         OFFICE   OF THE ATTORNEY GENERAL                 OF TEXAS
                            AUSTIN.




Honorable   George 8. Sheppard
Comptroller    OS Pub116 Accounts
hl8tlR,   TUXU

Dear   sir:




              MU h6V6 POW
                        l6tt                            , Ilr which you
6lrC1OU6 a COPY Of 8 16ttUr                             you, rrcal 3. II.
Ralsy,   Assesror-Co1                                   J, ulth reference
to the dlrtributlon                                      a tax sale 10
                                                          cost due 011 the
                                                          tt6r dated  &In6
                                                          i0Wl   faat8   6r6


                                             n?aluy’8  16ttUr,     as Sup-
                                              , UP6 bri6flJa

                                            by   the   State
                                                         of Tuxas
                                       dlrtrlcts,   filed a mm-
                                      let court   of uharton
                            066 tb6h’ tU lielli3.    Judgmntr
                            the plaintiff8   f.or the aaouats
                          &?lU8 iRtUl’66t,, pU!lCLltJ aad 608t8.
                       16 VU lasusd alld iP 6OCUpliaIIC6
                     laarrd Va J ldvsrtixed and sold.    Th6
       property, in a0190 06868, uas prUraha86d by lrrdl-
       ridualr vho paid 111Or6th8n th6 tU68,    pUQalty,
       tit6rUSt UId 606t dU6 OU the prOp6rty.

          Your question  is:         What dlrpo8ltiorr should be R6d6
of th6 ex8sSa thus obtained?          We pr66m6   that the tax 8alaa
to vhich you refer wee6 mad6         under the authority   of jub@ents
IioaoraLle    George ii. 3hepparC,, page 2



obtained     In acccrdance with the prov?.aions   of Article     73;i5b,
V6rn0a’S     AMOtSCed   Civil 3tStUteS.

            Artlcla 7328, Revised Cirll Statutes  of 1925, re-
lotlng  to the disposition  of the proceada received by the
shariif  from the sale of land, sold under a Judgment Zore-
cloalng a lien for taxes, ;rrovldea in part, as follova:
            0      and after tha payment of the taxes,
      Interek;   &x.~~lt~ and costs  adjudged against it,
      the remfader   of the purch886   price, if any,
      shall    be paid by the Sheriff to the clerk        of
      the   court    out of which  said 6XeCUtiOn OX’other
      flual proceaa      loaued to bs rUtain8d by him Sub-
      ject to the order of th6 court far a period of
      tvo years, unless OthUrUiS6        ordered by th6 court,
      aftur which tiIS6 th6 COWt        rPay order the Sap)6
      to be mid       to the State Treaaurur,     who Shall
      hold 8tme In trust       to be paid to tha owner
      against whom said taxes uere aaaessed;          provided
      any on6 claiming       the Same shall make proof of
      his cLalm to the satiafaotloa         of the 3tate
      TruasU.rur Uithin thr6C y66P0 ait6r the Sale
      of said land or lots,       Sitter which th6 PUMB
      Shall be goverued by the lav regulatlag          US-
      ChUat.      . . .*

            Arttalc  7328 ua8 6akaadud La 1927, and the words
we have above untieracored vtre omitted frca the bill   au
passed by both houaca of the Ieglalatura.    Said uorda uere
also omitted from the enrolled bill, and consequently    from
the printed statutes.    This omiSalou,   bad same beea legally
done in accordance   vlth the Conatitgtloa   of Tex66* would
have had the  effect of so amending tha Aat of 1927 a8 to
have caused same ts read as it aov appears     in th6 prlatad
statutes  of Sxas   a6 Article 7328; lo other vorda, th6 lav
would nov be as same reads with ths words und6rraoruU      by ua,
omit ted therefrom.
           We have tad6 a CSrSfUl    iIJv8stlgatlOn of the   facts
surrounclug  .&his omlsslon,  and of th6 lar applicable     there-
to.   And from the applicable   authorities   we eW6 of th6 Qpin-
100 that this omls%ion of the uadaracored words from the
amendment  of 1927 was of no legal force or effect,      and that
Honorable       George       EL Sheppard,      page   3
                                                                                       40
the under8cored  vordr, ootvIth8teoding their omission from
the ameudatory  act of 1927, cemeln, and mey be properly  con-
sidered, a psrt of said lav.

                We are       forced   to Mid     conalusloa    by   the following:

                The   ceptiorr of said                  actr yof 1927 reads
                                               lma nda to
es follovs;

               *Aa Act to emsod Article 7328 (7689) of the
         Revfred  Civil  Statute8   of 1925, vhIch Article      r’b
         late8 to and providea     for proceedlugs   ln tax   8uIta
         atad the mallper provided by lav In ordinary fore-
         olo8ure  auIta Iu the dlatrlat     aourta  of th18 atatet
         end vhiah Amendment to aeld Artiole       7328 provide8
         that sales contemplated      la tax foreclosure    suits
         shall be mede In the memer pzeacrlbed        for the
         8ala of real eatete     under execution;   and dealar-
         lag an emerge~cy.~      (See lava of Texea 1927, Ch.
         99, pa 260).
           Au In8peotiou   or eald title, or aeptiou, diraloaea
that the purpose of the amandatory sol,     aa dlaaloaed by said
title, I8 the SIMiIE PURPOSE of proridlllg    “that ulea  con-
templated   ia tax rorealosure  auita ehall be made in the
!nenner prescribed  for the aale of real ertate under exeau-
tloa.’

          Said caption  in uo rap mentiona or indlaatea any
purpose to amend the statute  a8 the same vould rtand amead-
ed If the vorda underscored  by ua vere left out of the lav.

           We thua have berore     u8 l a ituetlo n here    ao a&sad-
etory aat expreiraea a purpo8e,      In it8 oaptlon,    to aaend a lav
in one SpeCifiC partiaular,      thua 1imItIw    the emendmaut to
that particular,    but ootvlthstandiag    thi8 lIaItatIon     In the
caption,  then etteapting    to further   mend the lav by the
omI88loa  therefrom   of a provl81on    not meatloaed la the cap-
tion, and not germeae to any purpoae rumad In the oaptlon.

          The rule             of comtructlon         applicable    to thla   8itUa-
t1On 18 a8 fO;llOVS:

                “Although       an act   mey be amended In aaj ger-
         mane   particular       by an emendetory    act, the title
      of vhlch merely refers       to the act    or article
     8OU.ght to be emended       vlthout    8peCifyiUg     In uhat
     the CUIIendnSXIt
                    COn8iSt.8, y6t vhen such title   8t8ce8
     the perticuler respect la vhlch the emendment
     CoDslst8*  any amendment not germme    to that spe-
     clfled 18 Invalid aa being repupenti to the Ia-
     v3bed constitutional    provision.   (388 Rutlege,
         et al. v. Atkinsc~,   et al., 101 S.W. (2d) 376;
        Ward Cattle end Pasture Co. v. Carpenter, 200
         S.W. 521; Arnold v. Leonerd, 273 3.W.    7998
         Texas-Louislane    P. Co. v. Parneravllle   (Tex.
         Corn. App.)  67 3.W.   2d)  235~ EX parts Heart-
         sell,  38 S.U.  (2d)  Lo 3; Landrum V. Centennial
         Rural sigh School District go. 2, 134 S.W.
         (2d) 363; Also see 39 Sex. Jur , rectloa 48,
         end the ca8ea therein cited and In the      aup-
         plentents thereto; also see CcastiCutica     of
         Texas, Article 3, section      35).

            It la pleln to ua that th8 omlsrlon referred          toby
us is, under the authoritlea      above citea,     void end of no ef-
feat under the Conatltutioa      of ?eULS, said omiaalou       not be-
ing germane   to the purpose   of the amendment      am aame was ex-
pr8888d   in the captloa   of the ameadatory     Mt.     It aeceaaexIly
follows that the omitted vorda (which ve have underscored
above) remela end are a pert of th.8 lav, notvlthateadiog
their 8eId onlraion    from the aateodatmy     act    0r 1327.

           We &e  fortified       In the aonalualon  juat        atatia   by
the decl8ion  of the Austin       Court Of Civil Appeala         in the
ce8e of Booty,    et al.   v.   State.     Thl8 decision      was rendered
la February of 1941.    The opinion vaa urUtsn    bg Mr. Justice
Blair.   In the Booty ce8e, the court 8aid that      the sole
question  In the ca8e InV01~88 a aoaatruation    Of Art.  7328
and the method8 of sales of property    for taxea therein pro-
vlded.”   IO the oplnioa,  the court construed   said Article
7328 to be end read es VB hava construed     It in thla oplolon
to be end to read.    The court, iP comment&g    upon the provi-
sion of 8ald Article 7328,    la pert saldr
            ”     . Vh8r8 there are blddar8 for the prop-
     erty dd*it     18 sold for more thra the amount 0r
     the taxes,    the excess Shall be depo8lted vith the
                                                                     42
Honorable 'George H. Sheppard,     page 5



     clerk of the court pendlq      the tvo gear period
     for redsmptlon    OS the lmd   by the ovaer, to be
     disposed   of by the jUdpeAtj    that IiAless it i8
     redeemed vlthln that tire, then the clerk shall
     depO8It   the exce8a vlth the State   'Trea8urer, vho
     ahall hold It In trust to be paid to the ovner
     agaIa8t vhoa    aald taxer v8re 888688ed, provltded
     such ovner or the one olaIailllg the same ahall
     meke proof of claim    to the 8atIrractfoA   of the
     Treasurer   vlthia three yeara after    the sale of
     the lead, after vhfah tf&e the fund is subject
     to the lav of e8ahut.”       (See Booty, et al.  ‘1.
     State, 149 S.W. (26) 216).

          Hr. Ju8tlce Blair, IA said opinion, lrsigned Ao
reaaone for treatlog the rorda omitted from the 1927 uend-
meat aa beiag 8till a pert  of the hr.   But ve cannot ae-
sume that the Court of Civil Appeals 80 did vlthout good
reason.  Rather, Ye shall am.vae that the aourt vaa Impelled
to ita aonclusion by the ame line of reasonlag vhlch her
guided w to the 8a.m conaluaIoA   la thla opInIaa.

           In 1937 the Legislature   eluoted addltlmml     legia-
latlon relatlq   to the colleatIoA   Or delinquent  tuea    Qhlch
la aov Article 7345b, V.A.C.S.     IA regard  to the diapoeItloA
of the exCe88 emount of money reoelved     from the “float   aale"
vhere the purchmer   la other then   a tulng   uAIt, Seation 8
of the Act provIdesI
           "Bo property aold for taxer uader decree IA
     such 8Uit Shall be sold to the OYAOr Of raid prop-
     erty, directly or Indirectly, or to anyone having
     an lAtereat therein,  or to any perty other than a
     tulng   unlt vhiah la a perty to the rult,  for leaa
     then   the amouat    OS the adQudged   va luelforeaald   of
     said property       or the &ggregatO UlOuOt Of the JUdg-
     menta against  the property la said rult, vbichever
     18 lover, and the net proceeda   Of any 8810 Of such
     property racrdeunder decree of court IA lald rult
     to cay perty other thm    any rush tulRg  Unit ahrll
     belong aad be distributed   to all t-IA&       unit8
                                                     vhich
     are parties  to the ault vhlch by the judslaant IA
     8ald suit have been found to hare tax lleaa *what




                                                                      -
Honorable      George    H. Sheppard,     page ci
                                                                           43
        such property,        pro rata and ln proportion       to the
        mnouncs of their respective  tax liens aa sstab-
        llshed la raid judgment, but any excess lo the
        proceeds of sale over and above the amouat aecea-
        sary   to defray      the cost8   of suit   and sals   and other
        experwes   hereinabove   erade chargeable  agalnat   such
        proceeda,   and to fully dlraharge     the judgments
        agaiasc   aaid property,   shall be pld    co the portles
        legally    entitled     to uuch exceaa.

               3actlon     13 of the Act provides:
               “The   provisiona    of ihls Act shall be cumula-
        tive   of and in addition      co all other rights and
        reaedler to which any taxing uolt may be entitled,
        but as to any proaeediug brought    under this  Act,  Lf
        any part  or portion  of thl8 Act be in conflict
        u1th say part or post%oa 01 aup law of the State,
        the terms and provisions   of this Aat shall govern
        ae to such proceed3ng.    Phe pr9vlsLoas   oi Chapter
        10, Title  122 of the Revised  Civil Statute8   OS
        1925 shall govern malts brought under this Act ex-
        cept a8 herelo provided.’
           In view of the $r9vlaloa8      of this aectloa it be-
comer apparent   that Article 7328 aad Article       E&5b should be
read and construed   together.    Section    8 of Article 7345b
provider,  simply, that   la thw case of any exams       in the pro-
ceeds of sale over and above the amount necessary          to pay the
cost of suit and sile and other expeaser and to fully dls-
charge the judgzeata against said property it shall be pld
to the parties legally cncltled to such excess.          To determine
who Is legally entitled    to such excey      we must refer   to
Article 7328.    By the provislonu    of that   Article,   ve flnd
that  the sbcrLff must pay the exaeas tr, the Clerk of the
Court  out of which said executlca  or other final process is-
sued to be retainod by hire, subject to the order of the Court,
for a period   of tvo yeam, mless otherwise ordered by the
Court, after which time the Court may order the saae to be
paid to the Stats Treasurer, vho rball   hold the 8)Me la trust
to be paid to the cvncr against vhom aald ;axea were assessed;
provlded,  any one claiming the ‘same shall s&e proof of bia
claim to the satisfaction   of the State Treasurer withlo U-see
years after the sale of aald land or lofa,   after vhlah the
aame shall be governed by the 1aU regulating    awheat.
                                                                          44
Eonorable   George H. tieppard,        page 7



          We believe  the procedure outlined           above .fs to be
followed In all Instances where the sfieriff           has an excess
of money derived from the “first   sale,’

            In regerd to the disposition of exceaa funds col-
lected where the property is. bid i;1 by one of the taxing
units at the “f,lrst  sale* and held for the two-year period
and later sold at the “second sale,” we refer you to thle
department’s   Opinion Ho. 0-6OG0, copy of uhlch is enclosed.

            ‘Trusting   this   Sully   answers your inquiry,     me are
                                                Yours very   truly




                                          By Ax?.        4-d
                                                    ii. 9. Bob
biBD : db

Enolosure
