Hon. Geo. H. Sheppard
Comptroller‘ofPublic Accounts
Austin, Texas
Dear Mr. Sheppard:        Opinion No.'0-7076
                          In Re: Does a purchaser in a tax
                                  foreclosure sale take such
                                  property free and clear of
                                  the.taxes that became de-
                                 linquent after the suit was
                                  f llea?
        In your letter of Jan. 29, 1946, you request the
oplnlon of this department upon the question contained
therein, whFch for the purpose of giving the facts upon
which our opinion is based we quote:
        "The Delinquent Tax Collector for'Floyd County
    filed suit forall delinquent taxes on a certain
    piece of property In Floyd County up to and inclua-
    ing the year 1942. The suit was filed in the fall
    of 1943. The current taxes for 1943 became aelin-
    ~quentin February of 1944. The Delinquent Tax Col-
   'lector in August, 1944, prosecuted his suit for
    judgment without amending hLs petitlon or including
    the taxes that became delinquent February 1, and
    his judgment taken in August, 1944, aid not include
    the taxes for that year.
       "Everythingin the proceedings was regular, except
   for that one particular. The property in this case
   sold for the adjudged value which was less than the
   totaliamount of del!nquent taxes against the property.
       "Question: Was such judgment a valid judgment and
   did the purchaser of said judgment take such property
   free and clear of the taxes that became delinquent after
   the 1943 suit was'filed?
       "In another case the suit was filed after February
   1, 1945, but before July 1, 1945, and the 1944 taxes
   were not included in the petition in-this suit. Judg-
   ment~was not obteined 5.nthis suit until after July
   1, 1945. Would the same rule apply in this case?"
    Hon. Geo. H. Sheppard, page 2          .o-7o;i
.


             For the purpose of this opinion It is only necessary
     that we consider your questions in the 1lghtYof the prod-
     Qio~~~of_Art+le 7345b or V. A. c. s. The last amendments
     to Article 7345b were enacted by the 47th Legislature, and
     are codified as Sections 2, 5 'and-10 in the pocket supple-
     ment of V. R. C. S., page 147; Section 10 is the pertinent
     provision applicable to the questions posed In your request.
                                      .._ --                     :
             The validity of Article 7345b and the presently ex-
     isting amendments thereto, and especially Sections 2, 5 and
     10, Is no longer an open question. They have successfully
     withstood all attacks, and the public policy of the State
     emanating from these statutes Is now definitely defined ati
    .well.understood. The primary purpose of this article was to
     prevent multlpllclty of suits by the inclusion of all taxing
     units in a suit brought by any one or more of such units,
     ana In addition to this to afford purchasers of tax titles
     security from a alversity of claims of numerous taxing units.
     City of El Paso v. Fortl, 181 S. W. (26) 579.
            Of.course the primary concern of a purchaser at a
    tax sale foreclosingthe lien of the respective taxing units,
    parties to the suit, is that the ~propertyso purchased shall
    thereafter be free from the liens fixed under the Constitu-
    tion and'the statutes to secure the payment of the tax.
           -Sec. 10 of this article reads as follows:
            "The purchaser of prbperty sola for taxes in such,
        foreclosure suit shall take title free and clear of all-
        liens and claims for taxes against such nroverts delin-
        quent at the time of iudnment in said suit to anv taxlnq-
        unit which was a Dart7 to said suit or which had been
        .servedwith citation In sata suit as reauired br this
        Act."    (Emphasis ours)
            Note that the statute says, "delinquentat the time
    of judgment." We think this means just what It says, and
    Includes all taxes delinquent at the time of the judgment,
    whether embraced In the petition or not as to the taxing
    units, parties to the suit or which had been served with
    citation In said suit. We said In opinion No. O-2175:
            "The County and State will lose their liens for
        1939 delinquent taxes In those cases where they (tax-
        ing units) are parties to a suit wherein a.judgment
        1s taken that excluded the sala 1939 delinquent taxes
        unde3 'theplain provlsion of Sec. 10 of Art. 7345,
        supra." (parenthesisours)




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        Bon:Geo. H. Sheppard, page 3         4-7076
.


        We have not departed from that statement In any opinion
        subsequentlywritten upon the subject; but to the above
        statement should be adde&that the purchaser also takes
        the property free and clear of all liens and claims for
        taxes in those cases where they, the taxing units, have
        been served with citation in said suit..
               ,The case of Mexla IndependentSchool District v.
        City of Mexla, (Supreme Court) 133 S. W. (2d) 118, is
        helpful ln~unaerstandlngthe problem involved in your
        questlon, and from this opinion we quote:           _.
                ."Werecognize that it is po~dslble.underthe act
            in huestlon, for such-representatives, by their care-
            lessness or otherwise, to fall to properly foreclose
            the liens held by the 'taxingunits which they r~epre-
            sent, but this is a danger inherent ln all e;overn-
            mental functions performed.byhuman agents.
                It is presumed that all public officials-w111honestly
        perform their official duties, (Andersonv. Polk, 117 Tex.
        73, 297 S. W:219; and Mexia Inaepenaent.School  District v.
        City of Mexla, supra) and these statutes.shtiuldbe construed
        in the light of that presumption. A good falth,purchaser
        .?maerthe mandates of Sec. 10; supra, has a right, we think,
        to rely upon this well recognized presumption. We are not
        to be understood as condoning derelictionand carelessness
        of public officials in the performanceof their duties, but
        such cannot be given the effect to override the plain terms
        of Sec. lO;supra, that "The purchaser of property sold.for
        taxes Ln such foreclosure suit shall take title free and
        clear of all liens."
                Since you state that everything ltithe proceedings
        was regular except the omlsslon of one year's delinquent
        taxes omltted from the petition upon which the judgment
        was predicated, It follows from what we have heretofore
        said th&the judgmentwas valid, and the purchaser under
        sqld judgment took the property free and clear of all liens,
        including the delinquency not included,which occurred after
        the suit was filed as to the taxing units, parties to said
        suit or which had been served with citation in said suit.
               You state:
                "In another case the suit was filed after
            February 1, 1945, but before July 1, 1945, and the
            1944 taxes were not included in the petition in
            this suit. Judgment wa'snot obtaineh.lnthis suit
            until after July 1, 1945. Would the same rule apply
                                                                                    :.   .:   :   q
                                                                             ?




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                        Hon. Geo. H. Sheppard, page 4          0-7076


                            in this case?"
                               The same rule would apply as in the first instake.
                                                        Yours very truly
                                                    :ATTORNEYGHNERAL    OF iE.XAS

                                                                        _.

                                                        By ah. P. Lollar
                                                             L. P. Lollar
                                                                Assistant
                        LPL:AMM:wc

                        APPROfW MARCR 15, l&j
                        s/Grover Sellers
                        ATTORNEY'GENERALOF TEXAS.          _.
                        Approved Oplkon Committee BY $I@ Chairman




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