*1 Hon. Geo. H. Sheppard
Comptroller‘of Public Accounts
Austin, Texas
Dear Mr. Sheppard: Opinion No.'0 -7076
In Re: Does a purchaser in a tax foreclosure sale take such property free and clear of the.taxes that became de- linquent after the suit was f llea?
In your letter of Jan. 29, 1946, you request the oplnlon of this department upon the question contained therein, whFch for the purpose giving the facts upon which our opinion is based we quote:
"The Delinquent Tax Collector for'Floyd County filed suit forall delinquent taxes on a certain piece of property In Floyd County up to and inclua- ing the year 1942. The suit was filed in the fall of 1943. The current taxes for 1943 became aelin- ~quent in February of 1944. The Delinquent Tax Col- 'lector in August, 1944, prosecuted his suit for judgment without amending hLs petitlon or including the taxes that became delinquent February 1, and his judgment taken in August, 1944, aid not include the taxes for that year.
"Everything in the proceedings was regular, except for that one particular. The property in this case sold for the adjudged value which was less than the totaliamount of del!nquent taxes against the property. "Question: Was such judgment a valid judgment and did the purchaser of said judgment take such property free and clear of the taxes that became delinquent after the 1943 suit was' filed?
"In another case the suit was filed after February 1, 1945, but before July 1, 1945, and the 1944 taxes petition in-this suit. Judg- this suit until after July were not included in the
ment~was not obteined 5.n
1, 1945. Would the same rule apply in this case?" .o-7o;i For the purpose of this opinion It is only necessary that we consider your questions in the 1lghtYof the prod- c. s. The last amendments Qio~~~of_Art+le 7345b or V. A.
to Article 7345b were enacted by the 47th Legislature, and are codified as Sections 2, 5 'and-10 in the pocket supple- ment of V. R. C. S., page 147; Section 10 is the pertinent provision applicable to the questions posed In your request. .._ --
The validity of Article 7345b and the presently ex- isting amendments thereto, and especially Sections 2, 5 and 10, Is no longer an open question. They have successfully withstood all attacks, and the public policy of the State emanating from these statutes Is now definitely defined ati .well.understood. The primary purpose of this article was to
prevent multlpllclty of suits by the inclusion of all taxing units in a suit brought by any one or more of such units, ana In addition to this to afford purchasers of tax titles security from a alversity of claims of numerous taxing units. City of El Paso v. Fortl, 181 S. W. (26) 579.
Of.course the primary concern of a purchaser at a tax sale foreclosing the lien of the respective taxing units, parties to the suit, is that the ~property so purchased shall thereafter be free from the liens fixed under the Constitu- tion and'the statutes to secure the payment of the tax.
-Sec. 10 this article reads as follows: "The purchaser of prbperty sola taxes in such, foreclosure suit shall take title free and clear of all- liens and claims for taxes against such nroverts delin- quent at the time of iudnment in said suit to anv taxlnq- unit which was a Dart7 to said suit or which had been .served with citation In sata suit as reauired br this (Emphasis ours) Act."
Note that the statute says, "delinquent at the time of judgment." We think this means just what It says, and Includes all taxes delinquent at the time of the judgment, whether embraced In the petition or not as to the taxing units, parties to the suit or which had been served with citation In said suit. We said In opinion No. O-2175:
"The County and State will lose their liens for 1939 delinquent taxes In those cases where they (tax- ing units) are parties to a suit wherein a.judgment 1s taken that excluded the sala 1939 delinquent taxes unde3 'the plain provlsion of Sec. 10 Art. 7345, supra." (parenthesis ours)
.~~ r Bon:Geo. H. Sheppard, page 3 We have not departed from that statement In any opinion subsequently written upon the subject; but to the above statement should be adde&that the purchaser also takes the property free and clear of all liens and claims for taxes in those cases where they, the taxing units, have been served with citation in said suit..
,The case Mexla Independent School District v. City of Mexla, (Supreme Court) 133 S. W. (2d) 118, is helpful ln~unaerstandlng the problem involved in your questlon, and from this opinion we quote:
."We recognize that it is po~dslble.under the act in huestlon, such-representatives, by their care- lessness or otherwise, to fall to properly foreclose the liens held by the 'taxing units which they r~epre- sent, but this is a danger inherent ln all e;overn- mental functions performed.by human agents.
It is presumed that all public officials-w111 honestly perform their official duties, (Anderson v. Polk, 117 Tex.
73, 297 S. W:219; and Mexia Inaepenaent.School District v.
City of Mexla, supra) and these statutes.shtiuld be construed in the light of that presumption. A good falth,purchaser .?maer the mandates of Sec. 10; supra, has a right, we think, to rely upon this well recognized presumption. We are not to be understood as condoning dereliction and carelessness of public officials in the performance their duties, but such cannot be given the effect to override the plain terms of Sec. lO;supra, that "The purchaser of property sold. for taxes Ln such foreclosure suit shall take title free and clear of all liens."
Since you state that everything lti the proceedings was regular except the omlsslon of one year's delinquent taxes omltted from the petition upon which the judgment was predicated, It follows from what we have heretofore said th&the judgment was valid, and the purchaser under sqld judgment took the property free and clear of all liens, including the delinquency not included, which occurred after the suit was filed as to the taxing units, parties to said suit or which had been served with citation in said suit.
You state:
"In another case the suit was filed after February 1, 1945, but before July 1, 1945, and the 1944 taxes were not included in the petition in this suit. Judgment wa's not obtaineh.ln this suit until after July 1, 1945. Would the same rule apply *4 :. .: q ? - . .
.
[1]
in this case?"
The same rule would apply as in the first instake. Yours very truly :ATTORNEYGHNERAL OF iE.XAS _.
By ah. P. Lollar L. P. Lollar Assistant LPL:AMM:wc
APPROfW MARCR 15, l&j
s/Grover Sellers
ATTORNEY'GENERAL OF TEXAS.
Approved Oplkon Committee BY $I@ Chairman