Dissenting.
I disagree with the majority’s holding that Comerica is not an “owner” of the property for purposes of ad valorem taxation. Accordingly, I respectfully dissent.
The majority supports its holding on the following public policy considerations:
1. The lienholder would be taxed on the market value of the property but “may only retain the amount of sales proceeds sufficient to satisfy the remaining debt and certain expenses”; and
2. “if the lienholder in possession receives payment of the remaining amounts owed against the property, the lienholder must relinquish possession of the property to the record owner.”
The legislature has solved this dilemma. As the majority states, the lienholder may retain the sales proceeds sufficient to cover “certain expenses.” One of the “certain expenses” that the lienholder may recover from the sale price of the collateral — or that the debtor/title owner is liable for on redemption of the collateral — is the “payment of taxes ... incurred in the custody, preservation, use or operation of the collateral.” Tex. Bus. & Com.Code Ann. § 9.207(b)(1) (Vernon 1991);1 see id. §§ 9.504(a)(1) & 9.506.
The majority’s third public policy consideration is the possibility that both the debtor/title owner and the lienholder in possession could be liable for the property taxes. The majority provides no analysis explaining why this is a problem. Under article 9 of the business and commerce code, the debtor/title owner is liable to the lienholder for any taxes paid by the lien-holder; and the taxes, as a “reasonable expense,” are secured by the collateral. Thus, the lienholder has recourse for any tax payments it makes on the collateral. To the extent the majority is concerned about the liability of the debtor/title owner against the taxing authority for the taxes, those rights are not the subject of this appeal and are irrelevant to whether the lienholder in possession may be considered an owner by the tax assessor.
The lienholder has an obvious means to protect itself from being assessed ad valo-rem taxes on its repossessed collateral: it can manage its business in such a manner that it is not in possession of collateral on January 1.
The majority’s public policy considerations do not support holding that a hen-holder in possession is not an “owner” under the ad valorem taxation statute. I do not perceive any public policy support for the majority’s holding.
*500The majority refuses to follow the holding of the Corpus Christi Court of Appeals that “the secured party in possession is the equivalent of title owner” because the Corpus Christi court cites no supporting authority for its holding. See Gen. Elec. Capital Corp. v. City of Corpus Christi, 850 S.W.2d 596, 599 (Tex.App.—Corpus Christi 1993, writ denied). In fact, the Corpus Christi court cites a Texas Supreme Court case, Childress County v. State, 127 Tex. 343, 92 S.W.2d 1011 (1936). See Gen. Elec. Capital Corp., 850 S.W.2d at 599. In Childress County, the supreme court stated,
The person having legal title to property is generally considered to be the owner thereof for purposes of taxation.... If he is the record owner, or is vested with the apparent legal title, or is in possession thereof, coupled with such claims and evidences of ownership as will justify the assumption that he is the owner thereof, the assessor will be justified in assessing the property for taxation against such owner.
Childress County, 127 Tex. at 349-50, 92 S.W.2d at 1015 (emphasis added), quoted in Gen. Elec. Capital Corp., 850 S.W.2d at 599. Contrary to the majority, I consider the opinions of the Texas Supreme Court to be not merely some authority but controlling authority.
Under the supreme court’s direction in Childress County, we determine whether the assessor is justified in assessing the property tax against a lienholder in possession by considering the lienholder’s “claims and evidences of ownership.” Of course, Comerica does not make a subjective “claim” of ownership. There are, however, objective “evidences of ownership.” As a lienholder in possession of collateral following default by the debt- or/title owners, Comerica’s rights in the repossessed property on January 1 of the tax years are at least equal to those of the debtor/title owners. Comerica had possession of the vehicles; the debtor/title owners did not. Comerica had the right, if not the obligation, to sell the property; the debtor/title owners could not sell the property. Comerica had input as to the price at which the vehicles were offered at auction; the debtor/title owners did not. Comerica had input as to what auctioneers were used to sell the vehicles; the debt- or/title owners did not. And, perhaps even more importantly, Comerica had possession of the certificates of title and later signed off on those certificates as the seller of the vehicles; the debtor/title owners did not. The debtor/title owners could force Comerica to return the property, but only by paying Comerica the amount of the outstanding debt and Comerica’s reasonable expenses, including any taxes Comerica paid on the property. With the consent of the debtor/title owners, Comeri-ca could keep the property with all the debtor/title owners’ interest in the collateral in satisfaction of the debt. See Tex. Bus. & Com.Code Ann. § 9.505(b) (Vernon 1991). It is undisputed that Comerica was in possession of the vehicles. Based on the record, I conclude that Comerica’s possession is “coupled with such claims and evidences of ownership as will justify the assumption that [it] is the owner thereof’ and that “the assessor [was] justified in assessing the property for taxation against” Comerica. Gen. Elec. Capital Corp., 850 S.W.2d at 599 (quoting Childress County, 127 Tex. at 349-50, 92 S.W.2d at 1015).
I would affirm the trial court’s judgment holding Comerica was • an owner of the property at issue for the purposes of ad valorem taxation. Because I disagree with the majority’s holding that Comerica is not an “owner” under section 32.07(a) of the tax code, I respectfully dissent.
. In 1999, the legislature amended article 9 of the business and commerce code. See Act of May 17, 1999, 76th Leg., R.S., ch. 414, § 1.01, 1999 Tex. Gen. Laws 2639-2736. The amendments took effect July 1, 2001. See id. § 3.01, 1999 Tex. Gen. Laws at 2747. The amendments do not apply to proceedings commenced before their effective date. See id. § 3.02(c), 1999 Tex. Gen. Laws at 2748. The references in this opinion to the business and commerce code are to the version of article 9 in effect before July 1, 2001.