Case Information

*1 QENERAL OF TEXAS OFFICE OF THE ATTORNEY AUSTIN

Eoaorablo C+eoao H. Bhoppard

Oomptrollar of Publ.lo Aooounts

hwtln, Texnr

Doar Slrr

Opinion x0. 0-9~

ROI A ralo

Thlr ir in en8wor to

Mstriot Court af t COlItB,WNllIting y fhs jud@wNlt sd in Ravarro flnt rals bid not bring tha y and interest, 1s rush ealo these additional qgestlonrt a Slate hate a llan on the land, by o tax judgment, for the amognt et taxar still unpeiat

wDoe8 ths State have thr right to hold another tax sale, under the tax judgment, end sell tho land ror the amourit of taxes rtlll unpaldTn

krebls horgo IX. Woppard, Peg0 8

Aa you hare not msntlonsd any other taring nnlts, ws easum that this was a suit for State aud Countrtexos end thet EO other taxlag units w6re la lsedsd 8sdsr tha toru d Artiole 9348b, Vorno~'8 hnotatea the oourt did not 01 vl 1 StetutoB. NO undorstan4 that in its judgment flndlng of the inoorporato reasonable fair value of the lsnd In qusstlon, rhioh it 1s aothor- lred to do ia scme eea88 andor Ssotlon 5 of said Artiolo 7848b. Ths l tatutos we en ooneornsd wlth en Artlolw VW!6 and 7328, Rsrlssd Clril Statutes af foxas, whloh are Qisoaswd later in this oplnlon.

FO ieel that oar 8nswsr to your qatoationm must be eon- tmlld by the eeso of WIlli- t. Mmtin, 85 8. Y. (24) lC8b In that oaso land that had bssn fon- (writ 6rror refused). olossd on In a tax suit was offomd for sale ths aharlft at l sels, and l party nansd WiUis aedo a bid ln an emuat lesr than the taxes duo, and thersupon ths County Attorney made l Beoond higher bid for the State in tho amount OS the taxes due, but the Sheriff rsfossd thr County Attorneps bid on ths ground that the County Attorney oculd only bid in the event thsre ras *no bidder,' the Sheriff aooeptsd the lorer bid b 8'11118, but ths Sheriff then changed his rind indrefusod to eueouto l doed to Xillis; end Vi11118 brought en action for maabau8 egahmt the Shedft asking the cant to 6ompslths Sheriff to l s8outa tho dead. The Dlstriot Court refused. to madama the Sheriffi judg- wnt we8 afflrmsd by the Court Oirll Appeals (et Beeu~t)~ e& . without &ring any othsr rseBon8 Ghisf Yustiob Walker, who note oourt’s opinion, relfed 8ol0ly on Attorney Gonsrel's oplalon Ho. 2884, dated Mny 16, 19S2 br Xr. r. 0. EoKenrlm, A.ssiatant under Attirney General All.&, sd qpote4 l xtensl~~4 lt end fmr mlda Ve hro &TOD rartiul l onsider+tion to this opinion by Mr. bsll'svs that hs has oorrsotlf oonstnamd Artlsls Hooi6..and . . .

In rlsw of ths feat that thr oourt in th6 ease of Ufllls v. Hertln SO wholo-heartsdly ,approrrd Hr. bE6nslr18 gplnlon, ws bellrre we ars sntltlsd to rely on ths rsasonlng ia that opinion; and as it 1s nooessery to read nearly all of the opinion In order to fully appreoiate it, wo will quota from it extenskrely, as fol- 1orsx

*Deer Sir: Your oommunioatlon ot the 4th instant, addressed the Attorney tin4Uel is es follow~t

"10 are hereby requesting an opinion from your de, pertmat with reference to the following question on texetlonr

Bonorsblo Ooorgo Ii. hoppsrd, Pago S

g*Undor Artlolos 9326 and 93e8 1985, Rovlsad Stat&es, it8 dtir l thOri2.d ~OntB, iB Stata of Taxes, thrOU&l to bid the amount of texos, ooBt8, arnLtt+d paelty and fnoludd in e judgont of foro~los~, w&on en ntoroet P oatolda bidder bids aam 1~8 then the emtmt of seid jag- merit?’ Vho question you iB a dlfiloult ono to enswu. Article 7326 for tho bringing ot suit8 for rocorery al Intsrost, ponelt~ and oosts dw end for tho foroolosuro of the tax lion upon hid8 which ero liable for t&o sa&. Said article also providea that suoh suits shell be brought a8 an ordinary foreclosure for debt with averments a8 to the oxistehao of a lion upon such laud for suoh taxes, and shall pra for jud - aont for the for8olosuro 0r sail lien and ma e of se f lf lands es under ordinary oxooutien.

~Artfole 7328, or so &uoh thorooi es portlnoet to your Inquiry, Is aa follows:

**The propar parsons, Inoluding all rooord lion holders, shall be made partiee defendant In 8uoh suit&K, shell be sorvod with proooata and othor brooo8dIhgB had therein as provldod by law In ordinary foroolosuro alto In the district oourts of this stats; end in ease Of an order of sale shall issue end the land forob~osure Bold thorouedor as in other aa8ol of ~oreolo8taro but if tho dofondant or his attorney rhell, at ehr t Lo boforo the sale, file with the offloer In whoso hands any suoh ardor of sale shall be pleaed, a written ro- quest that the roporty dosorIbod thorsdn shall bo dl- ridod and sold P II smllor tracts thon (than) the wholo, together with the doeo?I~tIan of suoh mallor traots.

thon 8Wh of fioor shell roll ths lends in moh uub- a8 defendant mar roqwft, and fn moh sees dItIBIon8 shall sell only as many subdirlslon8, as near as mey be, as are noooseary to ratisty the judgment, Intorost,

naltp and oosts; end after the papant of the taxes, r ntorost, penalty and oosta ddjodgod against it, remainder of the purohaae prloo, It any, ahall bs paid the sheriff to the clerk of the oourt, out of whioh said oxooutlori other final pmoess issued to be ro- mined by hie BQbbjOOt order of the aourt for a ordered by the two years, UnleB8 otherwIse perlod of oourt, after whioh time ouft mey order the same to be paid to the State Treasurer, who shall hold aano In truet to be paid the owner against whom said taxes *4 Efononbl8 Ooorgo E. 8hopperd. Peg0 4 ,_..

were asso8sed; pmrlded, My one ol&&ming 8sm0 l h01l make proof of his olain to the sati~eotlon of the State Trmsuror dthin three Jams after tie ralo of said land or late, after which the aaao shall be governed by law ngulating osohaat. there shell be no blddor

**If for Buoh laud tho bounty ettornoy, Sheriff or other 0rri00r selling the seam, shall bid said property off to th8 State for tho amount of all taX88, penalty, Intorost and oosts ad- judged againat such property, and the district clerk shall lmnodfately maLo report of such sale in du&ioato, one and one to the oomissioaers to the.Ooaptroller oourt, on blanks to be proscribed and furnished by the Conp- Where the property troller. is bid off to the State, shall make and execute deed to the State, the sheriff using forma to be prosoribod and furnished by the Camp- troller, 8howlng in oaoh case the amount of taxes, for whioh Bold, the Interapt, penalty end ooete clerk*s fess for recordlne deeda. He ehnll oauso such of deeds deeds to be recorded In the records county clerk In hi8 county, and rhea SO reoordod, shall forward the same to the Comptroller. The county Olork shall be entitled to a fee of one dollar for reoording each suoh deed to the State to be taxed as other ooets.

When land thus Bold to the &ate shall bo rodeomed the tax collector shall mnko the proper dl8trIbutlon of the mmoeys received by hIn In such redemption, paying to eoh offleor amount eostr found to be due, and to the State Bounty taxes, interest sad penalty found be dua oaoh rospeotirely.*

-ThO qU.OtiOIl fIlTOlT.8 t&O Pl-OpOr OOKIBtNOtiOU Of th. language, *If there shall bo no bidder for such land. * This msens, of owrao, the partioular land which Is being sold under ardor of sale issued on a tax foreclosure &d&- ment . Doe8 the aord, ‘bidder’ mean one who bidr for the land althou& he bids less than the amount of the judgment; or does it moan or lsply one who bids a sum equal to or exceeding the account of the State.8 Judgment? I have been lurab,lo to find a case where the question ha8 been passed on by the caurte, and hence will undertake to answer the same In accordance with what 1 oonoelro adopted rules of UOIl8tNOtiOll.

“‘Another ocoaslon fcr con8truln~ a statute Is whore un- as to its meaning arises not alone certainty from mbiguity employed, but f ram the faot that &ring a literal of langua-;e Interpretation to the xords ~111 lead to such unreasonable, *5 . .

Bonorablo Ooor60 s. 8hOPpa?d, Page 6

unjust or ab8urd ronoepuonora u amp.1 a aonviotly that .ao"l; not ham been Intended by the Le6ialaturo. ip ., 8.0. 214, p. 959. h .

We quote above baoauso It may be aaid that tha laagusga of the statute, *If than ahall ba no bidder' Ia parfaotly plain and unambiguous nquirr no oonatruotion. In this oonneotion, I aall attention the hollowing taken from ths aams authority,--)rIa: **It orten happen tm4 intention or thtr

lawmaking body, though obvious, Is not expraaaad by thr language amployad In a l tatuta vhsn that languaga la given Ita literal msa515g. In auoh oaM8, the oarrying out of the lagtalatlre intaat, rhioh, aa wit bava seen, ia the prima and aole objaot of all rules of 0058tNOtiO5, oan only acoompliahed dapartura from tha literal Intarpretation 0r tha language employad. Hame, tha oourta are not always oonfinod to the literal maaning 0r statute; the real grpoee and Intent o< the lagia- ;~t~eGwil$ prevail over the literal import or ths worda.v .) sso. 222, page 967.

. l ?7umerou8 authorltiea from other at&es and tha in support United Stats8 and $0188 from Texas arm oited Or ths above dootrlne of tba taxt.

"'The peaELOU5t rti0 Of 0058tNOtiOn iS t0 rind out the 1aglalatWm Intuat, rhiah la tha law aad muat prevail.' Xllia County v. Tbomp~osk, 95 Texas 28, 32. "m 005#titUtO8 the hr.' LO6iSlatiVO intbnt

HoXaarr ~a. City or Galveston, 58 Taxaa 554; Ruaaall la. hrquhar, 55 Tesaa 955; Boo1 va. Uedamyar, 50 Texas W9; Dada05 ta. Bunton, 81 Texam 374, 28 8. W. 1061.

=*8trIotly apeaking, tbsre la but ona rula or oon- atruotloo, that is the legialatire intent imat govern; all other aanona or interprstatioa, 80 oalled, are but bruunda argumnts reaortad to for the pur?oas of aa- 0r the In.* asrtainlng the true

ttil1.s County ~6. Lam ounty, 90 *x68 606, 40 S. 111. 404; Imparial Irrigatioa ~a. Ham, 104 kxaa 396, lcoy VS. Sohneidar, 110 Texaa 369, 221 138 S. U. 575, 581; 9. Y. 880. *Tha intention 0r the Legislature in enftoting a law la Texas 152, 153, the law Itam.' Edward ~a. Xorten, 48 s. 1. 792.

Konorable &or60 E. -ppd. age g

wfTha greet fundeiaaetal rule in oonatrulag statutes la to aaaarteln end gito erfeot to the Intent or tha lagIaletw . * 36 CIC 1106, 2.

aTa ara unable to bring ouraalroa to tha belier that ell oeeaa whore the stat0 has a jud(asnt oondaaeihg land to br sold for thr payment of taxes, the Legiatituro Intended the Stata should be rlthout the paw to protaot lta Intaraat and that of the oouhty. But it la our opinion that whet la meant by the languego or the a tatuto, ‘Ii there shell be no Qiddar for auoh lead* the oouaty attorney, ahariff or other oftlosr selling the aem, shell bid said propaxtp 0fr to the Stat0 ror the amount or a11 texaa, panelty, Ihtaraat and oorta adjudged ageinat auoh propartr, aeesa that if them iu ao person who bids the amount or the judguant agelnat said leml. Although ha mey bid leas, It la mad8 thb duty or ona or tha orrloara mimed to protaot the Intareata of thr State by bidding to tha extant authorlaad tha statute abort quoted. Ii any biddar should bid the amunt of tha State*8 judgrnant egainst the land or mra, the State than cannot bid; ror In rruoh oiroumateaoaa the Mate rould be oo;apstlng as a pBre aurohaaar when it Is authorized go no farther then la nacasaary to protect Its interesta.

pla think there la language IA raid Artlcla rhioh tends to support thla conatruotion. the artlole ateto in aaa8 0r roraoloatue, en order 0r sale shell Irsua and the land sold theraundar es In other eaaaa or It further provider, after tha offioar roraolomre. axaoutiag the ardor of ma10 her raoelrsd prooaeds ead rroa tham paid the taxes, Interest, pentitr ooata adjudged against the land, a8 to what bs shall do with excess. nowhere la there any prorialon praaoribing the proaadure to followed in a oear whara the lend does not bring the a-mount of tha udgaant against it.

In a5 ordinary foraolosura aalo, t tiols 2212, rhloh ralataa thereto, provide8 a prooednra In avant pro- oaada of the property sold doss not aatiaiy the judguaat, rake tha balanoa as under oxa- directln~ the aherlrr cution, using the unaatlarlsd aala as M ax80u- order lo auoh alternative I8 prorldad for In the atatuto tionl governing delinquent aalra under order Bela. From the pro~Ialona 0r the 8tatutaa direeating sherirr to pay rrou tha proceeds the taxae, lntaraat, penalty and ooat4, the *raneIndar or the 2urohaaa price, If any* to tha olark of the OSUrt, there arises the clear ispliaa- tlon that the land la to bring at least enough to satlafy the judguant . IA case the land la bid In for the &i&a,

fir0 . .ml . . ;

Eonorable @aorge H. Sheppard, Page 7

tha bid mat be ror the ruli amount agal5st the la5d, and provision la rurther made that when said land #hall be redeemed, ‘the eollootor shell Wr the pmpar by him in auoh aedeap- distribution of the mone~a rooeired tiOA, paying to aaoh ofrioar the almunt of eoata foUAd to be due, and to the State and county the taxaa, Interest and penalty r0UAd to b4 due eaoh reepeQt:Vely.’ so it appear8 that whether the land la sold to an outside bidder or bid In ror the State, prorialon la rude ror the ultimata payment I5 full of the taxes, interest and penalty.

*It la obvious that in the event the land 16 sold to en outside bidder ror less than the amount adjudged agalnat it, oomplloatlona dIffloultlea will erlse, and the Legislature has rurniahad no gUide ror their eolution. 054 pert or tha Judgment la State taxe8, aaothar part oounty taxes, and still other sums whloh go to maka up tha total oi the luwent ara aonpoeed or 40Ot.s 0r dirrerent orrioera. In Such a oaae the judgment aould not be paid In full and all the parties at lntaraat oould not get all their money. Whet should be done in tbqt oasa? Is the State’s Interest superior to the oounty’a interest will the ~monay be prorated between them? Are the orrloers to be paid firat, or are thair alaim to be postponed AAt tha olaIa8 of Stat0 and oau5ty bare been paid? xi paid rirst, it night result tlut there would not enough to pay even oaat8 going to the otiIoer8, there would not be anough lart atiaty the olalma both of the it masonable to e8auma State oounty. I think that the LegIf!latura intended no auoh eompliaatioas; othanisa, it would by appropriate anaotznent hara pro- vided ror than.

abo are awara tbst thI6 0pIAIon la In amfliot with an opl5lon sent out I’rom this department on tha 6th day of February, 1923, but with such opinion we oannot agree and rrom It we respactrully dissent.

. . .

-Assuma that the Stata has Judgment ror4OloSlAg a tax lien to the ano>nt of $250.00 land worth $5,000.00. Suppose that at the aherIrt*a sale the 8u.m of $10.00 la bid a~ autsldar, and the land is kaookad oii ta him.

Under the oaastructlon whioh we are oombatfng, and in 4cOOrdaAO4 with what laay be the literal 1anJuage of the *8 Honorable George 8. She-:perd, Page 0

BtstUtO, Stata~a hands mu13 be tied aad Its offioarm OoUd only stand by, ~alplaaa, no the $tato*e interests aeorlflq#d In that manner. After aalo, It would be the duty of tha l herlfi to exeouti a dead M the Jur*haaer and thbn taxpayer rould hare two years in vhl*h to redeem his land and he could redeem It by paying double the amount of ouch bid. Suoh a thing oould easily happen and no doubt has happened heretorora. We cannot bellere that the Legislature intended any auoh absurd resulta,

*-%a reiterate our conoiuaion, In enawar to your question, that by the term ‘bidder l used In tha stat-to giving the State the right to bid 15 lands sold under a tax Judgment, the Legislature meant a person who bids at least the amount of the Judgment against the land taxes, interest, penalty and ooata, and If no auoh bidder appaar6, then the groper officer may bid In the land ror the State as the law provides; and that no person would nacasaarily be considered e *bidder*, within the meaning of the statute, so as to preclude the propar iron? bidding same in for the State, mlaaa his offlear bid Is for a au9 at least sufficient aatlary the judg- ment agalnat the land.”

Hr. YoKanzle*a opinion was written berore the passage of meld Artlole 7345b, prorldin- for Impleading oi other taxing uaita, and ror the aourt Incorporating lr. its jadgment a finding of the reasonable ralr value of the land, but thoaa matters are not Iarolved in this case, and m ballare the reaaonln~: of hIa opinion applies to the question b8fOre us. To construe his opinion es hold- ing that a bid et a tax 8aIa la void if It 18 for leas than the amount or taxes due.

The bid in this case was clearly void, the would-be pur- chaser being e private person and not a taxing u5lt, and it naturally follow8 that the sale was void, and therefore invalid, because there oould not hare bean e sale without s bid. It likewIse tollows the sheriff had 50 authority to execute the deed. The atatua Or tha parties :a the sme as it was barore the sale, and the State til has its lien and the right to hold a tax sale under the judg- oa5t I5 the sage oacnar as If the other asla had never been held. oouraa, this opinion doss not apply in a casa in which the court inaorporated in its judgment a finding Of tke reasonable *9 Eonorablr G8orgr 8. Shopperd, Pago 9 aacunt

;~~g=ftum or tha land at an mount lam than .

me brlisve the ioregoing answers your questlonr. Your* very truly Al-TORlW GEEEiAL OF TEXAS .,l%--f@& Caoil C. Rotech Assistant CCBrOO

ATTORNEY GECZ'~', 03 TEXAS