                                           WNEY                GESNERAL

                                             TEXAS

                                     A~wrxiu     1s. mxas
PRICE  DANIEL
ATTORNEYCF.NER.4,.

                                             April      30, 1952


       Hon. Sam W. Davis                               Opinion     No.   V-1453
       District Attorney
       Houston 2, Texas                                Re:    Liability  of the State and
                                                              county for publication
                                                              charges   in tax foreclosure
                                                              suits when the property      is
                                                              purchased    by one of the
       Dear    Mr.   Davis:                                   taxing units.

                    You request    the    opinion of this office upon the matter
       presented    in your written      opinion to Hon. H. L. Washburn,     County
       Auditor   of Harris  County,      which you submit with your     request.
       You present the following         question:

                      Is the State or county or both liable to the pub-
              lisher for the charges      made for the publication     of
              citations   in delinquent  tax suits filed by the State and
              county and for the publication        of notices of sale: (1)
              if incurred    prior to the effective    date of S.B. 431;
              (2) if incurred    subsequent   to the effective   date of
              said bill?

                       You correctly     state in your opinion to the County Auditor
       that prior to the enactment          ,of Senate Bill 431, Acts 52nd Leg., R.
       S. 1951, ch. 334, p. 576, amending Article              7333, V.C.S.,     there was
       no law that made the State or county liable for publication                   costs
       in delinquent       tax suits.   Baldwin v. .Travis      County, 88 S.q. 480
       (Tex.Civ.App.         1905); Nunn-Warren         ublishm       o. v. Hutchinson
       :!;~~45          S.y.2,   651 iTex. Civ.Az!.      1932, efrk      ref.);  qigC%;;
                lifford,     156 S.W.2d 1006 (Te       Civ.App.     1941); Tex.
                  ule 11 a, Subdivisien       3. Section 9 of Article        734513, V.C.S.,
       expressly      provided     that where a taxing unit bought in the property,
       the costs and expenses          should not be payable        “until sale by such
       taxing unit so purchasing          same.”    Section 12-a of Article         7345b
       provided      that where property       was redeemed       for a purchasing        tax-
       int unit, the redemption         money should be distributed           and applied in
       the same manner as provided              in Section 9 for the application         and
       distribution      of the proceeds     upon resale     of the land.

                     As amended      by Senate       Bill    431, Article   7333 now reads:

                     “In each case such fees shall be taxed as costs
              against the lands to be sold under judgment   for taxes,
              and paid out of the proceeds  of sale of same after the
                            :




~Horb SCun W. Davis,      page   2 iv-1453)



     taxes, penalty and interest   due therein are paid, and in
     no case shall the State or county be liable therefor        ox-
     cept that where the State or other taxing unit is then-
     cessful bidder at the tax sale, all charges      due news-
     papers for the publishing   of citations    and notxes   of
     sheriff’s sale shall be paid by the county and State a&
     other taxing units in proportion     to thetaxes   adjudicated
     to each.” (Emphasis   added.)

             In the emergency     clause to this bill the LegMature       rec-
ognized   that there was no prior law that authorieed       a taxing unit
in a delinquent    tax suit to assume and pay publication      charges,    but
that such charges     must be paid from the sale or redemption          vi the
land. The emergency        clause reads in part as follows:

            “The fact that existingstatutes          do not provide    for
     the payment of such charges       . . .”

            This statute  is limited’by    its, express    terms to cases
where one of the taxing units becomes          th&,purchaser     at the tax
sale and has no application     to tax sales where an individual         is the
purchaser   at the first sale.   In other words,      the law remains      un-
changed where an individual       is the purchaser      at the tax sale.    In
such a case the publisher      must collect     his publication    charges   as
a part of the costs of the proceeds      from the sale of the land or its
redemption.

             It is our opinion that Senate Bill~‘431 has no retroactive
effect and speaks only prospectively         and not retrospectively.     State
v. Humble Oil & Refi.ning Co.,        141 Tex. 40, 169 S.W.2d 707 (1943).
A,s to publicatlon    rests inc:czed    prior to September      7. 1951, the
effective  date uf Senate Bill 431, the purchaser        must still await a
second sa1.e by the State o r r:ount:y or &her purchasing          taxing unit,
or until there is a redemption       within the statutory    time.

               We pass next ta the second part of your question,            that is,
the liability     of the State and county for publication       costs in delin-
quent tax suits accruing          subsequent   to the effective  date of Senate
Bill 431. Senate Bill ,431.was passed to ameliorate             the hardship
that might sometimes           r,esult from the long delay in the collection
of publication       costs where one of the taxing units became          the pur-
chaser at the first sale.          l3y the express   terms of this bill, this
liability   arises     against the taxing units upon a pro rata basis in
proportion      to the taxes adjudged to each immediately           upon pur-
chase by one of the taxing units.           While Senate Bill 431 constitutes
pre-existing       law for the payment of this cost against the State,
there is presently         no appropriation    or other source from which
the State’s part of such cost cou1.d be paid.            The publisher    will
therefore     be required      to wait until the Le@?slature    provides    the
means by which the State’s part of these costs can be paid before
Hon.    Sam   W. Davis,    page   3 (V-1453)




he can obtain payment from the State.            However,      the county and
other taxing units may pay their pro rata share of such costs in-
curred subsequent       to the effective   date of Senate Bill 431 by ap-
propriate   proceadings       applicable to the payment of claims by such
taxing units.    A claim for these costs against the county does not
necessarily    rest upon a contract      between the commissioners’
court and the publisher,        but upon a liability   arising    from the en-
press term,6 of Senate Bill 431. In other words,             it may be paid
by the county in the same manner as any other legal claim arising
under statutory    liability*     We do not know whether there is any
provision   in the current budget of Harris          County to pay court
c,osts, but if so, such costs cou1.d be paid out of this fund. If no
such fund is provided       for in the budget, we think the budget might
be amended to take care of it under the ruling of Attorney               General’s
Opinion .v-857.


                                     SUMMARY

               Neither   the State nor the county is liable for costs
       incurred    for ~publishing citations  and notices     of sale in
       delinquent    tax suits prior to September       7, 1951, the ef-
       fective  date of S.B. 431, Acts 52nd Leg., R.S. 1951,c&
       334, p. 576, amending Art. 7333, V.C.S.           Such costs can
       be collected    only from the proceeds      realized   from the
       sale of the property      by the purchasing    taxing unit or
       from the proceeds       realized  from a redemption       of the
       propertyQ

                The State and county are llable for publ.ication          .
       costs incurred     in delinquent    tax suits subsequent      to the
       effective   date of S.B. 431 where the State, i,ounty, or
       other taxing unit becomes        the puri.haser    of the property
       at the first sale.    The Sta,te”s p.co rata share of such
       t.:osts cannot be paid until the Le,gisl.ature      makes an ap-
       propriation    or provides    some other means for payment,
       but the county may pa,y’such claims          in the same manner
       in which it may pay any other legal~ clah            properly   pre-
       sented.

                                            Yours     very   truly,

APPROVED:                                   PRICE       DANIEL
                                           Attorney      General
~W. V. Geppert
 Taxation Division

Mary K. Wall
Reviewing Assistant
                                            ByL diz%2cFJ
                                                   *
Charles  D. Mathews                              Assistant
First Assistant

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