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