          OFFICE   OF THE A~ORNEY      GENERAL   OF TEXAS
                              AUSTIN




Hon. Oeo. H. Sheppard
Comptroller0r
COiSPwOuOr  Or Pub110
               Pub110 Aeootmts
                      AOOOPatO
Austin,   Taxas
                          ;
Dear 'Yr. Sheppard:




styled cause.
was taken on Oat.




          attorneys of record heroin, that an agreement oi set)le-
          clent had been xe3.e of all aontrorerted   lseuea involved
          herein, euoh agreement, however, being subjeat to this
          Court*a approval, aaid agreement oi settlement having
          been ontered Into b? the Comissioners      Court ox' Jackson
          County,  .?exss, sotin:< for and In behalf qf plaintiff,
          zmi the indivi:Iual   teiendants acting in heir   owu proper
          behalf.
Zen. @eo. Ii. Sheppard,   page 2


                    *Thnt by thti term of said agraemant to
        settle   thiswit,  the plaintif'f    shall have and recover
        of the defendants,jointly and severally the stm of
        Sixteen Buadrea Aine and 38/100 Dollars [$1609.38),
        together with six per oent (6$~) interest      per aMum
        thereon tron this date until;     paid, in full aatiafaotion
        of its asserted olairn agalust all of the defendants In
        this oauo,   as set out more fully      in Its petition.
                     “That plalntirr haa a lien scouring the abova
        amount   o? this juagmmt whloh shall be roreelossd   by
        judgnent of this Court on the properties   desoribed in
        plaintittvs    petition.
                      “The Court heard all pleading8 filed in this-’
        oase read and duly aoneidered sama. The Court then
        heard and aonsiaered a stipulation        filed as a raoord
        payer and as evldenas in t.h,s oaee and other evidence
        of&red, as well aa argument of oouuael, and find8 that
        up to the time of the maicIng of the agreement to settle
        the disputed zaatter in this oauae, there existed a real
        aontroversial    issue between the plaintiff      and these
        defendants as ts the issue of whether the plaintiff           wa8~
        entitled   to reoover of and from the defendants the amtut
        or ita asserted     olaix lnvolred in this law twit,       which
        aonaisted of a claim for delinquent tax due for the yea?s
        1940 md 1941, together       with interest    and penaltiss   thdr-
        on, as well as aosts thereby aoerusd.          That the deSendmta*
        denial or plalntitf’s      ri&ht to reoover the amount elaiti
        due it by derendants      had a substantialsupport thereror
        as agalust any amount in exoess of Sixteen Hundred Nine
        and 38/100 Dollars (~$1609.38).
                    *The court, therefore,    finds  the weemsnt 80
        made  by and between the parties    hereto,  throm   the Ca8-
        miasionsre Court of Jaahson County,      Texas, and the various
        derendants   is and was a fair equitable   and reasonable
        settlement as to the amount aotually due by these dare&-
        ants for delinquent tax for the years 1940 and 1$&l, on
        the propertiesinvolved in this oause, and suoh agreeant
        is now aade the basis    ol this Court’s judgaent.?$S  rave?
        of plaintlrr   as against these defendants.
Bon. Geo. fl.Sheppard, page 3


                  "It Is, therefore, ORbER3D, &DJUDGED MD
        D.EQBW by the Court that the State or Terao do have
        and recover of the defendant88. J. Porter, Crown
        Central    Petroleum Corporation    and the Republio      National
        Bank, jointly end aererall~ the ma Qt Sixteen Buadred
        Blne and 38/1GO Dollar8 ($l&O9.38),together with sir
        per cent (6$) interest per annum thereon till paid.*

                      On the faots presented to us, Andy-aaan
original  proposition   ve would.be inolined   to hold t&a' judgmant
sntered in this ease void since It la obviously       the result or
a oomproniiso agrssmentbetween the County ;&tommy, the Gomnio-
slonera Court   and the defondantto.    Tno Comm.iosionors Court has
no aowar to relsaae or extlngniah tax llabillty       in the mituatlon
presented here.     Constlt~utlon, Article  III, Sectian 56; Constl-
tutiXl* Art1010 YlII, Seotion 1.
                      Also,   Artiols 340, V. .i. C. 3..     dialarra'
that:
                   Wo adxissions  made by the diatriat  or oounty
        attorney in any suit or action in whioh the State la a
        party shall operate to prrjudios the rights of the State."
                      30 feel bound, however, to follow the ease of
EoCleaky t. State, J, C, A. 322, 23 S. U. 518, whioh hold an agreed
judgmnt entered into by a district     attorney as a representative
or the St8te good agahaat  ooll.stsral  attaok.  In order to piit-
ably aomparc the two judgment8 we quote from the judgment aon-
strued by the Court of Civil ,.ppsalo in the YcClesky oaae, whioh
reads as iollows:
                      "'This day oame on to be heard the abovs-
        entitled   oause, when aame the plaintiff by attorney,             end
        the defendants also aD>eamed by attornsy,            and announced
        ready lOr trial,     when thaw tollowing     lgreemnt,in     writing,
        was submitted to the oourt: Wtate of Texas ex rel. vs.
        3%. C. Fuller et al.       To the distriot     attorney,   J. J.
        Ofiel,   and attorneys for relators,        Carrigan and Hughes
        and J. P. 3oyd:       ?fe, the :mdersfgsed relators      in  the
        above-named cult, hereby authorize ahd requeat you to
        withdraw our inlor~aticn          :n said came, and authorize
        the defendants to take judgmnt,           88 we are setisried
        with the presarit existihg ooramation           of wilioh defendalIt
        are ofiioera,     and nave no desire to prosecute said suit.
        :,. 3. L:*tsey,     ‘2. 1:. :iicis, i. 0. iiragg, 2. '.2. Yertin,
        Xelators 13 th6 ;,bove-Zamd Suit."            ALI the court,
?ion. Coo. 8. Sheppard,    paga 4


         having inapsotad    t&s same, and the district      attorney
         representing    the state of Texas r&sing no objection
         thereto,   proceeda to render judgmant in aooordanoe
         therewith.     It is therefore   ordered, adjudged and
         decreed by the co?tPt that the relie3 sought by plain-
         tiff   in this atit, to wit, a dissolution      of the in-.
         oorporation   oi the towu of Iowa Park, Texas, be, aad
         hereby Is, refused,     and that said plaintiff      take
         nothfnq by.thda suit. It is rurtber ordered that the
         defendants,   H. C. Puller,    aayor, ii. 0. Cottrell,
         Riarohal, and R. s. SlIma, c. ;1. Orr, W. Gibson, George
         Ligon, and E. A. Maaleakey? es aldermen of aald town
         of 10wa Park, Texas, end Weir suooessors          lnc@fiior,
         go hema without raatraint       on their rights to aot as
         ortioera   of said town under the prooeedlngs       had to
         inoorporate   tha aam, and that they and their suooessora
         are hereby daoreed to be legally       in posa8saion      of aaid
         ofrfoaa   undar the aleotlon    and other prooeedinga ror
         incorporationcomplained or in phintirr’8 information.
         It Is further adjubged and deoreed by the court that
         the ooeta or this court be taxed against drrandanta,
         end that the orrioera     of oourt hare their exaoution.'
         . . ."
                    The instant judgmant preaanta a muoh stronger
osse for iabmnity from aollatsrel   rttaok than does the judpnent
in the XoCleaky oeae inSOior 08 the agreement teature is oon-
oerned.   Noto that the judgaant under oonaidsretlon    here reoltss
that the coclrt heard other evi~anoe besides tha atlpulrtlon,    and
the agroenont la merely &de the basis oi the court*8 deorae
after it had~heard all the avldenoe.     In other words, on tho
basis of the eaidenoe, the oourt independently oomea to the same
oonalusisn reached by the 1itigshtS    em! the SgreeSLOAt i8 not
adopted in toto as the judgaent of the oourt.
                       ,?lthough hit is quite plain that the trial
court  did tollon the void agreeraent, it nevertheless        had Juria-
diction oi the oontrorerap.         Therefore; afnoe the State aubnitted
lts8li  to the jurisdlotion      of-the distriot  court, it oaat off its
sovereign rob ea e,nd cmo in as would an indlrldual        litigant,      and
is now bound by the judL;ment rendered as an indirlduol          litigant
would be.    Hallroad Commlsaion of Texas Y. :a2xinsas ?uel Gil Co.,
148 3. ‘#I. (2d ) 895, writ sf error reioaed.
Eon. Gee. R. 3heppard,    pail;8 5


                   We next take up the question of whether
the distriot  oourt had jurisdiotion   to deoree the type of
roller *#hioh was granted.    The rules relative to the juris-
alotion or the distriot    court ia the ty>e 0r suit under
oonsideration  are set forth in State f. Biohardson (Comm.
App.) 84 3. ‘H. (26) 1076, and we quote a portion of that
deoision as r0ixars:
                      aThe real.quration    for dealsion here la
         this, Warnthe distrlot      oourt in thlo prooeeding
         authorized to rtmalue      and reassess the property on
         the  flndiuge made by the jury and award judgment
         for taxes with interest      on aooount of dellnquenoy?
         It is our opinion that in event of a void assessment
      L: the district    oourt firas no jurisdiction      or per    to
         revalue and reassess property and render judgment
         for taxes baaed on such revaluation         and reassessment.
         The jurisdiotlon     ot the tax aseessor and board or
         equalization    is unquestionably     exolusivs.     state Y.
         Chioago, B. f., ets.,     R. Co. (Tex. Corn. App.) 263




         the valuea and tares.  Li              ai         1           B
         $o., lo2 Tax. 545, 120 S.y?t”8;;.i          ~%;a;i:?;lbplied)
                      It is not apparent from the reoord that the
assessments     made againat the property involved here were void,
so we assume that the aituatlon         presented in the trial court
was one or over-aasessnent,       bringing the oause within the
exception noted in State v. .Zichardson, supra.         This exoeption
all0ws a dietriot     court to reauoe the aaaessmant it it be not
wholly void and it the matter or dlsorimination         may be oorreotsd
by reducing the valimtion aooording to some mathematioal formula.
%Ie have been furnished oertlfied        ooples of the 9rooeeQlngs in
this oause but there is no pleading to support the proposition
that the valuation plaoed. on the property ?nYolYed i:erein was
double, or lO$, or auy peroentaga hlgimr than surrounding
property ,>f the same grade.       However, the record does not
aC’inatirely      show that such wss not the case, and it does not
affirnatlvelp     show that the trial cnurt qercly substituted       ita
discretion    i’or thu disoreti;n    ;~t the board of ec.uallzatlon.
Eon. Coo. E. Sheppard,         page 6


                      Tax judgxants,arepmtroted fro3 sollateral
attaok   by theacme rules of law governing oolleteral       attaok   on
other judgment8 or domaatio oourts of general jurisdiotlon.
Gaablo T. Bannsper, 137 Tex. 7, 151 3. '5.(26) 586; Corbatt t.
State, 153 3. Y. (2d) 664, writ or error rotused.       The-oourts
of this State have astablishrdthe general rule that la order
ror a judgaaat to be oollaterally’attaokad    suoooasfully,       the
;;",Fd must affimatiraly     ahor on ita raoo a la&k or jurisdio-
    . Sin00 the reoord praaented hare doea not affinuatirely
show that the valuation    was not reduoed aooordtig to SW
mathematioalformula,wa mat presume that the trial oourt
pursued this mathod.
                        20 oonsider aazt the point raised as to
whether tha judgment properly desoribod the land invalvad hare-
in, ainoe it rarely desoribed the lend a8 *propertydesoribed
ia plaintirf'spetition.N The relerenoe oonatituteda legal               .
deaoriptionprovided the petition sufrioientlydasoribed tha
laud. Martin v. Paal, 29 9. W. 691; Warm t. Bank, 239 9. W.
277; Xoore Y. Uakhowa Eairs ot Gilchrist, 273 S. W. 308. The
patitloa ia dasoribiagthe land makes rereraaoo          to other instru-
manta in the chain      ot titl8,    thus incorporating the deaoription
used in suoh other instrmonts.           Soheller 1. Groeabeok, 231
3. ':'*  1092 (Conlm...ipp.);    Klein '1.Humble Oil & Raflning CO.,
67 3. 7. (26) 911, attlmad, 126 Tex, 450, 86 3. :X. (28) 1077.
'?'aunderstand     the point rained to relate to the method of dea-
oription rather than to ~whatherof not the land was validly aad
aotually     desoribed.   qt Is our opinion that the method used Ia
valid,    but we do not pm        upon whether or not the laxldwas          f
am~oanly   deaorfbed,    m na are not in possession   of oopies   ot
               referred to in the petition.
the inotru,za~ts
                   Xa note that the judgment provide8 ror the
taxing of oosta of court against the State. ThIa portion Is
void. Artlola 7333, V. A. C. S.; Grant v. 61118, 50 3. X. (2d)
1093 (coma. App.), aa;lnone ol the taxing units Inrolvad ahould             ,
pay any part 0r the oosts or oourt.

                   You are advised therefore that the judgment
In the oaso under oonalderationhere is not aubjeat   to oollateral
attaak, aside from the provision as to oourt oosts), and the
Gomptrollar of Pub110 Looouhta should issue a redemption reoeipt
in oonfomity      therewith.
                                          Yaum very truly
