THE ATTORNEY GENERAL
OF TEXAS
Jim MA- October'9, 1990
A-WEY -ERAI.
Honorable Jim Mapel Opinion No. JM-1232
Criminal District Attorney
Brazoria County Courthouse Re: Authority of a county to
Angleton, Texas 77515 conduct a private resale of
property under section 34.05
of the Tax Code (RQ-1913)
Dear Mr. Mapel:
If property upon which delinquent taxes are owed is
sold at a tax sale to a taxing unit that is a party to the
delinquent tax judgment, the taxing unit may resell that
property, subject to any right of redemption existing at the
time of the sale. You ask about the proper method by which
such a resale of real property bye a taxing unit may be
effected. Specifically, you ask:
1. Is a county authorized to conduct a
private resale of property pursuant to the
provisions of V.T.C.A. Tax Code Section
34.05? and the the related question,
2. If a county does not elect to resell the
property pursuant to the provisions of
Section 34.05(c) and (d) at a Sheriff's sale,
must a county conduct a resale of such
property pursuant to the competitive (sealed
bids) bidding procedure or public sale
provisions of V.T.C.A. Local Government Code,
Section 263.001 or 272.0017
By Yprivate sale" we understand you to mean a sale that
is conducted without the necessary compliance with the
procedural requirements of the following statutes: (1) Rule
646a of the Rules of Civil Procedure,~which governs execu-
tion sales and requires the sheriff to sell property at a
public auction: (2) chapter 263 of the Local Government
Code, which permits the sale of property at a public
auction; or (3) chapter 272 of the Local Government Code,
which permits the sale of property by a sealed-bid
P. 6552
Honorable Jim Mapel - Page 2 @M-1232)
procedure.1 we answer your first question in the
affirmative; section 34.05 of the Tax Codes impliedly
authorizes a private resale of real property purchased by a
taxing unit at a tax sale. We answer your second question
in the negative, because subsections (a) and (b) of 34.05 of
the Tax Code provides a means for the county to sell real
property other than those set forth in chapters 263 and 272
of the Local Government Code; those chapters are not con-
trolling.
The Tax Code specifies three methods by which the
collection of delinquent ad valorem taxes are enforced.
First, a delinquent taxpayer's personal property may be
seized and sold by a .taxing unit, with the proceeds intended
to offset the accrued taxes, penalty, and interest. Tax
Code 50 33.21 - 33.25. Second, a taxing unit may file suit
for judicial foreclosure of the tax lien securing the tax.
Id. SJ 33.41 - 33.54. And third, a taxing unit may file
suit to enforce personal liability for the tax. &
§S 32.01, 33.41 - 33.54.
In the event that delinquent tax collection is enforced
by either of the first two methods, collection is effected
1. Generally, counties are governed in the sale of
county realty by only two statutory provisions:
The sale of property owned by counties and other
political subdivisions is governed strictly by
statute. The conveyance of such property in any other
manner is void. There are, respectively, two sets of
Code provisions now appearing in title 8 of the Local
Government Code which apply to counties and other
political subdivisions: Code 5 263.001 et sec. and
Code § 272.001 et sea.
35 D. Brooks, County and Special District Law § 9.24 (Texas
Practice 1989). However, subsection (d) of section 34.05 of
the Tax Code states that except as provided by that sub-
section, all public sales requested by subsection (c) of
that section shall be conducted in the manner prescribed by
the Rules of Civil Procedure for the sale of property under
execution. Thus, the procedures by 'which counties convey
real property at public sale may be governed by one of three
different, statutory provisions, depending upon the nature of
the transaction involved.
p. 6553
Honorable Jim Mapel - Page 3 (JM-1232)
by a tax sale; such sales are governed by subchapter A of
chapter 34 of the Tax Code. Tax Code 0 34.01. Property
seized or ordered sold pursuant to foreclosure of a tax lien
must be sold in the manner that similar property is sold
under execution, except as provided in that subchapter. &
0 34.01(a). If a sufficient bid is not received, the
officer making the sale must bid the property off to a
taxing unit that is a party to the judgment. Id.
0 34.01(C). Section 34.05 of the Tax Code governs the
subsequent resale of such property by the purchasing taxing
unit. It is with this section that you are concerned.
Section 34.05 of the Tax Code provides the following:
(a! If nronertv is sold to a taxina unit
is a D& to the iudcment. the tau
subject to any right of redemption exist&
at the time of the sale.
(b) Unless the nronertv is sold D~~s&x&
to Subsections ICI and (d) of this secti-
it may not be sold for less than the marked
value specified in the judgment of fore-
closure or the total amount of the judgments
against the property, whichever is ,less,
without the consent of each taxing unit
entitled to receive proceeds of the sale
under the judgment. Joinder of the taxing
units in the conveyance of the property
constitutes consent. The presiding officer
of the governing body of a taxing unit may
consent in behalf of the taxing unit.
(c) The taxing unit purchasing the pro-
perty by resolution of its governing body may
request the sheriff to sell the property at a
public sale. If the purchasing taxing unit
has not sold the property within six months
after the date on which the owner's right of
redemption terminates, any taxing unit that
is entitled to receives proceeds of the sale
by resolution of its governing body may
request the sheriff in writing to sell the
property at a public sale. On receipt of a
request made under this subsection, the
sheriff shall sell the property as provided
by Subsection (d) of this section.
p. 6554
Honorable Jim Mapel - Page 4 (JM-1232)
(d) Except as provided by this subsec-
tion, all public sales requested as provided
by Subsection (c) of this section shall be
conducted in the manner prescribed by the
Rules of Civil Procedure for the sale of
property under execution. The notice of the
sale must contain a description of the
property to be sold, which must be a legal
description in the case of real property, the
number and style of the suit under which the
property was sold at the tax foreclosure
sale, and the date of the tax foreclosure
sale. The officer conducting the sale shall
reject any bid for the property if it is his
judgment that the amount bid is insufficient.
If all bids are insufficient, the property
shall be readvertised and offered for sale
again. The acceptance of a bid by the
officer conducting the sale is conclusive and
binding on the question of its sufficiency.
An action to set aside the sale on the
grounds that the bid is insufficient may not
be sustained in court, except that a taxing
unit that participates in distribution of
proceeds of the sale may file an action
within one year after the date of the sale to
set aside the sale on the grounds of fraud or
collusion between the officer making the sale
and the purchaser.
(e) The presiding officer of a taxing
unit or the sheriff selling real property
pursuant to this section shall execute a deed
to the property conveying to the purchaser
the right, title, and interest acquired or
held by each taxing unit that was a party to
the judgment foreclosing tax liens on the
property. The conveyances shall be made
subject to any remaining right of redemption
at the time of the sale.
(f) An action attacking the validity of a
resale of property pursuant to this section
may be not instituted after the expiration of
one year after the date of the resale.
(Emphasis added.)
Prior to 1947, section 9 of article 734533, V.T.C.S.,
one of the predecessor statutes to section 34.05, did not
p. 6555
Honorable Jim Mapel - Page 5 (JM-1232)
expressly authorize a private resale by a taxing unit of
real property purchased at a tax sale; indeed, it was
construed as nnf, authorizing a private sale. Attorney
General Opinions V-124 (1947); O-5056 (1943). But ee
Attorney General Opinion O-6978 (1946).2 Section 9 t:en
provided only that any such property could not be sold for
less than its adjudged value or the amount of the judgments
against the property in the suit, whichever was lower,
without the written consent of all taxing .units having tax
liens against the property.
After amendment in 1947, section 9 of article 734513,
V.T.C.S., provided explicitly that a resale could be
effected either at a public or a private sale:
The taxing unit may sell and convey said
property so purchased by it, or which has
heretofore been purchased in the name of any
officer thereof, at any time in any manner
determined to be most advantageous to said
taxing unit or units either at DUbliC or
private sale subject to any then existing
right of red&ption . . . but such property
shall not be sold by the taxing unit pur-
chasing the same, at nrivate sale, for less
than the adjudged value thereof, if any, as
established in the tax judgment, or the total
amount for which such judgment was rendered
against the property in said suit, whichever
.
1s lower, without the written consent of all
taxing units which in said judgment shall
have been found to have tax liens against
said property. (Emphasis added.)
2. Prior to the enactment in 1937 of article 734533,
V.T.C.S., each taxing unit could independently enforce its
tax lien against the same property with different suits,
judgments, executions, sales and conveyances. See V.T.C.S.
art. 7328. Article 7345b permitted the consolidation of
such lawsuits. Though article 7328 was not repealed until
1979, ~SS Acts 1979, 66th Leg., ch. 841, § 6(a)(l), at 2329,
section 12 of article 734533 provided that its remedies were
cumulative and that its provisions controlled in the event
of conflict with other statutes. Article 7328 was also
construed not to authorize a private sale. Little v.
Dennis, 187 S.W.Zd 76 (Tex. 1945).
p. 6556
Honorable Jim Mapel - Page 6 (JM-1232)
m Attorney General Opinion V-576 (1948).
It is the absence in section 34.05 of any reference to
a private sale that concerns you. You suggest that even in
the absence of any express authority to conduct a private
sale, the legislature intended that private sales be per-
mitted. We agree.
Subsections (c) and (d) of section 34.05 of the Tax
Code set forth detailed procedures for the resale by a
taxing unit of property purchased at a tax sale that must be
followed in the event that a resale is not effected pursuant
to subsection (a) and (b) of that section. It is clear then
that the legislature intended that some means for conducting
a resale of such property be permitted other than the one
set forth in subsections (c) and (d). Subsection (a). of
section 34.05 permits a taxing unit that purchases property
at a tax sale to sell that property "at any time," subject
to any right of redemption existing at the time of the sale.
If subsections (a) and (b) of section 34.05 were construed
not to permit private sales, then a county that purchases
such real property and seeks to resell it perforce would be
required to comply with the provisions of chapters 263 and
272 of the Local Government Code.3 See. e.a., Attorney
3. Chapter 263 of the Local Government Code governs
the sale or lease of property by counties: its predecessor
statute was article 1577, V.T.C.S., which was codified in
the 1925 codification of Texas statutes from a previous
statute. Chapter 272 of the Local Government Code governs
the sale or lease of property by municipalities, counties,
and certain other local governments; its predecessor statute
was article 5421c-12, V.T.C.S., which was first enacted in
1969.
In Attorney General Opinion M-524 (1969), this office
held that the enactment of the later statute did not have
the effect of superseding either article 1577 or article
734533:
This does not mean, however, that [article
5421c-121 has no effect. It is a well established
rule that when a general intention is expressed Ci.e,
the enactment of article 5421c-121 and also a parti-
cular intention which is i~ncompatible with the general
(Footnote Continued)
p. 6557
Honorable Jim Mapel - Page 7 (JM-1232)
General opinions JM-1197 (1990); JM-335 (1985); V-124
(1947); 0-5056-A (1943). The issue is whether the
requirements of chapters 263 and 272 of the Local Government
Code act to permit a county to resell property "at any
time." If they do not, it is reasonable to assume that the
legislature, by the use of the quoted phrase, did not intend
that those chapters control and intended that counties be
permitted to conduct a private sale.
Section 263.001 of the Local Government Code provides:
(a) The commissioners court of a county,
by an order entered in its minutes, may
appoint a commissioner to sell or lease real
property owned by the county. The sale or
lease must be made at a public auction held
in accordance with this section unless this
chapter provides otherwise.
(b) The appointed commissioner must
publish notice of the auction before the 20th
day before the date the auction is held. The
notice must be ,published in English in a
newspaper in the county in which the, real
property is located and in the county that
owns the real property if not the same
county. The notice must be published once a
(Footnote Continued) '
one [i.e. the provisions of articles 1577 and 7245331,
the particular intention which is incompatible with
the general one shall be considered an exception to
the general and in such cases, full effect may be
given to the general rule beyond the scope of the
local or special law and by allowing the latter to
operate according to its special purposes and aims the
two acts can stand together.
. . . .
Therefore, on the basis of the foregoing authori-
ties, it is our opinion that [article 5421c-121 is
operable outside the scope of Article 1577, Vernon's
Civil Statutes, and Article 7345b, Section 9, Vernon's
Civil Statutes.
p. 6558
Honorable Jim Mapel - Page 8 (JM-1232)
week for three consecutive weeks before the
date the auction is held.
(c) If the real property is sold, a deed
that is made on behalf of the county by the
appointed commissioner in conformance with
the order entered under Subsection (a) and
that is properly acknowledged, proved, and
recorded is sufficient to convey the county's
interest in the property.
Section 272.001 of the Local Government Code provides:
(a) Except for the types of land and
interests described by Subsection (b), before
land owned by a political subdivision of the
state may be sold or exchanged for other
land, notice to the general public of ~the
offer of the land for sale or exchange must
be published in a newspaper of general
circulation in either the county in which the
land is located or, if there is no such
newspaper, in an adjoining county. The
notice must include a description of the
land, including its location, and the
procedure by which sealed bids to 'purchase
the land or offers to exchange the land may
be submitted. The notice must be published
on two separate dates and the sale or
exchange may not be made until after the 14th
day after the date of the second publication.
(b) [Contains list of types of land and
real property interests to which the notice
and billing requirements of subsection (a) do
not apply.]
It is apparent that neither section 263.001 nor section
272.001 of the Local Government Code permits a county to
resell real property "at any time.' Therefore, it is
apparent that the legislature did not intend for those
sections to control a resale by a county, of p,~;~~~~
purchased at a tax sale. Accordingly, we
subsections (a) and (b) of section 34.05 of the Tax Code
impliedly to permit a private sale; chapters 263 and 272 of
the Local Government Code do not apply in an instance in
which a county resells real property purchased at a tax
sale.
p. 6559
*
i
Honorable Jim Mapel - Page 9 (JM-1232)
.
Subsections (a) and (b) of section 34.05
of the Tax Code impliedly authorizes a county
to resell real property that it purchases at
a tax sale: chapters 263 and 272 of the Local
Government Code do not apply in such situa-
J-h
tions.
Very truly yo
.
JIM MATTOX
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
Lou Mx!REARY
Executive Assistant Attorney General
JUDGE ZOLLIE STENZLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 6560