PRICE   DANIEL




                                         October 29, 1947

                 Honorable Ceorgc H. Sheppard
                 Comptroller of Public Accounts
                 Austin, Texas                     Opinion No. V-k20
                                                   Re:   Authority of the
                                                         Comptroller to is-
                                                         sue, under Arti-
                                                         cles 729;eg;f;308,
                                                         V.C.S.$
                                                         cates of cancella-
                                                         tion of sales to
                                                         the State of prop-
                                                         erty sold in tax
                                                         foreclosure pro-
                                                         ceedings.
                 Dear Sir:
                             Your O)IAIOA requost dated October 8, 1947, ir
                 a8 follouo:,
                           eI am enclosing letter and file from
                      Mr, Thurman L, Mulhollan, Lampasas, Taxas,
                      in which ho requests this department to MA-      :
                      ccl a firlltSolo to certain property iA,tho
                      town of hnpasas made in 1911 and issue P                *
                      cartlficatd of relinquishment as the law
                      provides,
                           "Since this department is undecided a8
                      to the validity of the judgment entered
                      against this property in 1911 and the of-
                      ficer's return reporting sale of tht prop-
                      erty aentioned, I shall thank you to advise
                      me the proper reply to make to Mr, Mulhol-
                      lan's letter,"
                           In order to make clear the full import of JOUr
                 request, it is necessary to quote the letter of Mr.
                 Thurman L. Mulhollan,,Attornay, to you under date Of
                 October A, 1947, which is as follows:
                           "Pursuant to the provisions of Arti-
                      cles 7291 and 7308, VernonOs Toxas Civil
                                                     .-   ,




Honorable ~GeorgeH. Sheppard, Page 2


    Statutes, request is here made for the can-
    cellation of a certain tax sale of Lots Nos.
    7, 8, and 9, in block go. 15e of the Matthews
    & Wilkes Addition to the town of Lampasas,
    Lampasas county, Texas, held by virtue of a
    certain judgment, rendered in the District
    Court of Lampasas county, Texas, on the 11th
    day of April, 1911, in Cause No. 2808, styled,
    The State of Texas vs The Unknown Owner or
    Owners. (Said judgment is shown in the State-
    ment of Facts, hereto attached, on page 02.)
    Upon which judgment an order of sale was is-
    sued, upon which the sheriff of Lampasas made
    his return thereon on June 6, 1911, reciting
    that the lands and premises were struck off
    to the State of Texas. (said Return is shown
    on page 03 of the Statement of fact)
         "It is believed that the sale is irreg-
    ular in the following particulars, to-wit:
         "(1) The last record owners, in fact no
    record owners, were not cited in said suit
    the defendants were merely designated as pfhe
    Unknown Owner or Owners,'
         "(2) The pdp ent does not contain the
    recital that t e efendants were even cited
    as required by law.
         "(3) The Officer"6 Return merely states
    that the lands and premises were struck off
    to the State of Texas; no deed to the state
    appears of record and none b%>,thereports,
    required by law to be made to 'the commis-
    sionerws court, or to the tax assessor and
    collector of said county appears to have
    been made.  This fact is strongly borne out
    by the fact that the tax collector continued
    to carry this property on his rolls as $Un-
    known' or 'Unrendered'.
         "As favoring the cancellation of said
    sale, on September 22, 19448 the State of
    Texas, for itself and Lampasas County to-
     ether with the City of ,Lampasasand eampasas
    fndependent School District as impleaded de-
    fendant taxing units, brought another suit
    for taxes on said identical property, citing
Honorable George H0 ~Sheppard,Page 3


                to ia8t record owners thereof at
                I,,P..Ws Smith and wife, M&o
                IMO the piarchsom of raid Lot@
                 'Md 9, fA block 15 of tho Uatthows
                idditlonto tho town of Lampaaas,
                iounty,Toxaao ThO jUd@ltOAtiA thi8
                tthorwith ita.aubse.queAt  ordor of
                U-8 iA the St4ithlOAt Of Facts 811
                lad,lO.
          -The righta ef A0 thlrJ,)rrtyha born’
     injostod iAto,tho aitXlat$@AboWo@n tho tiAo
     of the,firat sale and the laat aPlop
          "The urohaaor.s at the laat'sale 'that
     la' P. wo !Lith pnd tifo Mattie Smith both
     acdod iA good faith in t&O purOha00 of'aald
     1Pnde at aaid eale.
         -I~the overt,said first sale is ,ca~-
    celled by your office; the purchasersBf tho
    second sale would have succeeded to the pocli-
    tlon of the last'rocordowner of said lpnd,
    to-wit: J, B, Freeman.
         eTherefore,It is requested t&t, iA the
    interests of justice, that the,firat sale
    should be caAcellcdand a CertPflcate of re-
    linquisbmontbe issued out of your office, a8
    the lawprovides, to the succeodiAgpartfee
    to the last record owners.
         What over costs, intenet and taxes
    might be due by virtue of the canaellation
    of aaid aale will bo paid upon receipt of
    notice of the PmouAt theroofow
           Your request is reduced to the simple prop@&-
tion of your authority to issue a certificateof cancel-
lation as requested by MpO Mulhollan of the sale in a
tax foreclosure suit in the District Court of Lampasas
County in Cause No, 2808, styled The State of Texas v.
The Uaihovm Owner or Owners, in 1911, wherein the Stat0
became the purchaser, Mr. Mulhollan citea Ilrticlee'7291
and 7308, V.CoS.,  as your authority,for compliancewith,
his request.
           These articles of the statute roepectlvely
provide:
Honorable George h. Sheppard, Page 4



         --. 7291
         Art.        _    _
         "Tnb Owner OS real estate which
    been boueht in bv the State for taxes. oy
    his heirs or assigns, m v redeem the same
     t anv time orior to thi sale thereof, by
    The vavment to the collector of the county
    I   hi h such real estate is situated
    tz FheCComptroller, if in an unorgani:ez
    county, of the amount designated by the
    Comptroller as due thereon with costs of
    advertisement; and if it shall at any time
    appear to the satisfaction of the Comptrol-
    ler that any land has been sold to the State
    for taxes which have been paid, or that the
    sale has not been made in accordance with
    the law authorizing the sale of land for
    taxes, he shall upon the payment of the
    amount that may be due thereon, cancel such
    sale; and deliver to the owner of the land,
    or his agent, a certifieete under seal of
    his department, setting forth the fact that
    such land has been redeemed, OP that such
    sale has been cancelled; which certificate
    shall release the interest of the State and
    the same may be recorded in the proper coun-
    ty as other conveyances of real estate are
    recorded,"

         "The tax collector shall, prior to
    the sale of any real estate that has been
    previously bid off to the State at tax
    sales, the owners of which have failed to
    redeem the same, advertise the real estate
    to be sold in some newspaper published in
    the county for six successive weeks, if
    there be such newspaper published therein,
    otherwise he shall post advertisements of
    said sale at the courthouse door and at one
    public place in each justice's precinct of
    his county for at least six weeks, giving
    in said advertisement, whether published
    or posted, such description of the lands to
    be sold as shall be given on the Comptrol-
    lergs list, and stating the time, place and
    terms of sale, which shall be between legal
    hours on the first Tuesday of some specified
    month at the courthouse door at public Out-
    cry, to the highest bidder for cash; provided
Honorable George H, Sheppard, Page 5


     that no real estate shall in any case be sold
     for 18s~ than the amount designated by the
     Comptroller as due thereon, together with all
     coats of advertisements and sale
     gwner of anv such real estate. his e



                         county, of the
     nated by the Comptroller as due thereon, with
     costs of advertisement. If it shall at any
     time appear to the satisfaction of the Comp-
     troller that any land has been sold to the
     State for tax86 which have been paid, or that
     the sale has not been made in accordance with
     the law authorizing the sale of land for taxes,
     he ohall, upon the payment of the amount,that
     may be due thereon, cancel such sale; and in
     all cases he shall deliver to the owner of the
     land, or his agent, a certificate under the
     seal of his department, setting forth the fact
     that such land has been redeemed, or that such
     sale has been canceled, which certificate shall
     release the interest of the State, and the
     same may be recorded   in the proper county as
     other conveyances of real estate are recerded.,”
     (Emphasis supplied)
           These statutes have reference only to summary
sales by the Tax Collector authorized at the time of their
passage and have no reference to judicial sales, as is
the case here, Hence, if we should hold that the sale
under Cause No, 2808, in 1911, is void for lack of proper
service or for the other matters suggested by Mr. Mulhel-
lan--a question we need not and do not decide--it would
not aid Mr, Smith, the purchaser at the tax sale in 1944
of the same property in whose behalf MrO Mulhollan de-
sires a certificate of cancellation, This for the sir-
ple reason that the statutes relied upon b him are not
applicable to judicial sales. Moreover 1: the statutes
were applicable to judicial sales, stflf Mr, Smith could
get no relief from them, for they a
terns to the owner of real estate w
in b the State for taxes, or his heirs or assigns. tiO
      is neither an owner, an heir or assignee as speef-
Smitiii
fied fn Article  7291 nor a former owne~~ or heir or PS-
signee as specified in Article 7308, These statutes
clearly refer to the owner or former owner of the real
                                                     .       .




Honorable George Ho Sheppard, Page 6


eotate at the time sale is made to the State. Ml-0 Smltli,
the purchaser at the tax sale of the same property in
the 1944 suit, cannot by any reasonable construction be
auoh an owner or former owner0
          The foregoing is sufficient to show that you
have no authority to ccmply with Mr. Mulhollan's request
in behalf of his client, and you are ac,cordlngly80 ad-
vised.



           The Comptroller   has no authority by
     virtue  of Artlcles   7291 and 7308 V.C,S.
     to issue a certificate of cancelfation 0P
     sale of property bought in b the State at
     tax foreclosure sale, as suaz articles ap-
     pl to summary sales but not to judicial
     sa1 es, The purchaser at a subsequent sale
     of the same property in a tax foreclosure
     suit is neither an owner, a former owner,
     an heir or assignee as provided in said
     statutes.
                              Very truly yours
                         ATTORNEY GENERAL OF TEXAS


                         By         -a        -
                               L
                               PT        P, Lo lar
                               Assistant

LPL/JCP/erc
                         APPROVED:
