Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN.

Honorable George 8. Sheppard

Comptroller OS Pub116 Accounts

hl8tlR, TUXU

Dear sir:

MU h6V6 POW l6tt , Ilr which you 6lrC1OU6 a COPY Of 8 16ttUr you, rrcal 3. II. J, ulth reference

Ralsy, Assesror-Co1 to the dlrtributlon a tax sale 10

cost due 011 the tt6r dated &In6 i0Wl faat8 6r6 n?aluy’8 16ttUr, as Sup- , UP6 bri6flJa by the State of Tuxas dlrtrlcts, filed a mm- let court of uharton 066 tb6h’ tU lielli3. Judgmntr the plaintiff8 f.or the aaouats &?lU8 iRtUl’66t,, pU!lCLltJ aad 608t8. VU lasusd alld iP 6OCUpliaIIC6

laarrd VaJ l dvsrtixed and sold. Th6 property, in a0190 06868, uas prUraha86d by lrrdl- ridualr vho paid 111Or6 th8n th6 tU68, pUQalty, tit6rUSt UId 606t dU6 OU the prOp6rty.

Your question is: What dlrpo8ltiorr should be R6d6 of th6 ex8sSa thus obtained? We pr66m6 the tax 8alaa vhich you refer wee6 mad6 under the authority of jub@ents

IioaoraLle George ii. 3hepparC,, page 2

obtained In acccrdance with the prov?.aions of Article 73;i5b, V6rn0a’S AMOtSCed Civil 3tStUteS.

Artlcla Revised Cirll Statutes of 1925, re- lotlng to the disposition of proceada received by the shariif from the sale of land, sold under a Judgment Zore- cloalng a lien for taxes, ;rrovldea in part, as follova: and after tha payment of the taxes,

Interek; &x.~~lt~ and costs adjudged against it, remfader price, of the purch886 if any, be paid by the Sheriff to the clerk shall said 6XeCUtiOn OX’ other the court out of which flual proceaa loaued to bs rUtain8d by him Sub- ject to the order of th6 court far a period of tvo years, unless OthUrUiS6 ordered by th6 court, aftur which tiIS6 th6 COWt rPay order the Sap)6 mid to the State Treaaurur, who Shall hold 8tme to be paid to tha owner In trust

against whom said taxes uere aaaessed; provided any on6 claiming the Same shall make proof of his cLalm the satiafaotloa of the 3tate

TruasU.rur Uithin thr6C y66P0 ait6r the Sale of said land or lots, Sitter which th6 PUMB

Shall be goverued by the lav regulatlag US- ChUat. . . .*

Arttalc ua8 6akaadud La 1927, and words we have above untieracored vtre omitted frca the bill au passed by both houaca Ieglalatura. Said uorda uere also omitted from the enrolled bill, and consequently from the printed statutes. This omiSalou, bad same beea legally done in accordance vlth the Conatitgtloa of Tex66* would have had effect of so amending tha Aat of 1927 a8 to have caused same ts read as it aov appears

in th6 prlatad statutes of Sxas a6 Article 7328; lo other vorda, th6 lav would nov be as same reads with ths words und6rraoruU by ua, omit ted therefrom.

We have tad6 CSrSfUl iIJv8stlgatlOn the facts surrounclug .&his omlsslon, of th6 lar applicable there- And from the applicable authorities we eW6 th6 Qpin- to. 100 that this omls%ion of the uadaracored words amendment of 1927 was of no legal force or effect, and that

Honorable George EL Sheppard, page 3 their omission from

the under8cored vordr, ootvIth8teoding the ameudatory act of 1927, cemeln, and mey be properly con- sidered, a psrt of said lav.

We are forced Mid conalusloa by the following: The ceptiorr of said l mandato ry act of 1927 reads es follovs;

*Aa Act to emsod 7328 (7689) of the Revfred Civil Statute8 of 1925, vhIch Article r’b late8 to and providea proceedlugs ln tax 8uIta atad the mallper provided by lav In ordinary fore- olo8ure auIta Iu the dlatrlat aourta of th18 atatet end vhiah Amendment aeld Artiole provide8 sales contemplated la tax foreclosure suits for the shall be mede In the memer pzeacrlbed 8ala of real eatete under execution; dealar- (See lava Texea 1927, Ch. lag an emerge~cy.~ pa 260). Au In8peotiou eald title, or aeptiou, diraloaea that the purpose of the amandatory sol, aa dlaaloaed by said title, I8 the SIMiIE PURPOSE proridlllg “that ulea con- templated ia tax rorealosure auita ehall be made in the for the aale real ertate under exeau- !nenner prescribed tloa.’ Said caption in uo rap mentiona or indlaatea any

purpose to amend the statute a8 same vould rtand amead- ed If the vorda underscored by ua vere left out of the lav.

We thua have berore u8 l aituetlon here ao a&sad- etory aat expreiraea purpo8e, In it8 oaptlon, to aaend a lav in one SpeCifiC partiaular, emendmaut thua 1imItIw the that particular, but ootvlthstandiag thi8 lIaItatIon caption, then etteapting to further mend lav by the omI88loa therefrom of a provl81on not meatloaed la cap- tion, and not germeae to any purpoae rumad In the oaptlon.

The rule of comtructlon applicable to thla 8itUa- t1On 18 a8 fO;llOVS:

“Although an act mey be amended In aaj ger- mane particular by an emendetory act, the title

of vhlch merely refers to the act or article 8OU.ght to be emended vlthout 8peCifyiUg In uhat the CUIIendnSXIt COn8iSt.8, y6t vhen such title 8t8ce8 the perticuler respect la vhlch the emendment CoDslst8* amendment not germme that spe- clfled 18 Invalid aa being repupenti to the Ia- v3bed constitutional provision. (388 Rutlege, et al. v. Atkinsc~, et al., 101 S.W. (2d) 376;

Ward Cattle end Pasture Co. v. Carpenter, 200 S.W. 521; Arnold v. Leonerd, 273 3.W. 7998 Texas-Louislane P. Co. v. Parneravllle (Tex. 67 3.W. 235~ EX parts Corn. App.) 2d) Heart- S.U. (2d) 3; Landrum V. Centennial sell, Lo Rural sigh School District go. 2, 134 S.W. (2d) 363; Also see 39 Sex. Jur , rectloa 48, end the ca8ea therein cited and aup- plentents thereto; also see CcastiCutica of Texas, Article 3, 35). section It la pleln to ua that th8 omlsrlon referred toby us is, under the authoritlea above citea, void end of no ef- feat under the Conatltutioa of ?eULS, said omiaalou not be- ing germane the purpose amendment am aame was ex- pr8888d in the captloa of the ameadatory Mt. It aeceaaexIly follows that the omitted vorda (which ve have underscored above) remela end are a pert of th.8 lav, notvlthateadiog 1327. their 8eId onlraion the aateodatmy act 0r

We &e fortified In the aonalualon juat atatia by the decl8ion of the Austin Court Of Civil Appeala in ce8e of Booty, et al. v. State. Thl8 decision was rendered la February of 1941. The opinion vaa urUtsn bg Mr. Justice Blair. In the Booty ce8e, the court 8aid that the sole question In the ca8e InV01~88 aoaatruation Of Art. method8 sales of property for taxea therein pro- court construed said Article IO the oplnioa,

vlded.” 7328 to be end read es VB hava construed It in thla oplolon to be end to read. The court, iP comment&g upon the provi- sion of 8ald 7328, la pert saldr ” . Vh8r8 there are blddar8 for the prop- 18 sold more thra the amount 0r

erty dd*it taxes, the excess Shall be depo8lted vith the

Honorable 'George H. Sheppard, page 5

clerk of the court pendlq the tvo gear period for redsmptlon OS the lmd by the ovaer, to be disposed by the jUdpeAtj that IiAless it i8 redeemed vlthln that tire, then the clerk shall depO8It the exce8a vlth the State 'Trea8urer, vho ahall hold It In trust to be paid to the ovner agaIa8t vhoa aald taxer v8re 888688ed, provltded such ovner or the one olaIailllg the same ahall

meke proof of claim to the 8atIrractfoA of the Treasurer vlthia three yeara after the sale of the lead, after vhfah tf&e the fund is subject (See Booty, et al. ‘1. to the lav of e8ahut.” State, 149 S.W. (26) 216). Blair, IA said opinion, l rsigned Ao

Hr. Ju8tlce reaaone for treatlog the rorda omitted the 1927 uend- from meat aa beiag 8till a pert of the hr. But ve cannot ae- sume that the Court of Civil Appeals 80 did vlthout good Rather, Ye shall am.vae the aourt vaa Impelled reason. to ita aonclusion by the ame line reasonlag vhlch her guided w to 8a.m conaluaIoA la thla opInIaa. 1937 the Legislature eluoted addltlmml legia-

latlon relatlq to the colleatIoA Or delinquent tuea Qhlch la aov Article 7345b, V.A.C.S. IA regard to the diapoeItloA of the exCe88 emount of money reoelved “float aale" vhere the purchmer la other then tulng uAIt, Seation 8 Act provIdesI

"Bo property aold taxer uader decree IA such 8Uit Shall sold OYAOr Of raid prop- erty, directly Indirectly, or to anyone having an lAtereat therein, or to perty other than a tulng unlt vhiah la a perty to the rult, for leaa then the amouat OS the adQudged value l foreaald of said property or the &ggregatO UlOuOt Of the JUdg- menta against property la said rult, vbichever 18 lover, and the net proceeda Of any 8810 Of such property racrde under decree of court IA l ald rult cay perty other thm any rush tulRg Unit ahrll belong aad be distributed all t-IA& unit8 vhich to the ault vhlch by the judslaant IA are parties 8ald suit have been found to hare tax lleaa *what

- *6 Honorable George H. Sheppard, page ci

such property, pro rata and ln proportion to the mnouncs of their respective tax liens aa sstab- llshed la raid judgment, but any excess lo proceeds of sale over and above the amouat aecea- sary to defray the cost8 of suit and sals and other experwes hereinabove erade chargeable agalnat such proceeda, and to fully dlraharge the judgments aaid property, shall be pld co the portles agaiasc legally entitled to uuch exceaa.

3actlon 13 of Act provides: “The provisiona of ihls Act shall cumula- tive of and in addition co all other rights and reaedler which any taxing uolt may be entitled, but as to any proaeediug brought this Act, Lf under thl8 Act be in conflict any part or portion u1th say part or post%oa 01 aup law of the State, the terms and provisions of this Aat shall govern ae to such proceed3ng. Phe pr9vlsLoas oi Chapter Title 122 of the Revised Civil Statute8 OS 1925 shall govern malts brought under this Act ex- cept a8 herelo provided.’

In view of the $r9vlaloa8 of this aectloa it be- comer apparent that Article 7328 aad Article E&5b should be read and construed together. Section of Article 7345b la thw case of exams in the pro- provider, simply, that ceeds of sale over and above the amount necessary to pay the cost of suit sile and other expeaser and to fully dls- charge judgzeata against said property it shall be pld to the parties legally cncltled to such excess. To determine who Is legally entitled to such excey we must refer 7328. By the provislonu Article, ve flnd that the sbcrLff must pay the exaeas tr, the Clerk of the Court out which said executlca or other final process is- sued to be retainod by hire, subject to the order of the Court, a period of tvo yeam, mless otherwise ordered by the Court, after which time Court may order the saae to be paid to the Stats Treasurer, vho rball hold 8)Me la trust to be paid to the cvncr against vhom aald ;axea were assessed; provlded, any one claiming the ‘same shall s&e proof of bia claim the satisfaction State Treasurer withlo U-see years after the sale of aald land lofa, after vhlah the aame shall be governed by the 1aU regulating awheat.

Eonorable George H. tieppard, page 7

We believe the procedure outlined above .fs to be followed In all Instances where sfieriff has an excess of money derived from the “first sale,’

In regerd to the disposition of exceaa funds col- lected where the property is. bid i;1 by one of the taxing units at the “f,lrst sale* and held for the two-year period and later sold at the “second sale,” we refer you to thle department’s Opinion Ho. 0-6OG0, copy of uhlch is enclosed. this Sully answers your inquiry, me are

‘Trusting Yours very truly By Ax?. 4-d ii. 9. Bob biBD : db

Enolosure