhich.they represent, but this is a danger inherent in all governmental functionsperformedby 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 properlyprove 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 officialswill honestly perform their officialduties,Anderson vs. Polk, 117 Tex. 73, 297 S. W. 219, snd the st'st' ute and constitutionalprovisions in questionmust be construed in the light of that presumption. When so construed, the statute is not unconstitutional on the grounds stated. This exact contentionwas made in the case of Willacy Water Control & ImprovementDist. No. 1. vs. Lewis, 119 S. WV. (Zd), 159, and the San Antonio Court in that case, in an opinionby Associate Justice Slatton, overruled the contention. If the statute is followed and the officers perform their duty as they arepresumed to do, it will be impossible to confer any specialbenefit 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 Statuteshas been definitely establishedby 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 

### servedwith.oitab tion in a tax suit filed byanother taiing unit, that unless said Stat-eana County, enter ma rile their tax claim as required,the property in questionwhen sold at foreclosure sale will be taken by the purchaser free of the tax liens of said tbxing’unitsas of the date of the judgment.

Yours very:truly.

A?TORNEiY~GNNNRA& OF TEIXAi3

.BY(8) Billy Goldberg Assistant BG:RS

APPROVEDRGV 29, IQ39

&ala C ?dann~

.
ATTORNEY GRRRRAL OF TRXAS

APPRGVED opinion oommittee ByBWB chairman