Hon. Gee. H. Sheppard
Comptroller   of F-‘ublic Accounts
Austin, Texas                              Opinion   No,   V-702

                                           Re:   The effect of condemna-
                                                 tion of land by the Fed-
                                                 eral Government    upon
                                                 State and County taxes
                                                 for the year in which
                                                 the land was taken.

Dear    Mr.     Sheppard:

             You request   our opinion    upon the question     presented
in your    letter as follows:

             “On or about Aug. llth, I talked to you about
       whether    or not taxes on certain    property   located
       in Taylor    County should be paid for the year 1944.
        You suggestdd    that I obtain certain   information    in
       ,regard to the property    from Hon. Wiley Caffey,
        County Judge, Taylor     County, and then submit
        the question to you*

             “We are, therefore,      enclosing   2 exhibits   in
       regard to the matter.        One of the exhibits    Skteg
       that the Federal     Government     filed the petition con-
       demning certain      lands in Taylor     County on Sept. i,
       1943, and a judgment       as to Tract B R -4 was enter-
       ed during the year 1945. The exhibit referring             to
       the judgment    States that the petitiener     filed its
       Declaration    of Taking No. 1 on July 25, 1944 on
       certain   pnopertios    beionging   to M. A. Horton and
       wife, Minnie D. Hori:on.

            “For your further  information  we are encIoS*
       ing a copy of a letter written to us by Judge Caffey
       on Augi 6th, 194g1

                “You will please advise uS whether   or not the
       taxes      oki the p~opecty mentioned in Judge Caffeyis
       letter     should be paid for the year 1944.
Hon. Geo.    H. Sheppard,     Page   2 (V-702)




          The question      reduced to simple terms is whether           the own-
er of real property      sought to be condemned      by the Federal       Govern-
ment by petition    filed September      1, 1943, but title to which     was not
acquired  by the Government         in such proceedings     until July    25, 1944,
by filing a declaration      of taking, is liable for the 1944 State       and
County taxes:

            40 U. S. C. A.,   258a provides:

           “Upon the filing said declaration     of taking and of
     the deposit in the court, to the use of the person en-‘.
     titled thereto, of the amount of the estimated         compen-
     sation stated in said declaration,    title to the said lands
     in fee simple absolute,    or such less estate or interest
     therein as is specified   in said declaration,       shall vest
     in the United States of America,     and said lands shall
     be deemed to be condemned       and taken for the use of
     the United States, and the right to just compensation
     for the same shall vest in the persons        entitled there-
     to.. . *”

           Immediately   upon the filing of a declaration   of taking by
the Federal   Government     and the deposit of the estimated     award in
the registry   of the court, in compliance   with the foregoing     statute,
the fee simple title becomes     immediately   vested in the Govern-
ment.   Saucier v. Crighton,    147 Fed. (Zd) 430 (5th Cir.);   City of
Oakland v. United States, 124 Fed, (2d) 959 (9th Cir.);       United States
v. Sunset Cemetery     Co., 132 Fed. (2d) 163 (2nd Cir.).

          It therefore    follows   from the foregoing      statute and author-
ities that the owner was not divested          of the title to the land in the
instant situation   until July 25, 1944, and was the owner on January
1 of said year, and as such owner was liable for the taxes regular-
ly and legally   assessed     against him on said property        for the year
1944. We need not multiply         authorities    in support of this, but the
following  are noted:

            State of Texas v. Moody Estate,     156 Fed. (2d) 698;
            Winters   v. Ind. School Dist. of Evant, 208 S.W. (Civ. App.)
                 574;
            Childers   County v. State, 92 S.W. (2d) 1011 (Sup, Ct.).

          This brings us to the practical      result as applied to the
question presented.      The owner is personally      liable for the 1944
taxes if assessed    against him,    But the lien securing     the same
can,not be enforced    agai~nst the Federal  Government      as long as it
remains   t:he owner.    This is consistent  withi the opinion of Jus-
tice Brewster    in the case of State v. City of San Antonio,      et al,
209 S. W. (2d) 756 (Sup. Ct.), expressed      as follows:
        Hen.    Cf4e4 I-i, Sheppard,     Page 3 @IG82)



                      “Althou8h    the state and c.eunty did have a lien
               against the lot for taxes due them while the lot was
               p,rivatcly    ewnezd by Barnes and others,       the lien be-
               came unenforceable         after the city and school dis-
               tr’fct acquired    title to it by the tax sale, in, 1938 and
               while they continued        to hold it for public ,purposcs;
               a$id the lot, whil,e so held, was not subject to seizure
               OT %sle to satisfy      a judgment for taxes levied by the
               state and county during the time it was so private&
               own&;      end any proceeding      attempted   a acc,ornpEis K
               this is voidd, n

                    Therefore.     the owx~er of tbie property  is personally   lia-
        ble fer the 1944 State         and Cou&y taxes, bqt the t;iea $ec%&ng the
        same is unenkrceable             so lon8 as then Fad&al Csverment     rt-
        mains the owner,

                    We consider      next the effect of the judgment       rendered
        by the Court in the condemnation          praceedings     based upon a dis-
        claimer    filed by the Tax Collector       of Taylor    County   tc the ef-
        fect that there were no taxes due for the year i944.              The judg-
        ment merely       recites   that the Tax Collector     take nothing based
        upon this disclaimer.         This disclaimer    by the Tax Collector       af-
        fords no support for a j:udgment against the State and County for
        the 1944 taxe,s ,even if the judgment        be construed     to have that ef-
        fect.   This for the obvious reason that&e,          State, and County can-
        not be bound by the unauthorized          acts of their efficers     in the per-
        formance      of the sovereign     power 5f &Nation,     clearly   a govern-
        mental function.        This is made quite olear by Justice Brewster
        in the case of State v. City of San Antonfa,          supro, from which we
        quote:

                     “The stipulation     was a,nullity,    therefore    it af-
               forded no suppart whatever          for the judgment     against
.              the city bnd scheol district       for taxes due the state
               and ceunty for the years 1930-1948.            It is well settled
               by repeated    decisions    0-f this court that in the collec-
    r
               tion of taxes the city and $chocl district,          an arm of
               the government,      are dischnrging      a governmental
               function and cannot be baund or estopped by any un-
               authorizeel   acte of their officers       in the perfcrmance
               of that function.     City of San Angelo      v. Deutsch,     126
               Tex. 532, 91 S,W. (2d) 388; Republic           Ins. Co. v. High-
               land Park Ind. .&heel Dist., 141 Tex. 224, 171 S.W. (2d)
               342; City of San Antonio       v. Earne&,,     144 Tex. 83, 188
               S.W. (Zd) 775; Rolksen et al v. Puckett et al, 145 Tex.
               366, 198 S.W. (2d) 74.”
                                                                            -




Hon. Geo.   H. Sheppard,   Page   4 (V-702)



          We therefore   conclude that the “take-not&&ig”   judgment
against the Tax Collector    does not have the effect to extinguish
the State and County taxes for the year 1944 or that the Tax Col-
lector’s  disclaimer   would constitute a legal,basis for such a
judgment.

             In reaching  the foregoing     conclusions   we are not un-
 mindful of the amendment        to Article    7151, V.C.S. by ~the 48th~
 Legislature;     but we have heretofore      held this amendment    un-
 constitutional    in our Opinion o-5290, a copy of which is herewith
,enclosed,     and we have notchanged       our views therein expressed.


                              SUMMARY

           Where land was condemned       by the Federal    Gov-
     ernment    and title was acquired   July 25, 1944, the
     owner of such land as of January 1, 1944, is liable
     for the 1944 taxes.    But the lien therefor  was unen-
     forceable   as long as the Federal    Government    re-
     mained the owner.

           A take-nothing       judgment    against a tax collector
     upon a disclaimer        filed in a condemnation     proceed-
     ing reciting     no taxes were due for 1944, does .not re-
     lease the owner as of January 1, 1944, for the 1944
     State and County taxes,          A disclaimer   filed by the
     tax collector,     reciting    that there were no taxes due,
     was erroneous.        And since he was acting in a gov-
     ernmental      capacity,     such disclaimer   would not work
     an estoppel     or constitute     the basis for a judgment
     against the State and County as to said taxes for said
     year.

                                              Yours   very   truly

APPROVED:                          ATTORNEYGENERALOFTEXAS




                                   BY


LPL/JCP
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