                             QMfice of tty 2lttornep 43eneral
                                      &ate of ?aexae
DAN MORALES
 ATTORSEY
       CEXVERAI.                             January $1993

      Honorable Tii Curry                            Opiion No. DM-195
      Criminal District Attorney
      Tarrant County                                 Re: whether a proceeding to recover
      Justice Center                                 excess proceeds after a tax hen foreclosure
      401 West Beiknap                               requires a separate cause of action, and
      Fort Worth, Texas 761960201                    related question fBQ-456)

      Dear Mr. Curry:

              You have requested that we construe section 34.04 of the Tax Code with regard
      to the following two questions:

                 1) Does Tax Code $34.04 require a new lawsuit, separate from the
                    suit to foreclose the tax lien, in a proceeding to recover excess
                    tax proceeds?

                 2)   Does Tax Code 334.04 require personal service on the parties
                      and the county attorney or district attorney in a proceeding to
                      recover excess tax proceeds?

                Chapter 34 of the Tax Code provides, in part, for the sale of property that has been
      seixed pursuant to foreclosure of a tax lien. See Tax Code 0 34.01(a). The officer
      conducting the sale is to apply the proceeds of the sale thst toward the costs of the sale.
      Id. 5 34.02(a). Next, the officer is to distribute proceeds to all taxing units that
      participated in the sale for the payment of taxes, penalties, and interest due each taxing
      unit. Id. Fiiy,      the officer is to pay any excess proceeds to the clerk of the court that
      ordered the sale. Id. 4 34.02(c). The clerk is to keep the excess proceeds for a period of
      seven years r&r the date of the sale, unless the court has ordered otherwise. Id.
      5 34.03(a); InremationaI Paper Co. v. State, 380 S.W.2d 18, 21 (Tex. Civ. App.-
      Texarkana 1964, writ refd n.r.e.) (stating that district court has exclusivejurisdiction for
      suit to foreclose tax hen). Section 34.04 provides the procedure by which a person may
      !iie a claim to the excess proceeds:

                     (a) A person may file a petition in the court that ordered the
                sale seining forth a claim to the excess proceeds within seven yesrs
                from the date of the sale of the property.

                     (b) A copy of the petition shall be served on the county
                attorney or, ifthere is no county attorney, the district attorney and on




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Honorable Tii Curry - Page 2            (DM-195)




          all parties to the suit that ordered the sale, if any, not later than the
          20th day before the date set for a hearing on the petition.

               (c) At the hearing if the court tinds that the claimant is entitled
          to recover the excess proceeds, it shall order that the proceeds be
          paid to him. Interest or costs may not be allowed.

               (d) A claim for the excess proceeds may not be filed at&r the
          expiration of seven years from the date the property is sold.

        To answer your first question, we note that subsection (a) requires a claimant to
file a petition “in the court that or&red the sale.” (Emphasis added.) The legislature
added similar language to the predecessor statute,.V.T.C.S. article 73454 section 8, in
1953. See Acts 1953,53d Leg., ch. 108, 8 1, at 392. The 1953 amendment authorized a
person claiming excess timds “[a]t any time within four (4) years from the date such
excess funds are forwarded to the State Treasurer by the clerk of the court” to file a
petition “in the case out of which execution or otherfinalprocess issated.” Id. (emphasis
added).

        In 1977, the Texas Legislative Council (the council) prepared a proposed Property
Tax Code for the 65th Legislature. See generu& TEX. LEGS. COUNCIL,PROPOSED
PROP. TAX CODE, Report No. 64-2 (1977). The proposed codiication completely and
substantively revised the existing property tax laws in an effort “to make them more
understandable, equitable, and uniform in their application around the state.” See id. at i.
Section 34.04(a), as the council proposed it, authorized a claimant to file a petition “in the
wurt that ordered the sale.” Id. at 161. While the council clearly changed the language
Tom the language used in the source law, it stated that, with one irrelevant exception, the
provisions now found in chapter 34, subchapter A were unchanged. Id. at xviii.
Apparently, then, the council intended the word change to be nonsubstantive. Although
the legislature did not codii the Property Tax Code until the next session, it adopted
section 34.04(a) as the council had proposed it. See Acts 1979,66th Leg., ch. 841, 5 1, at
2298.

        We found no legislative history clearly indicating whether the legislature, like the
council, believed that the change in language was nonsubstantive. We therefore assume
that the members of the legislature were aware and agreed with the council’s analysis of
the proposed chapter 34, subchapter A of the Tax Code. Accordingly, we read “in the
court that ordered the sale,” as section 34.04(a) states, to equate with the parallel
language in the predecessor statute, “in the case out of which execution or other 6nal
process issued.” To specifically answer your first question, then, we believe that section
34.04(a) does not require a person claiming excess tax proceeds to file a new lawsuit, i.e.,
the claimant files a petition in the underlying case.




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Honorable Tii Curry - Page 3            (DM-195)




         Thus a “petition” for purposes of section 34.04(a) differs from a “petition” for
purposes of the Texas Rules of Civil Procedure. Rule 22 of the Terms Rules of Civil
hcedure states that a petition tiled in the office of the clerk of court is the instrument by
which a plaintilT wmmences a civil action. We have determined that, with respect to a
motion to recover excess proceeds under section 34.04 of the Tax Code., the claimant tiles
the petition to recover excess proceeds in the underlying case. Consequently, in answer to
your second question, the provisions in the Texas Rules of Civil Procedure relating to
se&c of a petition to wmmence an action do not apply to a petition to recover excess
proceeds under section 34.04 of the Tax Code. Rather, a petition to recover excess
proceeds should be served in accordance with rule 2la of the Texas Rules of Civil
Procedure, which provides methods of service for “[elvery notice required by these rules,
and every pleading, plea, motion, or other form of request required to be served under
Ftule 21, other than the citation to be served upon the filing of a cause of action and except
as otherwise expressly provided by” the rules.1 Accordingly, a claimant may serve a wpy
of the petition to recover excess proceeds on the county or district attorney and on all
parties to the suit

          by delivering a copy to the party to be served, or the party’s duly
          authorized agent or attorney of record, as the case may be, either in
          person or by agent or by courier receipted delivery or by certitled or
          registered mail, to the party’s last known address, or by telephonic
          document transfer to the recipient’s current telecopier number, or by
          such other manner as the court in its discretion may direct.

Tar. R Civ. P. 2la.




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Honorable Tii Curry - Page 4           @M-195)




                                     SUMMARY

                Section 34.04(a) of the Tax Code does not require a claimant to
          file a new lawsuit, separate 6om the underlying action to foreclose
          thetaxlien,torewverexcesstaxproceeds.             Aclaimant6linga
          petition to recover excess tax proceeds must serve a wpy of the
          petition on the county or district attorney and all parties to the suit
          that ordered the sale in accordance with rule 21a of the Texas Rules
          of Cii Procedure.




                                                     DAN      MORALES
                                                     Attorney General of Texas
WlLL PRYOR
Fii Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENEAHICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Okrogge
Assistant Attorney General




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