          OFFICE   OF   THE   ATTORNEY      QENERAL      OF TEXAS
                                  AUSTIN




Eoaorablo C+eoao H. Bhoppard
Oomptrollar of Publ.lo Aooounts
hwtln,     Texnr


Doar Slrr
                                 Opinion    x0.   0-9~
                                 ROI A ralo



              Thlr ir in en8wor to
                                                        Mstriot Court af
                                                       t COlItB,WNllIting
                                                       y fhs tax jud@wNlt
                                                      sd in Ravarro




                                             flnt rals bid not bring tha
                                           y and interest, 1s rush ealo




                              these additional qgestlonrt
                         a Slate hate a llan on the land, by
                        o tax judgment, for the amognt et taxar
         still unpeiat
              wDoe8 ths State have thr right to hold another
         tax sale, under the tax judgment, end sell tho land
         ror the amouritof taxes rtlll unpaldTn
 krebls        horgo     IX.Woppard, Peg0 8


          Aa you hare not msntlonsdany other taring nnlts, ws
easum that this was a suit for State aud Countrtexos end thet
EO other taxlag units w6re la lsedsd 8sdsr tha toru      d Artiole
9348b, Vorno~'8hnotatea     01vl1 StetutoB.  NO undorstan4  that
the oourt did not inoorporato   in its judgment a flndlng  of the
reasonable fairvalue of the lsnd In qusstlon,rhioh it 1s aothor-
lred to do ia scme eea88 andor Ssotlon 5 of said Artiolo 7848b.
               Ths ltatutos we en      ooneornsd wlth en    Artlolw    VW!6
and 7328, Rsrlssd Clril Statutes af foxas,whloh are Qisoaswd
later in this oplnlon.
           FO ieel that oar 8nswsr to your qatoationm must be eon-
tmlld   by the eeso of WIlli- t. Mmtin, 85 8. Y. (24) lC8b
(writ or 6rror  refused).  In that oaso land that had bssn fon-
olossd on In a tax suit was offomd for sale by ths aharlftat l
ta x   sels, and     l   party nansd WiUis   aedo a bid ln an emuat        lesr
than the     taxes     duo, and thersupon ths County Attorney       made   l   Beoond
and higher bid for the State in tho amount OS the taxes due, but
the Sheriff rsfossd thr CountyAttorneps bid on ths ground that
the County Attorney oculd only bid in the event thsre ras *no
bidder,' and the Sheriffaooeptsdthe lorer bid b 8'11118,but ths
Sheriff then changed his rind indrefusod to eueouto l doed to
Xillis; end Vi11118broughten action   for maabau8 egahmt the
Shedft asking the cant to 6ompslths Sheriff to ls8outa tho dead.
The DlstriotCourt refused.  to madama the Sheriffi and that judg-
wnt we8 afflrmsdby the Court of Oirll Appeals (et Beeu~t)~ e& .
without  &ring any othsr rseBon8 Ghisf Yustiob Walker, who note
the oourt’s  opinion, relfed 8ol0ly on Attorney Gonsrel's oplalon
Ho. 2884, dated Mny 16, 19S2 br Xr. r. 0. EoKenrlm,              A.ssiatant
under AttirneyGeneral All.&, lsd qpote4 lxtensl~~4                fmr    lt end
mlda      Ve    hro      &TOD r a r tiul
                                     lo nsider +tio
                                                to thisn opinion by Mr.
Hooi6..and           bsll'svs
                            that    hs has oorrsotlfoonstnamd       Artlsls
       . . .
          In rlsw of ths feat that thr oourt in th6 ease of Ufllls
v. Hertln SO wholo-heartsdly,approrrd Hr. bE6nslr18 gplnlon,ws
bellrre we ars sntltlsd to rely on ths rsasonlng ia that opinion;
and as it 1s nooessery to read nearly all of the opinion In order
to fully appreoiate it, wo will quota from it extenskrely, as fol-
1orsx
               *Deer Sir: Your oommunioatlonot the 4th instant,
        addressed to the Attorney tin4Uel is        es   follow~t
             "10 are hereby requesting an opinion from your de,
        pertmat with reference to the following question on
        texetlonr
Bonorsblo     Ooorgo Ii. hoppsrd,         Pago S


              g*Undor Artlolos 9326 and 93e8                    1985,    Rovlsad    Stat&es,
      iB    the   Stata   of   Taxes,   thrOU&l    it8   dtir      lth Or i2.d
                                                                             ~OntB,
       arnLtt+d to bid the amount of texos, ooBt8, paelty and
      Pntoroet fnoludd in e judgont of foro~los~, w&on en
      oatolda bidder bids a aam 1~8 then the emtmt of seid jag-
      merit?’
            Vho question you          iB a dlfiloult ono to
      enswu. Article 7326            for tho bringing ot suit8
      for the rocorery of al         Intsrost, ponelt~ and oosts
      dw end for tho foroolosuro of the tax lion upon hid8
      which ero liable for t&o sa&. Said article also providea
      that suoh suits shell be brought a8 an ordinary foreclosure
      for debt with averments a8 to the oxistehao of a lion
      upon such laud for suoh taxes, and shall pra for jud -
      aont for the for8olosuro0r sail lien and maf e of se lf
      lands es under ordinary oxooutien.
           ~Artfole 7328, or so &uoh thorooi es                         18   portlnoet
      to your Inquiry, Is aa follows:
             **The propar parsons, Inoluding all rooord lion
      holders, shall be made partiee defendant In 8uoh suit&K,
      and shell be sorvod with proooataand othor brooo8dIhgB
      had therein as provldod by law In ordinary foroolosuro
      alto In the district       oourts of this  stats;   end in ease Of
      forob~osure     an order of sale shall issue end the land
      Bold thorouedor as in other aa8ol of ~oreolo8taro but
      if tho dofondant or his attorney rhell, at ehr t Lo
      boforo the sale, file with the offloer In whoso hands
      any suoh ardor of sale shall be pleaed, a written ro-
      quest that the roporty dosorIbod thorsdn shall bo dl-
      ridod and sold PIIsmllor tracts thon (than)          the wholo,
      together    with the doeo?I~tIan   of suoh mallor traots.
      thon 8Wh offioor       shell roll ths lends in moh uub-
      dItIBIon8    a8 defendant mar roqwft, and fn moh sees
      shall sell only as many subdirlslon8,as near as mey be,
      as are noooseary to ratisty the judgment, Intorost,
         naltp and oosts; end after the papant of the taxes,
      rntorost, penalty and oosta ddjodgod against it, the
      remainder of the purohaae prloo, It any, ahall bs paid
      by the sheriff to the clerk of the oourt, out of whioh
      said oxooutlorior other final pmoess issued to be ro-
      mined by hie BQbbjOOtto the order of the aourt for a
      perlod    of two  years,  UnleB8 otherwIse  ordered   by the
      oourt, after whioh time the louft mey order the same
      to be paid to the State Treasurer,who shall hold aano
      In truet    to be paid to the owner against whom said taxes
Efononbl8   Ooorgo E. 8hopperd.       Peg0 4

                                        ,_..
     were asso8sed;pmrlded,    My one ol&&ming the 8sm0lh01l
     make proof of his olain to the sati~eotlon of the State
     Trmsuror dthin three Jams after tie ralo of said
     land or late, after which the aaao shall be governed
     by the law ngulating  osohaat.
            **If   there   shell be no blddor    for Buoh laud tho
      bounty ettornoy,      Sheriff  or other 0rri00r selling     the
      seam, shall    bid said property    off to th8 State for tho
      amount of all taX88, penalty,        Intorost   and oosts ad-
      judged againat such property,       and the district clerk shall
      lmnodfately    maLo report of such sale in du&ioato,         one
      to the.Ooaptroller      and one to the oomissioaers       oourt,
      on blanks to be proscribed       and furnished by the Conp-
      troller.     Where the property is bid off to the State,
      the sheriff    shall make and execute a deed to the State,
      using forma to be prosoribod       and furnished by the Camp-
      troller,    8howlng in oaoh case the amount of taxes,
      Interapt,    penalty end ooete for whioh Bold, and the
      clerk*s fess for recordlne deeda.          He ehnll oauso such
      deeds to be recorded In the records          of deeds by the
      county clerk In hi8 county, and rhea SO reoordod,           shall
      forward the same to the Comptroller.           The county Olork
      shall be entitled      to a fee of one dollar for reoording
      each suoh deed to the State        to be taxed as other ooets.
      When land thus Bold to the &ate shall bo rodeomed the
      tax collector     shall mnko the proper dl8trIbutlon       of the
      mmoeys received by hIn In such redemption, paying to
      leoh offleor    the amount of eostr found to be due, and to
      the State and Bounty the taxes, interest sad penalty
      found to be dua oaoh rospeotirely.*
             -ThO qU.OtiOIl fIlTOlT.8  t&O Pl-OpOr OOKIBtNOtiOU Of th.
      language, *If there shall bo no bidder for such land. *
      This msens, of owrao,       the partioular   land which Is being
      sold under ardor of sale issued on a tax foreclosure         &d&-
      ment . Doe8 the aord,      ‘
                                 bidder’   mean  one who bidr for the
      land althou& he bids less than the amount of the judgment;
      or does it moan or lsply one who bids a sum equal to or
      exceeding the account of the State.8 Judgment? I have been
      lurab,lo to find a case where the question ha8 been passed
      on by the caurte,    and hence will undertake to answer the
      same In accordance with what 1 oonoelro to be adopted
      rules of UOIl8tNOtiOll.
            “‘Another ocoaslon    fcr con8truln~ a statute Is whore un-
      certainty    as to its  meaning arises not alone from mbiguity
      of langua-;e   employed, but f ram the faot that &ring  a literal
      Interpretation    to the xords ~111 lead to such unreasonable,
..




     Bonorablo       Ooor60 s.            8hOPpa?d,         Page 6



          unjust or ab8urd ronoepuonora u to amp.1 a aonviotly that
          ip  .ao"l; not ham been Intended by the Le6ialaturo.
                 h        .    .,     8.0.        214,   p. 959.
                We quote the above baoauso It may be aaid that tha
           laagusga of the statute, *If than ahall ba no bidder' Ia
           parfaotly plain and unambiguous and nquirr no oonatruotion.
           In this oonneotion, I aall attention to the hollowing
           taken from ths aams authority,--)rIa:
                 **It orten happen that thtr tm4 intention or the
           lawmaking body, though obvious, Is not expraaaad by thr
           language amployad In a ltatuta vhsn that languaga la
           given Ita literal msa515g. In auoh oaM8, the oarrying
           out of the lagtalatlre intaat, rhioh, aa witbava seen, ia
           the prima and aole objaot of all rules of 0058tNOtiO5,
           oan only be acoompliahed by dapartura from tha literal
           Intarpretation0r tha language employad. Hame, tha
           oourta are not always oonfinod to the literal maaning
           0r a statute; the real grpoee and Intent o< the lagia-
           ;~t~eGwil$ prevail over the literal import or ths worda.v
                     .     l   .)      sso.       222,   page 967.

                ?7umerou8 authorltiea from other at&es and tha
           United Stats8 and $0188 from Texas arm oited in support
           Or ths above dootrlne of tba taxt.
                "'The peaELOU5t rti0 Of 0058tNOtiOn iS t0 rind
           out the 1aglalatWm Intuat, rhiah la tha law aad muat
           prevail.' Xllia County v. Tbomp~osk,95 Texas 28, 32.
                         "m         LO6iSlatiVO          intbnt      005#titUtO8     the hr.'
           HoXaarr ~a. City or Galveston, 58 Taxaa 554; Ruaaall la.
           hrquhar, 55 Tesaa 955; Boo1 va. Uedamyar, 50 Texas W9;
           Dada05ta. Bunton, 81 Texam 374, 28 8. W. 1061.
                =*8trIotly apeaking, tbsre la but ona rula or oon-
           atruotloo, and that is the legialatire intent imat govern;
           all other aanona or interprstatioa,80 oalled, are but
           bruunda or argumnts reaortad to for the pur?oas of aa-
           asrtainlng the true          0r the In.*
           ttil1.s        County ~6.          Lam                 ounty,   90 *x68    606,   40 S. 111. 404;
           Imparial Irrigatioa          ~a. Ham,   104 kxaa 396,
           138 S. U. 575, 581; lcoy VS. Sohneidar, 110 Texaa 369, 221
           9. Y. 880.
                 l*Tha intention 0r the Legislature in enftotinga law la
            the law Itam.'    Edward ~a. Xorten, 92 Texas 152, 153,
           48 s.          1.   792.
Konorable &or60 E. -ppd.      age g


         wfTha greet fundeiaaetal rule in oonatrulagstatutes
    la to aaaarteln end gito erfeot to the Intent or tha
    lagIaletw .* 36 CIC 1106, 2.
         aTa ara unable to bring ouraalroa to tha belier that
     15ell oeeaa whore the stat0 has a jud(asnt oondaaeihg
    land to br sold for thr payment of taxes,   the Legiatituro
    Intended the Stata should be rlthout the paw     to protaot
    lta Intaraat and that of the oouhty. But it la our
    opinion that whet la meant by the languego or the a tatuto,
    ‘Ii there shell be no Qiddar for auoh lead* the oouaty
    attorney, ahariff or other oftlosr   selling the aem, shell
    bid said propaxtp 0fr to the Stat0 ror the amount or a11
    texaa, panelty, Ihtaraat and oorta adjudgedageinat auoh
    propartr, aeesa that if them iu ao person who bids the
    amount or the judguant agelnat said leml. Although ha
    mey bid leas, It la mad8 thb duty or ona or tha orrloara
    mimed to protaot the Intareata of thr State by bidding
    to tha extant authorlaad by tha statute abort quoted.       Ii
    any biddar should bid the amunt of tha State*8 judgrnant
    egainst the land or mra, the State than cannot bid; ror
    In rruoh oiroumateaoaathe Mate rould be oo;apstlng as a
    pBre aurohaaar when it Is authorized   to go no farther
    then la nacasaary to protect Its interesta.
           pla think there la language IA raid Artlcla rhioh
     tends to support thla conatruotion. the artlole ateto
     that  in aaa8 0r roraoloatue, en order 0r sale shell
     Irsua and the land sold theraundar es In other eaaaa or
     roraolomre.    It further provider,after tha offioar
     axaoutiag the ardor of ma10 her raoelrsdthe prooaeds
     ead rroa tham paid the taxes, Interest, pentitr and ooata
     adjudged against the land, a8 to what bs shall do with
     the excess. nowhere la there any prorialon praaoribing
     the proaadure to be followed in a oear whara the lend
     does not bring the a-mountof tha udgaant against it.
     In a5 ordinary foraolosura aalo, t tiols 2212, rhloh
     ralataa thereto, provide8 a prooednra In avant the pro-
     oaada of the property sold doss not aatiaiy the judguaat,
     directln~  the aherlrr to rake tha balanoaas under oxa-
     cution,  using the unaatlarlsd   order or aala as M ax80u-
     tionl   lo auoh alternative I8 prorldad for In the atatuto
     governing delinquent   tax aalra under order of Bela. From
     the pro~Ialona 0r the 8tatutaa direeating the sherirr to
     pay rrou tha proceeds the taxae, lntaraat,    penalty and
     ooat4, and the *raneIndar or the 2urohaaa price, If any*
     to tha olark of the OSUrt, there arises the clear ispliaa-
     tlon that the land la to bring at least enough to satlafy
     the judguant. IA case the land la bid In for the &i&a,
                                                                                 fir0
                                                                                   .
;
    ..
                                                                                 .ml
         Eonorable @aorge H. Sheppard, Page 7


              tha bid      mat   be ror   the ruli amount agal5st the la5d,
              and provisionla rurthermade that when said land #hall
              be redeemed,‘the tax eollootorshell Wr the pmpar
              distribution of the mone~a rooeired by him in auoh aedeap-
              tiOA, paying to aaoh ofrioar the almunt of eoata foUAd to
              be    due,   and   to the State and   county the taxaa, Interest
              and penalty        r0UAdto b4 due eaoh reepeQt:Vely.’ so it
              appear8 that whether the land la sold to an outside
              bidder or bid In ror the State, prorialon la rude ror
              the ultimata payment I5 full of the taxes, interest and
              penalty.
                    *It la obvious that in the event the land 16 sold
              to en outside bidder ror less than the amount adjudged
              agalnat it, oomplloatlona and dIffloultleawill erlse,
              and the Legislature has rurniahad no gUide ror their
              eolution. 054 pert or tha Judgment la State taxe8,
              aaothar part oounty taxes, and still other sums whloh
              go to maka up tha total oi the luwent     ara aonpoeed
              or 40Ot.s0r dirrerent orrioera.   In  Such a oaae the
              judgment aould not be paid In full and all the parties
              at lntaraat oould not get all their money. Whet should
              be done in tbqt  oasa? Is the State’s Interest superior
              to the oounty’a interest or will the ~monaybe prorated
              between them? Are the orrloers to be paid firat, or
              are thair alaim to be postponed AAt      tha olaIa8 of
              the Stat0 and oau5ty bare been paid? xi paid rirst,
              it night result tlut there would not be enough to pay
              even the oaat8 going to the otiIoer8, and there would
              not be anough lart to l atiaty the olalmaboth of the
              State  and the oounty. I think it masonable    to e8auma
              that the LegIf!laturaintendedno auoh eompliaatioas;
              othanisa, it would by appropriate anaotznenthara pro-
              vided ror than.
                   abo are awara tbst thI6 0pIAIon la In amfliot
              with an opl5lon sent out I’romthis department on tha
              6th day of February, 1923, but with such opinion we
              oannot agree and rrom It we respactrully dissent.
              . . .
                    -Assuma that the Stata has Judgment ror4OloSlAg
              a tax lien to the ano>nt of $250.00 05 land worth $5,000.00.
              Suppose that at the aherIrt*a sale the 8u.mof $10.00 la
              bid by a~ autsldar, and the land is kaookad oii ta him.
              Under the oaastructlonwhioh we are oombatfng, and in
              4cOOrdaAO4 with what laaybe the literal 1anJuage of the
Honorable George 8. She-:perd,Page 0


       BtstUtO, the Stata~a hands mu13 be tied aad Its offioarm
       OoUd only stand by, ~alplaaa, and no the $tato*e interests
       aeorlflq#dIn that manner. After the aalo, It would be
       the duty of tha lherlfi to exeouti a dead M the Jur*haaer
       and thbn the taxpayer rould hare two years in vhl*h to
       redeem his land and he could redeem It by paying double
       the amount of ouch bid. Suoh a thing oould easily happen
       and no doubt has happened heretorora. We cannot bellere
       that the Legislature intended any auoh absurd resulta,
               *-%areiterate our conoiuaion, In enawar to your
       question, that by the term ‘bidder l used In tha stat-to
       giving the State the right to bid 15 lands sold under a
       tax Judgment, the Legislature meant a person who bids
       at least the amount of the Judgment against the land
       taxes, interest, penalty and ooata, and If no auoh bidder
       appaar6, then the groper officer may bid In the land
       ror the State as the law provides; and that no person
       would nacasaarily be considerede *bidder*, within the
       meaning of the statute, so as to preclude the propar
       offlear    iron? bidding same in for the State, mlaaa his
       bid Is for a au9 at least sufficient to aatlary the judg-
       ment agalnat the land.”
          Hr. YoKanzle*aopinion was written berore the passage of
meld Artlole 7345b, prorldin- for the    Impleadingoi other taxing
uaita, and ror the aourt Incorporating    lr.its jadgment a finding
of the reasonable ralr value of the land, but thoaa matters are not
Iarolved in this case, and m ballare the reaaonln~:of hIa opinion
applies to the question b8fOre us.     To construe his opinion es hold-
ing that a bid et a tax 8aIa la void if It 18 for leas than the
amount or taxes due.
            The bid in this case was clearly void, the would-be pur-
chaser being e private person and not a taxing u5lt, and it naturally
follow8 that the sale was void, and therefore invalid, because there
oould not hare bean e sale without s bid. It likewIse tollows that
the sheriff had 50 authority to execute the deed. The atatua Or
tha parties   :a the sme as it was barore the sale, and the State
ltil     has its    lien   and the right   to hold a tax sale   under the judg-
oa5t I5 the sage oacnar as If the other asla had never been             held.
               or oouraa, this opinion doss not apply in a casa in which
the    court   inaorporated in its judgment a finding Of tke reasonable
Eonorablr G8orgr 8. Shopperd, Pago 9


;~~g=ftum or tha land        at   an mount lam   than    the   aacunt   of   the
         .

             me brlisve   that    the ioregoing answers your questlonr.
                                             Your* very truly
                                         Al-TORlW GEEEiAL OF TEXAS


                                         .,l%--f@&      Caoil C. Rotech
                                                              Assistant

CCBrOO




                 ATTORNEY GECZ'~',03 TEXAS
