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                           THEATTORNEYGENERAL
                                          OF-TEXAS

PRICE  DANIEL
ATTORNEYOENERAL




          Hon. Dennis Zimmerman                       Opinion    No,   V-1393.
          County Attorney
          Swisher County                              Re:    Effect on outstanding   State
          Tulia, Texas                                       and County ad valorem     taxes
                                                             of purchasing   the land for
                                                             highway right-of-way    for a
                                                             price less than the outstand-
          Dear       Mr.    Zimmerman:                       ing taxes.

                             Your   request   for   an opinion      reads   in part   as follows:

                            “Swisher  County is acquiring            the right of way
                     needed to widen the State Highway              passing through
                     the town of Kress,  Texas.
                              :
                            “Some of these lots have back taxes unpaid both
                     to Kress  School District and to State and County for
                     more than the value of the lot or the price  that the
                     county should pay for the lots.

                            “In my opinion the amount paid the owner by the
                     county for any lot should be first applied pro rata to
                      the taxes due the State, county and school district.”

                        Based         on the above     you   have    presented    the following
          two questions:

                        (1) How should the award or consideration      paid for
          right-of-way    needed by the State for highway construction     be ap-
          plied to taxes due by the landowner    when the property   is acquired?

                             (2) If the award or consideration is not sufficient                    to
          satisfy      all the taxes, how should the deficit be treated?

                       In answering     your questions      no distinction   will be
          made between property       acquired    by private     purchase   or condem-
          nation proceedings.     In either event the answer is the same.             The
          State is primarily   interested    in acquiring     a clear title to the prop-
          erty free from all liens or claims.        and this includes     tax liens.
          The consideration   or award should therefore           be first applied to
          discharging   these tax obligations     of the landowner       between all of
          the taxing units to which taxes are owing upon a pro rata basis.
          If the award or consideration       is sufficient    to satisfy all the taxes,
Hon. Dennis     Zimmerman,        Page    2 (V-1393)




there remains    no further   problem.      If it is not sufficient,       the
State is nevertheless    protected    in its title freetand    clear       of any
tax liens, as we. shall proceed     to point out.

                 Property   bc .uired for highway right-of-wa,y            by the
 State is for a public pur$se.          20 C.J. 559, Eminent        Domain, Sec.
43. T’his brings us to a consideration            of the lien for the taxes
which attaches, to each tract, of land for the taxes a’ssessed                 against
 it.’ Tex. Const. Ant. VIII, Se’c.~ 15; Art. 7172, V,C.S.;            Richey v.
Moor,     112 Te%. 493; 249 SW. 172 (192 ). We assume that the
liensinvoived:to       secure,the    payment o 3,-the taxes, whether          they
be in favor of the State, county, municipality              ok school district,
attach by virtue of valid assessments.              1nState.v.    Stovall,    76 S.
W.2d.,.206 (Tex. Civ. App. 1934, .eiror          ref.),   it was held that ‘“when
 thereafter    the legal title to such property         is acquired    by or vests
in the state, and the same is used by it for a public purpose,                   all
subsequent      proceedings     to collect’s,uch   tax by enforcing        such liens
are without effect and void.”          State v. City of San’Antonio,          147 Tex.
 1, 209”S.W,2d      756 (1948), is, to the’same      effect’ add It was there
stated: ,

                “Although  the’state   and county did have a’lien
        against the lot for taxes due them while the lot was                     ,
        privately    owned by Barnes and other.s, the lien be-
        came unenforceable      ,after the city and school district
                            ‘.
       ~acquired title to it by the tax       saie in 1938 and while
        they continue to.hold il?for public ,purposes;         and the
        lot, while so, held, was not subject to seizure         and sale
       to satisfy a judgment      for taxes levied.by     the state and
        county during the time it was so privately          owned; and
       any proceeding~attempting        ,to accomplish     that is void.
       State vf~ Stovall;  Tex. Civ. App., 76 S.W.2d 206, error
        refused;‘Childress     County v. State et al., 127 Texr 343,
       92 S.W.2d 1011; City’of       Marlin   vi State, Tex. Civ. App.,
                                                 r
       205 S.W.2d 809.”

              ‘,So long, therefore,    as the property     is acquired    for a
publi’c purpose,     all prior tax liens for-taxes     accruing   during the
time’ it~wds privately      owned a:re unenforceable.        While the State is
protecfied against enforcement         of the tax liens ,which become        fixed
to secure the taxes accruing         during the’period    of private   owner-
ship, .QriS does\ not mea’n tha,t the property       owner is permitted        to
receive   the cons,ideratiod     or award free’from      the claim of the tax-
ing units for the taxes which have accrued           against/the   private     own-
er.   The fund arising      from the consideration      or the award is sub-
ject to the payment and discharge          of the taaxks~which the private
owner owes or is liable fo,r at the time of the acquisition            of ,title
by the.State.     This is, fn effe t; the holding of the court in State of
Texas v. Moody’s        Estate,  15 6 F.2d 698 (C.C.A.     5th 1946), and
expressed     in this language:
Hon. Dennis    Zimmerman,        Page       3 (‘G1393)



               “We agree     with    the appellants:
               a.
                    . . .

              “(2)  That ordinarily  any valid lien on lands
       which existed at the time such lands were acquired
       by the United States should,be    satisfied out of the
       compensation    paid to the owner for the taking of
       such lands.”

               The same rule has been announced by the courts          in
other jurisdictions.      United States v. 412.715 Acres     of Land in
Contra Costa County         60 F.Supp. 516 (N . D . C 1 1945); U ‘t d
States   v. Certain  I-‘ai&els of Land in City of iaitimore,?%?61
* .S~PP. 164 (D . Md . 1945) ; Umted States v. 111,000 Acres       of Land
in Polk and Highland       Counties,  Fl a.,       .  683(CCA       5h1946);
United States v. Alberts,      55 F.Supp. 217 (E.D. Wash.‘1644),     t
      ..     :
               In the Alberts       case,   supra,   the court   said:
               ,a
                  . . o Regardless    of the statutory   change, the
       lien had attached     prior to the filing of the declaration
       of taking.     [Under  Federal    law this is the date that
       the title vests in condemnation       proceedings.]     That
       being true,     the award stands in the place of the prop-
       erty.    . . .w

               It is therefore    apparent from the authority          of t!?e fore-
going cases that the insufficiency         of the award or consideration           to
satisfy all the taxes does not have the effect of leaving              the proper-
ty charged with the lien for the balance.            The lien for all of the un-
paid portion of the,taxes       becomes    merged     with the State’s     title and
this precludes      any further   proceedings     to collect   the taxes by the
enforcement      of the lien.   We think, however,       that the owner or own-
ers of the land against whom the taxes were assessed                  would be
personally    liable for any unpaid taxes lawfully          assessed,     and that
it would be proper for the assessment            rolls to continue to show
this personal     liability against the owner or owners.


                             SUMMARY

              Taxes  on property    acquired    by the State either
       by condemnation    or purchase     due by the owner at the
       time of acquiring   the title should be prorated       between
       the taxing units to which taxes are owing upon a pro
       rtta basis from the consideration        or award.    If the
       consideration   or award be not sufficient      to satisfy   the
       taxes, the State nevertheless      acquired   the property
Hon. Dennis   Zimmerman,   Page   4 (V-1393)



      free  from tax liens.   The lien to secure the unpaid
      portion of the taxes becomes merged with the title of
      the State and the State’s title is free and clear of any
      tax liens.  Liability for the unpaid portion of taxes
      continues, however,    as a personal  obligation of the
      owner or owners against whom the taxes were as-
      sessed and should be continued m the tax rolls until
      the owner pays the same.

                                               Yours   very   truly,

                                                PRICE DANIEL
                                               Attorney General


APPROVED:
                                                   L. P. Lollar
W. V. Geppert                                         Assistant
Taxation Division

E.Jacobson
Reviewing Assistant

Charles D. Mathews
First Assistant




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