I respectfully dissent. I would sustain the lower court's judgment that the sheriff's sale was void and no title passed to Cash Investments, as the sheriff did not comply with either the judgment of foreclosure or the order of sale in accepting Cash Investments' bid. See State v. Rhodes, 327 S.W.2d 701 (Tex.Civ.App. — Dallas 1959, no writ). The majority's holding means, effectively, that a taxing unit may not rely upon the plain language of a judgment and order to govern the terms of a sheriff's sale.
A valid judgment, execution and sale are required to pass title to property at an execution sale. 3-C Oil Co.v. Modesta Partnership, 668 S.W.2d 741, 748 (Tex.App. — Austin 1984, writ ref'd n. r. e). The judgment of foreclosure and the order of sale establishes the sheriff's authority to sell, the manner of sale, and the terms of the sale. See Volunteer Council of Denton State School, Inc.v. Berry, 795 S.W.2d 230, 238 (Tex.App. — Dallas 1990, writ denied). If the sheriff acts *Page 698 outside the authority thus conferred, the sale is void and no title passes. Id. That is exactly what occurred here.
Clint I.S.D. brought the foreclosure suit and obtained a judgment that states:
[T]hat an Order of Sale be issued . . . directed to the sheriff . . . [to] sell . . . to the highest bidder for cash, as under execution, provided that none of said property shall be sold to any party, other than a taxing unit which is a party to the suit, for less than the amount of the market value of the Property (as shown in the findings portion of this judgment) or the aggregate amount of the judgment. . . .
The Order of Sale issued pursuant to the judgment directs the sheriff to:
[S]ell the same, to the highest bidder for cash as under Execution; provided, however, that none of said property shall be sold to the owner of said property, directly or indirectly, or to anyone having an interest therein, or to any party other than a taxing unit which is a party to the suit for less than the amount of the adjudged value of the property or the aggregate amount of the judgment against . . . the property.
I find no ambiguity in the phrase "any party other than a taxing unit which is a party to the suit." In both the judgment and the order of sale "taxing unit" is modified by "party to the suit," clearly identifying Clint I.S.D. as the only entity which may purchase for less than the minimum bid defined in the order. This minimum bid restriction applied to everyone else in the world, including Cash Investments. Moreover, the judgment and order of sale as written are not in conflict with TEX.TAX CODE ANN. § 33.50, nor should it be necessary to interpret the plain language of the judgment and order of sale in light of Section 33.50, as that statute creates a mandatory floor, but not a ceiling, for restrictions on transfer of property within a judgment and order of sale.1
Although Section 33.50(b) clearly requires a minimum bid from an interested party or owner of the foreclosed property, nothing there prohibits a court from imposing additional terms or conditions on the sale of foreclosed property. Nothing in the language of Section 33.50 calls for the conclusion that it is the only permissible requirement in an Order of Sale. I believe, therefore, that the language of Section 33.50(b) is irrelevant to the resolution of the controversy. Because the sheriff failed to follow the dictates of the order of sale and acted without authority in accepting a bid for less than the court determined minimum, the sale was void.
A close reading of Rhodes, 327 S.W.2d 701 clarifies this point. In Rhodes, a tax foreclosure sale was set aside when the sheriff sold property to a third party for less than the minimum bid required by the order of sale.Rhodes, 327 S.W.2d at 702. The order of sale instructed the Sheriff:
[N]one of the tracts shall be sold to the owner . . . directly or indirectly or to any one having an interest therein or to any party other than a taxing unit which is a party to this suit for less than the amount of the adjudged value . . . or the aggregate amount of the judgments. Id.
The court understood the order of sale to mean that the minimum bid requirement was binding on everyone except a taxing unit that was a party to the suit. This instruction in the order of sale tracked the language of TEX.REV.CIV.STAT.ANN. art. 7345b § 8, (the predecessor to 33.50(b) TEX.TAX CODE ANN.)Id. at 703. Appellant in Rhodes argued that the language of Article 7345b, § 8 was directory rather than mandatory and could not authorize the setting aside of a tax sale or sheriff's deed. Id.
In upholding the lower court's decision, the court of appeals found that the judgment of the court and the orderof sale, independent of the statute, imposed a minimum bid on all parties except the taxing unit which was a party to the suit and that:
*Page 699[T]he question whether Art. 7345b, § 8, V.A.C.S., is directory or mandatory is immaterial
in this case. The sale must be declared void because the acceptance of [the] . . . bid violated the terms of the court's judgment of foreclosure, and the express directions of the order of sale . . . the authority of the sheriff to pass . . . title at a sale under foreclosure by decree of court rests upon the decree and the order of sale. If the decree and order of sale fail to authorize such a sale as the sheriff undertook to make, no title passes. Id.
Continuing, the court stated:
Id. at 704, quoting Brown v. Bonougli, 111 Tex. 275,232 S.W. 490, 492. Thus, the foreclosure sale was not in compliance with the directions of the order of sale, and the trial court properly set aside the sale and cancelled the sheriff's deed. Id. Contrary to the majority's understanding, the Rhodes opinion never interpreted Article 7345. Rather, Rhodes held it was the violation of the order that made the sale void. The application of the statute played no part in determining the sale's validity. Id. at 703.Where the sheriff sells to satisfy a judicial foreclosure of a tax lien, his authority is no more derived entirely from the statutes than when he sells under an ordinary execution. The valid judgment of a court of competent jurisdiction and a writ for the enforcement of the judgment are essential to confer on the sheriff the power to sell.
Similarly, the foreclosure suit brought by the Clint I.S.D. here contained a judgment of foreclosure and order of sale with language nearly identical to that in Rhodes, imposing a minimum bid on everyone, with the exception of the taxing unit. The sheriff violated the terms of the judgment of foreclosure and the order of sale in accepting Cash Investments' bid. For that reason, I would hold, as did the trial court, that the sale was not valid.
Finally, we should not lose sight of the impact the majority's decision will have on revenue collection in this State. The purpose of a taxing unit is to assess and collect revenues and the provisions of the Property Tax Code are merely tools to that end. Syntax, Inc. v. Hall, 899 S.W.2d 189, 192 (Tex. 1995). The majority's ruling would severely limit a taxing unit's ability to carry out this purpose, as its interpretation of TEX.TAX CODE ANN. § 33.50 (Vernon 1992) would prohibit a taxing unit from requesting and obtaining a judgment and order of sale requiring minimum bids from third parties. I believe it defeats the purpose of Chapters 33 and 34 of the Tax Code if a taxing authority cannot rely on the plain language of a judgment of the court and the order of sale to fulfill its appropriate public function. It seems the majority would require the taxing authorities to rely on a warm body at a foreclosure sale to insure they obtain taxes owed. Without an explicit requirement from the legislature that the taxing unit have a representative physically present at every sheriff's sale (not a hefty burden on a small entity, but large and expensive burden on a large one), I would place more confidence in the language of a judgment and order of the court than the majority seems willing to vest.
I therefore agree with the trial court's finding that no title passed to Cash Investments as a result of the sheriff's sale here. I would also find that the court acted within its discretion in awarding attorney's fees to Clint. I would affirm.