      OFFICE   OF THE ATTORNEY       GENERAL       OF TEXAS

                            AUSTIN




ma. Gaorge H. Shepparb
&mptrollrr    of Publio Aooounta
state   OS Toxaa
Austin,   Texas




                                                    d*llnquent            taxer
                                                    taring        ualt     uhioh
                                                   0 tax ror8010rura
                                             tra     queatlona.
                                                    st for        en opinion
                                                   atate     es    r0110w8:

                                          oalpt     of the icllowlng
                                          quest tax        oontraotora.
                                          a. quoatioaa            for     this

                                         atriot    iilad    suit for
                                           property uul aado thb
                                      The State    filed    annwar and
                        UC), juwnt      was bad in favor of both
                           property war ldrertiaed       ior sale under
                        aold   on the flrat     Tuesday in August,
                       1 diatrlot    bought the property        in to be
                  t for all taring unlta.         The two-year porlod
     for rodunptlon l  x p h ain b August 1943. By olaraight tho
     6uthoritlra  Sailad t0 get Out Writ Or PO8f~+88iOU           Within
     the twenty days aa provided in Soo. 12 of Art.             7345b oi
     tha Ravlaod Statutea,
           *Ia there any naoeaalty for writ of poss~aion    to
     iaauo whan thr proprrty ia bought in by a taxing unit?
                                                                             214



Ron. George Ii. Sheppard,       page 2


                “Is there any necessity for Issuing a writ of
        -possession   after the twenty days expires; If so, what
          is the procedure,  and if the writ cannot now be issued,
          what 1s the procedure?”

               fn answer to your   first   quastion, we edvlse     as
follows    :
               Section 12 of Article  7345b, Vernon’s      Revised
civil     Statutes of Texas, provldesc

                 “In all suits heretofore  or hereafter filed, to
         collect    delinquent taxes against property,  judgment in
         said suit shall provide for Issuance of wrlt of posses-
         sion within twenty (20) days after the period of redemp-
         tion shall have expired to the purchaser at foreclosure
         sale or his assigns:     . . .‘I
          This said provision  of statutory  law was enacted
by the 45th Legislature  In 1957, and became effective  from
and after Its passage.   (See Acts 1957, 45th Leg., p. 1494-a,
ch. 506)
               Said provision   is now in full   force   and effect.
             Insomuch as the said Sectlcn          12 of Article  7345b
specifically     directs   that the “judgment in said suit shall
 rovide for the issuance of writ of possession             within twenty
P20)   days  after   the  period  of  redemption     shall have e:plred
to the purchaser at foreclosure           sale or his assigns,       we
assume that the trial       courts follow this statutory behest
and incorporate      such a provision      In the judgment of fore-
closure.     Then, with such a provision         In the judgment, It 1s
necessary,    in order that the full terms of the judgment be
obeyed, that the writ of possession            shall Issue as commanded
by the trisl     court.    The fact that the purchaser was one of
the taxing units would In no way change the terms of the stat-
ute referred     to.    There is no provision       In said statute   pro-
viding that the writ of possession            shall not Issue In the
event the purchaser shsll be one of the taxing units concerned
In the suit for delinquent        taxes.      The statute refers    with
equal force to all or any who may become purchasers of the
property at the foreclosure         sale.
non. Georie    H, Shepimrd,    pago 3



              In a nswer to y o urleoond question,        we idrlao:
               As hrretofore     state4 by us, the tom8           or the
judgment    rhould folla      tha statutory      requlramenta      as to
thbr oontenta    a? •am~r Wo must laauaa that thr judgnrent
r&erred     to doss follow     the raquiremaata        of the statute
relating    thereto,    and thrrefora of418 for the laauanoe             of
a writ of poaseaalon       within twenty (20) days after the
pried     of rederqption lxplrea.        But  your   request    for oplnlon
$ooa not diaoloae       any faota    whibh make sow neoaaeary         the
iaauanae of a writ of poaaeaalon.             Suoh a writ la in the
nature of l writ of aaalatanoo,           laaued by the oourta ln
aid of and in enforoment           of thb oourt’a      jurladlotlon     and
the funotlon thereof la to render rffeotita                the Oourtfa
ju4fpent.      In a tax foraoloaure       suit,    it servos to oust
the former owner who was ths defendant in the tax foreoloaure
suit,    fmlp poaaeaalon OS the real prorertp in oontroveray,
and to put the purohaaer         at the tax foraoloaure          @ale in
poaaeaalon of the land bought by him at the tax foreoloaure
*alo.     Unless the possesalon       of the land in question         la
refused to be surrendered          to the purohaaer thereof,         by the
former owner of the land, we see no aae4 for a writ of
poasesalon     to issue.    If auoh lltuation        doer obtain, wa
aug&eat that you take ti,e ratter           Up with    the oourt    whioh
rendered    the foreoloaure      judgment.

             Va do not bellara   that the failure      to 16oue the
writ   of paaaeaalon within the period      authorized   by the
statute   and the judgment   of the bout,     horetoforo mntloned
by us, would ln anyway be fatal      t-0 the tit10 aoqulred     by
the purohaaer at the tax foreoloaure        aalr of the property
in queeltion.
              We are aware that when a deoror awarding tit14       and
posaraalon et land is awardrd in a ohanobry oourt,       that   the
deorre itarlf    door not oporatr to dlrrat   tltlo, but   that  the
dlvoatitWa     is oomplbto when the party ontltlod   to the land
is put in poaaeaalon theroof.      (Sea Toxaa-Xexloan Ry. Co. v.
                                                                         216




 Hon. George H. Sheppard,     page     L



 Cahill 9 cited supra)     But under the blending of law and
 equlty characteristic     of our Texas system of jurlserudence,
 this doctrine   would not obtain.     Under our tax foreclosure
 procedure,   as applied to the collection     of taxes against
 real estate,   the suit to foreclose    the constitutional     lien
 for taxes is primarily     one in rem.   (See Ball v. Carroll,
 92 5. W. 1023, error refused)       It has long been established
 that a personal judgment against the delinquent         taxpayer Is
 not a necessary   condition   precedent to the foreclosure       of
 the tax lien on the land.      (See Slaughter v. City of Dallas,
 103 s. w. 218)

              Moreover, Article      7323, Vernon’s   Revised   Civil
 Statutes    of Texas, provides:
            II. . . The sheriff,  in behalf of the State, shall
      execute a deed CONVEYING   TITLE to said property when
      sold and paid for.”

              And it is provided in Article       7330, Vernon’s
 Revised    Civil Statutes, as follows:
               “In all cases in which lands have been sold, or
       may be sold, for default      in the payment of taxes,  the
       sheriff    selling   the same, or any of his successors  In
      ‘office,    shall make a deed or deeds to the purchaser or
       to any other person to whom the purchaser may direct        the
       deed to be made, and any such deed shall be held in any
       court of law or equity in this State to vest good and
       perfect    title   In the purchaser tkereof, subject to be
       impeached only for actual fraud.
             As to the quality   of title   which passes to a pur-
  chaser cf land at a tax foreclosure     sale, It is olear that as
  against all partie& who had an interest       in the land, and who
  were made parties   to the tax foreclosure     suit, a fee simple
  estate passes to the purchaser free from any lien for taxes
  for the taxing years prior to that for which the foreclosure
. was had, existing    in favor of any and all taxing units which
  were impleaded In or were parties to the suit In question,
   unless such tax lien was reserved In the judgment of fore-
  c losure.   (See State Mortgage Co. v. State, 9 S. W. (2d) 271,
   17 S. W. (2d) 801; State v. Liles,     212 S. W. 517, Ivey V.
  Telchman, 201 S. W. 695, error dismissed;       City of Houston
                                                                       21



ma,   OOOrg4 8. Shopped,     pad4 5



,, Bartlett,    29 Ci+. App 27). W4 rodard thr jud@mnt es
aonoluslr4    aaalnst all plrtloa    to the suit who wore 44n4d
with prooeaa~ (Se4 Ball 1. Uarrl ton, 92 5. H. 1023).
~a4 in Orr:r~.Xllaoe        285 S. IV."%50, It wee hold that the
4datenoe     of these things,   Lo.,    l) judemnt rar taxes,
(b) for8oloaure     of tax lien   and   0) proper Ceod from
&erfff,    Oonutftsted    l *ad   tit14 to the lsnd in pueetion.
                  24 are thersiorc  of the opinion thst altho
the writ of POasbSSiOn was not iusuod %hloh should Jmrr
$rsued in aooor4anoo with the statutes    and the judgment of
the oourt, the tax unit which puroh4s44 the land at the
tar foreolosure  sale took a fee slr;lpls tIt16 to the land
aa against all xho were port&c to th4 bult.
                    in addition    to our former obssrvatlons
oonosrnlng the lsmmoc        of a writ 0r posaasalon,       we would
furthor point out that in Oem any person (whether the
rormer ownor, one In prlllty      31th thb former owner, or e
etrenger to the tax foreolosurs        suit)   aseerts  adverse
poesossion   or olati to the land in question a& againat
the ptXrOhCs8r e.t th4 t&X fOr4OlOsUr4 s61e, s~fd purchaser
oan also arsert hfs rights      derived from the &aid purohase
at the tar foreclosure     s~Ae, by way of an sotlon of
forolblc   dctainer   or foroible    entry &ad detalner,      or
treapeaa to try title,     as need be,     end  as  the faots   my
warraat,   sad would thus heve aosllablo        a writ of possession
agslnst   cny wrmgful clalmhnt to said lend or the
poaaasalon thereot.
