Hon. Amos Harper                       Opinion No.     V-973.
County Attorney
Gaines county                          Re:    Striking delinquent tax entries
Seminole,  Texas                              made prior to determination
                                              land in another county.

Dear   Sir:

                  We quote the following   excerpts   from   your letter   of
October       17, 1949:

              “I respectfully   request your opinion concerning
       a problem of taxation that confronts the Tax Assessor
       and Collector    of thie County and upon which I have been
       unable to locate any legal authority sufficient   to enable
       me to advise that officer.

              “There is contained in the files of your office,
       Opinion No. O-1125,   addressed  to Alton T. Freeman,
       then County Attorney of Games County, which was ap-
       proved by Gerald C. Mann, Attorney General,     on Aug-
       ust 31, 1939.

               “This opinion, and the opinion request from which
       it quotes, recites an involved fact situation which oc-
       curred several years ago and which had the effect of
       either relocating   or moving the North line of Gaines
       County South from the point along which it originally
       was thought to run. As a result of those facts, certain
       sections along the North line of the County which ap-
       Reared to be in Gaines County according       to the official
       Gaines County map prepared by the General Land Of-
       fice, dated March,    1922, which is that office’s  latest
       map of this County, apparently ceased to be in Gaines
       county.

                 “Under
                      authority of what is now Article    7194,
       R.C.S.,        the General Land Office of Texas had pre-
                   1925,
       viously furnished our Tax Assessor and Collector with
       abotracta of the surveys    of land in thfs County and those
       abstracts  showed these northern surveys      to be in Gaines
       County.   Accordingly,   they were listed on the tax rolls
       and taxes were levied and assessed      as to them by Gaines
Hon.   Amos   Harper,   Page   2 (v-973)




              “As a further y.esu(t 02 such moving of our North
       boundary line, our Northeast corner of the County ia
       further south than what is recognized,     for tax purposes,
       to be the Northwest corner of Dawson County, where-
       as, according   to the Act of the Legislature   prescribing
       our boundaries,    the two corners  are supposed to be one
       and the same.     (Act of August 21, 1876, page 234.)

               “Upon the strength of the above mentioned opin-
       ion of the then Attorney General, a suit was filed which
       involved, under the pleadings,     a challenge to the valid-
       ity of the action which moved, or attempted to move,
       the boundary south.     This r,uit was never tried upon its
       merits,   but a demurrer    to such petition was sustained
       by the trial court,, such action being sustained by a sub-
       sequent action of the Supreme Court of Texas to be
       found in the case of YOAKUM COUNTY,           ET AL, VS.
       GAINES COUNTY,        163 S.W. Znd, 393.    The opinion of
       the Court of Civil Appeals in this, case gives more de-
       tails of the matters   of fact and law involved.’

                 “There are on the Delinquent Tax Roll of this
        County a number of entries showing delinquent taxes
        due to the State, County and other taxing units whose
        taxes were collected by that officer, upon these lands
       .for years prior to the moving of this line south, or its
         relocation,   as you may please to call it.

              “In the light of the.se facts, will you please favor
       me with your opinion as to the answers to the following
       questions :

             ‘FII(ST    - By what procedure,   if at all, may the
       Tax As’sessor    of this County strike the above mentioned
       e&r&a    of delinquent taxer from his delinquent tax roll?

              “SECOND -’ If he may not strike them from his
       delinquent tax roll, then what effect, if any, does the a-
       bove mentioned relocation    of the county line have upon
       the right of myself,  or the delinquent tax attorney of
       this county, to prosecute an ordinary delinquent tax suit
       to foreclose  the tax lien upon these lands for nonpay-
       ment of such taxes 7 *
Hon. Amos       Harp*,        P4gm 3 (V-973)



              Tti apinion of the Supreme Court in the Yoakum Coan-
t CM*, abovo-eited,      4ummarizes    the allegations   of tie petition
&cari;   G4ines County in the ~suit which was instituted against Yoak-
urn 8*r Terry,C&mtias      to set aaide the boundary line surveyed by
A. L. Harris in 1935 and agreed to by each of the counties acting
thrw4gh its commissioners’      court and its county court.     Plaintiff’s
praymr was that the court adjudge the north line of Gaines County
to b4 th4 lint as surveyed by Col. D. S. Woods in 1900 or in the al-
terntive   that the north boundary be along certain survey lines enu-
merated in the petition or in the alternative     that the court fix “the
true boundary 11114,between the plaintiff and the defendant counties.”

              Th+ opinion points out that the field notes of the Woods
11~. run in 1900. before any of the three cbunties were organiaed,
w44 not mark4     on the ground as required by law and .that the calls
in th4 field net44 lhow wt there is room for doubt as to the loca-
tion on tA4 grow4 of the Wooda line.     Further, it was alleged that
th4 south line of cert4in surveys were treated by the coanties as be-
ial the boundary tiim and that as between Gaines County and Terry
County a portion bf the boundary line was conaidcred, to be along
the louth line of Block D of another aurve$. But, said th court, if
was not allcged         that this line is oai the Woods   line.

               Tha court firat upheld the power of the commissionarr’
courts   and theceunty    courtm to cntcr into a binding agreement      as
to tba beu&ry      lint stating that since countias have tha power      to
litig&e boundary disputes they have the power to settle them out of
court so long as thay do not violatc any provision       of the Constitu-
tion. Gaines County contended that Article       IX, Section 1; Subdivi-
sion 3 d th4 Texas Constitution      had baaanviolated.    A portion of that
subdivirisn~provideo     +t no part of ly existing county shall be de-
tach4d from ib and +tt&chad to anothet kxisting      county’until   th4 prop-
osition for such chaqe shall have beei submitted to a‘vot6 of th4
slectors   of both counties and shall hava received     a majority of those
voting on the question in each county. The contantion was rejected,
and tha court said lt:pge      397:

                “There is nothing in the raeord to show tha&tit
         ~4s the‘ plrpesc    of the three cax~&ics, in enterin     the
         forog4ing  ndar,    to detach lad ~TQ#I one county whose
         l44ad4r7 Uy@# ware already a4*yl+hed,          and attach
         lutm t4 lYY      other county.   Oo*     contrary,  it cleab-
         ly lp p a a r a the sole purpeti was to definitely fix
                     Ilb*t
         the undefined boundary     line between the three counties.
                Y
                    . . .

                ‘The allegations       contained in respondent’s pati-
         ti4n clearly       show that the boundary line betwean Gaince
mn,   Amu    mrper‘     hy    4 (V-973)



      Cm*       and lt+kwn aI* Tekry copntk3 W&a indefidt*,
      ld t+t     the Wea aouatie4 :de8ired to definitely *ettle
      f&d bopndar~     ibe  between muchcounties.      To t&t end
      the commiie$qrr’         courta  of the three counties met
      tad provided r&au,        ia,ectcer+ace with the law, to sur-
      vey 9      deftmiyly fix t+S budary      line between the three
      counttea.     PHU to~the time in 1935 wben the three coan-
      tier provi&d,e metA* fat &~e emta&lis*eat           of such
      betm+ry      lip; there aLted     in the dnindd of the three
      c~brieura’~cmts              an iasu of fact, end they pmaed
      tke’fore@iaq      uder, which ecttlod thet fact aa between
      “y+”              ‘.
             Shoe m territory WEE detached frem Cieinee Couaty es
a rosdt $ the l zeerrert 4 J’o r + ltteeked in this suit, peceroer-
ily tb,l+w    rp f nst.dieh    yeut &linqup    tuc rolir ahow delinquent
w,ier wire”ner&     withis tiinee County &nd should never hevc been
o ii*b e?Co *a ty,CU    *eil*,  Tb idb eing So ,fhelrperrment qf taqea
aput     thue kbde wad invalid,           .

             Arfieler    7146 airl.7347,   V.C&   prescribe   the procedure
Hon. AMOS Harper,      page 5 (v-973)



       am3 Articles    7346 and 7347, V.C.S.,     are applicable.
       The Comptroller      .provides Certificate    of Cancellation
       forms.    After said Certificates     have been duly approv-
       ed, the Tur Assessor       and Collector   may record the
       cancellations    cm his rolls.    The Comptroller    will send
       list of l~nrls erroneously     assessed   to tax assessor    of
       proper county, Art. 7353, V.C.S.,        and said lands may
       then be back assessed       for taxes by the tax assessor
       of the proper county, Art. 7207, V.G.S.
 .:i
                                                    Yours   very   truly

                                      ATTORL’JEYGENERALOFTEXAS




                                          Mrs.   Marietta McGreg
                                                      Assistant




                                      FIRST ASSlSTANT
                                      ATTORNEY    GENERAL
