                                  May   12, 1947


Hon. George H. Sheppard                  Opinion   No. V-180
Comptroller   of Public Accounts
Austin, Ttxaa                            Rt:    Proper   procedure    to be
                                                followed in making a
                                                supplemental    asstss-
                                                ment on any land for
                                                years prior to the time
                                               such land passes into
                                               the ownership    of a ptr-
                                               son who is a bona fide
                                               purchaser    for value with-
                                               out notice of such fact.

Dear   Sir:

           You request the opinion of this Department    upon the
question presented  to you by Honorable James C. Martin, County
Attorney of Nuects   County, in hir lttttr of March 18, 1947. We
quote below Mr. Martin’s    letter covering the factual basis upon
which our opinion is requested.    This letterfollows:

            “Mr. Dub Allen has referred      to me your letter
       dated March 12, 1947, concerning      the right of the
       Tax Collector   to assess and collect taxes on land
       for years prior to the time at which the present
       owner acquired    title to such land. (There has been
       a salt of the land in question to a bona fide pur-
       chaser for value without notice of the fact that the
       land had not been asstsaed     for prior years.)   The
       discovery  was made recently that the land had not
       been asses&d    and was not on the tax rolls.      The
       property owntr is willing to pay for the years dur-
       ing which he has owned the land but refuses to pay
       taxeo for those years prior to the time he purchased
       the land, not then having any notice of the fact that
       there had been no taxes theretofore     paid on such
       land.

            “The basis    of his contention is the last stn-
       tence of Article   7346, which reads as follows:

            “‘No rt-assessment     of any property   shall be
       held against any innocent purchaser     of the same if
       the tax records   of any county fail to show any as-
       sessment (for any year so re-assessed)       by which
.., ...   Hon. George       H. Sheppard     - Page   2                Opinion   No.   V-180



                    8aid property    can be identified   and that   the taxes
                    art unpaid.’

                          ‘If this article is given effect how can we make
                    a supplemental      lsstssmtnt  on any land for years
                    prior    to the time at which such land passes   into the
                    ownership      of a person who is a bona fide purchaser
                    for value without notice of such fact? ”

                         The above
                                quoted atnttnctfrom Article    7346, V.C.S.,
          must be      read together
                                 with Article  7347, V.C.S., in arriving   at an
          anmwtr to your question.   The pertinent portion of Article    7347 is
          am follows:
                         *a
                          . . . provided,that the certificate   of any tax
                collector   given during his term of office that all
                taxes have been paid to the date of such certificate
                on any certain piece of property,         which is fully dt-
                lcribtd in such certificate,      or if the tax rolls of
                any county fail to show any assessments           against
                such property    sufficient to identify it, and that the
                munt was unpaid at the dates such rolls may have
                been examined to ascertain        the condition of any
                property   as to taxes unpaid, this shall be a bar to
                any rt-assessment       of such proRerty under this law
                for any years prior to the date of .such certificate,
                or such examination;       provided,   that the property   rt-
                ferred to. when re-assessed,         shall be held by an in-
                nocent purchaser,      who has relied upon the corrtct-
                ness of such certificate,      or the tax rolls heretofore
                referred   to.”

                     Careful  reading of the full text of the above Articles rt-
          veals that they were passed in a single bill (Chapter 130, 29th Leg-
          islature) to provide a method for two things, as follows:

                           1. Assessment   and collection of taxes on real
                    property    omitted from the tax rolls.
                           2. Rt-assessing   and collecting the tax on real
                    properties    on which former assessments     are In-
                    valid.

                       Careful  reading of the above quoted provisions    relating
          to innocent purchasers      reveals that they do not relate to property
          omitted from the rolls, but relate solely to property on which as-
          sessment was attempted and which is being re-assessed          because
          the original   assessment    was invalid.

                        If the property  was omitted from the rolls and never as-
          sessed,     naturally  a search of the records would reveal no payments
     .
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     Hon. George     H. Sheppard    - Page   3               Opinion   No. V-i80




     and no facta that could lead a Tax Assessor-Collector       or pur-
     chaser   to balieve payments had been made.      The search itself
     would put a purchaser on notice that the property had been omit-
     ted from the rolls and that the taxes had not been paid.      An As-
     stsaor-Collector’s    ctrtificata to the contrary would not bind the
     State against the true facts. Obviously,    it was for these reasons
     that the Legislature   gave no “innocent purchaser’    protection   in
     the cast of property entirely omitted from the tax rolls.

                  In the case of re-assessment         of property once on the
     rolls   (but under invalid assessment)        the Assessor-Collector       or
     the purchaser may have been misled and caused to believe from
     the existing invalid assessment        that no unpaid asstssmtnt        was
     outstanding.     It is in this cast that “innocent purchaser”         protec-
     tion is afforded.     Even in such cast, a person cannot be an inno-
     cent purchaser      and thereby prevent re-assessment           unless the
     facts show that on or before the date of purchase he had a proper
     tax certificate    showing payment, or (1) that upon examination           by
     himself or his agent or legal representative           the tax rolls of the
     county failed to show any assessment           against such property      suf-
     ficient to identify it; and (2) the tax rolls failed to show that the
     taxes were unpaid at the date such rolls were examined to as-
    ~‘ctrtain the condition of any property        as to unpaid taxes.     It must
     further appear that one claiming to be an innocent purchaser               rt-
     lied upon the correctness       of the tax roll which failed to show as-
     sessments     against such property      sufficient   to identify it, and which
     failed to show that the taxes were unpaid at the date such rolls
     were examined.

                Except in this limited scope one cannot be an innocent
     purchaser   as to ad valortm    taxes accruing prior to the purchase.
     Whether or not such a purchaser       is entitled to rely upon this stat-
     utory provision   involves,  in any event, factual determinations;    and
     unless he is able to show all of the factual conditions prescribed
     by the statute. he cannot be an innocent purchaser.

                 The Commissioners’       Court may proceed with rt-assess-
     mtnt of such property      in accordance  with the statutes relating thtre-
     to until such time as it finds from the facts that before purchase      of
     the property the purchaser      examined (or had examined)    the tax rolls
     and that such rolls failed to show unpaid assessments       against the
     property   sufficient to identify it and that he innocently relied upon
     the correctness     of such tax rolls as to no unpaid taxes being due.

                  In no event are you prohibited   from making a supple-
     mental    assessment   roll on property entirely omitted from the rolls.

                                          SUMMARY
                   Articles  7346 and 7347, V.C.S., providing for as-
              sessment of property      omitted from the rolls and re-
              asstssment    of property   mvafidly assessed,   gives
.!I::,   Hon. George    H. Sheppard   - Page   4               Opinion   No. V-180



                “innocent purchaser*     protection under certain con-
                ditions in casta of rt-asstssmtnt        but not in casts of
                supplemental    assessment     of property entirely omit-
                ted from the tax rolls.    In casts of re-aasessme,
                nfact    conditiona must be shown to exist &fort Com-
                missioners’    Court is justified in not rt-assessing    the
                property.




                                                     Attorney General    of Texas




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