Untitled Texas Attorney General Opinion

OFFICE OF THE A~ORNEY GENERAL OF TEXAS AUSTIN Hon. Oeo. H. Sheppard Comptroller0r COiSPwOuOr Or Pub110 Pub110 Aeootmts AOOOPatO Austin, Taxas ; Dear 'Yr. Sheppard: styled cause. was taken on Oat. attorneys of record heroin, that an agreement oi set)le- clent had been xe3.e of all aontrorerted lseuea involved herein, euoh agreement, however, being subjeat to this Court*a approval, aaid agreement oi settlement having been ontered Into b? the Comissioners Court ox' Jackson County, .?exss, sotin:< for and In behalf qf plaintiff, zmi the indivi:Iual teiendants acting in heir owu proper behalf. Zen. @eo. Ii. Sheppard, page 2 *Thnt by thti term of said agraemant to settle thiswit, the plaintif'f shall have and recover of the defendants,jointly and severally the stm of Sixteen Buadrea Aine and 38/100 Dollars [$1609.38), together with six per oent (6$~) interest per aMum thereon tron this date until; paid, in full aatiafaotion of its asserted olairn agalust all of the defendants In this oauo, as set out more fully in Its petition. “That plalntirr haa a lien scouring the abova amount o? this juagmmt whloh shall be roreelossd by judgnent of this Court on the properties desoribed in plaintittvs petition. “The Court heard all pleading8 filed in this-’ oase read and duly aoneidered sama. The Court then heard and aonsiaered a stipulation filed as a raoord payer and as evldenas in t.h,s oaee and other evidence of&red, as well aa argument of oouuael, and find8 that up to the time of the maicIng of the agreement to settle the disputed zaatter in this oauae, there existed a real aontroversial issue between the plaintiff and these defendants as ts the issue of whether the plaintiff wa8~ entitled to reoover of and from the defendants the amtut or ita asserted olaix lnvolred in this law twit, which aonaisted of a claim for delinquent tax due for the yea?s 1940 md 1941, together with interest and penaltiss thdr- on, as well as aosts thereby aoerusd. That the deSendmta* denial or plalntitf’s ri&ht to reoover the amount elaiti due it by derendants had a substantialsupport thereror as agalust any amount in exoess of Sixteen Hundred Nine and 38/100 Dollars (~$1609.38). *The court, therefore, finds the weemsnt 80 made by and between the parties hereto, throm the Ca8- miasionsre Court of Jaahson County, Texas, and the various derendants is and was a fair equitable and reasonable settlement as to the amount aotually due by these dare&- ants for delinquent tax for the years 1940 and 1$&l, on the propertiesinvolved in this oause, and suoh agreeant is now aade the basis ol this Court’s judgaent.?$S rave? of plaintlrr as against these defendants. Bon. Geo. fl.Sheppard, page 3 "It Is, therefore, ORbER3D, &DJUDGED MD D.EQBW by the Court that the State or Terao do have and recover of the defendant88. J. Porter, Crown Central Petroleum Corporation and the Republio National Bank, jointly end aererall~ the ma Qt Sixteen Buadred Blne and 38/1GO Dollar8 ($l&O9.38),together with sir per cent (6$) interest per annum thereon till paid.* On the faots presented to us, Andy-aaan original proposition ve would.be inolined to hold t&a' judgmant sntered in this ease void since It la obviously the result or a oomproniiso agrssmentbetween the County ;&tommy, the Gomnio- slonera Court and the defondantto. Tno Comm.iosionors Court has no aowar to relsaae or extlngniah tax llabillty in the mituatlon presented here. Constlt~utlon, Article III, Sectian 56; Constl- tutiXl* Art1010 YlII, Seotion 1. Also, Artiols 340, V. .i. C. 3.. dialarra' that: Wo adxissions made by the diatriat or oounty attorney in any suit or action in whioh the State la a party shall operate to prrjudios the rights of the State." 30 feel bound, however, to follow the ease of EoCleaky t. State, J, C, A. 322, 23 S. U. 518, whioh hold an agreed judgmnt entered into by a district attorney as a representative or the St8te good agahaat ooll.stsral attaok. In order to piit- ably aomparc the two judgment8 we quote from the judgment aon- strued by the Court of Civil ,.ppsalo in the YcClesky oaae, whioh reads as iollows: "'This day oame on to be heard the abovs- entitled oause, when aame the plaintiff by attorney, end the defendants also aD>eamed by attornsy, and announced ready lOr trial, when thaw tollowing lgreemnt,in writing, was submitted to the oourt: Wtate of Texas ex rel. vs. 3%. C. Fuller et al. To the distriot attorney, J. J. Ofiel, and attorneys for relators, Carrigan and Hughes and J. P. 3oyd: ?fe, the :mdersfgsed relators in the above-named cult, hereby authorize ahd requeat you to withdraw our inlor~aticn :n said came, and authorize the defendants to take judgmnt, 88 we are setisried with the presarit existihg ooramation of wilioh defendalIt are ofiioera, and nave no desire to prosecute said suit. :,. 3. L:*tsey, ‘2. 1:. :iicis, i. 0. iiragg, 2. '.2. Yertin, Xelators 13 th6 ;,bove-Zamd Suit." ALI the court, ?ion. Coo. 8. Sheppard, paga 4 having inapsotad t&s same, and the district attorney representing the state of Texas r&sing no objection thereto, proceeda to render judgmant in aooordanoe therewith. It is therefore ordered, adjudged and decreed by the co?tPt that the relie3 sought by plain- tiff in this atit, to wit, a dissolution of the in-. oorporation oi the towu of Iowa Park, Texas, be, aad hereby Is, refused, and that said plaintiff take nothfnq by.thda suit. It is rurtber ordered that the defendants, H. C. Puller, aayor, ii. 0. Cottrell, Riarohal, and R. s. SlIma, c. ;1. Orr, W. Gibson, George Ligon, and E. A. Maaleakey? es aldermen of aald town of 10wa Park, Texas, end Weir suooessors lnc@fiior, go hema without raatraint on their rights to aot as ortioera of said town under the prooeedlngs had to inoorporate tha aam, and that they and their suooessora are hereby daoreed to be legally in posa8saion of aaid ofrfoaa undar the aleotlon and other prooeedinga ror incorporationcomplained or in phintirr’8 information. It Is further adjubged and deoreed by the court that the ooeta or this court be taxed against drrandanta, end that the orrioera of oourt hare their exaoution.' . . ." The instant judgmant preaanta a muoh stronger osse for iabmnity from aollatsrel rttaok than does the judpnent in the XoCleaky oeae inSOior 08 the agreement teature is oon- oerned. Noto that the judgaant under oonaidsretlon here reoltss that the coclrt heard other evi~anoe besides tha atlpulrtlon, and the agroenont la merely &de the basis oi the court*8 deorae after it had~heard all the avldenoe. In other words, on tho basis of the eaidenoe, the oourt independently oomea to the same oonalusisn reached by the 1itigshtS em! the SgreeSLOAt i8 not adopted in toto as the judgaent of the oourt. ,?lthough hit is quite plain that the trial court did tollon the void agreeraent, it nevertheless had Juria- diction oi the oontrorerap. Therefore; afnoe the State aubnitted lts8li to the jurisdlotion of-the distriot court, it oaat off its sovereign rob ea e,nd cmo in as would an indlrldual litigant, and is now bound by the judL;ment rendered as an indirlduol litigant would be. Hallroad Commlsaion of Texas Y. :a2xinsas ?uel Gil Co., 148 3. ‘#I. (2d ) 895, writ sf error reioaed. Eon. Gee. R. 3heppard, pail;8 5 We next take up the question of whether the distriot oourt had jurisdiotion to deoree the type of roller *#hioh was granted. The rules relative to the juris- alotion or the distriot court ia the ty>e 0r suit under oonsideration are set forth in State f. Biohardson (Comm. App.) 84 3. ‘H. (26) 1076, and we quote a portion of that deoision as r0ixars: aThe real.quration for dealsion here la this, Warnthe distrlot oourt in thlo prooeeding authorized to rtmalue and reassess the property on the flndiuge made by the jury and award judgment for taxes with interest on aooount of dellnquenoy? It is our opinion that in event of a void assessment L: the district oourt firas no jurisdiction or per to revalue and reassess property and render judgment for taxes baaed on such revaluation and reassessment. The jurisdiotlon ot the tax aseessor and board or equalization is unquestionably exolusivs. state Y. Chioago, B. f., ets., R. Co. (Tex. Corn. App.) 263 the valuea and tares. Li ai 1 B $o., lo2 Tax. 545, 120 S.y?t”8;;.i ~%;a;i:?;lbplied) It is not apparent from the reoord that the assessments made againat the property involved here were void, so we assume that the aituatlon presented in the trial court was one or over-aasessnent, bringing the oause within the exception noted in State v. .Zichardson, supra. This exoeption all0ws a dietriot court to reauoe the aaaessmant it it be not wholly void and it the matter or dlsorimination may be oorreotsd by reducing the valimtion aooording to some mathematioal formula. %Ie have been furnished oertlfied ooples of the 9rooeeQlngs in this oause but there is no pleading to support the proposition that the valuation plaoed. on the property ?nYolYed i:erein was double, or lO$, or auy peroentaga hlgimr than surrounding property ,>f the same grade. However, the record does not aC’inatirely show that such wss not the case, and it does not affirnatlvelp show that the trial cnurt qercly substituted ita discretion i’or thu disoreti;n ;~t the board of ec.uallzatlon. Eon. Coo. E. Sheppard, page 6 Tax judgxants,arepmtroted fro3 sollateral attaok by theacme rules of law governing oolleteral attaok on other judgment8 or domaatio oourts of general jurisdiotlon. Gaablo T. Bannsper, 137 Tex. 7, 151 3. '5.(26) 586; Corbatt t. State, 153 3. Y. (2d) 664, writ or error rotused. The-oourts of this State have astablishrdthe general rule that la order ror a judgaaat to be oollaterally’attaokad suoooasfully, the ;;",Fd must affimatiraly ahor on ita raoo a la&k or jurisdio- . Sin00 the reoord praaented hare doea not affinuatirely show that the valuation was not reduoed aooordtig to SW mathematioalformula,wa mat presume that the trial oourt pursued this mathod. 20 oonsider aazt the point raised as to whether tha judgment properly desoribod the land invalvad hare- in, ainoe it rarely desoribed the lend a8 *propertydesoribed ia plaintirf'spetition.N The relerenoe oonatituteda legal . deaoriptionprovided the petition sufrioientlydasoribed tha laud. Martin v. Paal, 29 9. W. 691; Warm t. Bank, 239 9. W. 277; Xoore Y. Uakhowa Eairs ot Gilchrist, 273 S. W. 308. The patitloa ia dasoribiagthe land makes rereraaoo to other instru- manta in the chain ot titl8, thus incorporating the deaoription used in suoh other instrmonts. Soheller 1. Groeabeok, 231 3. ':'* 1092 (Conlm...ipp.); Klein '1.Humble Oil & Raflning CO., 67 3. 7. (26) 911, attlmad, 126 Tex, 450, 86 3. :X. (28) 1077. '?'aunderstand the point rained to relate to the method of dea- oription rather than to ~whatherof not the land was validly aad aotually desoribed. qt Is our opinion that the method used Ia valid, but we do not pm upon whether or not the laxldwas f am~oanly deaorfbed, m na are not in possession of oopies ot referred to in the petition. the inotru,za~ts Xa note that the judgment provide8 ror the taxing of oosta of court against the State. ThIa portion Is void. Artlola 7333, V. A. C. S.; Grant v. 61118, 50 3. X. (2d) 1093 (coma. App.), aa;lnone ol the taxing units Inrolvad ahould , pay any part 0r the oosts or oourt. You are advised therefore that the judgment In the oaso under oonalderationhere is not aubjeat to oollateral attaak, aside from the provision as to oourt oosts), and the Gomptrollar of Pub110 Looouhta should issue a redemption reoeipt in oonfomity therewith. Yaum very truly