             91'wE             ORNET          GENERAL
                            .OP TEXAS




 Mrs. At-tie M.~ F‘ultz ”
'county Attorney, Orime!e ,county
 Anderson, Text+

Dear Mrs. Fultz:                      Opinion No. O-6000
                                      Re: Disposition   of excess funds
                                           received from a sale of real
                                           estate by the State of Texas
                                           which was formerly bought in
                                           at a tax sale by the State and
                                           the sale by the State being
                                           made after the expiration  of
                                           the two-year redemption
                                           period.

          Your letter of May 1, 1944, requesting the opinion      of this   de-
partment on the question stated therein is as follows:

           "I submit for your determination   the following   question
      and statement of facts:

            "Statement --
                       of Facts: After the expiration  of two years
      from the sale of a tract of land to the State of Texas, the
      Sheriff of Grimes county sold the land for a price in excess
      of the amount of the judgment and costs.

           "Question:    What disposition should be made of excess
      funds from a sale made after the expiration   of the two-year
      redemption period?

           "This identical question appears,to  have been answered
     by the Attorney General's Department ln Opinion No. O-3729
     to the effect that the excess should be dletrlbuted   pro rata
     among the several taxing units.   However, Article 7328 Re-
     vised Civil Statutes,  1925, as vended,   recites that the ex-
     cess should be sent to the State Treasurer.

           "Opinion No. O-3729 la predicated  on Section p of Artl-
     de 7345b, and there does not appear therein any express pro-            j
     vision about what to do with the excess.
Mrs. Ax-Lie M. Fults,       page 2 (0-6000)



            “The Caae of Booty et al v. State, 149 S. W. (2) 216,
      (Civ. App.) ir directly  in point, and the holding there is
      that the BXCOIIIrhould be turned over to the State Treas-
      urer.

             “In view of the fact that there are two rtatutea re-
       lating to the quertion,   I will be very obliged if you will
       render an oplnign clarifying    the mze,”

           We have carefully    conalderad your requelt In connection with
the authorltiea   cited therein,   and our Opinion No. O-3729.’ Article 73491,
Vernon’r Annotated Civil Statutes, was enacted by the 45th Legislature,
Regular Seeeloh, 1937, Genate Bill No. 477, page 1494-a, Chapter 506.
In Opinion No. O-3729 thlr department ruled on a question identical       with
the one presented In your inqulry.       After quoting a portion of Article
73’+5b, it wan said:

             “The above quoted article   directs the Sheriff to take
      the proceeds from the sale and to first pay all co&e and
      then to distribute     the remainder among the taxing unitr
      participating     In the original judgment pro rats and in
      proportion to theamount of their respective      tax liens
      established     in the tax judgment against the propefiy,   We
      believe this ir the method to be followed in the dlotrl-
      butlon of,the money realized at the second aale regard-
      less of whether the money received at raid record aale lr
      insuificient     to ratirfy all coete end the amount of the
      original    judgwnt dr whether aaid mount 1’ in excem of
      the coj& and the amount of the original      judmzt,”

               Sectian   P of Article   7345’b, Vernon’6 Annotated Civil   Skatutea,
provides      in part:

            “* * * The 6herlff shall apply the proceeds from much
      sale, fir&,   to the payment of all costa in aaid unit and
      all co&r and expenses of sale and reeale and all attor-
      ney’a fee8 an8 reasonable expense8 taxed SE costs by the
      Court in raid Nit   end ehall distribute   the balance among
      the taxing unitr participating   in aaid. original  $&grnent
      pro rata and in proportion to the amount of their tax
      lienr against Nch property as eetabllehed      in said Judg-
      ment.”

          We have carefully   conlridered the came of Booty, et al, v. State,
149   S. W.(2d) 216, and It is noted that this suit was filed    in 1932 a8
provided by Article 7326, Vernon’s Annotated Civil Statutea, and that
on October 12, 1932, judeplent was rendered foreclosing   the tax lienj and
on February 7, 1933, after notice of sale aa required by Article 7328,
Vernon’s Annotated Civil Statutes, the land was rrold to the State of Texas
for the amount of the taxes.
Mrs. Artle   M. Fultz,    page 3 (o,-6000)



           Assuming for the purposes of this opinion that the tax suit
end sale of the tract of land in question was subsequent to the effective
date of Article 7345b, Verx$on's Annotated Civil Statutes, the tax suit
and sale was ln accordance with the provisions   of said statute.  This
being true, the cane of Booty, et al v. State, supra, has no application
to the queatlon under consideration,   as this case was Instituted long
prior to the effective  date of Article 7&b,    supra.  Therefore, we are
constrained to adhere to our former ruling contained in Opinion No.
o-3729.

                                                       Youra very trdy

APPROVED
       MAY10, 1944                              ATTORNEXGENF3ALOFTFJAS

/a/   Geo. P. Blackburn

ACTINGATKENEYGFiRERALOFTFXAS                    By     /g/   Ardell    Williams
                                                             Ardell    William
                                                                      Assistant

AW:EP:IM

                                          APPROVED
                                          OPINION
                                         COMMITrEE
                                         BY /s/ O.S.
                                           CHAIRMAN
