Hon. Amos Harper Opinion No. V-973.
County Attorney
Gaines county Re: Striking delinquent tax entries
Seminole, Texas made prior to determination
land in another county.
Dear Sir:
We quote the following excerpts from your letter of
October 17, 1949:
“I respectfully request your opinion concerning
a problem of taxation that confronts the Tax Assessor
and Collector of thie County and upon which I have been
unable to locate any legal authority sufficient to enable
me to advise that officer.
“There is contained in the files of your office,
Opinion No. O-1125, addressed to Alton T. Freeman,
then County Attorney of Games County, which was ap-
proved by Gerald C. Mann, Attorney General, on Aug-
ust 31, 1939.
“This opinion, and the opinion request from which
it quotes, recites an involved fact situation which oc-
curred several years ago and which had the effect of
either relocating or moving the North line of Gaines
County South from the point along which it originally
was thought to run. As a result of those facts, certain
sections along the North line of the County which ap-
Reared to be in Gaines County according to the official
Gaines County map prepared by the General Land Of-
fice, dated March, 1922, which is that office’s latest
map of this County, apparently ceased to be in Gaines
county.
“Under
authority of what is now Article 7194,
R.C.S., the General Land Office of Texas had pre-
1925,
viously furnished our Tax Assessor and Collector with
abotracta of the surveys of land in thfs County and those
abstracts showed these northern surveys to be in Gaines
County. Accordingly, they were listed on the tax rolls
and taxes were levied and assessed as to them by Gaines
Hon. Amos Harper, Page 2 (v-973)
“As a further y.esu(t 02 such moving of our North
boundary line, our Northeast corner of the County ia
further south than what is recognized, for tax purposes,
to be the Northwest corner of Dawson County, where-
as, according to the Act of the Legislature prescribing
our boundaries, the two corners are supposed to be one
and the same. (Act of August 21, 1876, page 234.)
“Upon the strength of the above mentioned opin-
ion of the then Attorney General, a suit was filed which
involved, under the pleadings, a challenge to the valid-
ity of the action which moved, or attempted to move,
the boundary south. This r,uit was never tried upon its
merits, but a demurrer to such petition was sustained
by the trial court,, such action being sustained by a sub-
sequent action of the Supreme Court of Texas to be
found in the case of YOAKUM COUNTY, ET AL, VS.
GAINES COUNTY, 163 S.W. Znd, 393. The opinion of
the Court of Civil Appeals in this, case gives more de-
tails of the matters of fact and law involved.’
“There are on the Delinquent Tax Roll of this
County a number of entries showing delinquent taxes
due to the State, County and other taxing units whose
taxes were collected by that officer, upon these lands
.for years prior to the moving of this line south, or its
relocation, as you may please to call it.
“In the light of the.se facts, will you please favor
me with your opinion as to the answers to the following
questions :
‘FII(ST - By what procedure, if at all, may the
Tax As’sessor of this County strike the above mentioned
e&r&a of delinquent taxer from his delinquent tax roll?
“SECOND -’ If he may not strike them from his
delinquent tax roll, then what effect, if any, does the a-
bove mentioned relocation of the county line have upon
the right of myself, or the delinquent tax attorney of
this county, to prosecute an ordinary delinquent tax suit
to foreclose the tax lien upon these lands for nonpay-
ment of such taxes 7 *
Hon. Amos Harp*, P4gm 3 (V-973)
Tti apinion of the Supreme Court in the Yoakum Coan-
t CM*, abovo-eited, 4ummarizes the allegations of tie petition
&cari; G4ines County in the ~suit which was instituted against Yoak-
urn 8*r Terry,C&mtias to set aaide the boundary line surveyed by
A. L. Harris in 1935 and agreed to by each of the counties acting
thrw4gh its commissioners’ court and its county court. Plaintiff’s
praymr was that the court adjudge the north line of Gaines County
to b4 th4 lint as surveyed by Col. D. S. Woods in 1900 or in the al-
terntive that the north boundary be along certain survey lines enu-
merated in the petition or in the alternative that the court fix “the
true boundary 11114,between the plaintiff and the defendant counties.”
Th+ opinion points out that the field notes of the Woods
11~. run in 1900. before any of the three cbunties were organiaed,
w44 not mark4 on the ground as required by law and .that the calls
in th4 field net44 lhow wt there is room for doubt as to the loca-
tion on tA4 grow4 of the Wooda line. Further, it was alleged that
th4 south line of cert4in surveys were treated by the coanties as be-
ial the boundary tiim and that as between Gaines County and Terry
County a portion bf the boundary line was conaidcred, to be along
the louth line of Block D of another aurve$. But, said th court, if
was not allcged that this line is oai the Woods line.
Tha court firat upheld the power of the commissionarr’
courts and theceunty courtm to cntcr into a binding agreement as
to tba beu&ry lint stating that since countias have tha power to
litig&e boundary disputes they have the power to settle them out of
court so long as thay do not violatc any provision of the Constitu-
tion. Gaines County contended that Article IX, Section 1; Subdivi-
sion 3 d th4 Texas Constitution had baaanviolated. A portion of that
subdivirisn~provideo +t no part of ly existing county shall be de-
tach4d from ib and +tt&chad to anothet kxisting county’until th4 prop-
osition for such chaqe shall have beei submitted to a‘vot6 of th4
slectors of both counties and shall hava received a majority of those
voting on the question in each county. The contantion was rejected,
and tha court said lt:pge 397:
“There is nothing in the raeord to show tha&tit
~4s the‘ plrpesc of the three cax~&ics, in enterin the
forog4ing ndar, to detach lad ~TQ#I one county whose
l44ad4r7 Uy@# ware already a4*yl+hed, and attach
lutm t4 lYY other county. Oo* contrary, it cleab-
ly lp p a a r a the sole purpeti was to definitely fix
Ilb*t
the undefined boundary line between the three counties.
Y
. . .
‘The allegations contained in respondent’s pati-
ti4n clearly show that the boundary line betwean Gaince
mn, Amu mrper‘ hy 4 (V-973)
Cm* and lt+kwn aI* Tekry copntk3 W&a indefidt*,
ld t+t the Wea aouatie4 :de8ired to definitely *ettle
f&d bopndar~ ibe between muchcounties. To t&t end
the commiie$qrr’ courta of the three counties met
tad provided r&au, ia,ectcer+ace with the law, to sur-
vey 9 deftmiyly fix t+S budary line between the three
counttea. PHU to~the time in 1935 wben the three coan-
tier provi&d,e metA* fat &~e emta&lis*eat of such
betm+ry lip; there aLted in the dnindd of the three
c~brieura’~cmts an iasu of fact, end they pmaed
tke’fore@iaq uder, which ecttlod thet fact aa between
“y+” ‘.
Shoe m territory WEE detached frem Cieinee Couaty es
a rosdt $ the l zeerrert 4 J’o r + ltteeked in this suit, peceroer-
ily tb,l+w rp f nst.dieh yeut &linqup tuc rolir ahow delinquent
w,ier wire”ner& withis tiinee County &nd should never hevc been
o ii*b e?Co *a ty,CU *eil*, Tb idb eing So ,fhelrperrment qf taqea
aput thue kbde wad invalid, .
Arfieler 7146 airl.7347, V.C& prescribe the procedure
Hon. AMOS Harper, page 5 (v-973)
am3 Articles 7346 and 7347, V.C.S., are applicable.
The Comptroller .provides Certificate of Cancellation
forms. After said Certificates have been duly approv-
ed, the Tur Assessor and Collector may record the
cancellations cm his rolls. The Comptroller will send
list of l~nrls erroneously assessed to tax assessor of
proper county, Art. 7353, V.C.S., and said lands may
then be back assessed for taxes by the tax assessor
of the proper county, Art. 7207, V.G.S.
.:i
Yours very truly
ATTORL’JEYGENERALOFTEXAS
Mrs. Marietta McGreg
Assistant
FIRST ASSlSTANT
ATTORNEY GENERAL