The Attorney General of Texas
June 8, 1978
JOHN L. HILL
Attorney General
Honorable Kerry Knorpp Opinion No. H- 1179
County Attorney
Rooni 303, Potter County Courthouse Re: Advertising of delinquent
Amarillo, Texas 79101 tax sales.
Dear Mr. Knorpp:
You ask, in view of article 7276, V.T.C.S., if property to be sold for
delinquent taxes at a sheriff’s sale need be advertised by publication in a
newspaper where the lowest advertising rate obtainable is more than two
cents per word for the first insertion and one cent per word for each
subsequent insertion.
In pertinent part, article 7276 reads:
In making sales of real property for taxes, the
Collector shall advertise the same for sale in some
newspaper . . . for three successive weeks . . . ; and
the publisher of such newspaper shall receive as
compensation the legal rate of Two (2) Cents per word
for the first insertion of such publication and One Cent
per word for each subsequent insertion or such
newspaper shall be entitled to charge for such publi-
cation at a rate equal to but not in excess of the
lowest published word or line rate of that newspaper
for classified advertising, and such fee shall be taxed
as other costs of sale against such land . . . . If there
be no newspaper published, in the county, or, there
being a newspaper published in the county and the
publisher thereof refuses to publish the advertisement
at the price herein fixed, then the advertisement shall
be made by posting the same for thirty (30) days
previous to the day of sale, at the courthouse door and
three other public places in the county . . . .
(Emphasis added).
P. 4759
Honorable Kerry Knorpp - Page 2 (H-1179)
You suggest that article 7276 is ambiguous and should be read to harmonize
with rule 1178 of the Rules of Civil Procedure promulgated by the Texas Suoreme
Court. Rule 117a concerns, among other things, the oublication of citations ‘in tax
suits when the whereabouts of the-defendant isunknown; in pertinent part it reads:
The citation shall be published . . . in some newspaper
published in the county in which the property is located . . . .
A maximum fee of two cents per word for the first insertion
and one cent per word for the second insertion may be taxed
for publishing the citation, but in no event shall the fee
exceed the published word or line rate of that newspaper for
like classes of advertising. If the publication of the citation
cannot be had for this fee, chargeable as costs and payable
upon sale of the property, as provided by law, ,and this fact
is supported by the affidavit of the attorney for the plaintiff
or the attorney requesting the issuance of the process, then
service of the citation may be made by posting a copy at the
courthouse door. . . .
We need not determine whether article 7276 is ambiguous or in disharmony
with Rule 117a, for both the statute and the rule have been impliedly repealed to
the extent they conflict with article 29, V.T.C.S., which reads:
Wherever any publication . . . is authorized or required by
any law, gene,ral or special, to be inserted in a newspaper,
the legal rate which such newspaper shall charge for such
publication shall be the lowest published rate of that
newspaper for classified advertising.
. . . .
This Act shall apply to all publications required by law,
and it is specially provided that this Act shall apply to all
citations or notices which are required to be published or
may be published in delinquent tax suits and to notices of
sale of real estate under execution, order of sale, or any
other judicial sale provided for in Articles 3808, 4203, 7276,
and 7342 of the Revised Civil Statutes of Texas, 1925..
(Emphasis added).
Article 7276, V.T.C.S., was enacted in 1881 and last amended in 1941. Rule
U7a was promulgated in 1947 and amended in 1950. Thereafter, article 29 was
amended in 1961to read as set out above.
P. 4760
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. -
Honorable ~Kerry Knorpp - Page 3 (H-1179)
Not only does article 29, as amended in 1961, expressly refer to article 7276,
but the bill which amended article 29 contained the following language:
AR laws or parts of laws in conflict with the provisions of
this Act are hereby repealed to the extent of such conflict.
See Acts 1961, 57th Leg., ch.’ 278, at 586. This language also effectively repealed
mconsistent language in Rule 117a.
The Rules of Civil Procedure are promulgated by the Supreme Court pursuant
to authority found in article 5, section 25 of the Texas Constitution, and article
173la, V.T.C.S. The power of the Supreme Court to promulgate rules is a limited
power; and when a rule of the court conflicts with a legislative enactment, the rule
must yield. Few v. Charter Oak Fire Insurance Co., 483 S.W.2d 424 (Tex. 1971).
As modified by article 29, article 7276 requires the advertising of tax sales in
a newspaper unless there is no newspaper in the county where the land is sold, or
unless publishers of newspapers therein refuse to publish the advertisement at the
lowest published rate of their newspapers for classified advertising. See
- V.T.C.S.
art. 29a.
SUMMARY
Tax sales should be advertised in a newspaper unless there is
no newspaper in the county where the land is to be sold, or
unless publishers of newspapers therein refuse to publish the
advertisement at the lowest published rate of their
newspapers for classified advertising.
,&77&f&
,,’
.
:,’ Attorney General of Texas
Opinion Committee
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P- 4761