.
Honorable Cecil M. Pruett Opinion No. WW-953
County Attorney Re: (1) satisfectlon of a tax
Hutchinson County judgment based upon taxes
526 Weatherly assessed against personal
~Borger, Texas property by execution upon
and sale of other personal
property belonglrg to same
owner-and within the statu-
tory exemption from forced
sale D
(2) Authorlzatlon of tax
collector and officers serv-
ing Writs OS Exectitionto
levy upon, seize and sell
certain assessed personal
property within statutotiy
exemption from forced aale.
Dear Mr. Pruett:
As yoilrrecent letter request5 our opinion upon two
questions as above referenced, we.shall consider them Ln turn.
The first part of your letter reads as follows:
"The collection of delinquent ad valorem
taxes Levied upon automobiles has become an
issue of concern both to the citizens of this
commnlty and to the taxing units involved.
There are certain questions which, when
answered, may provide a feasible and.economi.cal
basis for the solution to the problem encountered
in,connection with this matter.
"The taxing unit Involved is an independent
school district and the situation w,hichexists is
that many of the citizens no lohger own the
automobile upon which the tax was levied. Judg-
ments are being taken against the persons by ..
whom the tax is owed, which juagment lxicludes.‘a
f’orsclosure of the tax 1l.m upon the.particular
automobile involved.
“CAN AN EXECUTION ON A TAX JUDGMENT BASED
UPON w ASSBSSXD AQAINST PERSONAIiPROPERTY
Honorable Cecil M. Pruett. purge2 Opinion No. WW-953
BE SATISFIED THROUGH THE EXECUTION UPON AND SALE
OF PERSONAL PROPERTY NOT ASSESSED AS SUCH. BE-
LONOING TO THE SAME OWNER, AND WITHIN THE EKEMP-
TION FROM FORCED SALE UNDER THE HOMESTEAD LAWS?"
We ansuer this question in the negative.
Concerning protection of property from forced sale, the
Texas Constlt,utlonby Art. 16, sec. 49, conferred a power and a
duty upon the Legislature as foll.ows:
"The Legislature shal.1have power and it
shal.1be its du~tg,to pro!.e?tby law from
forced sa1.ea ce,r?:ain
portion of the personal
property of all.neads of Samllles,,er#.d
also
of unmarried adults, ma1.eand femal~e."
In partial execution of this ,provislon,the Legislature
specified certain personal property es exempt, by Article 3832,
R.C.S., which we quote in pert.:
"The following property shail be reserved
to everg~family, exempt-from attackiect or
execu.tionand ever-p other specles,.ofSo;ced
sale Sot:the payment of debts, except as here-
inafter provided:
"1.. The homeskead of the family.
*
The teijm"carriage" as used in Art. 3832 has been deftied
to lEn,ludean crutomoblle. Parkei?v. Sweet.,I.27S.W. 881 (Tex.
Civ. App. 1.910); I&inn v. Lenaford Inv:Co.., 36 S.W. 2d 1079
(Tex. Clv-.App, 1931)*
In the case of a hx. ?iRIUiz,an apparent conflict exists
between tillsexemptlon statute cm>3Art. 7272, R.C.S., the perti-
nent part of which is es Soilovs:
"All real and personal property held or
OUn6d by any person In this Skte shall b6
liable for all State end County Taxes due bg
the owner thereoS,~lncludir~~tax on real estate,
personal property and poll tax; anilthe Tax
Collector shall levy or;spy personal or real
proper~kyto be Sound lfihis county ~tosatisfy
all del.lnquenttaxes, any law .tothe contrary~
notvlthster:dFng; " ~ " ~ " UN
page 3
Honorable Cecil M. Pr,irs?.i., Opinion No. WW-953
rts. 7273 and 7274 provide for sales of personal
d
property. We have found no authorities either In Texas or'.ln
any other jurisdiction discussing the precise question you ask.
As pointed out in.an annotation at 159 A,L.R, 461 there is a
distlnctFon between exempting property from taxation and exempt-
ing It from seizure and sale to satisfy a ju.dgmentfor taxes.
The general rule 18 that an exemptlon of property from taxation
daes not lmpliedly exempt it from seizure and sale to satisfy
taxes validly levied upon otherproperty or upon the person own-
lx-&the tax-exempt property. u at p* 464.. This is the rule in
Texas, Ring v. Williams, 35 S.W, 733 (Tex. Clv. App. 1896).~
However, statutes exempting property from forced sale, such as
Art, 3832, have been accorded uniformly liberal constructions
In order to effectuate their purposess as contemplated by the
Constitution. See Smlthv. McBrvde, 173 S.W. 234 (Tex. 'Civ.
App. 1915); Rodgers v. Feruueon, 32 Ten. 533 (1870). Had the
Legislature Intended to remove the protection from seizure and
forced sale afforded by Art. 3832 in the case.of a tax debt>-
it would certainly have used specific language so indicating.
In the absence of s-schlanguage, we see no basis for reading in
such an exception..
The second part of your letter reads as follows:
"In SRUGART VS. NOCONA INDEPENDENT SCHOOL
DISTRICT, 288 S.W. 2d 243 on Page 246, the Fort
Worth Court of Xvi1 Appeals states, 'In partiqular,
In 1929 the 4lst Legislature, by an act codified ab Art. 7328a,
R.C.S., lmpliedlg repealed conflicting parts of Arts, 7272 to
7283 authorleirg summary sales of real property for collection
of delinquent taxes o plncan v. ffabler,215 S.W. 26 155 (Tex.
Civ. App. 1948); Amaimo v. Carter, 212 S.W. 26 950 (Tex. Clv. App.
1948, err. ref. n.r.e.). Apparently the provisions of these
Articles deal- wfth personal property were unaffected. See
Shugart v. Nocona IndeDendent School District, 288 S.W. 26 243
vex. Clv. App. 1956)e
2
As further zm~batantlatlonof this opinion, it Is pointed out
that the last amendment of Art+ 7272 was by Act of the 42iidLeg.
In 1931 (p-
(pGl237,
237. ch..141, 1). whereas Article 3832 was
141. sec. lj,
amended $0
to Ita-pre8en.t.
Its pre8en.t. form In 1.935
1.935by the 44th I.egisla.ture
(p.
384, ch. 145, sec. 1’). thereby constltutlng
sec. 1'). It the latest leg-
islatl.veexpression upon the matter. 39 Tex. Jur, Statutes,
SbC. 74.
Honorable Cecil M. P,rue.tt,
page 4 Opinion No. WW-953
the tax collector can levy upon and seize and
sell any personal property of the tax debtor,
applying the proceeds of the sale upon the debtor's
tax indebtedness, secured or not by a tax lien.'
"Uy second question relates to this state-
ment.
"ARE BOlR TRE TAXCOLkTOR AND OFFICERS
SERVING WRITS AUTHORIZED TO LEVY UPON AND SEIZE
AND SELL SUCH PBRSONAL PROPERTY WREN SUCR PER-
SONAL PROPERTY IS WITHIN TRE EXCEPTIONS FROM
FORCED SALE ALLOWED BY HOMESTEAD LAWS?"
We also answer this quesklon in the negative.
The ShuRart c.aseinvolved no question of exemption of
property under homessead laws. There, non-exempt personal prop-
erty of the plalritlffwas seized by the school district, which
was ~the taxing authority, and its tax assessor-collector to
satisfy a tax which had been levied upon plaintiff's 011 and gas
lease, while a foreclosure suit was pending.
As pointed out above, personal property within the ex-
emption from forced sale provided by Art. 3832 Is not subject
to seizure and sale for a tax debt. Therefore, a speclflc,
enforceable lien against the property assessed vould be required
to subject it to seizure and sale.
In the case of real property, a lien Is specifically
given for taxes due thereon. Art. 8, sec. 15, Constitution of
Texas. Art. 7172, R~.C.S. Under these provisions the homestead
-a
of a family may be sold for taxes due thereon, not.wlthstan.dlng
its exemption from forced sale provided by Art. 16, sec. 50 of
the Texas ConstFtu.tlon..Clt of S Antonio v. TosDDemein 104
Tex. 43 133 S.W. 416 (lgw%er there is no general'lien
upon pehonal property‘for taxes due ttbreon. See In re Bra-on,
62 F. 26 959 (C.C.A..Tex..1.9333.3 Except for specific situations,
a taxing authority has only the right to sell after judgment on
an ordinary wrft of execution, the levy of which will create a
lien. Mar0 Co., Inc. v. State, 168,S.W..2d 510 Tex. Clv. App.
1943, em; 40 Taxation,,sec. 1 e
3
There are tax liens created on personalty in specific sltua-
tlons. See Arts. 7048 and 7269; In re Br'annon,supra.
. .
Honorable Cec:il14.Pr:.l::t
i,,page 5 Opinion No, WW-953
Art ICY?, R .C,S_1 provider that tares Levied by a citg
"shall be h lien upon the property upon which they are assessed'
and glves the assessor and collector'power "to l.evyupon any
personal property to satisfy" such taxes. Tflereis, therefore,
a lien UpOn specific personal property Which has been assessed
for city taxes, See City of Lubbock v, South_Plalns Hardware
co., 111 S.W. 2d 343 (Tex. Civ, App. 1937). It was determined
in Mission Independent School District v. Armstrong 222 3,W.
201 (Tex...Com.App.. 1920) that ~theprovlslons of this article
were adopted by,reference and made avalIable to independent 3 hool
districts by Ar-t:.2853, R,C;S,, 19X (now A?t:.~2.758,R.c.s.),~
which then read as follows:
"The t;-~3:scees
el.ectedIn accorda::ce~l'.h
the preceding arrlcle shall be yessed ~10l ,p1d3.1
management and control,of the free sch<>ois of
such lnco,rporacedt;owo~
oc village, and shall in
general be vested with Ellathe powers. r.lghts
end duties lr?regard to t.heestablishment and
maintaining of free schools, inCl?JdingT!xepowers
end manner of t&x:a~l.lw
for free school,pur-poses
that are corlfewej by tne lavs of thlv state
upon thenCo~Jx:~'i~
m Ward of aldermen of irwor~-
poreted cltlas end tonnes"'
carried forward frem.%he o:d Art+ 2853 IR.C.,S.1911), wr.lch
adopted by reference the p.rovlalor:.s
of A; '5.1.
.i%if;
, and upon which.
isc.lslonwas based, rt tnerafore appears that
the MiSSiOn I.3=.D~.
the cr.;y1161;up~3~1speclfl::personal property assessed by aschool
d,lstrrcf-
was le.glsIaiedout.of existence. Unti' the Legislature
sees fit to provlde a method for flxlng a t.axlien upon person.el
property nhlch 13 erempt:from forced saie. r;i: method exists for
enforcing the 'taxaglirimt3uc.Q pr0pert.y..
. .
Honorable Cecil M. Pruett, page 6 Opinion No. WW-953
SUMMARY
An Independent school district's personal
property tax a*sessment upon property which 13 exempt
from forced sale under Art. 3832, R.C.S., even when
reduced to judgment, carries.wlth It no enforceable
lien upon the specific property assessed end may not
be enforced by seizure and sale of that property or
exempt property which replaces It.
Yours very truly,
WILL WILSON
Attorney General of Texas
By s/James R. Irlon
James R. Irion
Assistant
JRI:cm:wc
APPROVED:
OPINION COMMITTEB:
W.V. Geppert, Chairman
Robert Walls
Bob Eric Shannon
W.E. Allen
REVIEWJZDFOR THE ATTORNEY GENERAL
.By: Leonard Pessmore