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        G;I1SEll....
                                     April   ~27; 1949’     ‘:


        Hon. William S; Fly, Chairman
        House Judiciary Committee
        Fifty-first Legislature
        Austin, Texas                            Opinion     No. V-815.
                                                                     ,~:,
                                                 Re:     The constitutionalityof
                                                         H. B. 484 to validate sum-
                                                          mary delinquent tan sales
                                                          previously.made      by tax
                                                          collectors   of counties,   cit-
                                                          ies, and ~iithei  ~gavernmen-
                                                          tal subdivisions.         :

        Dear Mr.    Fly:

                   Your letter   of April    12, 1949,   is as follows’:
                   ‘U
                   The Judiciary Committee  ‘took up for considera-
             tion H. B. 484 Monday, April 11, 1949,

                  “It is nay understanding   that the City of Cleburne
            and other &is’s    have sold’certain   properties  for’ delin-
            quent taxes under a 1931 Act of the Legislature       per-
            mitting summary      sales.

                  “This legislation   attempts to validate those sales
            which I understand were declared invalid in several                               ’
            decisions   towit: Duncan,v. Cabler 21,5 S.W,Zd 155 and                  !
            School District    v. Mexia’l33   S.W.Zd 118,

                   “The Judiciary Committee     asks you for your opin-
           ” io,n as to whether the Legislature   has the power,to val-
             idate th~ese summary sales t%ade under the invalid Act,                     ‘~
             of 1931.~”

                    You thus present for the op’ini6n of this office         the con-
        rtitutfonality  of H. D. 484, 5lst Legislature.

                  It has been definitely settled by the Supreme Court of
        this State that since ,the effective date of Article 7320a,, V.%.S.,
Hon. William   S. Fly,   page 2 (V-815)




enacted in 1929, summary   sales of real estate     for delinquent     taxes
are unauthorized.  This statute is as follows:

          “Section 1. That all sales of real estate made for
     the collection  of delinquent taxes due thereon shall be
     made only after the foreclosure    of tax lien securing
     same has been had in a court of competent jurisdiction
     in accordance   with existing laws governing the foreclos-
     ure of tax liens in delinquent tax suits.

          “Sec. 2. All laws and parts of laws in conflict with
     the nrovisions of this Act be and the same are hereby
     repealed.”

         In the case     of Duncan v. Gabler, 2,15 S.W.2d   155 (Tex.
Sup. 1948) Associate      Justice Smedley said:

           “The amendment      of Section 13 in 1932 was not self-
     executing.   It contemplated    and required lbgislation    to
     provide for ‘speedy sale, without the necessity       of a suit
     in Court’ . . . . There has been no such legislation      since
     the amendment was adopted. And since the Act of 1929
     repealed all statutes then in effect that provided for sales
     for the collection   of delinquent taxes without suit and
     foreclosure,   there is now no statute authorizing the sale
     of land for delinquent taxes except after foreclosure        of
     the tax lien in a court.”

          It therefore   necessarily   follows that since the effective
date of Article   732ga, supra, which repealed all prior statutes
authorizing   summary     sales of real estate for delinquent taxes,
there has not existed in this State any statutory authority for sum-
mary sales.     Summary     sales made since the effective date of this
statute are therefore    absolutely   void, and pass no title to the pur-
chaser; add this regardless      of whether a taxing unit or private
individual becomes     the purchaser.     Title remains vested in the
owner, unaffected by the sale or the execution and delivery of the
deed.   This being true, we must hold that the Legislature        does
not have the authority    to validate summary      tax sales which were
void at their inception.     The Legislature    has no power to pass a
law divesting the title to property out of one person and giving it
to another.   Article XIV, Section 1, of the Constitution     of the United
States, provides in part as follows:
           1.
            . . . nor shall any state deprive any person of life,
     liberty, or propert     without due process of law . , .II
     (Ernphas~
Hon. Willtam       S, Fly,   page 3 (V-815)




             Articl?    I, Section 19, of the Constitution    of t+   State of,.
Texas      provides    in~part as followst

             “No citizen oflthis State shall be deprived of ., . .
                    , . except by the due course of the law of the
     ;;;~*:‘~     *


             This bill violate8    both of the foregoing     constitutional   .pro-
vistons.

          We are fortified in our conclusion by the .decislons of the
Supreme Court of this State and by th+Supremo        Court:of the United
States.’ We direct attention to the case of .Eustis v. City of Henri-
etta, 90 Tsx. 468, 39 S,W, 567 (1097) in which a void tax sale was
Gi%lved,   and the construction   of a remedtal statute somewhat sim-
ilar in effect as this bill.  The Supreme Court, speaking through
Asroclate   Justice Brown, saidi

         “If the sale was void,        it was,,a.p If ne sale had been:
     made i



             4~ i Such a law, it upheld, world gtve to,a deed
     which ;i void in itself, OD whtch is based upon, a void
     sale, the ~effect to vest a good and perfect title in the
     purchaser    of the property,~ contrary td the provision
     of section 13 of article 8 of the constitution,   Ih so far
     as article 51g, Rev. St. 1895, makes the payment of
     taxes by the owner to the city, or to one who has pur-
     chased at a void sale or claims the property under a
     void deed, a condition predodent to his resisttng     the
     claim made upon his property under such void procead-
     ing, it ir violative of the constitution of the state in the
     several particulara    befbrc mentioned, as well as of
     section 1 of the fourteenth amendment of the conrtitta-
     tion of the United States . . , 0*

         Since the summary   sale was made without authority of
law, the Leeislature could not divest title out of the then owner.
That would be a taking “without due process    of law.”

          The rule is stated in general terms in the case of Camp-
bell v. Holt, by the Supreme Court of the United States, 115n
?GTmpmq?

             “It may, therefore, very well be held that in’an,
        action to recover real. or pernonal property, where the
Hon. William   9. Fly,   page 4 (V-815)



    question is as to the removal of the bar of the Statute
    of Limitations  by a legislative  Act passed after the bar
    has become perfect,    such Act deprives the party of his
    property without due process     of law. The reason is,
    that, by the law in existence before the repealing Act,
    the property had b&coma the defendant’s.       Both the legal
    title and the real ownership had become vested in him,
    and to give the Act the effect of transferring    this title
    to plaintiff would be to deprive him of his property with-
    out due process   of law.”

           We deem the foregoing sufficient clearly to show that this
bill ff passed would be unconstitutional,  and you are, therefore,
accerdinply   so advised.

                              ~SUMMARY

          Since the effective date of Article  732ga, V,C.S..
    there has been no statutory authority In this State for
    the sale of real estate for dsltnquent taxes by sum-
    mary sa,les, and nuch sales are absolutely      void and
    pass no title to the purcharcr.     The Legislature   has
    no constitutional   power to validate such aales.    The
    same would violate Article XIV, Saction 1, of the Fed-
    eral Constitution,   and Article I, Section 19 ef the Cm-
    rtitutlon of Texas.    Duncan v. Gabler, 215 S.W.Zd 155;
    Euatia v. City of Henrietta     90 Tex. 468, 39 S.W. 567;
    Camp66Ilv.‘620.

                                                 Very   truly yours

                                          ATTOBNEYGENERALOF           TEXAS




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                                          ATTORNEYGENERAL
