                            THE     ATTORNEY          GENERAL
                                       OF TEXAS


Jim   MA-                               October'9,   1990
A-WEY        -ERAI.


            Honorable  Jim Mapel                 Opinion    No.   JM-1232
            Criminal  District Attorney
            Brazoria County Courthouse           Re:   Authority  of a county to
            Angleton,  Texas 77515               conduct a private resale       of
                                                 property   under section    34.05
                                                 of the Tax Code     (RQ-1913)

            Dear   Mr. Mapel:

                  If property    upon which    delinquent   taxes    are owed   is
            sold at a tax sale to a taxing unit that is a party to             the
            delinquent   tax   judgment,  the    taxing unit   may resell     that
            property,  subject to any right of redemption        existing  at the
            time of the sale.     You ask about the proper method by        which
            such a resale of       real property    bye a taxing unit     may   be
            effected.    Specifically,   you ask:

                      1.   Is  a  county   authorized     to   conduct    a
                      private resale    of property     pursuant  to   the
                      provisions   of V.T.C.A.      Tax   Code    Section
                      34.05? and the the related question,

                      2.   If a county does not elect to resell         the
                      property    pursuant    to   the    provisions      of
                      Section 34.05(c) and (d) at a Sheriff's         sale,
                      must   a county      conduct  a   resale    of   such
                      property pursuant to the competitive          (sealed
                      bids)    bidding   procedure     or   public     sale
                      provisions    of V.T.C.A. Local Government      Code,
                      Section 263.001 or 272.0017

                  By Yprivate sale" we understand         you to mean a sale that
            is conducted     without    the   necessary     compliance     with    the
            procedural   requirements    of the following      statutes:    (1) Rule
            646a of the Rules of       Civil Procedure,~which       governs    execu-
            tion sales and requires        the sheriff to      sell property    at   a
            public auction:       (2) chapter    263    of the   Local    Government
            Code, which     permits    the   sale    of   property     at   a public
            auction; or (3) chapter 272 of           the Local Government       Code,
            which   permits     the   sale    of   property     by   a    sealed-bid




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Honorable   Jim Mapel    - Page   2   @M-1232)




procedure.1     we    answer    your   first   question     in     the
affirmative;    section    34.05    of the   Tax   Codes   impliedly
authorizes   a private resale of real property purchased        by   a
taxing unit at a tax      sale.   We answer your second     question
in the negative,    because subsections    (a) and (b) of 34.05 of
the Tax Code provides      a means for the    county to sell     real
property other than those set forth in chapters         263 and    272
of the Local    Government   Code; those    chapters are not     con-
trolling.

      The Tax    Code   specifies     three methods      by   which    the
collection   of   delinquent     ad valorem    taxes     are   enforced.
First, a delinquent        taxpayer's   personal     property     may    be
seized and sold by a .taxing unit, with the proceeds             intended
to offset    the accrued     taxes, penalty,      and interest.        Tax
Code 50 33.21 - 33.25.       Second, a taxing unit may file           suit
for judicial    foreclosure   of the    tax lien securing the         tax.
Id. SJ 33.41 -     33.54.    And   third, a taxing       unit may     file
suit   to  enforce     personal    liability     for   the    tax.     &
§S 32.01, 33.41 - 33.54.

     In the event that      delinquent  tax collection       is enforced
by either of the first       two methods, collection        is  effected



      1. Generally, counties   are governed  in the              sale   of
county realty by only two statutory provisions:

         The sale of property owned by counties and         other
   political   subdivisions     is governed       strictly     by
   statute.   The conveyance   of such property    in any other
   manner is void.    There are, respectively,     two sets     of
   Code provisions   now appearing  in title 8 of the       Local
   Government  Code   which   apply to   counties    and    other
   political  subdivisions:    Code   5 263.001 et     sec.   and
   Code § 272.001 et sea.

35 D. Brooks, County and Special District Law § 9.24          (Texas
Practice 1989).    However,   subsection   (d) of section  34.05   of
the Tax Code    states that    except as provided     by that    sub-
section, all    public sales    requested   by  subsection   (c)   of
that section shall be conducted      in the manner prescribed      by
the Rules of Civil Procedure      for the sale of property     under
execution.   Thus, the    procedures   by 'which counties     convey
real property at public sale may be governed by one of three
different, statutory   provisions,   depending  upon the nature of
the transaction   involved.




                                      p. 6553
Honorable     Jim   Mapel    - Page   3   (JM-1232)




by a tax sale;     such sales are governed         by subchapter     A    of
chapter 34 of     the Tax   Code.     Tax   Code 0 34.01.        Property
seized or ordered sold pursuant to foreclosure             of a tax lien
must be sold     in the   manner that similar         property   is    sold
under execution,    except as provided      in that subchapter.         &
0 34.01(a).    If   a sufficient       bid    is   not    received,     the
officer making     the sale    must    bid the     property    off   to    a
taxing   unit   that    is a     party     to    the   judgment.        Id.
0 34.01(C).    Section    34.05    of   the Tax      Code   governs     the
subsequent   resale of such property by the purchasing              taxing
unit.   It is with this section that you are concerned.

      Section       34.05   of the Tax Code    provides   the   following:

                (a! If nronertv  is sold to a taxina   unit
                  is a D&     to the iudcment. the   tau

            subject to any  right of redemption            exist&
            at the time of the sale.

                (b) Unless the nronertv is sold          D~~s&x&
            to Subsections    ICI and    (d) of this     secti-
            it may not be sold      for less than the       marked
            value specified     in the     judgment    of fore-
            closure or the total amount of the          judgments
            against   the   property,     whichever     is ,less,
            without   the   consent    of   each    taxing    unit
            entitled to    receive    proceeds    of    the    sale
            under the   judgment.     Joinder    of the     taxing
            units   in the     conveyance     of  the    property
            constitutes   consent.     The presiding      officer
            of the governing     body of a taxing unit          may
            consent in behalf of the taxing unit.

                (c) The taxing unit         purchasing   the    pro-
            perty by resolution      of its governing      body may
            request the sheriff to sell the property            at a
            public sale.     If    the purchasing     taxing    unit
            has not sold the       property within six       months
            after the date on which the owner's right             of
            redemption   terminates,      any   taxing unit     that
            is entitled to receives proceeds of the             sale
            by   resolution     of    its   governing     body   may
            request the sheriff        in writing     to sell    the
            property   at a public      sale.    On receipt of      a
            request made      under     this    subsection,      the
            sheriff shall sell       the property     as   provided
            by Subsection    (d) of this section.




                                          p. 6554
Honorable     Jim Mapel    - Page   4    (JM-1232)




                (d) Except as       provided by      this     subsec-
            tion, all public sales requested           as    provided
            by Subsection     (c) of this       section shall       be
            conducted   in the      manner prescribed         by   the
            Rules of    Civil     Procedure    for   the     sale    of
            property under execution.          The notice of the
            sale   must    contain     a description         of    the
            property to be       sold, which must       be a     legal
            description    in the case of real property,           the
            number and style of the suit under which               the
            property was      sold    at   the   tax    foreclosure
            sale, and     the date     of the    tax    foreclosure
            sale.   The officer conducting         the sale      shall
            reject any bid for the property           if it is his
            judgment that the amount bid is insufficient.
            If all    bids are     insufficient,     the     property
            shall be    readvertised     and    offered for       sale
            again.     The    acceptance     of    a bid      by   the
            officer conducting      the sale is conclusive         and
            binding on the       question of its       sufficiency.
            An action     to   set    aside    the   sale     on   the
            grounds that the bid is insufficient             may   not
            be sustained     in court,     except that a taxing
            unit that     participates      in    distribution       of
            proceeds of      the   sale    may    file    an    action
            within one year after the date of the sale to
            set aside the sale on the grounds of fraud or
            collusion   between the officer making the sale
            and the purchaser.

                (e) The presiding       officer    of   a taxing
            unit or    the   sheriff selling      real   property
            pursuant to this section shall execute a deed
            to the    property conveying       to the   purchaser
            the right,     title, and     interest acquired     or
            held by each taxing unit that was a party           to
            the judgment      foreclosing    tax liens     on  the
            property.      The   conveyances    shall   be    made
            subject to any remaining       right of    redemption
            at the time of the sale.

                (f) An action attacking    the validity  of a
            resale of property    pursuant to this    section
            may be not instituted   after the expiration    of
            one   year after   the    date  of  the   resale.
            (Emphasis added.)

     Prior to 1947,    section 9 of   article 734533, V.T.C.S.,
one of the  predecessor   statutes to   section 34.05, did   not




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Honorable     Jim Mapel    - Page   5   (JM-1232)




expressly  authorize    a private resale      by a taxing unit        of
real property    purchased    at  a tax    sale;    indeed,    it was
construed  as nnf, authorizing       a private      sale.     Attorney
General   Opinions    V-124   (1947);    O-5056    (1943).     But    ee
Attorney General     Opinion O-6978     (1946).2    Section    9 t:en
provided  only that any such     property    could not be sold       for
less than its adjudged value or the amount of the           judgments
against the    property    in the suit,      whichever    was    lower,
without the written consent of       all taxing .units having       tax
liens against the property.

      After amendment in   1947, section 9 of article    734513,
V.T.C.S.,   provided  explicitly   that  a resale   could     be
effected either at a public or a private sale:

                The taxing unit may        sell and convey       said
            property   so    purchased    by   it, or    which     has
            heretofore    been purchased      in the name of       any
            officer thereof, at         any time    in any     manner
            determined    to    be most    advantageous    to     said
            taxing unit      or    units either     at   DUbliC     or
            private sale        subject to     any then     existing
            right of red&ption         . . . but such      property
            shall not     be sold     by the    taxing unit      pur-
            chasing the same, at         nrivate sale, for        less
            than the adjudged value          thereof,   if any,     as
            established    in the tax judgment,        or the total
            amount for which        such judgment was       rendered
            against the property        in said suit,     whichever
             .
            1s lower, without the written consent of               all
            taxing units      which     in said    judgment     shall
            have been     found to      have tax    liens    against
            said property.        (Emphasis added.)



      2.   Prior to the      enactment   in 1937    of article     734533,
V.T.C.S.,   each taxing unit       could independently     enforce     its
tax lien    against the      same property     with different      suits,
judgments,   executions,     sales and conveyances.       See   V.T.C.S.
art. 7328.      Article 7345b      permitted   the   consolidation      of
such lawsuits.      Though article      7328 was not repealed       until
1979, ~SS Acts 1979, 66th Leg., ch. 841, § 6(a)(l), at 2329,
section 12 of article 734533 provided         that its remedies      were
cumulative   and that its      provisions    controlled   in the    event
of conflict     with other     statutes.      Article 7328     was   also
construed   not   to    authorize     a private     sale.     Little    v.
Dennis, 187 S.W.Zd 76 (Tex. 1945).




                                        p. 6556
Honorable   Jim Mapel    - Page     6    (JM-1232)




m   Attorney   General    Opinion       V-576   (1948).

      It is the absence in section 34.05 of any reference     to
a private sale that concerns you.     You suggest that even   in
the absence of    any express authority   to conduct a private
sale, the legislature     intended that private   sales be  per-
mitted.   We agree.

      Subsections    (c) and    (d) of section     34.05   of the     Tax
Code set    forth    detailed procedures      for   the resale     by   a
taxing unit of property purchased        at a tax sale that must be
followed in the event that a resale is not effected pursuant
to subsection    (a) and (b) of that section.         It is clear then
that the legislature      intended that some means for conducting
a resale of such      property be permitted       other than the      one
set forth in     subsections    (c) and (d).       Subsection    (a). of
section 34.05 permits a taxing unit that purchases             property
at a tax sale to sell       that property    "at any time,"     subject
to any right of redemption       existing at the time of the sale.
If subsections     (a) and (b) of section 34.05 were          construed
not to permit     private sales, then       a county that     purchases
such real property     and seeks to resell it perforce would           be
required to comply with the        provisions   of chapters    263    and
272 of    the Local    Government     Code.3    See. e.a.,     Attorney



      3.  Chapter 263 of     the Local   Government    Code   governs
the sale or lease of     property by counties:     its   predecessor
statute was article     1577, V.T.C.S.,    which  was codified      in
the 1925   codification   of   Texas   statutes  from    a previous
statute.   Chapter 272 of     the Local Government     Code   governs
the sale or lease     of property by municipalities,        counties,
and certain other local governments;       its predecessor    statute
was article 5421c-12, V.T.C.S.,       which was first enacted       in
1969.

      In Attorney General Opinion     M-524 (1969), this    office
held that the enactment      of the later   statute did not   have
the effect    of superseding    either article    1577 or article
734533:

          This  does   not   mean,   however,     that     [article
    5421c-121 has    no effect.     It is   a well     established
    rule that when a general intention      is expressed       Ci.e,
    the enactment   of article    5421c-121   and also a parti-
    cular intention which is i~ncompatible with the general
                                                (Footnote Continued)




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Honorable     Jim Mapel     - Page   7   (JM-1232)




General    opinions   JM-1197    (1990);   JM-335    (1985);     V-124
(1947);    0-5056-A    (1943).     The   issue    is   whether     the
requirements    of chapters 263 and 272 of the Local Government
Code act    to permit    a county to     resell property     "at   any
time."    If they do not, it is reasonable      to assume that     the
legislature,    by the use of the quoted phrase, did not intend
that those chapters      control and intended     that counties      be
permitted   to conduct a private sale.

      Section     263.001   of the Local     Government   Code   provides:

                (a) The commissioners    court of a   county,
            by an   order  entered    in  its  minutes,    may
            appoint a commissioner    to sell or lease    real
            property owned by    the county.    The sale    or
            lease must be made    at a public auction    held
            in accordance  with   this section unless    this
            chapter provides otherwise.

                (b) The     appointed     commissioner     must
            publish notice of the auction before the 20th
            day before the date the auction is held.         The
            notice must    be ,published in English       in    a
            newspaper   in the county     in which    the, real
            property   is located    and in   the county    that
            owns   the   real   property    if not    the   same
            county.    The notice must be published     once    a



(Footnote Continued)           '
   one [i.e. the provisions      of articles   1577 and   7245331,
   the particular    intention which      is incompatible     with
   the general one     shall be considered      an exception     to
   the general    and in    such cases,    full effect    may   be
   given to    the general    rule beyond    the scope    of   the
   local or special     law and    by allowing    the latter    to
   operate according    to its special purposes     and aims the
   two acts can stand together.

            . . . .

         Therefore,   on the basis of the foregoing   authori-
   ties, it    is our   opinion that   [article 5421c-121    is
   operable outside the scope     of Article   1577,  Vernon's
   Civil Statutes,    and Article 7345b, Section 9, Vernon's
   Civil Statutes.




                                         p. 6558
Honorable     Jim    Mapel    - Page    8     (JM-1232)




            week    for three  consecutive            weeks   before    the
            date    the auction is held.

                (c)   If the real property    is sold, a   deed
            that is made on behalf     of the county by     the
            appointed   commissioner   in   conformance    with
            the order    entered under    Subsection   (a)  and
            that is properly acknowledged,        proved,   and
            recorded   is sufficient  to convey the county's
            interest in the property.

      Section       272.001    of the       Local   Government   Code   provides:

                (a) Except for       the   types    of   land    and
            interests described      by Subsection     (b), before
            land owned by a political        subdivision    of   the
            state may     be   sold or    exchanged     for    other
            land, notice      to the    general public      of ~the
            offer of the land       for sale or exchange        must
            be   published     in   a newspaper      of     general
            circulation    in either the county in which the
            land is    located     or,   if there    is no      such
            newspaper,     in   an   adjoining     county.       The
            notice must      include    a description       of   the
            land,    including      its   location,      and     the
            procedure   by    which sealed     bids to 'purchase
            the land or offers       to exchange the land        may
            be submitted.      The   notice must be      published
            on   two   separate     dates    and   the   sale      or
            exchange may not be made until after the 14th
            day after the date of the second publication.

                (b)  [Contains list of   types of land   and
            real property   interests  to which the  notice
            and billing requirements   of subsection  (a) do
            not apply.]

      It is apparent that neither section 263.001 nor section
272.001 of the     Local Government       Code permits     a county     to
resell real    property      "at   any   time.'    Therefore,      it   is
apparent that    the    legislature      did not    intend   for    those
sections to    control     a   resale    by   a county, of      p,~;~~~~
purchased   at   a     tax    sale.      Accordingly,     we
subsections   (a) and     (b) of    section 34.05 of      the Tax     Code
impliedly to permit a private sale; chapters 263 and 272                of
the Local Government       Code do     not apply in an instance          in
which a county resells         real property     purchased   at    a tax
sale.




                                              p. 6559
*
i
    Honorable     Jim   Mapel   - Page     9    (JM-1232)
.




                   Subsections   (a) and (b) of section    34.05
                of the Tax Code impliedly authorizes    a county
                to resell real property that it purchases      at
                a tax sale: chapters 263 and 272 of the Local
                Government  Code do not  apply in such    situa-




                                                   J-h
                tions.

                                                     Very   truly   yo
                                                             .


                                                     JIM      MATTOX
                                                     Attorney General    of Texas

    MARYKELLER
    First Assistant       Attorney     General

    Lou Mx!REARY
    Executive  Assistant        Attorney       General

    JUDGE ZOLLIE STENZLEY
    Special Assistant  Attorney            General

    RENEA HICKS
    Special Assistant       Attorney       General

    RICK GILPIN
    Chairman,  Opinion      Committee

    Prepared by Jim Moellinger
    Assistant Attorney  General




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