WNEY GESNERAL
TEXAS
A~wrxiu 1s. mxas
PRICE DANIEL
ATTORNEYCF.NER.4,.
April 30, 1952
Hon. Sam W. Davis Opinion No. V-1453
District Attorney
Houston 2, Texas Re: Liability of the State and
county for publication
charges in tax foreclosure
suits when the property is
purchased by one of the
Dear Mr. Davis: taxing units.
You request the opinion of this office upon the matter
presented in your written opinion to Hon. H. L. Washburn, County
Auditor of Harris County, which you submit with your request.
You present the following question:
Is the State or county or both liable to the pub-
lisher for the charges made for the publication of
citations in delinquent tax suits filed by the State and
county and for the publication of notices of sale: (1)
if incurred prior to the effective date of S.B. 431;
(2) if incurred subsequent to the effective date of
said bill?
You correctly state in your opinion to the County Auditor
that prior to the enactment ,of Senate Bill 431, Acts 52nd Leg., R.
S. 1951, ch. 334, p. 576, amending Article 7333, V.C.S., there was
no law that made the State or county liable for publication costs
in delinquent tax suits. Baldwin v. .Travis County, 88 S.q. 480
(Tex.Civ.App. 1905); Nunn-Warren ublishm o. v. Hutchinson
:!;~~45 S.y.2, 651 iTex. Civ.Az!. 1932, efrk ref.); qigC%;;
lifford, 156 S.W.2d 1006 (Te Civ.App. 1941); Tex.
ule 11 a, Subdivisien 3. Section 9 of Article 734513, V.C.S.,
expressly provided that where a taxing unit bought in the property,
the costs and expenses should not be payable “until sale by such
taxing unit so purchasing same.” Section 12-a of Article 7345b
provided that where property was redeemed for a purchasing tax-
int unit, the redemption money should be distributed and applied in
the same manner as provided in Section 9 for the application and
distribution of the proceeds upon resale of the land.
As amended by Senate Bill 431, Article 7333 now reads:
“In each case such fees shall be taxed as costs
against the lands to be sold under judgment for taxes,
and paid out of the proceeds of sale of same after the
:
~Horb SCun W. Davis, page 2 iv-1453)
taxes, penalty and interest due therein are paid, and in
no case shall the State or county be liable therefor ox-
cept that where the State or other taxing unit is then-
cessful bidder at the tax sale, all charges due news-
papers for the publishing of citations and notxes of
sheriff’s sale shall be paid by the county and State a&
other taxing units in proportion to thetaxes adjudicated
to each.” (Emphasis added.)
In the emergency clause to this bill the LegMature rec-
ognized that there was no prior law that authorieed a taxing unit
in a delinquent tax suit to assume and pay publication charges, but
that such charges must be paid from the sale or redemption vi the
land. The emergency clause reads in part as follows:
“The fact that existingstatutes do not provide for
the payment of such charges . . .”
This statute is limited’by its, express terms to cases
where one of the taxing units becomes th&,purchaser at the tax
sale and has no application to tax sales where an individual is the
purchaser at the first sale. In other words, the law remains un-
changed where an individual is the purchaser at the tax sale. In
such a case the publisher must collect his publication charges as
a part of the costs of the proceeds from the sale of the land or its
redemption.
It is our opinion that Senate Bill~‘431 has no retroactive
effect and speaks only prospectively and not retrospectively. State
v. Humble Oil & Refi.ning Co., 141 Tex. 40, 169 S.W.2d 707 (1943).
A,s to publicatlon rests inc:czed prior to September 7. 1951, the
effective date uf Senate Bill 431, the purchaser must still await a
second sa1.e by the State o r r:ount:y or &her purchasing taxing unit,
or until there is a redemption within the statutory time.
We pass next ta the second part of your question, that is,
the liability of the State and county for publication costs in delin-
quent tax suits accruing subsequent to the effective date of Senate
Bill 431. Senate Bill ,431.was passed to ameliorate the hardship
that might sometimes r,esult from the long delay in the collection
of publication costs where one of the taxing units became the pur-
chaser at the first sale. l3y the express terms of this bill, this
liability arises against the taxing units upon a pro rata basis in
proportion to the taxes adjudged to each immediately upon pur-
chase by one of the taxing units. While Senate Bill 431 constitutes
pre-existing law for the payment of this cost against the State,
there is presently no appropriation or other source from which
the State’s part of such cost cou1.d be paid. The publisher will
therefore be required to wait until the Le@?slature provides the
means by which the State’s part of these costs can be paid before
Hon. Sam W. Davis, page 3 (V-1453)
he can obtain payment from the State. However, the county and
other taxing units may pay their pro rata share of such costs in-
curred subsequent to the effective date of Senate Bill 431 by ap-
propriate proceadings applicable to the payment of claims by such
taxing units. A claim for these costs against the county does not
necessarily rest upon a contract between the commissioners’
court and the publisher, but upon a liability arising from the en-
press term,6 of Senate Bill 431. In other words, it may be paid
by the county in the same manner as any other legal claim arising
under statutory liability* We do not know whether there is any
provision in the current budget of Harris County to pay court
c,osts, but if so, such costs cou1.d be paid out of this fund. If no
such fund is provided for in the budget, we think the budget might
be amended to take care of it under the ruling of Attorney General’s
Opinion .v-857.
SUMMARY
Neither the State nor the county is liable for costs
incurred for ~publishing citations and notices of sale in
delinquent tax suits prior to September 7, 1951, the ef-
fective date of S.B. 431, Acts 52nd Leg., R.S. 1951,c&
334, p. 576, amending Art. 7333, V.C.S. Such costs can
be collected only from the proceeds realized from the
sale of the property by the purchasing taxing unit or
from the proceeds realized from a redemption of the
propertyQ
The State and county are llable for publ.ication .
costs incurred in delinquent tax suits subsequent to the
effective date of S.B. 431 where the State, i,ounty, or
other taxing unit becomes the puri.haser of the property
at the first sale. The Sta,te”s p.co rata share of such
t.:osts cannot be paid until the Le,gisl.ature makes an ap-
propriation or provides some other means for payment,
but the county may pa,y’such claims in the same manner
in which it may pay any other legal~ clah properly pre-
sented.
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
~W. V. Geppert
Taxation Division
Mary K. Wall
Reviewing Assistant
ByL diz%2cFJ
*
Charles D. Mathews Assistant
First Assistant
LPL:meh