Honorable Ceo. H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Slrt
                              Opinion O-1670
                              Re: would the rights of the
                                   State and county to col-
                                   lect taxes on a piece of
                                   property be destroyed
                                   where another taxing unit
                                   brings suit for taxes sni
                                  .toreclosure of its tax
                                   lien ir the State and coun-
                                   ty were impleeaea in said
                                   case but failed to answer
                                   whsn served with citation
                                   as required by Article
                                   734Sb of Vernon*8 Annotated
                                   Civil Statutes?.
          We are in receipt oi your letter of November 10,
1939, in whloh you request an opinion of this Department as
to whet&r or not the rights of the State and cdun+y to col-
lect ‘taxes on a piece ti property would be destroyed where
another taxing unit brings suit for the taxes and ioreclosure
OS its tax lien and the ,State aha county have been impleaded
in the case and properly served with citation as required by
Article 734Sb of Vernon’s AMOtated Civil Statutes but fails
to anmver in said suit.
          The delinquent tax statute in question was enacted
in 1937 by the 4Sth Legislature as Chapter 506. The follow-
ing sbctions thereof are pertinent to a discussion of your
question:
                 wSection 1. For all purposes of this
            Act, the term *taxing units,* shall include
            the State of Texae or any town, city or
            county in said State, or any aorporatIon or
            district organized under the laws of the
Honorable Ceo. .H. Sheppard, Page 2


          State with authority to levy and collect
          taxes.
               wSectlon 2. In any suit hereafter
          brought by or in behalf of any taxing unit
          as above defined, for d8llnqu8nt taxes
          levied against property by. any such taxing
          unit, the plaintiff msy implead as parties
          defendant any or all other taxing units
          having delinquent tax claims against such
          property, or any part thereof, and it
          shall be the duty of each d8f8ndant taxing
          unit.,upon being served with citation as
          provided by law to appear ‘in Eaid cause
          and ‘file its claim for delinquent taxes
          against such property, or any part thereoi.
          It shall be sufficient service upon the
          State of Texas in any county in such suit
          to serve citation upon the County Tax Col-
          lector charged with the duty or collecting
          such delinquent taxes due .the State and
          county against such property and it shall
          be sufficient service upon any other tax-
          ing unityto serve citation upon the officer
          charged with the duty of collecting the
          taxes of such taxing unit or upon the Kayor,
          PL?%Sident,or Chairmn or the goveming
          body’of such taxing unit, or upon the Secre-
          tary of such taxi,= unit; Any taxing unit
          having any claim for delinquent taxes’a-
          gain& such property may waive the issuance
          and service of citation upon it.
               “secti.on10. The purchaser of pr,op-
          erty sold for taxes in such foreclosure
          suit shall take title free and clear of
          all liens and claims for taxes against
          such property delinquent at the time of
          judgment in said suit to any taxing unit
          which was a party to said suit or which
          had been served with citati.on.insaid
          suit a.8required by this Act.w
          It is evident that Section 10, above quoted, answers
your question. This Section provides that the purchaser at a
foreolosure sale takes the property free and clear of all the
Honorable Geo. H. Sheppard,.Fage 3


liens and claims for taxes against the property which were de-
linquent at the time of the judgment in said suit as against
any taxing unit which was either a party to the suit or which
taxing unit had been served with citation in said suit as
provided in Section 2. In your case, after the State and coun-
ty were served with citation as required, said taxing units
failed to answer in said suit. In such a case Section 10 pro-
vides that the purchaser at the foreclosure sale takes the
title to the land free and clear of any lien which the State
and county may have had for delinquent taxes for years prior
to the date of the judgment in said suit.
          In answering your question there is one other matter
which must of necessity be discussed. There is a question pre-
sented as to whether or not Section 10 is unconstitutional.
           Article 3, Section 55 of our Constitution provides as
follows:
                "The Legislature shall have no power
           to release or extinguish, or to authorize
           the releasing or extinguishing, in whole or
           in pert, the indebtedness, liability or
           obligation of any corporation or individual,
           to this State or to any county or defined
           subdivision thereof, or other municipal
           corporation therein,,except delinquent taxes
           which have been due for a period of at least
           ten years."
           Article S.,Section 10 of our Constitution provides as
follows:
                "The Legislature shall have no power
           to release the inhabitants of, or property
           in, any county, city or town from the pay-
           ment of taxes levied for State or county
           purposes, unless in case of great public
           calamity in any such county, city or town,
           when such release may be made by a vote of
           two-thirds of each House of the Legislature."
          The first case that discussed this proposition was the
case of Willacy County Control & Improvement District No. 1 vs.
Lewis, 119 S. W. (2) 159; Court of Civil Appeals, 5an Antonio.
In discussing this problem, the court stated as follows:
Honorable Ceo. H. Sheppard, Page 4


               "The District presses upon us the
         argument that because of the requirement
         of the statute for the taxing unit filing
         suit to.notify the tax collectors of the
         other taxing units of the pendency of the
         suit, and in the event such tax collectors
         by reason of neglect of duty or of their
         willful failure to file their tax claims
         in such suit, that such taxing unit wz)u$d+
         by the act be deprived of its taxes.
         It is to be noticed, however, that the
         argument made is predicated upon the
         assumption that public officials will not
         perform their official duties. The law
         presumes that public officials will dis-
         charge their official  duties. Anderson
         v. Polk, 117 Tex. 73, 297 2. W. 219,
         (Supreme Court). Arsuming that the of-
         ficers of the various taxing units will
         perform their official duties, which we
         must under the law, It is not perceived
         how, in any manner, the act .will contravene
         Sec. 10, Art. S, or the Constitution of
         the State, Vernon's AM. Civ. St. Const.
         Art,. S., g 10."

          The seme contention was.raised before the Waco Court
of Civil Appeals in the case of Mexia Independent School Dis-
trict v. City 0s Mexia. This question WLS then certified by
said Court to the Supreme Court of this State. The Court cited
the constitutional provisions which prohibit the Legislature
frcaareleasing or extinguishing a liability to the Stste or
county and construed this statute in accordance with said con-
stitutional provisions; In enswer to-the contention that this
Act is unconstitutional, the Court said as follows:
              "In this connection, it is not contended
         that the statute under consideration under-
         takes directly to release any taxes to any
         one but it is contended in effect that since
         the Act authorizes the plaintiff to join as
         defendants all other taxing units having
         liens against the property and further pro-
         vides that the purchaser of the property
         sold at such foreclosure sale shall take
         title thereto free of all liens for taxea
Honorable Ceo. H. Sheppard, Page 5


         owing the taxing units that were parties
         to the suit, it is possible for the repre-
         sentatives of a taxing unit by failing to
         appear and file claim for the taxes due to
         thereby waive and relesse to the property
         owner the lien for such taxes. We recog-
         nize that it is possible, under the Act
         in question, for such representatives, by
         their carelessness or otherwise, to fail
         to properly foreclose the liens held by
         the taxing units which.they represent,
         but this is a danger inherent in all gov-
         ernmental functions performed by human
         agents. It has always been possible for
         commissioners~ courts by failing to assess
         property at its ruii value, or for attor-
         neys by failing to properly prove up their
         cases in tax suits, or for jurors by im-
         properly resolving questions of fact in
         favor of the tax debtor, to thereby de-
         prive a taxing unit of its just dues,
         but the mere existence of this possibility
         does not render all our tax laws uncon-
         stitutional. It is presumed that all
         public officials will honestly perform
         their official duties, Anderson vs. Polk,
         117 Tex. 73, 297 S. W. 219, snd the st'st'
         ute and constitutional provisions in ques-
         tion must be construed in the light of
         that presumption. When so construed, the
         statute is not unconstitutional on the
         grounds stated. This exact contention was
         made in the case of Willacy Water Control
         & Improvement Dist. No. 1. vs. Lewis, 119
         S. WV. (Zd), 159, and the San Antonio Court
         in that case, in an opinion by Associate
         Justice Slatton, overruled the contention.
         If the statute is followed and the officers
         perform their duty as they are presumed to
         do, it will be impossible to confer any
         special benefit on the tax debtor."
          The Supreme Court rendered this decision on November
8, 1939, and the case is, therefore, unreported. The constitu-
tionality of Section 10 of Article 7345b of Vernon's Annotated
Civil Statutes has been definitely established by this case.
                                                                 ,




Honorable Gee: H: Sheppard,’Page 6


          It’is the opinion of this Department, therefore, in
cases where the State and county have.been served with.oitab
tion in a tax suit filed byanother taiing unit, that unless
said Stat-eana County,enter ma rile their tax claim as re-
quired, the property in question when sold at foreclosure sale
will be taken by the purchaser free of the tax liens of said
tbxing’units as of the date of the judgment.

                                        Yours very:truly.
                            A?TORNEiY~GNNNRA&OF TEIXAi3



                            .BY
                                  (8)        Billy Goldberg
                                                  Assistant
BG:RS
APPROVED RGV 29, IQ39
&ala    C . ?dann~
ATTORNEY GRRRRAL OF TRXAS

                                               APPRGVED
                                          opinion oommittee
                                               ByBWB
                                                 chairman
