                      The Attorney                  General of Texas
                                             June   8,     1978
JOHN L. HILL
Attorney General

                   Honorable Kerry Knorpp                           Opinion No. H- 1179
                   County Attorney
                   Rooni 303, Potter County Courthouse              Re: Advertising   of delinquent
                   Amarillo, Texas 79101                            tax sales.

                   Dear Mr. Knorpp:

                         You    ask, in view of article 7276, V.T.C.S., if property to be sold for
                   delinquent    taxes at a sheriff’s sale need be advertised by publication in a
                   newspaper     where the lowest advertising rate obtainable is more than two
                   cents per     word for the first insertion and one cent per word for each
                   subsequent    insertion.

                         In pertinent   part, article 7276 reads:

                                   In making sales of real property for taxes, the
                                Collector shall advertise the same for sale in some
                                newspaper . . . for three successive weeks . . . ; and
                                the publisher of such newspaper shall receive as
                                compensation the legal rate of Two (2) Cents per word
                                for the first insertion of such publication and One Cent
                                per word for each subsequent            insertion or such
                                newspaper shall be entitled to charge for such publi-
                                cation at a rate equal to but not in excess of the
                                lowest published word or line rate of that newspaper
                                for classified advertising, and such fee shall be taxed
                                as other costs of sale against such land . . . . If there
                                be no newspaper published, in the county, or, there
                                being a newspaper published in the county and the
                                publisher thereof refuses to publish the advertisement
                                at the price herein fixed, then the advertisement shall
                                be made by posting the same for thirty (30) days
                                previous to the day of sale, at the courthouse door and
                                three other public places in the county . . . .

                    (Emphasis added).




                                                      P.    4759
Honorable Kerry Knorpp     -   Page 2        (H-1179)



      You suggest that article 7276 is ambiguous and should be read to harmonize
with rule 1178 of the Rules of Civil Procedure promulgated by the Texas Suoreme
Court. Rule 117a concerns, among other things, the oublication of citations ‘in tax
suits when the whereabouts of the-defendant isunknown; in pertinent part it reads:

              The citation shall be published . . . in some newspaper
           published in the county in which the property is located . . . .
           A maximum fee of two cents per word for the first insertion
           and one cent per word for the second insertion may be taxed
           for publishing the citation, but in no event shall the fee
           exceed the published word or line rate of that newspaper for
           like classes of advertising. If the publication of the citation
           cannot be had for this fee, chargeable as costs and payable
           upon sale of the property, as provided by law, ,and this fact
           is supported by the affidavit of the attorney for the plaintiff
           or the attorney requesting the issuance of the process, then
           service of the citation may be made by posting a copy at the
           courthouse door. . . .

      We need not determine whether article 7276 is ambiguous or in disharmony
with Rule 117a, for both the statute and the rule have been impliedly repealed to
the extent they conflict with article 29, V.T.C.S., which reads:

              Wherever any publication . . . is authorized or required by
           any law, gene,ral or special, to be inserted in a newspaper,
           the legal rate which such newspaper shall charge for such
           publication  shall be the lowest published rate of that
           newspaper for classified advertising.

             . . . .

              This Act shall apply to all publications required by law,
           and it is specially provided that this Act shall apply to all
           citations or notices which are required to be published or
           may be published in delinquent tax suits and to notices of
           sale of real estate under execution, order of sale, or any
           other judicial sale provided for in Articles 3808, 4203, 7276,
           and 7342 of the Revised Civil Statutes of Texas, 1925..

(Emphasis added).

     Article 7276, V.T.C.S., was enacted in 1881 and last amended in 1941. Rule
U7a was promulgated in 1947 and amended in 1950. Thereafter, article 29 was
amended in 1961to read as set out above.




                                        P.     4760
-   -

        .   -




                Honorable ~Kerry Knorpp   -   Page 3        (H-1179)



                  Not only does article 29, as amended in 1961, expressly refer to article 7276,
            but the bill which amended article 29 contained the following language:

                          AR laws or parts of laws in conflict with the provisions of
                          this Act are hereby repealed to the extent of such conflict.

            See Acts 1961, 57th Leg., ch.’ 278, at 586. This language also effectively    repealed
            mconsistent language in Rule 117a.

                  The Rules of Civil Procedure are promulgated by the Supreme Court pursuant
            to authority found in article 5, section 25 of the Texas Constitution, and article
            173la, V.T.C.S. The power of the Supreme Court to promulgate rules is a limited
            power; and when a rule of the court conflicts with a legislative enactment, the rule
            must yield. Few v. Charter Oak Fire Insurance Co., 483 S.W.2d 424 (Tex. 1971).

                  As modified by article 29, article 7276 requires the advertising of tax sales in
            a newspaper unless there is no newspaper in the county where the land is sold, or
            unless publishers of newspapers therein refuse to publish the advertisement    at the
            lowest published rate of their newspapers for classified advertising.   See
                                                                                    -    V.T.C.S.
            art. 29a.

                                                SUMMARY

                          Tax sales should be advertised in a newspaper unless there is
                          no newspaper in the county where the land is to be sold, or
                          unless publishers of newspapers therein refuse to publish the
                          advertisement    at the lowest published rate of their
                          newspapers for classified advertising.



                                                       ,&77&f&
                                                 ,,’
                                                          .
                                                       :,’ Attorney General of Texas




            Opinion Committee

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