PRICE DANIEL
October 29, 1947
Honorable Ceorgc H. Sheppard
Comptroller of Public Accounts
Austin, Texas Opinion No. V-k20
Re: Authority of the
Comptroller to is-
sue, under Arti-
cles 729;eg;f;308,
V.C.S.$
cates of cancella-
tion of sales to
the State of prop-
erty sold in tax
foreclosure pro-
ceedings.
Dear Sir:
Your O)IAIOA requost dated October 8, 1947, ir
a8 follouo:,
eI am enclosing letter and file from
Mr, Thurman L, Mulhollan, Lampasas, Taxas,
in which ho requests this department to MA- :
ccl a firlltSolo to certain property iA,tho
town of hnpasas made in 1911 and issue P *
cartlficatd of relinquishment as the law
provides,
"Since this department is undecided a8
to the validity of the judgment entered
against this property in 1911 and the of-
ficer's return reporting sale of tht prop-
erty aentioned, I shall thank you to advise
me the proper reply to make to Mr, Mulhol-
lan's letter,"
In order to make clear the full import of JOUr
request, it is necessary to quote the letter of Mr.
Thurman L. Mulhollan,,Attornay, to you under date Of
October A, 1947, which is as follows:
"Pursuant to the provisions of Arti-
cles 7291 and 7308, VernonOs Toxas Civil
.- ,
Honorable ~GeorgeH. Sheppard, Page 2
Statutes, request is here made for the can-
cellation of a certain tax sale of Lots Nos.
7, 8, and 9, in block go. 15e of the Matthews
& Wilkes Addition to the town of Lampasas,
Lampasas county, Texas, held by virtue of a
certain judgment, rendered in the District
Court of Lampasas county, Texas, on the 11th
day of April, 1911, in Cause No. 2808, styled,
The State of Texas vs The Unknown Owner or
Owners. (Said judgment is shown in the State-
ment of Facts, hereto attached, on page 02.)
Upon which judgment an order of sale was is-
sued, upon which the sheriff of Lampasas made
his return thereon on June 6, 1911, reciting
that the lands and premises were struck off
to the State of Texas. (said Return is shown
on page 03 of the Statement of fact)
"It is believed that the sale is irreg-
ular in the following particulars, to-wit:
"(1) The last record owners, in fact no
record owners, were not cited in said suit
the defendants were merely designated as pfhe
Unknown Owner or Owners,'
"(2) The pdp ent does not contain the
recital that t e efendants were even cited
as required by law.
"(3) The Officer"6 Return merely states
that the lands and premises were struck off
to the State of Texas; no deed to the state
appears of record and none b%>,thereports,
required by law to be made to 'the commis-
sionerws court, or to the tax assessor and
collector of said county appears to have
been made. This fact is strongly borne out
by the fact that the tax collector continued
to carry this property on his rolls as $Un-
known' or 'Unrendered'.
"As favoring the cancellation of said
sale, on September 22, 19448 the State of
Texas, for itself and Lampasas County to-
ether with the City of ,Lampasasand eampasas
fndependent School District as impleaded de-
fendant taxing units, brought another suit
for taxes on said identical property, citing
Honorable George H0 ~Sheppard,Page 3
to ia8t record owners thereof at
I,,P..Ws Smith and wife, M&o
IMO the piarchsom of raid Lot@
'Md 9, fA block 15 of tho Uatthows
idditlonto tho town of Lampaaas,
iounty,Toxaao ThO jUd@ltOAtiA thi8
tthorwith ita.aubse.queAt ordor of
U-8 iA the St4ithlOAt Of Facts 811
lad,lO.
-The righta ef A0 thlrJ,)rrtyha born’
injostod iAto,tho aitXlat$@AboWo@n tho tiAo
of the,firat sale and the laat aPlop
"The urohaaor.s at the laat'sale 'that
la' P. wo !Lith pnd tifo Mattie Smith both
acdod iA good faith in t&O purOha00 of'aald
1Pnde at aaid eale.
-I~the overt,said first sale is ,ca~-
celled by your office; the purchasersBf tho
second sale would have succeeded to the pocli-
tlon of the last'rocordowner of said lpnd,
to-wit: J, B, Freeman.
eTherefore,It is requested t&t, iA the
interests of justice, that the,firat sale
should be caAcellcdand a CertPflcate of re-
linquisbmontbe issued out of your office, a8
the lawprovides, to the succeodiAgpartfee
to the last record owners.
What over costs, intenet and taxes
might be due by virtue of the canaellation
of aaid aale will bo paid upon receipt of
notice of the PmouAt theroofow
Your request is reduced to the simple prop@&-
tion of your authority to issue a certificateof cancel-
lation as requested by MpO Mulhollan of the sale in a
tax foreclosure suit in the District Court of Lampasas
County in Cause No, 2808, styled The State of Texas v.
The Uaihovm Owner or Owners, in 1911, wherein the Stat0
became the purchaser, Mr. Mulhollan citea Ilrticlee'7291
and 7308, V.CoS., as your authority,for compliancewith,
his request.
These articles of the statute roepectlvely
provide:
Honorable George h. Sheppard, Page 4
--. 7291
Art. _ _
"Tnb Owner OS real estate which
been boueht in bv the State for taxes. oy
his heirs or assigns, m v redeem the same
t anv time orior to thi sale thereof, by
The vavment to the collector of the county
I hi h such real estate is situated
tz FheCComptroller, if in an unorgani:ez
county, of the amount designated by the
Comptroller as due thereon with costs of
advertisement; and if it shall at any time
appear to the satisfaction of the Comptrol-
ler that any land has been sold to the State
for taxes which have been paid, or that the
sale has not been made in accordance with
the law authorizing the sale of land for
taxes, he shall upon the payment of the
amount that may be due thereon, cancel such
sale; and deliver to the owner of the land,
or his agent, a certifieete under seal of
his department, setting forth the fact that
such land has been redeemed, OP that such
sale has been cancelled; which certificate
shall release the interest of the State and
the same may be recorded in the proper coun-
ty as other conveyances of real estate are
recorded,"
"The tax collector shall, prior to
the sale of any real estate that has been
previously bid off to the State at tax
sales, the owners of which have failed to
redeem the same, advertise the real estate
to be sold in some newspaper published in
the county for six successive weeks, if
there be such newspaper published therein,
otherwise he shall post advertisements of
said sale at the courthouse door and at one
public place in each justice's precinct of
his county for at least six weeks, giving
in said advertisement, whether published
or posted, such description of the lands to
be sold as shall be given on the Comptrol-
lergs list, and stating the time, place and
terms of sale, which shall be between legal
hours on the first Tuesday of some specified
month at the courthouse door at public Out-
cry, to the highest bidder for cash; provided
Honorable George H, Sheppard, Page 5
that no real estate shall in any case be sold
for 18s~ than the amount designated by the
Comptroller as due thereon, together with all
coats of advertisements and sale
gwner of anv such real estate. his e
county, of the
nated by the Comptroller as due thereon, with
costs of advertisement. If it shall at any
time appear to the satisfaction of the Comp-
troller that any land has been sold to the
State for tax86 which have been paid, or that
the sale has not been made in accordance with
the law authorizing the sale of land for taxes,
he ohall, upon the payment of the amount,that
may be due thereon, cancel such sale; and in
all cases he shall deliver to the owner of the
land, or his agent, a certificate under the
seal of his department, setting forth the fact
that such land has been redeemed, or that such
sale has been canceled, which certificate shall
release the interest of the State, and the
same may be recorded in the proper county as
other conveyances of real estate are recerded.,”
(Emphasis supplied)
These statutes have reference only to summary
sales by the Tax Collector authorized at the time of their
passage and have no reference to judicial sales, as is
the case here, Hence, if we should hold that the sale
under Cause No, 2808, in 1911, is void for lack of proper
service or for the other matters suggested by Mr. Mulhel-
lan--a question we need not and do not decide--it would
not aid Mr, Smith, the purchaser at the tax sale in 1944
of the same property in whose behalf MrO Mulhollan de-
sires a certificate of cancellation, This for the sir-
ple reason that the statutes relied upon b him are not
applicable to judicial sales. Moreover 1: the statutes
were applicable to judicial sales, stflf Mr, Smith could
get no relief from them, for they a
terns to the owner of real estate w
in b the State for taxes, or his heirs or assigns. tiO
is neither an owner, an heir or assignee as speef-
Smitiii
fied fn Article 7291 nor a former owne~~ or heir or PS-
signee as specified in Article 7308, These statutes
clearly refer to the owner or former owner of the real
. .
Honorable George Ho Sheppard, Page 6
eotate at the time sale is made to the State. Ml-0 Smltli,
the purchaser at the tax sale of the same property in
the 1944 suit, cannot by any reasonable construction be
auoh an owner or former owner0
The foregoing is sufficient to show that you
have no authority to ccmply with Mr. Mulhollan's request
in behalf of his client, and you are ac,cordlngly80 ad-
vised.
The Comptroller has no authority by
virtue of Artlcles 7291 and 7308 V.C,S.
to issue a certificate of cancelfation 0P
sale of property bought in b the State at
tax foreclosure sale, as suaz articles ap-
pl to summary sales but not to judicial
sa1 es, The purchaser at a subsequent sale
of the same property in a tax foreclosure
suit is neither an owner, a former owner,
an heir or assignee as provided in said
statutes.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By -a -
L
PT P, Lo lar
Assistant
LPL/JCP/erc
APPROVED: