                     November 12, 1957

Mr. C. W. Karlsch             Opinion No. ~~-316
County Attorney
Wailer County                Re:   Does the certificate of
Hempstead, Texas                   redemption Issued after
                                   the two-year period
                                   authorized by Article
                                   7291 remove the State
                                   from the title to the
                                   land granted it in the
Dear Mr. Karlsch:                  foreclosure sale?
          You request the opinion of this office upon the
above-captioned matter.
          We quote the following from your letters as the
facts upon which your request is predicated:
     . . .A taxpayer became delinquent in
    the payment of her taxes. A foreclosure
    suit for taxes was brought against her
    and the land, and under a judgment and
    order of sale the land was sold to the
    State of Texas. It has never been re-
    sold. Shortly after two years from date
    of sale, she paid all taxes and costs of
    every kind. Thereafter, the State Comp-
    troller duly Issued his certificate of
    redemption. That was in 1944. She has
    been in possession, rendered and paid all
    taxes on such property since that time. ...
         II
          . . .
         'The suit ...was filed on May 10, 1940,
    and covered taxes for the years 1929-1938.
    ...According to the Sheriff's return, the
    property was sold on July 1, 1941, to the
    State of Texas. The Sheriff's deed was dated
    July 9, 1941, and was filed for record on
    November 20, 1943. Apparently, from the
    pleadings, the State of Texas was the only
    plaintiff and Wailer County was the Impleaded
    defendant. ..."
or. c. w. Karisch, page 2 (~~-316)


          Upon the foregoing facts you submitted the
following question:
          "I would appreciate your opinion
     as to whether or not the certificate
     of redemption under the circumstances
     divests the State of Texas of its title
     acquired under the foreclosure proceeding."
          Article 7291, V.C.S., was a part of the old
summary sales Act applicable to sales made by the Tax
Colle~ctor. Summary sales by the Tax Collector to col-
lect delinquent taxes is no longer authorized.
          Article 7328a, V.C.S.,enacted in 1929, provides
as follows:
          "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 foreclosure of tax
     liens in delinquent tax suits."
          In construing this Act the Supreme Court, in
the case of Duncan v. Gabler, 147 T. 229, 215 S.W.2d 155
said:
         "The meaning of the 1929 Act is
     plain. Its language clearly evidences
     the intention of the legislature that
     there shall be no sale of real estate
     for the collection of delinquent taxes
     until there has been foreclosure of the
     lien In a court of competent jurisdiction.
     If valiid,the Act necessarily repealed
     Articles 7272 to 7283 and other statutes
     then existing which authorized sales of
     land for collection of delinquent taxes
     without foreclosure of the tax lien in
     court."
          We think the~ruling of the court in this case is
in effect a ruling that all the old summary sales provisions,
including the right of redemption, are no longer applicable,
this for the reason that Article 7291, V.C.S., applied only
to sales made by the Tax Collector, hence not applicable to
judicial sales. Therefore, a redemption receipt Issued under
Mr. C. W. Karisch, page 3 (WW-316)


the authority of Article 7291, V.C.S. is a nullity and affords
no protection to the taxpayer in judicial sales. The tax suit,
as appears from the facts submitted, was filed under Article
7345b, V.C.S., and the right of redemption by the delinquent
taxpayer is governed by Section 12 of that Statute. At the
time this suit was filed and the sale thereunder, this Section
of the Statute provided, in part, as follows:
         "In all suits heretofore or hereafter
    filed to collect delinquent taxes against
    property, judgment in said suit shall pro-
    vide for the Issuance of writ of possession
    within twenty (20) days after the period of
    redemption shall have expired to the pur-
    chaser at foreclosure sale or its or his
    assigns; but whenever land is sold under
    judgment in such suit for taxes, the owner
    of such property, or anyone having an inter-
    est therein, or their heirs, assi ns or legal
    representatjnes, may, within two 72) years
    from the date of the sale have the right to
    redeem said property from such purchaser on
    the following basis, to wit:
         "(1) Within the first year of the re-
    demption period, upon the payment of the
    amount of the bid for the property by the
    purchaser at such sale, including a One Dollar
    ($1) tax deed recording fee and all taxes,
    penalties, interest and costs thereafter paid
    thereon, plus twenty-five per cent (25s) of
    the aggregate total.
         "(2) Within the last year of the re-
    demption period, upon the payment of the
    amount bid for the propert at such sale,
    including a Cne Dollar ($17 tax deed recording
    fee and all .tdxes,penalties, interest and
    costs thereafter paid thereon, plus fifty per
    cent (50%) of the aggregate total; and no
    further or additional amount than herein apeci-
    ffed shall be regulred to be paid to effect any
    such redemption.
          In construing this Section of the Statute, the
Supreme Court, in the case of the City of El Paso v. Forti,
142 Tex. 658, 181 S.W.2d 579, said:
Mr. C. W. Karisch, page 4 (~~-316)


             ~ .It seems clear to us that when
          the Legislature enacted 7345b, whereby
          all taxing units could be joined in
          one suit and the property bid In by
          one , . .(sic)for the benefit of all,
          and prescribing the terms upon which
          same might be redeemed, it intended
          that those terms should govern in all
          cases of'redemntion in that character
          of suitsregardless of who'became the
           urchaser at the sale. . . .II
           Emphasis supplied.)
          The first paragraph of this Section of the Statute
was amended in 1947 to make the period of redemption two
years from the date of the recording of the purchaser's deed
and not two years from the date of the sale as it provided
prior to the 1947 amendment. This case is governed by the
Statute prior to the amendment, and the right of redemption
would begin~to run two years from the date of the sale.
          The action of the Comptroller in issuing the re-
demption receipt does not have the effect of WIorking an
estooper or to constitute a waiver against the State to
assert title to the property. Rolison v. Puckett, 145 Tex.
366, 198 S.W.2d 74.

          We are, therefore, compelled to hold that the
failure of the delinquent taxpayer to redeem the property
from the sale in the time and manner prescribed in Section
12 of Article 7345b, V.C.S., resulted in the title to the
uronertv becoming absolutels vested in the State, the pur-
A~-   .



chaser at the delinquent tax sale. Rolison v. Puckett,
145 Tex. 366, 198 S.W.2d 74.  State v. Moak, 146 Tex. 322,
207 S.W.2d 894. The land may now be sold by the State, as
provided in Section 9 of Article 7345b, V.C.S.
          We are not unmindful of the equities in favor of
this taxpayer, but they do not alter the law as It has been
pronounced by the Supreme Court. It may be that the taxpayer
might obtain some relief upon a resale of the property by
becoming a purchaser if the sale is made In conformity with
the provisions of Section 9, Article 7345b, V.C.S.
Mr. C. W. Karisch, page 5 (~~-316)


                         SUMMARY

            Property purchased by the State at
            delinquent tax sale in a delinquent
            tax suit filed under Article 7345b,
            V.C.S., must be redeemed within the
            time and manner rescribed by Section
            12 of Article 73 E 5b, V.C.S., before
            amended in 1947, otherwise the title
            becomes absolutely vested in the State-
            the purchaser at the delinquent tax
            sale. It may not be redeemed under
            provisions of Article 7291, V.C.S.,
            which was applicable only to summary
            sales by the Tax Collector, and a
            redemption certificate issued by
            virtue of said Article is void and
            affords no protection to the taxpayer
            under judicial sales as provided in
            Article 73&5b, V.C.S.
                               Very truly yours,
                               WILL WILSON
                               Attorney General


                                BY

                                     Assistant
LPL:gs
APPROVED:
OPINION COMMITTEE
George P. Blackburn,
Mrs. Mary Kate Wall
B. H. Timmins, Jr.
John B. Webster
Galloway Calhoun, Jr.
