Honorable-Weldon Hart               Opinion No. S-115
Chairman and Executive Director
Texas Employment Commission        Re: Necessity that
Brown Building                         property acquired
Austin, Texas                          fob the State at a
                                       sheriff's sale be
                                       disposed of ‘ins the
Dear Mr. Hart:                         manner acquired."
          You have requested'our opinion on certain ques-
tians dealing with'the sale or disposition of 'property
acquired by-the estate at a kherlff’s sale PoUowing~judg-
ment for unemployment taxes.
         We quote a portton of your letter:
          "The Texas Employment Commission has in the
     past proceeded in accordance'with 'Opinion of the
     Attorney'General of'Texas No. C-1115, dated Au-
     gust.5, 1939'. A copy'of.that.opinion is attache&.
     A question has been raised; however;ab to the
     propriety of' the Coinmission% contemplated sale
     of certain real property acquired for'the State
     by'the Commlssion's'attorney at a.aherlff's sale G
     following the levy'of execution under a $7,558
     judgmentsfor unemployment taxes against the owner
     of the land. . . .
          "Our attention has been directed to that
     language in Article 4403 V.A.C.S., which seems to
     require that property acquired for the State at a
     sheriff’s sale be sold or otherwise disposed of
     ‘in the manner acquired'. At the same time, the
     article directs that the disposition be made, with
     the advice and consent of the Attorney General,
     upon such terms and conditions as are deemed most
     advantageous to the State by the agent or attorney
     of the State who bought Fn the property at the
     sheriff's sale. There appears to be ~direct con-
     flict between the quoted portion of Article 4433
     and its other terms.
Honorable Weldon Hart, page 2 (S-115)


          "I respectfully request that ~you furnish us
     your answers to~tlie'sixspecific questions treated~
     by Opinion No. 0-1115,"mentloned above, with special
     attention to question~nuniber(4): 'How is such sale
     to a subsequent purchaser accomplished?'"

          The questions treated by Opinion No. O-1115 follows
          "(1) Is a representative of the Texas Unem-
     ployment Compensation Commission authorized by
     law to bid In In the name of the State the proper-
     ty levied upon?
          "(2) If a representative of the Texas Unemploy-
     ment Compensation Commission is not authorized to
     bid in the property, who is so authorized to bid in
     the property under the laws of this state?
          "(3) When property is bid in at a sheriff's
     sale'in the name of the State, who is'authorised
     to pass title to a subsequent purchaser from the
     State?
          "(4) How is such sale to a subsequent purchaser
     accomplished?
          "(5) What disposition must be made of purchase
     money realized from such sale?
          "(6) Would the answer to the above questions
     apply to real property a8 well as personal property?"
          We affirm Opinion No. O-1115 in so far as the
answers to questions (l), (2), (5), and (6) are concerned.
          We reform and affirm the answer to question (3)
by stating that when property Is bid in at a sheriff's sale
In the name of the State, pursuant to,Article J~401, Vernon's
Civil Statutes, the Attorney General is authorleed to pass
title to a subsequent purchaser from the State upon compli-
ance with the provisions of Article 4403.
          A careful reading of the "answerItto question (4)
in Opinion No. O-1115 will disclose that question (4) was
not really answered. Article 4403 Is paraphrased but the
word "acquired" after "manner" Is omitted. This word is
vital to the proper construction of Article 4403.
                                   ---
                                         -...




Honorable Weldon Hart, page 3 (s-115)


          Articles 4401 and 4403, as amended, are the
principal statutes involved herein.  They dare derived
from Chapterlj, General Laws, 16th Legislature, Special
Session, 1879, p. 9, being Sections 1 and 3, respectively.
          Article 4401 provides:
          *If any'prdperty shall be sold by virtue of
     any execution, .order.or (sic) sale issued upon
     any judgment in favdraf the State or sale by
     virtue of~any deed of trust -- except executions
     issued upon judgments in cases of scire faclas
     the ageht representing the State by and'with the
     advice and consent of the Attorney General is
     hereby'authoriaedand required to attend such
     sales and bid on and buy in for the State said
     property when it shall be deemed ~proper'tdpro-
     tect the interest.of the State In the collection.
     of such judgment and debt. His bid.Bhall not
     exceed the amount necessary to satikfy'aaid judg-
     ment and debt and all costs due thereon."
                         .   I
          Article 4403 provides:
         "The agent or attorney of the State buying
    for the State such property at such sales shall
    be authorized by and with the advice and consent
    of the Attorney General, at any time to sell or
    otherwise dispose of said property so purchased
    In the manner acquired and upon such terma and'
    conditions as he may deem most advantageous to ~-
    the State. If sold or disposed of for a greater
    amount than is necess?ry to pay off the amount
    due upon the judgment or debt, and all costs
    accrued thereon, the remainder shall be paid into
    the State Treasury to the credit of the general
    revenue. When such sale is made, the Attorney
    General shall, in the name of the State,.execute
    and deliver to the purchaser a deed of conveyance
    to said 'property,which deed shall vest all the
    rights and title to the same,in the purchaser
    thereof.* (Emphasis added throughout.)
          Articles 4401 and 4403 were amended by Chapter
243, Acts of the 40th Legislature, Regular Session, 1927,
P. 361.
Honorable Weldon Hart, page 4 (S~115)


          The material change -in Article 4401was the
additionof the phrase "or sale by virtue of any deed
of trust."
                 : .'.
          The addition to Article 4403'was the word
"acquiredn after "manner;" thereupon causing theamended
portion to read.". ; .~to sell or otherwise dispose~of
said property so purchased in the manner acquired. . .,'
and the words "or debt" after "judgment."
          It should be noted-that Article.4401 concerns
property "sold.by virtue'of 'any execution, order or (sic)
sale issued upon shy judgment in favor of the StaG or
sale by virtue of any deed of trust" except executions
issued uponjudgments in cases of scire. facias.
                                         .._ ~~ .
          In conhection.with.the~foregoing'paragraph it
is elementary ~that'any property sold in the manner des-
cribed therein would~necessarily have to be sold at public
sale. '(Rules-647-650 Texas Rules of Civil Procedure and
Article 3810, V;C.S.j This being'true; the on1 manner
in which-the State could acquire property un+ er Am
4401 is at public sale.
          The phrase 'such property at such sales'!in
Article 4403 refers to the 'property" sold under the
provisions of Article 4401. Inasmuch as property bought
by the State under the provisions of this last named
article would be property "acquired" at a public sale; '
the on1 manner In which the agent or attorney "buying
for m9e State such property at such sales* can "sell ore,
otherwise dispose of said property so purchased in the
manner acquired" is at public sale. Surely the legisla-
ture could have intended no less when It amended Article
4403 by inserting "acquired" after nmanner.n

          By the foregoing we do not mean that a sheriff
must sell the property at public sale. The agent or
attorney of the State, by and with the.advice and consent
of the Attorney General, is authorized to sell it at public
sale after proper advertisement as in the case of a sheriff's
sale under execution.
          The requirement "upon such terms and conditions
as he may deem most advantageous to the State" does not
conflict with any other portion of Article 4403, nor pre-
vent the agent or attorney of the State from selling the
property "in the manner acquired." The fact that the sale
would be public would In no way prohibit the agent or at-
torney of the State from agreeing with the purchaser on the
            -


                ,

Honorable Weldon Hart, page 5 (S-115)


terms and conditions-ofthe sale; If the sale were un-
satisfactory to the agentsor attorney of the State; there
is no-reason why the property could notbe'withdrawn from
the sale and another sale attempted after proper advertise-
ment, if so desired.~
          There is a serious constitutional question as
to the sufficiency of the caption of the Amendatory Act'
in so far as the.addition of the word'"acqulrcdn is con-
cerned. However, IInorder that purchasers may be fully
protected'it is believed that all sales made by virtue
of Article 4403 should be by public sale until the statute
is otherwise construed by the courts or until it is clari-
fled by legislative action.
                           SUMMARY
         'Property boughtlnthe ~name of,the State
     pursuant to~provis~ons of Artkle 4401, V.C.S.,
     if sold to a'subsequent purchaser ~froni
                                            the'state,
     should be,sold at public sale. Article 4403,
     V.C.S.
                               Yours very truly,

APPROVED:                      JOHN BEN SHEPPERD
                               Attorney General
L. P. Lollar
Taxation Division
John Atchison
Reviewer
Mary K. Wall
Reviewer
Robert S. Trotti
First Assistant
John Ben Shepperd
Attorney General

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