R-850
231
OFFICE OF
THE ATTORNEY GENE-
pRKEDANlEL
*7TORsEYGENERAL November 29, 1947
Hon. A. C. Winborn
District Attorney
Civil Courts Building
Houston 2, Texas
Houston on prior State
and County Tax liens and
related questions.
Dear Mr. Winborn:
By your letter of October 3, 1947, we are advis-
ed that the “City of Houston has tendered to the Assessor
and Colleotor of Taxes of Harris County various sums of
money covering. partial payments of State and County taxes
on various paroela of property, which have been acquired
by the City or Houston f’or public use, either through pur-
chase or by eminent domain proceedinga.” You request an
opinion rrom this Department on the roilowing questions:
“(1) Whet is the effect upon State end
County taxes and the liens securing them when
real estate has been eoquired for public use
by the City of RoustOn through purohase or by
condemnation?
-.
“(2j Does such ecquisitlon by the City
Muse such property to become exempt from State
dnd County taxes7
v(3) Is the Assessor and Collector of
Taxes authorized to cancel any assessments for
taxes arter title to the property has been ac-
quired by the City?
v(4) Is the owner or reel property from
whom the City acquires such title relieved of the
payment of taxes assessed against It prior to the
time of Its acquisition by the City?
“(5) Has the Assessor and Collector of Taxes
for Harris County the authority to aocept. part pay-
ments of taxes on such property from the City of
Houston? If so, how should such funds be handled?”
232
Hon. A. C. Wlnborn, Page 2, V-441
-
We will take up the tax questions presented
above in the ohronologlcal order of their incidence and
consider first question No. (4) which asks whether “the
pormer7 owner of real property from whom the City ac-
qulres-title ,&-/ relieved of the payment of taxes as-
sessed against Tt prior to the time of acquisition by
the City .n It la well settled In Texas that the person
owning property on the first day of January is personally
liable for the taxes for that year and that a la.ter sale
of the property during the year does not alter the rule.
The controlllng constitutional and statutory provisions
are found in Article VIII, Section 15 of the Constitution
of the State of Texas; Articles 7151, 7152, 7172, V.C.S.
The followina cases SUDDOrt the above conclusion: Cars-
well v. Rabb~rzettle, hi S.W. 911; Humble Oil and REL
‘ina Co. v. State, 3 S.W. (2) 56, writ refused; Childresa-.‘-
County v. State, 92 S.W. (2) 1011.
.-
This continuing llablllty of the former owner
for taxes assessed against the land during the time of
such ownership in itself precludes the existence of eny
authority in the Assessor and Collector of Taxes to can-
cel past assessments for taxes after.title to the proper-
.ty has been aoquired by the city of Houston. We pnswer.
your third queetion aocordingly and do not deem itneoes-
eary to discuss other reasons ‘for denying the Assessor and
Collector such authority. .
Your seoond question relates to the present sta-
tus or these lands for the purposes of taxation. We can
answer this question most concisely by quoting from the
opinion rendered by the Supreme Court in A & M Consolldat-
ed Independent School District v. City or Bryan, 184 S.W.
2) 914.
R ” .The pertinent provisions of our Con&i-
tution: ;ernon’s Ann. St., are as follows:
v’Artfcle VIII. Sec. 2. All occu-
pation taxes shall be equal ,and uniform up-
on the same class of subjects within the
limits of the authority levying the tax;
but the Legislature may, by general laws,
exempt rrom taxation pu:l$c ,property used
for public purposes; . ,
“‘Article XI. Sec. 9. The property
of count lee, citfes and towns, owned and
held only for public purposes, such as
public buildings and the sites therefor.
23s
Hon. A. C. Winborn, Page 3, V-441
Fire engines and the furniture thereof, and
all property used, .or intended for extin-
guishing fires, public grounds and all other
property devoted exclusively to the use and
benefit of the public shall be exempt from
forced sale and from taxation, provided,
nothing herein shall prevent the enforoement
of the vendors lien, the mechanics or build-
ers lien, or other liens now existing.’
“It is apparent from the above provisions
of our Constitution that some public property is ab-
solutely exempted from taxation by virtue of the pro-
visions of the Constitution, whereas other public
property is not absolutely exempted, but may be so
exempted if the Legislature so elects. Section 9 0r
-Article XI appears to be self-operative and absolute-
ly exempts from taxation the public property therein
referred to, whereas Section 2 of Article VIII vests
in the Legislature the power to determine whether or
not the public property therein referred to shall be
exempted from taxation. Daugherty v. Thompson, 71
Tex. 192, 199, 9 S.W. 99; Galveston Wharf Co. v. Clty
of Galveston, 63 Tex. 14. See also City of Abilene
v. State, Tex. Civ. App., 113 S.W. 26 631, par. 7.
flhis last case holds that the use for public purpos-
es need not be continuous and uninterrupted so long
as the purpose for whYch it is owned and held has not
been abandoned,7
“We need here determine td which of these class-
es the property here involved belongs, for the Lagls-
lature by the provisions of Revised Statutes, Article
7150, has exercised the authority so vested in it,
and has exempted from taxation all public property
wed for public purposes. That Article provides in
part as follows:
“‘Art. 7150. The following property
shall be exempt from taxation, to-wit:
+ l * * * *
U’4. Public property.--All property,
whether real or personal,, belonging exclu-
sively to this State, or any political sub-
division thereof, or the United States, * * *.’
,,* * *
c
5: 234
Hon. A. C. Wlnborn, Page 4
“The property in question 1s owned by the City
of Bryan, a municipal corporation, and is therefore
public property. Is it used for public purposes? In
determining whether or not public property is used
for a public purpose the test appears to be whether
it is used primarily for the health, comfort, and
welfare of the public. Commonwealth v. City of Cov-
in&on, 128 Kg. 36, 10’7 S.W. 231; 14 L.R.A., N.S.,
1214; Galveston Wharf Co. v. City of.Galveston, 63
Tex. 14. It is not essential that it be used for
governmental purposes. Corporation of San Felipe
de Austin v. State, 111 Tex. 108, 229 S. W. 045.. It
is sufficient if it be property which all of the
public hes a right to use under proper regulations.
Galveston Wharf Co. v. City of Galveston, 63 Tex. 14,
23. The fact that charges are made or compensation
is received for its use does not withdraw it from
Its public character, provided such charges are an
incident to its use by the public andthe proceeds re-
ceived for Its use inure to the benefit of the ,pollt-
ical subdivision. Galveston Wharf Co. v. City of
Galveston, supra; 61 C.J. 421.. . .”
We are not advised as to the ‘particular purposes for which
the property involved in this request was purchased (obvi-
ouslg the property condemned was secured for public purpo-
ses) ; but assuming that such use will be within the above-
quoted definition of’*use for public purposes,” the oroper-
tg will not be suh.ler.t ~+o tsxati.on by the State or county
while it is owned and used by the City of Houston for Pub-
lic purposes.
We pass now to a consideration of the State and
County liens for taxes which had attached to each tract
of land for the taxes assessed against it. Article VIII,
Sec. 15 of the Constitution of the State of Texas; Art.
7172, v.c.3.; Richey v. Moor, 249 S.W.172. We assume,as
indeed we have implied above, that the liens here involved
ere valid liens, i.e., such liens as were properly attach-
ed to the land and therefore enforceable before the land
was acquired by the city.
The question of the effect on prior tax liens
of acquisition of title to land by a state or other gov-
ernmental body for public purposes is e difficult one on
which the courts of various jurisdictions, and often wlth-
‘,,.;;,same jurisdiction, have reached widely divergent
The dlfflculty arises from the fact that the
land ha; been aoquired for a purpose which will exempt it
from taxation after its acquisition. Some- of the author-
ities which take the vfew that the lien is extinguished do
Hon. A. C. Winborn, Page 5, V-441 2:rs
so on grounds of merger, Smith v. Santa Monica,121 P.
920; Peterson v. Maricopa counte 3uU P . 173; owever,
most of the decisions strongly &ge that the public pol-
lop reflected In the exemption provisions necessitates
freeing public property used for public purposes from all
tax burdens including those imposed before aoauisition-
by the state or governmental subdlvfslon. State v. Locke,
29 N.M. 148, 219 P. 790. Therefore, as DOinted out in
158 A.L.R. 565, the cases taking the contra view on this
point represent essentially a conflict in principle.
We will consider the effect of acqulsitlon of
the lands bgthe City of Houston on the prior State and
County tax liens without distinguishinn between the lands
acquired by contract of purchase and the lands acquired
by eminent domain proceedings for the reason that, ordi-
narily, the manner of acquisition, i.e., whether by pur-
chase or by eminent domain, is not controlling in deter-
mining whether the lien for delinquent taxes is extinguish-
ed or suspended. 158 A.L.R. 573. The Washington courts
have made this distinction, holding that where a municipal-
ity acquired property under a voluntary contract of purchase,
it was acquired subject to a prior lien for state, county,
and school distriot taxes, Puyallup v. Lakln,45 Wash. 368,
88 P. 578; but that when the property was taken by eminent
domain proceedings, the munic~pailty~acqulred it freed from
the burden of prior tax liens. Qasawag v. Seattle,52 Wash.
444, 100 P. 991. We are of the opinion that this partic-
ular distinction should not be made a controlling one since
it results in determining the ultimate existence or non-
existence of the lien by the parties' ability or inability
to agree on the value of the land. See Art. 3264, V.C.S.,
which prescribes the procedure In eminent domain prooeed-
lngs and requires that the statement which is filed with
the county judge contain an allegation to the effect that
plaintiff and owner have been unable to agree upon the val-
ue of the land or the damages; and 16 Tex. Jur. 6 117 and
authorities cited therein.
Viewing the land acquired by the City of Houston
without regard to the two different methods of acquisition,
the facts presented by your request are substentfallv the
same as those presented to the Court in City of Dallas v.
State, 28 S.W. (2) 937, error refused. In that case the
State of Texas sued the city for taxes alleged to be due
the State, Denton County, Road District No. 3 and School
District No. 53 of said county. The taxes were alleged
to be due on the reservoir site of the Dallas reservoir.
The Court held that the reservoir site should be held ex-
empt from taxation but that "the city of Dallas should be
on. A. C . Winborn, Eage 6, V-441
held liable” for all taxes due on lands occupied by the
reservoir *for the years prior to its purchase by the
city.” (Opinfon O-4956 of this Department follows the
holding of this case.) The State made Application for
Writ of Error, which was refused, contesting the exemp-
tion of the reservoir site after acquisition by the city.
The Application contains thmlowlng statement:
“A trial was had in the District Court with-
out a jury and a judgment was rendered in favor of
the State for the taxes sued for and a lien was de-
creed in favor of the State a ainst the land for the
amount of the taxes. and the f len was foreclosed in
the judgment of the ‘court. An aopeal was reaularly
taken by the City . . . and the judgment of the Dis-
trii; Court was reformed by the bourt of Civil Ap-
iiflf s;,;s,to deny a recovery for the taxes sccru-
s nce the acquisition of t e land by City of
udgment was awarded the State for the
Sum of ‘$206. 7, representing delinquent taxes accru-
ing prior to the acquisition of the land by the City.”
The Judgment entered by the Court of Civil Ap-
peals reads as follows:
“This cause cane on to be heard on the tran-
soript of the record, and the same being inspected,
it is the opinion of the court that there was error
in judgment. It is, therefore, considered, ad judged
and ordered that the judgment of the trial court,
insofar as it rendered judgment in favor of the ap-
pellee for taxes accruing on the reservoirsite of
the City of Dallas subsequent to January 1, 1925,
be and it is hereby reversed and judgment as to
those taxes rendered in favor of the appellant,
City of Dallas, but the judgment for taxes due on
said lands accruing prior to Jenuary 1, 1925 is
hereby reformed and qfrlrmed for the sum of $206.97
against the City of Dallas. It is further ordered
that the appellee, the State of Texas, pay all oosts
In this behalf expended, . . . and that this decision
be certified below for observance.”
Thus It is clear that the judgment of the trial
court was reversed only insofar 8s it rendered judgment in
favor of the State and the various taxing units for taxes
whioh allegedly aoorued after acquisition by the City of
Dallas; but the judgment was expressly affirmed for the
sum of the taxes due orfor to aoauisltlon. This efflnna-
tlon necessarily affi-med the existence of the lien which
had been declared in favor of the State and foreclosed In
the judgment of the district court. There can be no ques-
tion that the City of Dallas case, In view, of its entire
Hon. A. C. Winborn, Page 7, V-441
record, stands for the proposition that the .city could
protect its interest in the lands only by paying the tax-
es which were delinquent when the property was aaquired
by the city. In other words, ‘
the prior tax liens were
not extinguished, and the’clty held the lands subject to
the liens for such delinquent taxes.
The very able brier which acoompanied your re-
uest directed our attention to State v. Stovall, 76 S.W.
? 2) 206 and to the fact that the annotation in 150 A.L.R.
565 cites Chlldress County v. State, 92 S.W. (2) 1011, as
one of the authorities for the proposition that acquisition
of title to land “by a state or-other governmental-body
acts to extinguish prior tax liens against the property.”
We find nothing in State v. Stovall , 76 S.W. (2)
206 (which only holds that “when legal title to such pro-
perty is acquired by or vests in the state end the same
is used by it for a public purpose, a-subsequent proceed-
ings to cblleot such-tax by-enforcing such lidn a.r_sI”ith-
out effect and void”) nor in Childress County v. State’, 92
S.W. (2) 1011. ‘which would lustlfv our holding that the
City df.Dallai case has been overruled. We have studied
these opinions, and we have reached the conclusion announced
above after a careful consideration of these cases and the
authorities in other jurisdictions.
In the Childress case agricultural school land,
which by Article VII, Section 0a of the Constitution of
the State of Texas is subjeot to taxation except for State
purposes, was sold by Chlldress County and B vendor’s lien
was retained. During the intarim of ‘private ownership tax-
es became delinquent. Judge Sherp held that the county
reacquired the land free of the lien for State taxes. This
result was reached because the Court looknyond the
county’s ownership to ultimate .benetiolel ownership in the
State end therefore reached the conclusion that the tax
lien or the State was merged with the ownership of the
county. We quote the iollawlng excerpts rrom Judge Sharp’s
opinion:
“The lsnd involved la agricultural school
land. The title to same reverted to Childress
~u;;;~;n February, 1933. Section 6a of Article
expressly provides that such land may be
tixed as’prlvetely owned lands, except that it may
not be taxed for state purposes. The county Is
merely an arm of the state. It is a political sub-
division thereof. In view or the relation of a
county to the stete, the state may use, and fre-
quently does use, a county 88 its agent in the
238
Hon. A. C. WlnbOrn,,PBga 8.,:V-44). :J--,,, f ,~
discharge of the,State’s functions and duties.
.Jones v.:Alexander, 12E Texr-328;5QS.W. (2d)
~-~~08O;.A.~nSBS~PBSS v. Keeling; 112,Tex. 339, 247
S.W ., 818; Bexar- County v., Linden, 110 Tex.-:339,
220 S.W.? 761. The state his ~approprlated snd dedi-
cated to counties, for public school purposes, B
part of its public domain. The title thereto is
vested in, the .counties. Section ‘6 of article 7
of the Ccnst.ltutlon;’ This is lor,the benefit ‘of
the state ES well as for thecbeneflt of the .coun-
ties. When the title-to this ,,isnd. reverted to -...-
Childresa county, it else; in a oertain.sense, re-
verted to the, state., Greenejv. Robison, 109 Tex.
7, 10 S.W. 498. (Em&issis added throughout this
opinion)
..’
..~ “While this precise question, so far ES we
know, has never been determined by this court, we
think the great weight of authority sustains the
rule that when the title to this Land reverted to
Childress county, the ~tex lien for state purposes
,“becBme merged’ with the ownership of’ the land by
Lthe county. This property, dedioated to a county
exclusively for a public purpose, End having been
,. ,aold by the county to individuals, who failed to
comply with the contract of sale, whereupon the
title to the land reverted to the county, cannot be -.
burdened with taxes due the state during the time it
was privately owned. 61 C lJ l t P* 45, and cases
cited; 26, R.C .L. , p. 289; and authorities cited.-
The A;L.R. AIInOtBtiOn does not,mentlon the seconc
holding in the case which deals with the l-len for tsxes du
Coohran County in the following language:
“When the land reverted to Chlldresa County,
it was ~reBCqUir0d subject to the taxes due thereon
while it was privately owned. Therefore Childresa
County can protect its int crest in ,the land by -pay-
ing the taxes due CoChrBn County for the years 1931
End 1932, or let it be sold for such taxes.”
This~ result flows rmm the nature of’ the partia-
ular lend fnvolved ES the opening etatement of the.opinlon
reveals I Wection 68 of Artlala 7 and section ‘15 ‘ot,‘Arti-
cle 8 ,ol the Gonstftution should be considered t0gether.e
The Court also said that there is nothing In Art. 71508
“to show that it was the Intention of the Legislature to
prohibit a special lien being plaoed ~011 agricultural and
grazing school lands to secure taxes legally due ‘thereon.”
Hon. A. C. Wlnborn, Page 9, V-441
239 ‘.
Thus there is nothing in the Chlldress case to
support the conclusion that the lien for prior taxes will
be extinguished Bbsent the merger of such lien upon acqul-
sition of title by the government or governmental subdlvl-
SlO5.
The Supreme Court of NebraskB haa construed the
Chlldress case as being authority for the contre view that
"when a government or a governmental subdivision purchases
property upon which there exists 8 lien for tBXe8, End the
lien is not extinguished, it takes it subjeot to the lien
to the same extent ES would 8 private purchaser. United
States v. Alabema, supra; Triangle LEna Co. v. City of De-
troit, 204 Mlch: 442, 170 N.W. 549, 2 A.L.R. 1526; City or
Santa Monica v. Los Angeles County, 15 Cal. App. 710, 115
P. 945: State v. Salt Lake COuntv. 96 Dtsh 464. 85 P. 26
851; In re Graley's Estate, 183 ii&h. 268, 48~+. 2d~634;
Chlldress County v. State, 127 Tex. 343, 92 S.W. 2d 1011;
Public Schools of City of Iron Mountain v. O'Connor, 143
Mich. 35, 108 N,W. 426; City of Puyallup v. Lakln, 45 Wash.
368, 88 P:370." Madison County v. School Dlst. No. 2,27
N.W. (2) 172.
We view the Childress case 8s does the Supreme
Court of Nebraska with the limitation that the application
of the theory of merger may result in an extinguishment
of prior liens. OS aourse,,as previously pointed out, even
if the~lien is not merged, it bec,omes Unenforceable when
legal title Vests in the State. State v. Stovall, supra.
We do not think that the theory'of merger can
be applied to the facts of this case to eXtinRUlSh the url-
or t6k lien of the county. As was.sald in Saiita ~OniCBmVe
Los Angeles County, 15 Clv. A&. 710, 115 P. 945:
"The bare acquisition of the premises fiy the
clt capon whloh the tax levy attached did not carry
Wi XT it any interest or estate in the lien therein
created for county purposes. There was, therefore,
no vesting of any lesser estete, held 15 the s8me
right or otherwise, through whioh merger could be
said to result. The plaintiff, when it acquired
thls,land, took it subject to the lien for county
purposes t9 the same extent ES would 8 private
.purohaser.* I
Nor do we think that an application of the theory
of merger results id extinguishing the lien for State taxes.
For,whlle muaicfpallClas are political subdivfelons of the
State, they ere not "BEZIIBof the State"; and they are organ-
ized nnot so much with 8 view to the interest of the publlo,
c
icLP?) A. c
. Winborn, Page 10, V-441
es for the private edvantage of their citizens.w, 30 Tex.
Jur., B 3 end authorities cited therein.
You are therefore advised that the liens for State
end county taxes are not extinguished by the ecquisition
of the title to the lend by the City of Houston even though
the lend has been ecquired for public purposes, end that
the City of Houston holds such lends subject to the liens
thereon.
Your fifth question relates to the method of pay-
ment of these delinquent taxes and is as follows:
“(5) Has the Assessor and Collector of Taxes
ror Harris County the authority to accept part
payments of taxes on such property from the City
of Houston? If so, -how should such funds be hen-
aled.?”
We essume that by “partial payments” is meant
“payments” in en amount less then the amount of State and
county taxes which were delinquent for any one year on eny
one tract separately assessed for that year. We enclose
a copy of Opinion No. O-4545 of this Department which cov-
ers the various aspects of this question in detail and
holds that the Tax Assessor and Collector has no author-
ity to establish a system for reoeiving “partial payments”
of delinquent taxes.
SUMMARY
The former owner of real property from whom the
City of Houston acquired title is not relieved of the
payment of taxes assessed against it prior to acqul-
8itiOn by the city. Art. VIII, Sec. 15, Const . of
Texes; Articles 7151, .7152, 7172, V.C.S.; Carswell. _ ~.
v. Habbenettle,. 07 S.W. 911; Humble 011 and Refin-
lng Co. v. State, 3 S.W. (2) 56, writ refused;
Childress County v. State, 95 S .W. (2) 1011. The
Assessor end C llector is without authority to
cancel past aszessments for taxes after title to
the property has been acquired by the City of
Eouston. The pn,perty will not be subject to tax-
ation by the State nr countv while it la owned
and used by the City of Houston for public spur-
poses. Art. XI, Sec. 9; Art. VIII, Sec. 2, Const.
of Tex.; Art. 7150(4), V.C.S.; City of “,3!?;n v.
A. & M. Consolidated School District, 1 w
2) 914; and euthorities cited therein. Th;! ”
Hon. A. C. Winborn, Page 11, V-441 24,
method of acquisition used by the city, i.e.,
whether by purchase or by eminent domain proceed-
ings, should not determine the present status of
prior tax liens. 158 A.L.R. 573. The valid State
and county tex liens are not extinguished by the
acquisition of the title to the land by the City
of Houston even though the land has been acquired
for publio purposes, end the city holds such land
subject to said liens. Art. VIII. Sec. 15. Con-
st. of Tex., 7172 V.C.S.; City of Dallas vi -~
State, 28 S.W. (2) 937, error refused;a Monica
Gs Angeles County 15 Cal. App. 71Om P
345. The Assessor ani Collector has no authoritv
to accept "partial payments" of taxes in amountsw
less than the amount of State and county taxes which
were delinquent for any one year on any one tract
separately assessed for that year. Opinion O-4545.
Yours very truly
ATTORNEYGERFRALOFTEXAS
BY~S @tccQ
Mrs. Marietta Creel
Assistant
APPROVED:
ATTORNEYGERRRAL
m/JCP:jrb I