December 17, 1990
Honorable Terry D. WcRachern Opinion No. m-1261
District Attorney
Hale and Swisher Counties RS: Whether a taxing unit is
Bale County Courthouse entitled to the exception
Plainview, Texas 79072 Srom the waiver of swereiqn
immunity for claims arising
from tax collection under the
Texas Tort Claims Act when it
acquires real property pur-
want to section 34.05 of the
Tax Code (RQ-2046)
Dear Nr. RcRachern:
Gwermnental entities traditionally have enjoyed
absolute immunity from tort liability. v. Texes~ T
w, 540 S.W.2d 297 (Tex. 1976).
Keeton, !&g hew of TQ&S ch. 25 (5th ed. 1984). Chapter 101
of the Civil Practice and Remedies Code, the Texas Tort
Claims Act, constitutes a leqi6latively-enacted limited
waiver of ccmnon-law sovereign immunity from tort liability.
m v. city of Eppn 552 s-W.26 600 (Tex. Civ. App. -
corpus Christi 1977, writ'ref#d n.r.e.). Section 101.055(l)
of the code excepts from the limited waiver of liability
those claims art;:;& from the asseoument or collection of
taxes ; thus, arising fram the as6essment or
collection of taxes are barred under the doctrine of
swereiqn immunity.
A taxing Unit that is a party to a delinquent tax
judgment may purchase the real property upon which the
delinquent taxes are owed if tbe bid at a tax se;;,,:;
insufficient. Tax Code f 34.05; BOB Attorney
opinion J&S-1232 (1990). You ask a neries of general
questions regarding whether and under what circumstances a
county, a hose-rule city, or an independent school district
that purchases such property say ba liable in tort in
situations involving real property purchased at a tax sale
for delinquent taxes. Specifically you ask:
p. 6734
Honorable Terry D. McEachern - Page 2 (JM-1261)
What liability, if any, do the referenced
taxinq entities have with respect to proper-
ties *struck off"1 to them for delinquent
taxes at sheriffga sale?
In addition, you ask seven other questions in the form of
*sub-IasueaP:
1. With respect to the liability question
presented, would expiration of the
two-year riqht of redemption have a
bearing on liability7
2. Would whether the property warn "&tuck
ofP before or after June 15, 1989,
have a bearing on the liability issue?
3. Would whether the entities are actively
pursuing a marketing plan have a bear-
ing on the liability issue?
4. Would any of the governmental entities
be liable for a lack of maintenance of
the propertiee during the period of
redemption?
5. Would any of the governmental entitie8
be liable under tort law for railing to
cure and/or warn of a nuieance or at-
tractive nuisance existing on the
wstruck off” properties?
6. Would any of the qovarmental entities
be liable for razing a dangerous stNc-
ture on "8tNOk Off" real property?
7. Would there be equal liability reqard-
lesn of whether the primary grantee,
1. In the argot ot the ad valorem tax profesnion, the
phraie "StNCk ofi" refers to properties purchased by taxing
unite at a tax sale when bids are insufficient. Tax Code
9 34.05. Such properties are maid to be q stNck oSP the
tax roll while they are in the possession oi taxing unita
because such properties are exempt from taxation. w &&9
mWoak, 207 S.W.Zd 894 (Tax. 1949) (footnote added).
p. 6735
Honorable Terry D. WcEachern - Page 3 (JM-1261)
for itself and in trust for the other
entities, was a municipality, a county,
or a school?
Your sub-questions are general and hypothetical. They
are not ones that can properly be answered by this office.
Their speculative and fact-bound nature makes it appropriate
for your office to advise its clients upon the development
of appropriate facts in particular cases. Sac Attorney
General opinion JW-1224 (1990) at 15. We cannot make
findings of fact in the opinion proceee. Therefore, we
cannot answer your first, second, third, fourth, fifth, and
sixth "sub-queetions" as matters of law. Your seventh
"sub-questionS will be addressed inferentially in the
discussion of your first question.
We understand your first question to ask whether claims
against a county, a home-rule city, or an independent sohool
district arising in connection with real property acquired
at a tax sale fall within the exception set forth in section
101.055(l) of the code. Section 101.055 excepts from to*
liability claims arisinq from certain governmental functions
and provides in pertinent part:
This chapter does not apply to a claim
arising:
(1) in connection with the aeseeement or
collection of taxes by a governmental unit.
We turn first to municipalitiee.
You suggest that Section 101.0215 of the code makes a
municipality liable for damages arising from tax aollection
and thereby removes a home-rule city from the exception to
limited tort liability afforded by Section 101.055(l). We
disagree with your construction of section 101.0215.
Section 101.0215 of the code was enacted in 1967 ae
part of a bill amending laws governing tort laws in Texas.
Acts 1987, 70th LSq., 1st C.S., ch. 2, J 3.02, at 47. The
section provides:
(a) A munidpip~ isar:t;;e u;gi th;;
chapter for
governmental functions, which are those
functions that are enjoined on a municipality
by law and are given it by the state as part
of the etatees sovereiqnty. to be exercised
p. 6736
Honorable Terry D. WcEachern - Page 4 (JM-1261)
by the municipality in the interest of the
general publio, includinq but not limited to:
. . . .
(26) tax collection;
. . . .
(b) [Provides that this chapter doee not
apply to the liability of a muniaipalfty for
damage8 arising from its pro rietary func-
tions, inoludinq but not lim P ted to three
specific functions that are listed.]
(c) The proprietary funatione of a muni-
cipality do not include those governmental
aativitiee listed under Sub8ection (a).
We construe subseation (a) of aeation 101.0215, of the
code to eifect no more than a classiiication of those
functions deemed "governmental.* We do not construe it to
impliedly repeal subsection (1) of section 101.055 of the
code.
There is no indication in the legislative history of
the bill to support an assertion that the legislature
intended section 101.0215 to impliedly repeal lubdivision
(1) of section 101.055. m 3 BurWell, m Tort a .
19a 5-1248 through S-1257 (1968)
(hearinga before the Senaie Committee of the whole: 70th
Leqisl'eture, First Called Ses8ion, June 2, 1987). Indeed,
two authors addressed the newly-enacted section 101.0215 in
the follcwinq way:
The Legislature also addressed qovern-
mental liability and the Texa8 Tort Claims
Act (TTCA) . The most dramatic change to tbe
TTCA is the addition of section 101.0215,
which for the first time in Texas statutorily
defines governmental functions and contains a
nonexclusive laundry list of 33 common
z;;;rnmental functions by way of illustra-
.
Morrison C Auld, w Pgf.q~m: An Ova 51 Tex. B.J.
1108, 1111 (Dec. 1988) (foatnotee omi&d)t m
Montford C Barber, -8
25
p. 6737
Honorable Terry D. McEachem - Page 5 (JM-1261)
Houston L. Rev. 59, 117-30 (1988); Comment, v
la
Accord-
inqly, we conclude that a municipality may avail itself of
the exception from limited tort liability set forth in
section 101.055 of the Civil Practice and Remedies Code.
With regard to independent school districts, section
101.051 of the code waives sovereiqn immunity for school
districts and junior colleges only with regard to acts or
omiesiona arieinq through the negligent use of motor
vehicles or motor-driven equipment. Events may occur that
fall within the scope of the section 101.055 exception and a
school district may avail itself of the exception in those
instances.
You also ask about counties and it is to the possible
liability of counties that we now turn. Certainly, the
section 101.055(l) exception applies to counties: no other
provision of the code acts to limit the exception to the
waiver or to remove counties from its reach. Noreover , the
tax sale and redemption process clearly falls within the
ambit of the phrase waeeesement or collection of taxes."
&g -ad SW, 686 F.2d 1320 (8th Cir. 19S2),
&. M, 459 U.S. 1147 (1983) (construing federal
counterpart to section 101.055(l) of Texas act). The issue
is determining under what fact situatione the exception
applies. Only two Texas cases have construed section
101.055(l) of the code or its predecessor: in each case, the
court, while acknowledging that the activities involved
taxes, held that the act6 or omissions complained of were
too indirect or too remote from the aesesement or collection
of taxes to fall within the section 101.055(l) exception
from the waiver of liability.
In v~ountv v. w, 489 S.W.Zd 140 (Tex. Civ.
Am. - Houston [14th Diet.] 1972, writ ref’d n.r.e.)
inatter -1, the plaintiff brought suit undkhre:hee
Texas Tort Claims Act for injuries suffered when
unattached wall panel fell against her in tbe coun~f:
courthouse. The plaintiff was present. in the county
courthouse for the purpose of transferring an automobile
title and obtaining license plates: the tax involved was the
motor vehicle tax. The court held that even though the
plaintiff was present in the county courthouse for a purpose
related to tax et the t1m.e that she was
provision of the act excluding any claim injurede
arising 2::
connection with the aaseesment or collection of taxes by any
governmental unit did not apply.
p. 6738
Honorable Terry D. KcEachern - Page 6 (JM-1261)
The aourt noted that the Texas act was modeled after
the Federal Tort Claims Act, 28 U.S.C. 56 2671-2680, and
that the federal act contained an exception to the waiver of
liability, 28 U.S.C. 6 2680(o), that is substantially
equivalent to what is now section 103.0!35(1) of the code.
Relying upon federal cases construing the Fsderal Tort
Claims Act, the court declared:
Appellee'e injuries had nothing e to
do with taxes. While she was in the Harris
County Courthouse for that purpose, her
injuries were sustained by th;rzFliqence
county employees apart any 2:
situation. . . . So far aa we can determine,
all other federal eases ariainq under this
exception to liability have as their factual
basis an aeeeesment or collection considered
wrongful by the plaintiff. . . . It cannot
be said with reason that this occurrence was
the result of "the aeseesment or collection
of taxes by a unit of government."
B at 1467 (smphaeie added) (citations of federal
cases omitted).
In pr&kj&l v. St&& 779 S.W.2d 945 (Tex. App. - Fort
worth 1989), w, 787 S.W.Zd 369 (1990) (hereinafter
-1, the court of appeals affirmed a district court
order that the state was immune under the Texas Tort Claims
Act in an instance in which the plaintiff was injured by a
car driven by an employee of ths comptroller of public
accounts. The employee was traveling from one business to
another to collect delinquent taxes or to discuss collecting
delinquent taxes owed to the state. The court of appeals
held that the claim arose from the ssse88ment or collection
of taxes and that the euit was barred by sovereign immunity.
The Texas Supreme Court disagreed. In overturning the
court of appeals construction of section 101.055(l) of the
code, the court noted that the Texas act was patterned after
the federal act and held:
Prior to the pessaqe of the Texas Torts
Claims Act, the federal counterpart had been
construed to limit the United States'
governmental immunity to alaims regarding
injuriee which result
assesamant or collection - of taxes. from
. . . thw
p. 6739
Honorable Terry D. WcEachern - Page 7 (JM-1261)
adopt a nlmilar construction ior Seotion
lOl.OSS of the Tort Claims Act.
787 S.W.2d at 370 (emphasis in original) (citations omitt-
ld).2
Finally, in regard to its construction of section
101.055(l) of the Code, the court deolared:
fW]e,conclude that the legislature intended
to limit the Comptroller's immunity to only
those acts or omissions which constitute
implementation of policy decisions on how to
colleat or assess taxes.
50th s and QzJ&U construe the T8XaS Tort
Claims Act exception from limited liability for alaims aris-
ing from th8 aeeeesment.or collection of taxes narrowly to
require that any acts or omissions falling within the excep-
tion must relate m to the assessment or collection of
taxes., Indeed, w can be understood to require that
immunity be liIUit8d Only to %hose acts or omissions which
constitute implementation of policy decision8 on how to
collect or assess taxes." IpL The acts or omissions
complained of in both cases were held to be too indirect,
too remote tram the assessment of collection of taxes.
Consequently, the courts held that the exception to the
limited waiver of sovereign immunity did not apply and that
the tort action could be maintained.
2. We not8 that in a fOOtnOte to the paragraph set
forth abW8, the COUrt noted:
Subsequent federal decisions continue to impose a
requirement that the injuries arise from conduct
&&g&ly related to the seizure of property or the
aatherina of information necessary for tax collection
&pOSeS: ~S88. e&, Interfirst Bank. N.A. V,
m, 769 F.2d 299 (5th Cir. 1985), &
denied, 47J U.S. 1081, 106 S.Ct. 1458, 89 L.Ed.2d 716;
m v. m, 663 F.28 654 (5th Cir. 1981);
-8 v. u, 521 F.2d 872 (9th Cir. 1975);
tt v. Revs 622 F. Supp. 537
zD.Tennm (Emphasis added:)
p. 6740
Honorable Terry 0. McEachern - Page 8 (Ix-12611
At the other factual extreme is w v. T&&&
m, a [hereinafter -1. In m the appellant
took a mortgage on real property owned by a corporation.
The real property was subject to a prior mortgage and was
SUbj8Ct t0 IRS tax li8nS and Other judgment li8nS. The IRS
S8iS8d th8 property for nOnpayIII8nt Of taxes and SUbSegUently
purchased the property at a tax auction for th8 statutorily
calculated bid. The appellant did not bid at the auction
nor did he ohallenge the validity of either the tax lien or
the auction sale. The appellant, however, did tender to the
IRS a check equal to the amount plus interest that the IRS
paid for th8 prOp8rty and aSk8d t0 redeem th8 property.2
The IRS refused to accept the tender or to permit the
redemption.
The appellant filed suit for dJUOag8S for the allegedly
wrongful refusal of his redemption offer. In the alterna-
tive, he sought a writ of mandamus compelling the United
States to convey the real property to him and to void all
prior deedS it had given on the property. The IRS asserted,
m, that the claim arose in respect of the aSsass-
msnt or collection of a tax and was thereby excepted by
title 28, section 2680(c), of,the United State8 Code from
the limited Waiver Of tort liability effected by th8 federal
act. The court agreed. The court held that the exception
applied to third parties whose interests may be affected by
tax collection efforts and that the appellants claim did
fall within the exception to the waiver:
The right of redemption arises only in
connection with the tax levy, and is an
integral facet of such a levy. h claim
founded on redemption rights is clearly a
claim "arising in respect of the COlleCtiOn
of a tax" within the meaning of Section
2680(c).
Thus, at one extreme of
a spectmm, claims arising in
connection with a right of redemption have been held to fall
within the exception to the waiver b8CaUS8 such claims
directly involve the assessment or collection Of taxes. ht
3. Subsection (b) of SeOtion 6337 of th8 Internal
Revenue code permits nontarpayer third parties, 6pecifically
"any person having any interest th8r8in. or a lien th8reOn,"
in addition to the owner-taxpayer, to redeem property.
p. 6741
Ronorable Tarry D. Wcpachem - Page 4 (JM-1261)
the other lxtr8ne, claims arising from the acts or omissions
of emplOyeeS not directly involved with the inplementation
of policy decisions on how to collect or assess taxes and
only p8riphsrslly involved with tag collection have been
held not to fall within the exception.
We conclude, as a matter of law, that alaims arising
from acts or omissions regarding tax sales and redemption
fall Within the SeCtiOn 101.055(l) exception t0 th8 limited
waiver of liability created by the Texas Tort Claims Act.
Claims arising froza acts or omissions
regarding tax sales and redemption fall
within the exception set forth in section
101.055(l) Of the civil Pratt ices and
Rumdies Cod8 t0 th8 limit& Wait’82 Of tOti
liability created by th8 T8XaS Tort Claims
Act.
JIM WATTOX
Attorney General of Texas
MARY-
First Asuistant Attorney General
mu MccNEARY
RX8clltiV8 Assistant Attorney G8n8ral
JUDGE ZOUIE STEAXLZY
Special hesietant httomey General
RENEA HIcx8
special Assistant Attorney General
RICK GILPIN
Chairsan, Opinion committee
Prepared by Jim MO8llinger
Assistant Attorney General
p. 6742
Untitled Texas Attorney General Opinion
Combined Opinion