OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS JOHN CORNYN

May 11,200l

The Honorable Michael A. Stafford Harris County Attorney 1019 Congress, 15th Floor Houston, Texas 77002-l 700 Opinion No. JC-0377

Re: Whether a taxing unit may, by a “blanket” resolution, authorize that tax-foreclosure-sale property be resold as directed by the taxing unit’s private tax-collection attorneys (RQ-0322-JC)

Dear Mr. Stafford:

Your predecessor has asked this office whether ataxing unit may, by a“blanket” or omnibus resolution, authorize that tax-foreclosure-sale property be resold as directed by the taxing unit’s private tax-collection attorneys.’ We conclude that ataxing unit is not authorized to adopt such a resolution.

We understand that Harris County, the City ofHouston, and the Houston Independent School District have entered into an interlocal agreement regarding the sale, management, and resale of seized or foreclosed property. Under the agreement, property for which a sufficient bid is not received at the original tax sale is bid off to Harris County. The county takes title to the property for the use and benefit ofitself, the city, and the school district. Approximately 100 such properties
are subject to resale each month. See Request Letter, note 1,at 1. Under section 34.05(a) ofthe Tax Code, ataxing unit would normally direct, by aresolution, a sheriff or constable to sell a specific property. See TEX.TAXCODE ANN.$34.05(c) (Vernon Supp. 2001). Instead of making requests by separate “property-specific” resolutions forthe resale ofproperties asthey areacquired, the Harris County Commissioners Court proposes to adopt aresolution that “requests, directs, and authorizes the Constables of Harris County to re-sell at public sale any and all property struck-off to Harris County, as requested by Linebarger Heard Goggan Blair Graham Pena & Sampson, LLP.” See Resolution note 1, at 2. The resolution is intended to: (1) provide that all resales be conducted publicly under subsections (c) and (d) of section 34.05 ofthe Tax Code; (2) encompass all tax-foreclosed property now held orhereafter acquired; and (3) authorize the resale of aspecific property as and when a particular constable receives a request from the county’s tax-collection attorneys. See Request Letter, note 1, at 1-2; Memorandum, note 1,at 1.

‘See Letter from Michael P. Fleming, Harris County Attorney, to Honorable John Comyn, Texas Attorney General (Dec. 1,200O) (on file with Opinion Committee) [hereinafter Request Letter]; see also attachments to Request Letter (Memorandum; Resolution Authorizing Re-Sale of Struck-Off Properties [hereinafter Resolution]).The Honorable Michael A. Stafford - Page 2 JC-0377

It has been suggested that the county may not adopt such a resolution because section 34.05(c) requires “property-specific” resolutions either by its terms orbecause the section 34.05(c) resolution is in the nature of awrit of execution “with the attendant deadlines for execution set out under” the Texas Rules ofCivil Procedure. See Memorandum, supra note 1,at 1. We conclude that the county may not adopt the blanket resolution described, but for adifferent reason. In our opinion, section 34.05(c) does not require property-specific resolutions. We believe, however, that section 34.05(c) requires a taxing unit to direct the resale of specific properties. Thus, in the absence of legislative authority providing otherwise, ataxing unit may not delegate this authority to its private tax-collection attorneys.

To provide a legal context for your predecessor’s question, we review the Tax Code provisions regarding foreclosure and sale of property subject to atax lien. A taxing unit may file suit to foreclose the lien securing payment of a delinquent tax in acourt of competent jurisdiction for the county in which the tax is imposed. See TEX.TAXCODE ANN. 833.41 (Vernon Supp. 2001). If ajudgment in the suit is for foreclosure of the tax lien, the court must order sale of the property in satisfaction of thejudgment. See id. $ 33.53(a). On the application of ataxing unit that is party to thejudgment, the district clerk must prepare an order directing the sheriff or any constable in the county to sell the property. See id. 0 33.53(b); TEX.R. CIV.P. 622,629. Such an “order of sale, as awrit of execution, is aprocess ofthe court from which itis issued.” Clint Indep. Sch.Dist. v. Cash Inv., Inc., 970 S.W.2d 535,538 (Tex. 1998) (citing TEX. R. CIV.P. 622). “The foreclosure judgment and the order of sale establish the [peace officer’s] authority to sell, the manner of sale, and the terms ofthe sale.” Id.; see also id. at 537 (valid judgment, execution, and sale are required to pass title to property at an execution sale).

Section 34.01 ofthe Tax Code deals with the initial sale ofproperty ordered sold under the court’s judgment and order of sale. See TEX.TAXCODE ANN. 834.01 (Vernon Supp. 2001) (“Sale ofProperty”). Such property “shall be sold by the officer charged with selling the property, unless otherwise directed by the taxing unit that requested the order of sale or by an authorized agent or attorney forthat unit.” Id. 034.01 (a). The sale must “be conducted inthe manner similar property is sold under execution except as otherwise provided by” subtitle E of the Tax Code. See id. 034.01(a); TEX.R. CIV.P. 621-656 (“Executions”). When a sufficient bid atthe foreclosure sale is not received, the property is “bid off, ”i.e., sold, to the taxing unit that requested the order of sale. See TEX.TAXCODEANN. 034.01 (a)(j) (Vemon Supp. 2001). The taxing unit to which the property is bid off takes title to the property in trust for itself and all the other taxing units that have established tax liens in the tax suit. See id. fj34.01(k).

Section 34.05 deals with the resale by ataxing unit ofproperty to which ithas taken title at
an initial foreclosure sale. See id. 434.05 (“Resale by Taxing Unit”). The “taxing unit may sell the property at any time by public orprivate sale.” Id. 9 34.05(a). Subsections (c) and (d) provide for the sale of the property at apublic sale:
(c) Thetaxing unitpurchasing theproperty byresolution 

### of its governing body may request thesherzflor a constable to sell theThe Honorable Michael A. Stafford - Page 3 JC-0377

property at apublic sale. If the purchasing taxing unit has not sold the property within six months after the date on which the owner’s right of redemption terminates, any taxing unit that is entitled to receive proceeds ofthe sale by resolution ofits governing body may request the sheriff or a constable in writing to sell the property at a public sale. On receipt of arequest made under this subsection, the sheriff or constable shall sell the property asprovided by Subsection (d), unless the property is sold under Subsection (h) [private sale] or (i) [sale of property at a lesser amount] before the date set for the public sale.
(d) Except as provided by this subsection, allpublic sales requested asprovided by Subsection (c) shall be conducted in the mannerprescribed bythe TexasRules 

### ofCivil Procedure

### for thesale ofproperty under execution. The notice of the sale must contain a description of the property to be sold, which must be a legal description in the case of real property, the number and style of the suit under which the property was sold atthe tax foreclosure sale, and the date of the tax foreclosure sale. If the commissioners court of a county by order specifies the date or time atwhich or location in the county where apublic sale requested under Subsection (c) shall be conducted, the sale shall be conducted on the date and atthe time and location specified in the order.

Id. 0 34.05(c), (d) (emphasis added).

The question before us relates to the section 34.05(c) resolution required of the taxing unit to request the resale ofproperty at apublic sale under section 34.05(d). Your predecessor asked:

Whether ataxing unit

...under [section] 34.05(c) may, by a ‘blanket’
or omnibus resolution, direct that any and all such property be resold in the manner provided by [section] 34.05(d) and at such times and with respect to such property as might be periodically requested by the taxing unit’s law firm.
Request Letter, supra note 1, at 1. Again, the concern is that section 34.05(c) requires “propertyspecific” resolutions either by its terms or because the section 34.05(c) resolution is in the nature of awrit ofexecution subject to the execution provisions ofthe Texas Rules of Civil Procedure. See id. at 2; Memorandum, supra note 1,at l-2.

Subsection (c) does not expressly require agoverning body to adopt a separate resolution to request the resale of each property that the taxing unit acquires. And we decline to imply such a cumbersome requirement in the absence of any indication in the statute of that intent. See TEX.The Honorable Michael A. Stafford - Page 4 JC-0377

GOV’TCODEANN. $311.021(4) (Vemon 1998) (Code Construction Act) (“In enacting a statute, it ispresumed that.

. .aresult feasible ofexecution is intended

. ...“). We do not believe that the use of the singular “property” in the statute is significant in this regard. See id. 6j311.012(b) (“The singular includes the plural and the plural includes the singular.“).

Nor do we believe that such a requirement must be implied because the section 34.05(c) resolution is the equivalent of a“writ ofexecution” subject to the execution provisions ofthe Texas Rules of Civil Procedure. Rule 621 of the Texas Rules of Civil Procedure provides that “[tlhe judgments of the district, county, and justice courts shall be enforced by execution or other appropriate process[,]” that must be “returnable in thirty, sixty, or ninety days as requested by the plaintiff, his agent or attorney.” TEX.R. CIV.P. 621; see also id. 629 (execution must be executed by clerk orjustice, must bear seal of court if issued by district or county court, must describe judgment, and require officer to return within 30, 60, 90 days as directed by plaintiff). The significance of this provision (as it relates to the resale resolution) is that authority of a sheriff or constable to sell property under awrit ofexecution ceases on itsreturn date. SeeLong v. Castaneda, 475 S.W.2d 578,583 (Tex. Civ. App.-Corpus Christi 1971, writ ref dn.r.e). Thus, an execution sale made after the return date stated in the writ of execution is void and does not pass title of the property to its purchaser. SeeSmith v.Adams, 333 S.W.2d 892,893 (Tex. Civ. App.-Eastland 1960, writ ref d n.r.e.).

We do not believe the execution provisions of the Texas Rules of Civil Procedure apply to the section 34.05(c) resale resolution. An “execution” or “writ of execution” is “[a] court order directing a sheriff or other officer to enforce ajudgment, [usually] by seizing and selling the judgment debtor’s property.” BLACK’SLAWDICTIONARY 589-90 ( 7th ed. 1999). Thus the Texas Rules of Civil Procedure state that “[a]n execution is aprocess ofthe court from which it isissued.” TEX. R. CIV.P. 622. The section 34.05(c) resolution follows the sale of property pursuant to a previously issued “order of sale,” i.e., awrit of execution, under section 33.53(b) of the Tax Code. See TEX.TAXCODEANN.$9 33.53(b) (Vernon Supp. 2001) (on application of taxing unit party to judgment, district clerk must prepare order directing officer to sell property); 34.01(a), (j) (if sufficient bid not received, property “bid off’ to taxing unit that requested order of sale). Unlike
an “order of sale,” issued by the district clerk under section 33.53(b) of the Tax Code, the section 34.05(c) resale resolution is not a “process” of a district, county, orjustice court to enforce its judgment. Instead, it is a directive by the taxing unit that already owns the foreclosed property to resell it at apublic sale to collect the taxes due and return the property to the tax rolls. See id. 834.05. While section 34.05(d) requires that the public resale be conducted in the manner provided by the Texas Rules of Civil Procedures for execution sales, nothing in this section or another provision of section 34.05 indicates that the resolution ofthe taxing unit requesting the resale must conform to the requirements applicable to awrit of execution issued by acourt in the exercise ofits judicial functions. See id. 0 34.05(d).

In short, while itmay be advisable to adopt aseparate resolution to request the resale ofeach property that a taxing unit acquires as a result of a “bid off’ at a tax-foreclosure sale, we do not believe that ataxing unit is required to do so under section 34.05(c) ofthe Tax Code. We also agreeThe Honorable Michael A. Stafford - Page 5 JC-0377

with your predecessor that avalidly adopted resolution or order of agovernmental unit remains in effect until set aside or superseded by another order. See Stephens v.Mills Co., 113 S.W.2d 944,946 (Tex. Civ. App.-Austin 1938, no writ); Tex. Att’y Gen. Op. No. O-2504 (1940). Thus, section 34.05(c) does not prohibit ataxing unit from adopting a standing resolution directing the sheriff or aconstable to resell at apublic sale foreclosed property the taxing unit acquires. However, the more significant issue raised with respect to the resolution at issue is the authority of a taxing unit to delegate its authority to direct the resale of specific property to its private tax-collection attorneys by providing that they instruct the sheriff or aconstable as to when specific properties are sold.

Section 34.05(c) expressly requires the “taxing unit purchasing the property” to “request the sheriff or aconstable to sell the property atapublic sale.” TEX.TAXCODE ANN.034.05(c) (Vernon Supp. 2001). This provision, by its terms, contemplates that the taxing unit will direct the sheriff or aconstable regarding the sale ofproperty. See id. Unless expressly authorized by the legislature,
a governmental entity may not delegate its legislatively entrusted authority to another entity. See ClearLake City WaterAuth. v. ClearLake Util. Co., 549 S.W.2d385,391 (Tex. 1977) (conservation and reclamation district could not enter contract with utility company asto restrict free exercise of its statutory governmental powers or to abdicate its governmental functions even for a“reasonable time”) (and cases cited therein). Neither section 34.05(c) or any other statutory provision that we have found authorizes the taxing unit to delegate its property-resale-request authority. Section 6.30 ofthe Tax Code, which authorizes ataxing unit to contract with attorneys to enforce the collection of delinquent taxes, does not on its face vest tax-collection attorneys with the authority to act as taxing units’ agents for the purpose of a section 34.05(c) resale. See TEX.TAXCODEANN. 06.30 (Vernon 1992). Moreover, when the legislature has intended to authorize ataxing unit’s attorneys
or other persons to act as agents for the taxing unit in the sale of foreclosed property, it has so expressly provided. Section 34.01(a), dealing with the initial sale of foreclosed property, for example, provides that the property “shall be sold by the officer charged with selling the property, unless otherwise directed by the taxing unit that requested the order ofsale orbyanauthorized agent
or attorneyfor that unit.” Id. 034.01(a) (Vemon Supp. 2001) (emphasis added). Section 34.05(c) contains no such provision and it would be inappropriate for this office to insert it into the statute. See Cameron v. Terre11& Garrett, Inc., 618 S.W.2d 535,540 (Tex. 1981) (“[Elvery word excluded from astatute must also be presumed to have been excluded for apurpose. Only when itisnecessary to give effect to the clear legislative intent can we insert additional words or requirements into a statutory provision.“); see also Laidlaw Waste Sys., Inc. v. City 

### of Wilmer, 904 S.W.dd 656, 659 (Tex. 1995) (stating that language excluded from a statute “must

. . .be presumed to have been excluded for apurpose”). In the absence of legislative authority providing otherwise, ataxing unit may not delegate its authority to direct the resale of specific property at apublic sale by authorizing its private tax-collection attorneys to direct the sheriff or aconstable as to when specific properties
are sold. Accordingly, we conclude that ataxing unit may not adopt the “blanket” resolution.The Honorable Michael A. Stafford - Page 6 JC-0377

SUMMARY

A taxing unit may not by a “blanket” resolution authorize that tax-foreclosure-sale property be resold as directed by its private tax-collection attorneys. In the absence of legislative authority providing otherwise, a taxing unit may not delegate its authority to direct the resale ofspecific property atapublic sale by authorizing its private tax-collection attorneys to direct the sheriff or aconstable as to when specific properties are sold.

JOHN CORNYN Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General

SUSAN D. GUSKY Chair, Opinion Committee

Sheela Rai Assistant Attorney General - Opinion Committee