           THE      ATTORNEY            GENERAL
                        OF     TEXAS




Honorable Robert S. Calvert       Opinion No. WW-753
Comptroller of Public Accounts
Capitol Station                   Re:   May the Comptroller of
Austin 11, Texas                        Public Accounts approve
                                        a certificate of can-
                                        cellation covering taxes
                                        which are actually de-
                                        linquent but which were
                                        not shown on a tax cer-
                                        tificate issued by a
                                        county tax assessor-
Dear Mr. Calvert:                       collector?
         By two recent letters you have requested the opinion
of this office on the above question. We quote your second
letter:
     "This letter will give you additional information
     about an error that was made in compiling a Delin-
     quent Tax Record in Refugio County, asoutlined in
     a letter we wrote on July 16, 1959, but did not
     deliver to you until a few days ago. The first
     error in describing the lots as being located in
     St. Mary's Addition to the town of Bayside, Texas,
     was made in compiling two year supplements, begin-
     ning with the year 1919 or the first recompiled
     record covering the period 1919 to 193Li,inclusive.
     After a supplement or recompiled record has been
     completed and approved by the Commissioners' Court
     it is forwarded to this Department for approval.
     When a record has been recompiled It is used by
     the Tax Assessor-Collector until another record is
     recompiled in the County; see Article 7336f, Re-
     vised Civil Statutes. After the two year supple-
     ments or the record covering the years 1919 to 1934
     were completed the Tax Assessor-Collector of Refu-
     gio County wrote and filed with this Department
     recompiled records; one for 1919 to 1940, inclusive;
     another for 1919 to 1947, inclusive; and one for
     1919 to 1954, inclusive. The description of the
     lots in question was erroneously carried on the de-
     linquent records after the first error was made
     until the last record covering the years 1919 to
Honorable Robert S. Calvert, Page 2     (Opinion No. WW-753)


     1954 was compiled. During the time the lots were
     incorrectly described on the delinquent record the
     Tax Assessor-Collector executed certificates cer-
     tifying that no taxes were delinquent on the lots
     in question in the original town of Bayside.
     "Article 7258a, . . .reads in part as follows:
     Bar clarity we quote more fully from Art. 7258aJ’
         "Section 1. On and after October 1, 1953, the
     Tax Collector or his deputy of any county in this
     State, or any city or political subdivision or tax
     assessing district within any such county shall,
     upon request, issue a certificate showing the
     amount of taxes, interest, penalty and costs due,
     if any, on the property described in said certifi-
     cate. A charge of not to exceed One Dollar ($1)
     may be made for each such certificate issued. When
     any certificate so issued shows all taxes, inter-
     est, penalty and costs on the property therein
     described to be paid in full to and including the
     year therein stated, the said certificate shall
     be conclusive evidence of the full payment of
     all taxes, interest, penalty and costs due on the
     property described in said certificate for all
     years to and including the year stated therein.
     Said certificate showing all taxes paid shall be
     admissible in evidence on the trial of any case
     involving taxes for any year or years covered by
     such certificate, and the introduction of the same
     shall be conclusive proof of the payment in full
     of all taxes, interest, penalty and costs covered
     by the same.
         "Sec. 2. ,If any such certificate is issued or
     secured through fraud or collusion, the same shall
     be void and of no force and effect, and any such
     Tax Collector or his deputy shall be liable upon
     his official bond for any loss resulting to any
     such County or city or political subdivision or
     tax assessing district or the State of Texas,
     through the fraudulent or collusive or negligent
     issuance of any such certificate.
     "As stated in the third paragraph of our letter of
     ~uly~16th our question is: Does this Department
     have the authority to approve a certificate can-
     celling the taxes that are actually delinquent
     because the Tax Assessor-Collector during the time
     the property was erroneously described on the cur-
Honorable Robert S. Calvert, Page 3    (Opinion No. WW-753)


     rent delinquent tax records executed a certificate
     certifying that no taxes were due on the property?
     The certificate of cancellation form is prescribed
     and furnished to the Tax Assessor-Collector by
     this Department to be used in cancelling taxes
     that have been erroneously reported delinquent by
     the Tax Assessor-Collector, and the certificate
     after being prepared by the Tax Assessor-Collector
     is approved by the Commissioners~ Court and for-
     warded to this Department for approval. A sample
     of the certificate is enclosed.
     "We are also quite often requested to approve cer-
     tificates cancelling delinquent taxes where a Tax
     Assessor-Collector has apparently been negligent
     in checking his Delinquent Tax Records and has is-
     sued a certificate certifying that no delinquent
     taxes are due on a piece of property. In other
     words the Delinquent Tax Record actually shows
     taxes delinquent on a piece of property, but the
     Tax Assessor-Collector overlooks the delinquency
     and writes a certificate certifying that the taxes
     have been paid and at a later date he or his suc-
     cessor discovers that the taxes are due and exe-
     cutes another certificate covering the delinquency.
     From this statement of facts, does the Comptroller
     have the authority to approve a certificate can-
     celling the taxes even though they are actually
     delinquent?"
         You have given us the substance of a brief furnished
your office advocating approval of the cancellation certifi-
cate, which cites Arts. 7346 and 7347, V.C.S., in support of
the proposition that such delinquent tax is unenforceable as
against the real estate in the hands of an innocent purchaser
who relied upon the erroneous delinquent tax record (previous
to the latest recompilation), or upon the Assessor-Collector's
certificate showing no tax due. Those articles read as
follows:
Article 7346:
         "Whenever any commissioners court shall dis-
     cover through notice from the tax collector or
     otherwise that any real property has been omitted
     from the tax rolls for any year or years since
     1884, or shall find that any previous assessments
     on any real property for the years mentioned are
     invalid, or have been declared invalid for any
Honorable Robert S. Calvert, Page 4    (Opinion No. WW-753)


     reason by any district court in a suit to enforce
     the collection of taxes on said properttes, they
     may, at any meeting of the court, order a list of
     such properties to be made in triplicate and fix a
     compensation therefor; the said list to show a
     complete description of such properties and for
     what years such properties were omitted from the
     tax rolls, or for what years the assessments are
     found to be invalid and should be canceled and
     reassessed, or to have been declared invalid and
     thereby canceled by any district court in a suit
     to enforce the collection of taxes. No re-assess-
     ment of any property shall be held against any
     innocent purchaser of the same if the tax records
     of any county fail to show any assessment (for any
     year so re-assessed) by which said property can be
     identified and that the taxes are unpaid. The
     above exception, with the same limitation, shall
     also apply as to all past judgments of district
     courts canceling invalid assessments. Acts 1905,
     p. 318”
Article 7347:
         "When said list has been so made up the commis-
     sioners court may, at any meeting, order a cancel-
     lation of such properties in said list that are
     shown to have been previously assessed, but which
     assessments are found to be invalid and have not
     hepn canne3.4 by any former order of the corn-..
     missioners.court:;?
                       .;or;,by
                              ~,~'deoreel:,rof;.;:any
                                               :L;~
     district court; and shall then refer such iist of
     properties to be assessed or re-assessed to the tax
     assessor who shall proceed at once to make an as-
     sessment of all said properties, from the data
     given by said list. . . .provided, that the certi-
     ficate of any tax collector given during his term
     of office that all taxes have been paid to the date
     of such certificate on any certain piece of prop-
     erty, which is fully described in such certificate,
     or if the tax rolls of any county fail to show any
     assessments against such property sufficient to
     identify it, and that the same was unpaid at the
     dates such rolls may have been examined to ascer-
     tain the condition of any property a8 to taxes
     unpaid, this shall be a bar to any reassessment of
     such property under this law for any years prior to
     the date of such certificate, or such examinations;
     provided, that the property referred to, when re-
     assessed, shall be held by an innocent purchaser,
Honorable Robert S. Calvert, Page 5     (Opinion No. WW-753)


     who has relied upon the correctness of such certi-
     ficate, or the tax rolls heretofore referred to.
     Id."
         We do not believe that these two articles apply to
situations such as the one under discussion, involving delin-
quent taxes. These articles were intended to provide a
method for the counties to tax property which had (1) esca_>ed
taxation because omitted from the tax rolls or (2) on which a
previous assessment had been found invalid. Neither such
event has occurred here. Even should they be thought to be
applicable, protection thereunder is afforded to innocent
purchasers only in certain cases from a reassessment of prop-
erty which had previously been Invalidly assessed, but not in
any case where the property was omitted from the tax rolls.
Attorney General's Opinion No. v-180. The present fact situ-
ation would, if anything, fall wlth!~nthat category wherein
there was an omission from the rolls~ (a search of the rolls
would reveal no such lots listed in the Town of Bayside),
therefore an innocent purchaser would not be relieved from
liability for such taxes. These articles, then, furnish no
basis for authority to approve a certificate canceling the
taxes.
         We now turn to a consideration of the effect of Art.
7258a upon this and, as mentioned in your last paragraph,
similar situations.
         Art. 7258a was first enacted in 1929. Its provi-
sions were specifically made applicable to counties contain-
ing 210,000 population or more. (Acts 1929, 41st Leg., 2nd
C.S., p. 153, Ch. 77) This deminlmus limitation was removed
by amendment of the 53rd Leg. (1953), and it was thereby made
applicable to every county in the State "On and after October
1, 1953. . . .I' (Acts 1953, 53rd Leg., p. 1052, ch. 436, 811
In substance, insofar as pertinent here, it otherwise remained
the same. The constitutionality of the article was upheld by
Amerada Petroleum Corporation v. 1010.61 Acres of Land, etc.,
146 F.2d 99 (C.C.A. 5th 1944)    In conformity with this
decision and basing its'conclusion thereon, Attorney General's
Opinion No. V-1143 (1951) overruled two opinions of this
office written during prior administrations which had declared
the Act in violation of two provisions of the Constitution of
Texas. See Attorney General's Opinion No. 2780 (1929) and
Attorney General's Opinion Book 383, page 394 (1938).
         In the Amerada case, the statute had been attacked
as violating the constitutional provisions which prohibit the
legislature from releasing any inhabitants or property from
Honorable Robert S. Calvert, Page 6     (Opinion No. WW-753)


payment of taxes (Art. VIII, Sets. 10 and 15) and from re-
leasin any indebtedness, liability or obligation to the
State ?Art. III, Sec. 55).   The question before the court
was the liability of a purchaser who had relied upon a cer-
tificate of the Assessor-Collector, showing no taxes due,,
for payment of taxes which were actually delinquent.   In
negativing a constitutional violation, the Court said:
        "The statute under construction here does not
    purport -to surrender -or release to anybod-
    xh t i          d           t is r-GE ?TiiGi&%-
    iX%a~,%&e%ot'o~e~ate           as a violation of
    the invoked provisions of the Constitution against
    releasing debts or obligations." (Emphasis ours.)
         "When the purpose of the statute in question
     here, to protect innocent purchasers against.'.I,
     secret liens, is considered in the light of its
     strong terms, completely avoiding all collusive or
     fraudulent certificates and making the collectors
     liable on their bonds for losses resulting from
     their collusive, fraudulent, or negligent issuance,
     it is quite plain that the Legislature did not
     intend to release or extinguish, the act does not
     have the effect of releasing, taxes."
         The court thereby upheld the validity of the statute
by looking to Its purpose of enactment, that is, the protec-
tion of an Innocent purchaser, who relies upon the correctness
of a tax certificate, from,undisclosed tax claims. It oper-
ates to import absolute verity to such certificate for the
sole purpose of protecting this purchaser. But the act of
issuing an erroneous certificate does not, cannot, erase from
the record taxes which are actually due. The claim is still
a claim. It may be enforced against the person who owned the
property at the time such delinquent taxes accrued. Winters
v. Independent School Dist. of Evant, 208 S.W. 574 (Tex.civ.
   .   18)       dl 'd . Humble OiI & Refining Co. v. State,
3Pg.W.2d 5jge$x.C~~.Ap~.   192'0, err. dlsm'd. By its very
terms, the statute declares the Issuing collector liable on
his bond for the loss if the certificate was issued through
fraud, c.ollusion,or negligence.
         It is a cardinal rule of statutory interpretation
that the construction which would uphold a statute!0 conatl-
tutionality should be preferred over an alternative which
would render it void. Greene Y. Roblson, 117 Tex. 516, 8
S.W.2d 655 1928); McKinney v. Blankenship,       Tex.
292 S.W.2d 91 (1955); 39 Tex.Jur., Statuteszc.     IllXG
Honorable Robert S. Calvert, Page 7         (Opinion No. WW-753)


declare that Article 7258a has the effect of canceling delin-
quent taxes from the record would place it within that class
of Acts specifically forbidden by the Constitution. Ollivier
v. City of Houston, 54 S.W. 940 (18gg), aff'd. 54 S.W. 943
(1900) .
         You are therefore advised that the Comptroller is
not authorized to approve a certificate canceling taxes which
are actually delinquent but which were not shown on a tax
certificate issued by a tax assessor-collector.
         What we have said necessarily also applies to the
specific fact situation which you set forth, even though
there was an error in the current recompiled delinquent tax
record of the county at the time such certificate was issued.
We do not pass upon the question of liability for these
particular taxes. We merely point out in passing that Art.
7336F, V.C.S. > places primary responsibility upon the tax
assessor-collector to make or have made such recompilations
of delinquent taxes, provision being made where he is unable
to do so. We also point out that, if these particular cer-
tificates showing no taxes due, were issued prior to October
1, 1953, none of the provisions of Art. 7258a are applicable
to the situation, since Ref'ugioCounty, according to ~the last
preceding Federal census contained less than 210,000 popula-
tion, the minimum required for the article to apply prior to
that date.
                          SUMMARY
             Where County Tax Assessor-Collector
        issued erroneous certificate showing no
        taxes due on certain property but in fact
        delinquent taxes were due, Comptroller of
        Public Accounts is not authorized to
        approve a certificate canceling such de-
        linquent taxes from the record.
                                    Very truly,yours,
APPROVED:
                                    WILL WILSON
OPINION COMMITTEE:                  Attorney General
W. V. Geppert, Chairman



Houghton Brownlee, Jr.
                                JRI:bct
REVIEWED FOR THE ATTORNEY GENERAL:
By: Leonard Passmore
