Hon. Murray       L.    Harris
County   Attorney
Wood   County
Quitman,     Texas

Attention:    Hon. James   Hartfield
              Assistant  County    Attorney

                                               Opinion     No.   V-1058.

                                               Re:     The validity      of delinquent    tax
                                                       foreclosure       sales   by a Con-
                                                       stable    under    the submitted
Dear    Mr.   Harris:                                  facts.

               You request    an opinion   upon the questions    presented      in
your letter   dated April    26, 1950.   Your  letter and comments       clear-
ly state  the problem,     hence we quote it in full as follows:

                “The  Tax Collector       of Wood County        has request-
        ed of this office    an opinion     as to the validity     of proceed-
        ings had in certain     delinquent      tax suit foreclosure       sales
        and subsequent     resales,     purportedly       made   under Art.
        7345b. in order     to determine       whether     he is legally   author-
        ized to issue   judgment      receipts     evidencing    discharge     of
        the State and County       tax liens    sought    to be foreclosed      in
        the said suits.

                 “The    facts   are   as   follows:

                 “In 1939, the City of Mineola,              Texas,     and the Min-
        cola Independent          School    District,    as plaintiffs,      filed    some
        seventeen       suits seeking       to foreclose       tax liens    upon real
        estate    located     within    the City of Mineola          for delinquent
        taxes   for various        years.     The State of Texas          and Wood
        County,     being    impleaded,       intervened       and filed    answers
        asserting      their   liens    on the said real        estate   for delin-
        quent taxes due them for the years                  involved.       On Novem-
        ber 2, 1939, jlldgment            was rendered        in all of the suits in
        favor    of all of the taxing        units,   foreclosing       their    liens.
        On April      6, 1940, orders         of sale were       issued    in all of
        said suits,      and on May        1, 1940, such orders          were      execut-
        ed by public       sale at the courthouse           in Quitman,        Texas,
Hon.   Murray     L.   Harris,     Page    2 (V-1058)




       by the Constable         of Precinct      Two of Wood County,            Tex-
       8.S.   At these    sales    all of the property        involved    in the
       suits were      struck     off to the City of Mineola,          one of the
       taxing    suits concerned.          Subsequently.       on August      3rd,
        1942, after    expiration       of more    than six months        after
       the redemption        period,     and after    notice    duly published,
       all of said property          was sold at public        outcry   at the
       courthouse      in Quitman,        Texas,    by the Constable        of Prec
       cinct    Two of Wood County,           Texas,     to various     parties.

              “The   City of Mineola    has recently  presented     to
       the Tax Collector     a check  representing   the State’s    and
       the County’s    pro rata share    of the sums realized    from
       the above-mentioned      final sales   made by the Constable
       on August    3rd,  1943.

                “We have carefully          examined      the records        and
       files  in these    suits and find that the proceedings                 had
       were    in compliance       with the statutes         applicable      to tax
       suit sales    as of the dates        indicated,     except    the Consta-
       ble, instead     of the Sheriff,       executed     the foreclosure
       sales    and the deeds      to purchasers        at such sales,         and
       that the Constable        rather     than the Sheriff,       made the
       sales    at public   outcry    after     the redemption        period     (as
       authorized     in Sec. 9, Art.        7345b) and executed          the deeds
       to the purchasers        at those sales.

                 “We have concluded            that the foreclosure           sales    by
       the Constable         to the City of Mineola           were    valid    under
       authority       of Art.   7345b, Sec. 7 and Art.            7328.     However,
       with no case directly            in point,     there   remains      a question
       inasmuch        as Art.    7328, though providing            for sales       pro-
       cedure      ‘as in other     cases      of foreclosure’,        makes      ref-
       erence      to the ‘Sheriff’       implying      him to be the proper            of-
       ficer    and specifically         provides      that the ‘Sheriff’       execute
       the deed where          property      is bid off to the State.          By im-
       plication      Art.   7330, providing         that the Sheriff       or his suc-
       cessors       shall execute       deeds    to purchasers         of land sold
       for default       in payment       of taxes,     casts   doubt as to valid-
       ity of tax foreclosure            sale and deed executed            by a Con-
       s table.

               “The   more    serious    question,   however,    is that of
       the validity    of the sales    by the Constable      on August    3rd,
        1943, more     than six months      after  the redemption      peri-
       od, made at the instance         of the City of Mineola,      purport-
       edly under authority        of Sec. 9, Art.    7345b which    specif-
       ically  provides     that the Sheriff     make such sales.      It ap-
       pears   to us that the holding       of the Supreme     Court   in
t




    Hon.   Murray      L.   Harris,    Page     3 (V-1058)




             Little  vs. Dennis,       187 SW 2nd 76, stamps          these     latter
             sales   by the Constable        as void.    Unless     these   sales      can
            be considered         to have been validated        by amendment            to
            Art.    7345b (Act      1947, 50th Leg.,      p. 1061, Ch. 454, Sec.
             I), in our opinion       the Tax Collector       cannot    legally      issue
            judgment       receipts    covering    delinquent     taxes   involved         in
             these   suits.

                    “Therefore,        we respectfully       submit   the following
            questions    in light     of the above     facts   and request     your
            opinion   on them:

                     “1.   Could the Constable     legally         execute      the   or-
            ders    of sale in these  tax foreclosure             suits?

                     “2.   Could   a Constable    legally   make the sale au-
            thorized     in Sec. 9, Art.   7345b,    to be made at request    of
            one of taxing      units concerned     after  six months  after re-
            demption      period?

                     “3.    If either   of the above      described      types of sales
            were   invalid,      were   they subsequently         confirmed    and val-
            idated    by amendment          to Art.  7345b (Act       1947, 50th Leg.,
            p. 1061, Ch. 454 Sec.           l), so that the Tax Collector         can
            issue   valid judgment         receipts    for State and County       de-
            linquent     tax liens    foreclosed     in these     suits?   ”

                    The first  question,  briefly  restated,  is:    May the Con-
    stable  legally   execute   the order  of sale and give a valid     deed to the
    purchaser     at the first  sale in a tax foreclosure    suit.    We think the
    answer    to this question    must be in the affirmative      for the follow-
    ing reasons.

                     Section     7 of Article     7345b,     supra,    provides:

                    “In the case    of foreclosure,      an order     of sale shall
            issue,   and, except    as herein     otherwise     provided,    the
            land shall be sold thereunder           as in other    cases   of fore-
            closure    of tax liens.”

                   Justice   Greenwood,    speaking    for            the Supreme       Court,
    said   in the case   of State Mortgage    Corporation                v. Ludwig,      121 Tex.
    268,   48 S.W.2d    950 (1932):

                  ““It seems      to us not to admit    of reasonable      doubt
            that the validity     of the sale under judicial      foreclosure
            of a tax lien is to be determined        by the rules      govern-
            ing judicial   sales,    and not sales   pirely   statutory     and
            summary.
Hon.     Murray       I,.   Harris,   Page   4 (V-1058)




                  Chief    Justice      Leslie  of the Eastland    Court   of Civil Ap-
peals   in the case       of Love      v. R. S. Allday   Supply   Co.,   106 S.W.2d     830
(1937),    in citing    the case       of State Mortgage     Corporation     v. Ludwig,
supra,    as authority       upon     the same    pomt,  said:

                 “Further,       it must be borne    in mind that tax fore-
         closure    sales    are governed      by the same   rules govern-
         ing judicial     sales    generally.    This is due to the statute
         and authorities        construing    same. w

             The Supreme      Court    has never   departed      from   the law as
laid down in the foregoing      cases.    Judge  Taylor    of the Commission
of Appeals,  in an opinion    adopted    by the Supreme      Court    in Gamble
v. Banneyer,   137 Tex.    7, 151 S.W.2d     586 (1941),    said:

                  “It is settled      in this state     that the ‘decrees        of the
         district    court     entered     in suits to foreclose        tax liens    are
          supported     by all the presumptions             which    uphold judg-
         ments     of domestir        courts    of general    jurisdiction      * * *’
         and that the remedy            is to throw around         the owner’s      right
         and title    ‘every     safeguard      furnished     by due and orderly
         judicial    precedure,’        and to put ‘the tax sale,         in consum-
          mation    of a valid     judicial    foreclosure,      on the same plane,
         with respect        to collateral      attack   as other     execution     sales.’
         State Mtg. Corp.          v. Ludwig,       121 Tex.    268, 48 S.W.Zd        950,
          952, 953.”

                     Prior   to the adoption    of the present       rules   of civil     pro-
cedure     Article        2218, V.C.S.,   provided,   in part,      as follows:

                  “Judgments        for the foreclosure         of mortgages        and
         other   liens    shall be that the plaintiff         recover     his debt,
         damages      and costs,       with a foreclosure         of the plaintiff’s
         lien on the property          subject    thereto,    and, except     in judg-
         ments     against    executors,       administrators        and guardians,
         that an order       of sale shall issue        to the sheriff     or any
         constable      of the county      where     such property       may
         dlrectmg      him to seize       and sell the same         as under     exe-
         cution,    in satisfaction       of the judgment;        . . ,”

This statute  has been superseded       by Rule 309 of the Rules                     of Prac-
tice and Procedure    in Civil  Actions   adopted by the Supreme                       Court,
which  rule is in part as follows:

                 “Judgments       for the foreclosure         of mortgages        and
         other  liens    shall be that the plaintiff        recover    his debt,
         damages     and costs,      with a foreclosure         of the plaintiff’s
         lien on the property        subject    thereto,    and, except     in judg-
         ments    against    executors,      administrators        and guardians,
t




    Hon.   Murray      I,.   Harris,    Page    5 (V-1058)




            that an order     of sale shall issue    to the sheriff  or any
            constable    of any county   of the State of Texas,     directing
            him to seize     and sell the same as under execution,          in
            satisfaction    of the judgment;    . . ,‘*

    Thus it is observed       pbat the rule provides        that the order    of sale                      ’
    shall issue     to the sheriff    or any constable      of any county    of the State
    of Texas    in lieu of the provision       in the statutes     which  provided     that
    an order    of sale shall    issue   to the sheriff    or any constable      of the
    county    where    such property      may be.    The force     of the statute    and
    the ru,le are the same         in so far as applicable      to the problem     here
    involved.

                      Concededly,      in none of the cases           we have cited       above
    was there      directly   involved      the question       of the coordinate         power     of
    the sheriff     and constable       to execute        an order    of sale in a delinquent
    tax suit.     But we perceive         no reason        why the principle       of law stat-
    ed in these      cases   would    not be applicable          to the questions        here con-
    sidered.      We have found no case,             either    under foreclosure          of liens
    generally,      or tax liens,     holding     that a constable        in executing       writs
    of execution       and making      sales    thereunder        does not possess         the same
    power     and authority       as the sheriff.         The case     of Little   v. Dennis,
    143 Tex.     582, 187 S.W.2.d        76 (1945),       which we shall       presently      dis-
    cuss in connection        with our answer            to your    second    question,      is not
    contrary     in so far as first       sales     are concerned.

                 We believe    the foregoing    is sufficient    to show that the
    constable  has the same     power    as the sheriff    in executing     an order
    of sale and issuing   a deed    thereunder   to the purchaser        in tax fore-
    closures  as to the first   sale,   and you are accordingly         so advised.

                    Passing     next to your second     question     which,   briefly re-
    stated,   is as follows:       Has a constable   authority     to make a second
    sale and issue     a deed to the purchaser        at such~ sale for and on be-
    half of the taxing     units purchasing     at the first   sale under the provi-
    sions   of Section    9, Article   7345b.    We think the answer        to this ques-
    tion must be in the negative.

                      As to the sales         made by taxing          units after    title   has been
    perfected      in them by operation             of law arising       from     the expiration
    of the redemption           period,     a different      situation     prevails    ~than that at-
    tending    the first      sale.     Section    9 of Article       7345b,    supra,     does   not
    purport     further      to deal with judicial          sales,    but prescribes        the meth-
    od, conditions,        and manner         of sales     by the taxing       units of property
    previously       acquired       by the taxing       units at first      sales   which     they then
    own and hold for the purpose                 of sale to collect        the taxes     owing    to the
    various      participating        taxing    units in the suit.

                     The judicial       power   had ceased        and come   to an end upon
    the final    consummation          of the first sale.        Section 9 of Article  7345b
Hon.   Murray       L.   Harris,    Page     6 (V-1058)




merely      prescribed        the conditions      and method         of sales      made     by the
taxing    units of property          purchased      at the prior       judicial      sale.    Un-
der the terms          of this section      of the ‘statute,      the power        to make a
public    sale in behalf        of the taxing     units is expressly            conferred       up-
on the sheriff.         Nowhere       in said section        of the statute       is the consta-
ble mentioned          or is there      any inference       that he may have coordi-
nate power       with the sheriff         in making      such sales.        True.      the stat-
ute says,      “All    sales    contemplated       herein      shall be made in the man-
ner prescribed          for the sale of real         estate     under execution,           except
that they must be made between                  the hours       of two o’clock         p.m. and
four d’clock       p.m.“;     but this deals      specifically      with the manner            of
making      the sale and does not warrant                the inference        that the consta-
ble would      have the same          power    as the sheriff.         Whatever         may have
prompted       the Legislature          to designate      only the sheriff          as the offi-
cer to make these            sales,    the Legislature         undoubtedly       had that pow-
er; and we are not warranted                 in adding     by construction           what the
 Legislature        has omitted.

                  The case   of Dennis         v. Little, supra,   is direct  authority
in support      of the conclusion    we        have reached.     Justice   Sharp  in that
case  said:

                  “Whether       such property    is sold under     the provi-
          sions   of Article      7328 or under    the provIsIons     of Sectlon
          9 of Artxle      7345b, the sheriff     IS the only person      author-
          ized  to execute      a deed conveying      such property     to the
          purchaser      thereof    at such sale.”

Section     9 of Article      7345b    deals    only   with    second     sales.

                You are,   therefore,   respectfully      advised   that the sec-
ond sales     made by the constable       in behalf   of the taxing    units were
unauthorized,      and the purchasers       acquired    no title  thereunder.      But
did the amendment        to Section   9 of Article    7345b by the 50th Legis-
lature  (H.B.    695, Acts   50th Leg.,    p. 1061), to which we shall now
turn in answer      to your third question,       have the effect    of validating
such titles?

                  Section    9 of Article        7345b was materially           amended      by
the 50th Legislature           (H.B.    695, 1. 1061).        We think it quite evident
that the legislative        intent in the enactment             of House     Bill  695 was to
accomplish        a dual purpose:          First,    to clarify     the law by specifical-
ly authorizing       resale     by public       or private     sale or property        sold un-
der foreclosure         for delinquent         taxes and acquired         by the taxing       units
under the provisions            of Article       7345b; and, second,        to confirm      and
validate    such sales       as had been made prior               thereto   but which      thro,ugh
lack of an express          statutory      authority     or erroneous        construction       of
the law had rendered            such sales        and the conveyances          made there-
under    invalid,     even though       the sales      and conveyances         were    made by
the taxing     units in the utmost           good faith.
Hon.    Murray          1,. Harris,      Pa8e   7 (V-1058)




              We are only concerned      here with the validating    portion
of this act, for all the proceedings    with which we are here concern-
ed transpired   prior   to this amendment.     Judge Atwell   in the case
of In re American     Rio Grande    Land & Irrigation  Co., 21 F.Supp.       492,
has    well    stated      the   scope    of a validat.ing     act   in the following        language:

                    “Validating,   seems   to me,            to cure something     that
         was     intended     but which was done              imperfectly.   . . .

                  “Validate     is a derivative          of valid,     and   means      to
         make     valid;   to confirm.      . . .

                “These     definitions    presuppose    antecedent               facts
         which,  in themselves,        though attempting     validity,             had
         been insufficient      to accomplish     it. . . . ”

                  As said        by the Superior  Court    of Pennsylvania                in the    case
of Petition      of Miller,        Appeal of Borough    of Northampton,                 28 A.2d     257:

                   “The      purpose     of a validating   statute  is to cure
         past    errors,       omissions     and neglects,     and thus to make
         valid    what,      before   its enactment,     was invalid.”

                 There    is no reason       why the Legislature          might    not have
designated      the sheriff    or constable,        either   or both, as the proper         of-
ficial   to make second       public     sales    of land held or acquired          by tax-
ing units in tax foreclosure            suits,   but it chose     to designate      only the
sheriff.      What the Legislature          may have legally        done in the first      in-
stance     it may ratify,    validate,     and confirm        by a validating     act, such
as now provided        in Section      9 of Article      7345b,   supra.     There    is noth-
ing in this validating       portion     of the amendment          to Section    9 forbidden
by the Constitution        or public     policy.      It is expressed     in plain and un-
ambiguous       language,    and we must give it effect             as a valid   act in the
absence      of any constitutional        provision      to the contrary.

                You are therefore      advised     that it is our opinion     that these
sales,   although    made by the constable        and not the sheriff,     must be
treated    as valid   under the express      terms     of the validating    act (H.B.
695, Acts     50th Leg.,   p. 1061), and that the tax assessor-collector             is
authorized     to receive   the correct     proportion     of the State and county
taxes   tendered    by the City of Mineola,       and issue     receipt  according-
ly.

                  Opinions   Nos. O-6479 and O-7159    heretofore                      rendered
by this office,      in so far as in conflict with this opinion,                     are express-
ly overruled.
Hon.   Murray     I,.   Harris,   Page   8 (v-1058)




                                     SUMMARY

                A constable      has coordinate      power     with the sher-
       iff to execute      an order     of sale in making        first   sales    in
       delinquent      tax foreclosures       and to make a deed to the
       purchaser       pursuant    thereto,     but does not have author-
       ity to make a second          sale in behalf      of purchasing        taxing
       units as provided        in Section     9 of Article     734513, V.C.S.
       Only the sheriff        may make such sales.           The amendment
       to Section     9 of Article     7345b by House        Bill    695, 50th
       Legislature,       page   1061, has the effect       of validating        such
       second     sales    made by constables.          The assessor-collec-
       tor is authorized        to receive     the State and county          taxes
       from    the purchasing       taxing    unit as a result        of second
       sales    by constables.

                                                                  Yours      very   truly,

                                                                   PRICE       DANIEL
                                                                  Attorney      General



APPROVED:                                                         BY

W. V. Geppert                                                                Assistant
Taxation Division

Joe Greenhill
First Assistant




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