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Title 1. Property Tax Code
Subtitle E. Collections and Delinquency

Chapter 33. Delinquency

Subchapter C. Delinquent Tax Suits

Sec. 33.41. Suit to Collect Delinquent Tax.
Sec. 33.42. Taxes Included in Foreclosure Suit.
Sec. 33.43. Petition.
Sec. 33.44. Joinder of Other Taxing Units.
Sec. 33.45. Pleading and Answering to Claims Filed.
Sec. 33.46. Partition of Real Property.
Sec. 33.47. Tax Records as Evidence.
Sec. 33.48. Recovery of Costs and Expenses.
Sec. 33.49. Liability of Taxing Unit for Costs.
Sec. 33.50. Adjudged Value.
Sec. 33.51. Writ of Possession.
Sec. 33.52. Taxes Included in Judgment.
Sec. 33.53. Order of Sale; Payment Before Sale.
Sec. 33.54. Limitation on Actions Relating to Property Sold for Taxes.
Sec. 33.55. Effect of Judgment on Accrual of Penalties and Interest.
Sec. 33.56. Vacation of Judgment.
Sec. 33.57. Alternative Notice of Tax Foreclosure on Certain Parcels of Real Property

[Sections 33.58 to 33.70 reserved for expansion]

Sec. 33.41. Suit to Collect Delinquent Tax.

(a) At any time after its tax on property becomes delinquent, a taxing unit may file suit to foreclose the lien securing payment of the tax, to enforce personal liability for the tax, or both. The suit must be in a court of competent jurisdiction for the county in which the tax was imposed.

(b) A suit to collect a delinquent tax takes precedence over all other suits pending in appellate courts.

(c) In a suit brought under Subsection (a), a taxing unit may foreclose any other lien on the property in favor of the taxing unit or enforce personal liability of the property owner for the other lien.

(d) In a suit brought under this section, a court shall grant a taxing unit injunctive relief on a showing that the personal property on which the taxing unit seeks to foreclose a tax lien is about to be:

(1) removed from the county in which the tax was imposed; or

(2) transferred to another person and the other person is not a buyer in the ordinary course of business, as defined by Section 1.201, Business & Commerce Code.

(e) Injunctive relief granted under Subsection (d) must:

(1) prohibit alienation or dissipation of the property;

(2) order that proceeds from the sale of the property in an amount equal to the taxes claimed to be due be paid into the court registry; or

(3) order any other relief to ensure the payment of the taxes owed.

(f) A taxing unit is not required to file a bond as a condition to the granting of injunctive relief under Subsection (d).

(g) In a petition for relief under Subsection (d), the taxing unit may also seek to secure the payment of taxes for a current tax year that are not delinquent and shall estimate the amount due if those taxes are not yet assessed.

(h) The tax lien attaches to any amounts paid into the court's registry with the same priority as for the property on which taxes are owed.

Amended by 1981 Tex. Laws, p. 2644, ch. 707, Sec. 4(33); amended by 1993 Tex. Laws, p. 4444, ch. 1031, Sec. 4; amended by 2001 Tex. Laws, p. 4824, ch. 1430, Sec. 20.

Cross References:
Delinquency date, see Sec. 31.02.
Transfer of tax lien, see Sec. 32.06.
Personal liability for tax, see Sec. 32.07.
Installment payment of delinquent tax, see Sec. 33.02.
Over-65 tax deferral, see Sec. 33.06.
Sale of property, see Sec. 34.01.

Notes:
A taxing unit may pursue a claim for tax delinquencies for property under probate by filing a claim with the probate court. However, once the taxing unit opts to pursue its claim in this manner it must follow normal probate claims procedures. By opting in, the applicable law contained in the Probate Code may supercede authority contained in the Tax Code regarding foreclosure and collection of tax delinquencies. Andrews v. Aldine ISD, 116 S.W.3d 407 (Tex. App.-Houston [14th Dist] 2003, pet. denied).

In a dispute over title to property between purchasers at a deed-of-trust foreclosure sale and others, the Resolution Trust Corporation was held not to be the owner of the interest at the time of foreclosure; therefore, its consent was not required nor did it extend to subsequent assignees. Any suit involving a dispute over title to land was held to be an action in "trespass to try title." As a result, attorney fees are not recoverable. Hawk v. E.K. Arledge, Inc., 107 S.W.3d 79 (Tex. App.-Eastland 2003, pet. denied).

Probate Code Section 5C, effective September 1, 1999, provides that a suit to collect delinquent taxes on property should be brought in the county where the property is located even when probate proceedings are pending in another county. Tax Code Section 33.41 controls. Phifer v. Nacogoches County Appraisal District, 45 S.W.3d 159 (Tex. App. - Tyler 2000, pet. denied).

Property Tax Code Section 33.41(a) requiring delinquent tax lawsuits in the county where the property is located overrides a probate court authority for matters of an estate. Estate of Crawford v. Town of Flower Mound, 933 S.W.2d 727 (Tex. App.-Fort Worth 1996, writ denied).

A taxing unit may initiate a delinquent tax collection proceeding even when subsequent lawsuits are filed against the appraisal district if the first lawsuit was dismissed. A court may not undertake a reasonableness review for tax collection fees. Siracusa v. Nueces County, 890 S.W.2d 884 (Tex. App.-Corpus Christi 1994, no writ).

According to Sec. 33.41, Tax Code, a governmental entity must employ the courts to enforce its rights to collect unpaid delinquent tax accounts. Such governmental unit can be represented in court only by and through an attorney. Therefore, even if the attorney had incorrectly advised the taxing units to misapply funds paid by the property owner, any imposition of personal liability upon the attorney, as the agent of the taxing unit, performing this governmental function would be contrary to public policy. City of Houston v. First City, Texas, 827 S.W.2d 462 (Tex. App.-Houston [1st Dist.] 1992, writ denied).

Failure of taxing unit to exercise proper diligence to provide notice of default delinquent tax judgment to the taxpayer is an unconstitutional deprivation of due process and results in judgment being set aside. Doue v. City of Texarkana, 786 S.W.2d 474 (Tex. App.-Texarkana 1990, no writ).

Taxing unit may not bring suit to collect delinquent taxes while a Chapter 42 action concerning the property is pending. Valero Transmission Company v. San Marcos Independent School District, 770 S.W.2d 648 (Tex. App.-Austin 1989, writ denied).

Due process is not denied where appraisal district sends notice of appraised value to property owner and not to lien holder. First National Bank of Belaire v. Huffman Independent School District, 770 S.W. 571 (Tex. App.-Houston [14th Dist.] 1989, writ denied).

An accurate description of the property owner and a proper identification of the party actually appealing are not necessary to a sufficient notice of appeal. Plaza Equity Partners v. Dallas Central Appraisal District, 765 S.W.2d 520 (Tex. App.-Dallas 1989, no writ).

Where taxpayer was dissatisfied with his property appraisal his exclusive remedies under the Property Tax Code are that of administrative and judicial review within the available grounds of protest. When a taxpayer's protest to tax has been determined by the review board, he may then file suit for judicial review of the board's decision, but the board's decision is not a prerequisite to a suit by a taxing unit for delinquent taxes. A taxing unit may bring a delinquent tax suit in any court with competent jurisdiction any time after the tax becomes delinquent. Valero Transmission Company v. Hays Consolidated Independent School District, 704 S.W.2d 857 (Tex. App.-Austin 1985, writ ref'd n.r.e.).

District court has jurisdiction of suits to recover taxes and to foreclose liens upon land securing payment of such taxes. Newman v. City of El Paso, 77 S.W.2d 72l (Tex. Civ. App.-El Paso 1934, writ dism'd).

A county court-at-law may assume jurisdiction over cases involving delinquent tax foreclosures of real property so long as the amount in controversy (the value of the property against which the foreclosure is sought) falls within the limits of art. 1970-379, VTCS. Op. Tex. Att'y Gen. No. JM-778 (1987).

Where taxpayer did not file notice of appeal, but another entity did timely file a notice, the notice is sufficient if it gives the chief appraiser adequate information to identify the property that is subject to appeal. Id.

Sec. 33.42. Taxes Included in Foreclosure Suit.

(a) In a suit to foreclose a lien securing payment of its tax on real property, a taxing unit shall include all delinquent taxes due the unit on the property.

(b) If a taxing unit's tax on real property becomes delinquent after the unit files suit to foreclose a tax lien on the property but before entry of judgment, the court shall include the amount of the tax and any penalty and interest in its judgment.

(c) If a tax required by this section to be included in a suit is omitted from the judgment in the suit, the taxing unit may not enforce collection of the tax at a later time except as provided by Section 34.04(c)(2).

Amended by 2001 Tex. Laws, p. 4824, ch. 1430, Sec. 21.

Sec. 33.43. Petition.

(a) A petition initiating a suit to collect a delinquent property tax is sufficient if it alleges that:

(1) the taxing unit is legally constituted and authorized to impose and collect ad valorem taxes on property;

(2) tax in a stated amount was legally imposed on each separately described property for each year specified and on each person named if known who owned the property on January 1 of the year for which the tax was imposed;

(3) the tax was imposed in the county in which the suit is filed;

(4) the tax is delinquent;

(5) penalties, interest, and costs authorized by law in a stated amount for each separately assessed property are due;

(6) the taxing unit is entitled to recover each penalty that is incurred and all interest that accrues on delinquent taxes imposed on the property from the date of the judgment to the date of the sale under Section 34.01 or under Section 253.010, Local Government Code, as applicable, if the suit seeks to foreclose a tax lien;

(7) the person sued owned the property on January 1 of the year for which the tax was imposed if the suit seeks to enforce personal liability;

(8) the person sued owns the property when the suit is filed if the suit seeks to foreclose a tax lien;

(9) the taxing unit asserts a lien on each separately described property to secure the payment of all taxes, penalties, interest, and costs due if the suit seeks to foreclose a tax lien;

(10) all things required by law to be done have been done properly by the appropriate officials; and

(11) the attorney signing the petition is legally authorized to prosecute the suit on behalf of the taxing unit.

(b) If the petition alleges that the person sued owns the property on which the taxing unit asserts a lien, the prayer in the petition shall be for foreclosure of the lien and payment of all taxes, penalties, interest, and costs that are due or will become due and that are secured by the lien. If the petition alleges that the person sued owned the property on January 1 of the year for which the taxes were imposed, the prayer shall be for personal judgment for all taxes, penalties, interest, and costs that are due or will become due on the property. If the petition contains the appropriate allegations, the prayer may be for both foreclosure of a lien on the property and personal judgment.

(c) If the suit is for personal judgment against the person who owned personal property on January 1 of the year for which the tax was imposed on the property, the personal property may be described generally.

(d) The petition need not be verified.

(e) The comptroller shall prepare forms for petitions initiating suits to collect delinquent taxes. An attorney representing a taxing unit may use the forms or develop his own form.

Amended by 1991 Tex. Laws (2nd C.S.), p. 37, ch. 6, Sec. 49; amended by 1997 Tex. Laws, p. 3052, ch. 981, Sec. 1; amended by 1999 Tex. Laws, p. 5102, ch. 1481, Sec. 19; amended by 2001 Tex. Laws, p. 4301, ch. 1420, Sec. 18.006 and p. 4824, ch. 1430, Sec. 22.

Cross References:
Model form petition for delinquent taxes, see Rule Sec. 9.5151.

Notes:
Where taxpayer claimed not to be the owner of property upon which delinquent taxes were due and he had not presented this fact before the appraisal review board, he has waived non-ownership as a defense to a delinquent tax suit. A taxpayer must protest the non-ownership issue before the appraisal review board. Anderson v. Robstown Independent School District, 706 S.W.2d 952 (Tex. 1986).

Where a municipal school district annexes territory that belonged to another school district, there is no need for the district to hold an election authorizing taxation within the newly annexed territory. Article VII, Sec. 3-b, Tex. Const., was added to eliminate the need for new voter approval of taxes when authorized changes are made to the boundaries of school districts. Once taxation has been authorized, a change in boundaries has no effect upon the power to tax. Manges v. Freer Independent School District, 677 S.W.2d 490 (Tex. 1984).

Persons actually or constructively known to have interest in land should be joined as parties in tax foreclosure suit. Coakley v. Reising, 436 S.W.2d 315 (Tex. 1968), appeal after remand, 457 S.W.2d 43l, writ ref'd n.r.e., cert. denied 91 S.Ct. 1376 (1969).

A tax judgment and the proceedings thereunder are void as to the record owner of land and those claiming title under him when he and those claiming title under him were not made parties to the suit, were not served with citation and, therefore, made no appearance therein. Bennett v. Ramos, 246 S.W.2d 328 (Tex. Civ. App.-Amarillo l951) rev'd on other grounds, 252 S.W.2d 442 (Tex. 1951).

Return of service that identified the lender and its registered agent and showed that the documents were legally received by the agent's own registered agent was sufficient to confer personal jurisdiction over the lender in an action by taxing entities to foreclose tax liens, in absence of contrary proof by the lender. Conseco Finance Servicing v. Klein Independent School District, 78 S.W.3d 666 (Tex. App.-Houston [14th Dist.] 2002, no pet.).

Because the taxing units failed to show strict compliance with the rules regarding the return of service for a delinquent tax lawsuit, the default judgment entered was void. The record indicated that the constable serving the delinquent taxpayer via certified mail did not append the "green card" to the constable's return of service. Hollister v. Palmer ISD, 958 S.W.2d 956 (Tex. App.-Waco 1998).

Joinder of a record lien holder is required in a suit to enforce a tax lien because the lien holder has a significant interest in the lawsuit. Murphee Property Holdings v. Sunbelt Savings Association of Texas, 817 S.W.2d 850 (Tex.App.-Houston [1st Dist] 1991, no writ).

The abbreviations FURN FIXT EQPT together with property owner's name and address are sufficient descriptions of personal property under this section. Castillo v. State of Texas, 733 S.W.2d 530 (Tex. App.-San Antonio 1987, no writ).

The taxpayer must raise the issue of the generality of the description of personal property at the proper time; Section 33.43 does not suggest an intention to require any degree of specificity in the description of personal property when foreclosure is not requested with regard to such property. Texas Architectural Aggregate, Inc. v. San Saba County Central Appraisal District, 725 S.W.2d 389 (Tex. App.-Austin 1987, writ ref'd n.r.e.).

After mineral estate has been severed by owner from land, the land is assessed for taxes and owner of mineral estate is liable for taxes to same extent that property owners are liable for any other tax. Duval County Ranch Company v. State, 587 S.W.2d 436 (Tex. Civ. App.-San Antonio 1979, writ ref'd n.r.e.).

When the only description of any property contained in the record is "mobile home" with no evidence describing property so that it could be identified or located with reasonable certainty, judgment for taxes, penalty and interest, fixing tax lien on property, and ordering foreclosure of lien was invalid. Hart v. Northside Independent School District, 498 S.W.2d 459 (Tex. Civ. App.-San Antonio 1973, writ ref'd n.r.e.).

Rule of Civil Procedure 117a entitled "Citation in Suits for Delinquent Ad Valorem Taxes" is the applicable rule concerning citations by publication in suits for collection of delinquent ad valorem taxes on real property. State v. Farmer, 457 S.W.2d 179 (Tex. Civ. App.-Dallas 1970, no writ).

The record owner of land in question at the time of the issuance of citation in a tax suit is a necessary party. American Realty Corporation v. Tinkler, 107 S.W.2d 627 (Tex. Civ. App.-San Antonio 1937, writ ref'd).

Recorded holder of vendor's lien is necessary party in a suit to foreclose tax lien on real property. State Mortgage Corp. v. Magee, 27 S.W.2d 864 (Tex. Civ. App.-San Antonio 1930).

In suits to foreclose tax liens to collect delinquent taxes, it is essential to allege and prove nonpayment and consequent delinquency. Garza v. City of San Antonio, 231 S.W. 697 (Tex. Comm'n App. 1921).

A petition in a tax foreclosure suit must conform to the law in every substantial requirement, or it will fail to confer jurisdiction on the court. Young v. Jackson, 110 S.W. 74 (Tex. Civ. App. 1908).

Sec. 33.44. Joinder of Other Taxing Units.

(a) A taxing unit filing suit to foreclose a tax lien on real property shall join other taxing units that have claims for delinquent taxes against all or part of the same property.

(b) For purposes of joining a county, citation may be served on the county tax assessor-collector. For purposes of joining any other taxing unit, citation may be served on the officer charged with collecting taxes for the unit or on the presiding officer or secretary of the governing body of the unit. Citation may be served by certified mail, return receipt requested. A person on whom service is authorized by this subsection may waive the issuance and service of citation in behalf of his taxing unit.

(c) A taxing unit joined in a suit as provided by this section must file its claim for delinquent taxes against the property or its lien on the property is extinguished. The court's judgment in the suit shall reflect the extinguishment of a lien under this subsection.

Amended by 1983 Tex. Laws, p. 4828, ch. 851, Sec. 25.

Cross References:
Legislature has no power to authorize taxing unit to extinguish liability, see art. III, Sec. 55, Tex. Const.

Notes:
The primary purpose of statute authorizing maintenance of suit by taxing units for delinquent taxes was to prevent multiplicity of suits by providing for inclusion of all taxing units in one action and adjudicating the claims of all units in a suit brought by any one or more of such units. City of El Paso v. Forti, 181 S.W.2d 579 (Tex. 1944).

The statute authorizing suit by taxing units to foreclose tax liens on property and joinder of other taxing units having liens against the property does not violate art. 3, Sec. 55, of the constitution prohibiting the release or extinguishment of tax liability, even though it is possible for representatives of a taxing unit to fail to appear and file claims for the taxes due, thereby extinguishing the unit's lien against the property. Mexia Independent School Dist. v. City of Mexia, 133 S.W.2d 118 (Tex. 1939).

A delinquent tax suit was brought against a property owner with a pending tort claim against one of the taxing units. The taxing units moved to sever the taxpayer's counterclaim and entered a plea in abatement. The severance was upheld and the suits could proceed separately. Qualls v. Angelina County, 98 S.W.3d 369 (Tex. App.-Beaumont 2003, no pet.).

Because the taxing units failed to show strict compliance with the rules regarding the return of service for a delinquent tax lawsuit, the default judgment entered was void. The record indicated that the constable serving the delinquent taxpayer via certified mail did not append the "green card" to the constable's return of service. Hollister v. Palmer ISD, 958 S.W.2d 956 (Tex. App.-Waco 1998).

Sec. 33.45. Pleading and Answering to Claims Filed.

(a) party to the suit must take notice of and plead and answer to all claims and pleadings filed by other parties that have been joined or have intervened, and each citation must so state.

Notes:
Where taxpayer claimed not to be the owner of property upon which delinquent taxes were due and he had not presented this fact before the appraisal review board, he has waived non-ownership as a defense to a delinquent tax suit. A taxpayer must protest the non-ownership issue before the review board. Anderson v. Robstown Independent School District, 706 S.W.2d 952 (Tex. 1986).

Although an unsigned letter to a taxing unit and a court in response to a citation is defective as an answer, the letter was sufficient to prevent a default judgment because it did contain the delinquent property owner's address, denied liability, and contained the trial court's cause number. Home Savings of America FSB v. Harris County Water Control and Improvement District #70, 928 S.W.2d 217 (Tex. App.-Houston [14th District] 1996).

Where a taxing unit failed to timely answer a request for admissions in a tax delinquency lawsuit, it could later ask for and prove good cause for the court's rejection of any deemed admissions originally entered because no answer to the discovery request was filed. Even though the taxing unit never denied taxpayer's requested admission that all taxes had been paid, taxpayer still knew that he was being sued for delinquent property taxes. City of Houston v. Riner, 896 S.W.2d 317 (Tex. App.-Houston [1st District] 1995, writ denied).

Damages recoverable in delinquent tax suit are measurable by the amount shown in the pleadings and every element of recovery must be supported by the pleadings. Rhodes v. City of Austin, 584 S.W.2d 917 (Tex. Civ. App.-Tyler 1979, writ ref'd n.r.e.).

Sec. 33.46. Partition of Real Property.

(a) If suit is filed to foreclose a tax lien on real property owned in undivided interests by two or more persons, one or more of the owners may have the property partitioned in the manner prescribed by law for the partition of real property in district court.

(b) The court shall apportion the taxes, penalties, interest, and costs sued for to the owners of the property in proportion to the interest of each. If an owner pays the taxes, penalties, interest, and costs apportioned to him, the property partitioned to him is free from further claim or lien for the taxes involved in the suit. If an owner refuses to pay the amount apportioned to him, the suit shall proceed against him for that amount.

(c) The court shall allow reasonable attorney's fees and costs of partitioning for each property partitioned. The fee shall be taxed as costs against each owner in proportion to his interest and constitutes a lien against the property until paid.

Cross References:
Undivided interests generally, see Sec. 25.11.
Affirmative defenses, see Sec. 42.09.

Note:
A property owner of an undivided interest is personally liable only for the owner's proportionate share; owners are not jointly and severally liable for all taxes on a property. Property Tax Code Section 33.46 is an additional, not exclusive, remedy available to the property owner. Rosewood Properties, Inc. v. Community Credit Union, 944 S.W.2d 46 (Tex. App.-Eastland 1997).

Sec. 33.47. Tax Records as Evidence.

(a) In a suit to collect a delinquent tax, the taxing unit's current tax roll and delinquent tax roll or certified copies of the entries showing the property and the amount of the tax and penalties imposed and interest accrued constitute prima facie evidence that each person charged with a duty relating to the imposition of the tax has complied with all requirements of law and that the amount of tax alleged to be delinquent against the property and the amount of penalties and interest due on that tax as listed are the correct amounts.

(b) If the description of a property in the tax roll or delinquent tax roll is insufficient to identify the property, the records of the appraisal office are admissible to identify the property.

(c) In a suit to collect a tax, a tax receipt issued under Section 31.075 of this code or, an electronic replica of that receipt, that states that a tax has been paid is prima facie evidence that the tax has been paid as stated by the receipt or electronic replica.

Amended by 1987 Tex. Laws, ch. 52, Sec. 2; amended by 1995 Tex. Laws, p. 4211, ch. 828, Sec. 1; amended by 1999 Tex. Laws, p. 5103, ch. 1481, Sec. 20.

Cross References:
Form and content of appraisal records, see Sec. 25.02.
Tax receipt, see Sec. 31.075.
Institution of seizure, see Sec. 33.22.
Petition initiating suit, see Sec. 33.43.

Notes:
Taxing authority established its prima facie case as to every material fact necessary to establish cause of action for delinquent taxes when it introduced copy of delinquent tax record, certified by proper taxing authority to be true and correct, with amount stated thereon to be unpaid. Davis v. City of Austin, 632 S.W.2d 33l (Tex. 1982).

When a taxing unit introduces delinquent tax records in a delinquent tax suit and provides testimony that the taxes sued for are due and unpaid, the unit establishes a prima facie case. Thompson v. City of Pearland, 489 S.W.2d 124 (Tex. Civ. App.-Houston {1st. Dist.} 1972, no writ); Davis v. City of Austin 632 S.W.2d 331 (Tex. 1982).

Tax statements not under public seal or certified under public seal is inadmissible as certified public records. Since this comprised the sole evidence relied upon by the taxing authorities in a delinquent tax lawsuit, judgment had to be ruled in favor of the property owner. Al-Nayem Intern. Trading, Inc. v. Irving Independent School Dist., 159 S.W. 3d 762, (Tex. App. - Dallas, 2005, no pet.)

When a taxing authority's prima facie case is rebutted, although the presumption disappears, the evidence originally offered into evidence is still considered in a legal sufficiency analysis. Thus, while non-ownership was raised to rebut the presumption of ownership, the tax roll continued to be of probative value and could still be considered by the fact finder as proof of ownership. Nat'l Med. Fin. Servs. v. Irving Indep. Sch. Dist., 150 S.W.3d 901 (Tex. App. - Dallas 2004, no pet.)

Taxpayer's evidence rebutted the presumption that the taxing authorities had correctly calculated past due taxes, penalties, interest, and fees as well as applied tax payments as directed by the taxpayer. Subsequently, by failing to provide meaningful or competent evidence or testimony to show the calculations were correct or payments had been properly applied, judgment had to reversed and rendered in favor of the taxpayer. Estates of Elkins v. County of Dallas, 146 S.W.3d 826 (Tex. App. 2004, no pet.).

The failure of the taxing unit to give the required five-year notice of delinquent taxes (now repealed) resulted in the cancellation of penalties and interest on taxes when the taxpayer was able to prove that the notice was not delivered. The introduction of tax records establishes a prima facie case to establish every material fact, and a rebuttable presumption arises that all required notices likewise have been delivered. The presumption disappears, however, if the taxpayer produces competent evidence to justify a finding against the presumed fact. Tax notices must be addressed according to the most recent records in the possession of the taxing unit; if no address exists for a taxpayer, statutory notice requirements do not apply. In this case, evidence was sufficient to support the trial court's finding that the school district did not deliver notice, thereby canceling penalties and interest for certain tax years. However, the owner did not overcome the presumption of delivery regarding other taxing units for certain years and therefore cancellation of the penalties and interest was not mandated. The case was remanded for trial court determination of the amounts of penalties, interest, attorney fees, court costs and other fees to be assessed. Aldine Independent School District, et.al. v. Ogg, 122 S.W.3d 257 (Tex. App.-Houston [1st Dist.], 2003, no pet.).

A citation gave sufficient notice that the owner was being sued for delinquent taxes on personal property located at a specific address and informed the owner that failing to answer could result in a default judgment. Once a default judgment is taken against a non-answering defendant, all allegations of material fact set forth in the petition are deemed admitted, except for the amount of unliquidated damages. Certified tax rolls and tax statements attached to various petitions and filings with the court are written instruments for purposes of showing liquidated damages. Aavid Thermal Technologies of Texas v. Irving Independent School District, 68 S.W.3d 707 (Tex. App. - Dallas [5th Dist.] 2001, no pet.)

Even though the taxing unit's introduction of the delinquent tax rolls established a prima facie case for judgment in the amount of the delinquent taxes under Sec. 33.47 if the taxpayer proved that it was not liable for taxes, the taxing units had the burden to go forward with additional evidence of the taxpayer's ownership in accordance with Alamo Barge Lines v. City of Houston. General Electric Capital Corp. v. City of Corpus Christi, 850 S.W.2d 596 (Tex. App.-Corpus Christi 1993, writ denied).

Taxing unit establishes a prima facie case in delinquent tax suit where it introduced into evidence official tax rolls, certified copies of official tax records or certified copies of appropriate delinquent tax records, in conjunction with testimony of assessor-collector that, according to such records, taxes are due and delinquent. Alamo Barge Lines, Inc. v. City of Houston, 453 S.W.2d 132 (Tex. 1970).

A taxing unit's certified delinquent tax records constitute some evidence of delinquency, even where taxpayer presents direct evidence of non-ownership. D&M Vacuum Service Inc. v. Zavala County Appraisal District, 812 S.W.2d 435 (Tex. App.-San Antonio 1991, no writ).

Once the delinquent tax roll was properly admitted into evidence, the testimony of the tax assessor-collector directly from the computer printout of the roll was proper. Kirkconnell & Cooper, Inc. v. Point Isabel Independent School District, 608 S.W.2d 743 (Tex. Civ. App.-Corpus Christi 1980, no writ).

Sec. 33.48. Recovery of Costs and Expenses.

(a) In addition to other costs authorized by law, a taxing unit is entitled to recover the following costs and expenses in a suit to collect a delinquent tax:

(1) all usual court costs, including the cost of serving process;

(2) costs of filing for record a notice of lis pendens against property;

(3) expenses of foreclosure sale;

(4) reasonable expenses that are incurred by the taxing unit in determining the name, identity, and location of necessary parties and in procuring necessary legal descriptions of the property on which a delinquent tax is due;

(5) attorney's fees in the amount of 15 percent of the total amount of taxes, penalties, and interest due the unit; and

(6) reasonable attorney ad litem fees approved by the court that are incurred in a suit in which the court orders the appointment of an attorney to represent the interests of a defendant served with process by means of citation by publication or posting.

(b) Each item specified by Subsection (a) of this section is a charge against the property subject to foreclosure in the suit and shall be collected out of the proceeds of the sale of the property or, if the suit is for personal judgment, charged against the defendant.

(c) Fees collected for attorneys and other officials are fees of office, except that fees for contract attorneys representing a taxing unit that is joined or intervenes shall be applied toward the compensation due the attorney under the contract.

(d) A collector who accepts a payment of the court costs and other expenses described by this section shall disburse the amount of the payment as follows:

(1) amounts owing under Subsections (a)(1), (2), (3), and (6) are payable to the clerk of the court in which the suit is pending; and

(2) expenses described by Subsection (a)(4) are payable to the general fund of the taxing unit or to the person or entity who advanced the expense.

Acts 1979, 66th Leg., p. 2295, ch. 841, 1, eff. Jan. 1, 1982. Amended by Acts 1981, 67th Leg., 1st C.S., p. 169, ch. 13, 131, eff. Jan. 1, 1982; Acts 1993, 73rd Leg., ch. 1031, 16, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 906, 6(a), eff. Jan. 1, 1998; Acts 2001, 77th Leg., ch. 1430, 23, eff. Sept. 1, 2001; Acts 2005, 79th Leg., ch. 1126, 22, eff. Sept. 1, 2005.

Cross References:
Additional penalty for collections costs, see Sec. 33.07.
Attorneys representing taxing units by contract, see Sec. 6.30.

Notes:
Taxing units' claims in bankruptcy are based on a property's total value at the time of bankruptcy, not the property's net value after any existing liens against the property. In Re: Milit, Inc., 231 B.R. 604 (W.D. Tex. 1999).

The appraisal district is not a necessary party in bankruptcy court. Protests filed against an appraisal district are a procedural requirement that is not binding on federal court. A written settlement agreement between an appraisal district and taxpayer bars subsequent challenges in bankruptcy court, but failure to appear before the review board hearing does not bar challenge in bankruptcy court. In Re: Blue Cactus Post, L.C., 229 B.R. 379 (N.D. Tex. 1999).

Taxpayer could not have property values changed in bankruptcy court when the taxpayer had reached agreements on the values with the appraisal district. In Re: Crest-Mex. Corp., 223 B.R. 681 (S.D. Tex. 1998).

Although a taxing unit may recover attorney's fees, Chapter 33 does not provide for a taxpayer to recover attorney's fees in a delinquency tax suit. Carrollton-Farmers Branch Independent School Dist. v. JPD, Inc., 168 S.W.3d 184, (Tex. App.-Dallas, 2005, no pet h.).

Because section 33.48 does not condition recovery of attorney's fees upon foreclosure, it is unnecessary for an award to be contingent upon an actual foreclosure of a tax lien. Weisfeld v. Tex. Land Fin. Co. II, 162 S.W.3d 379, 381 (Tex. App.-Dallas 2005, no pet.).

Federal courts will not interfere with the collection of the county education district tax since taxpayers have an adequate right to pursue their federal constitutional claims in state court. Smith v. Travis County Education District, 968 F.2d 453 (5th Cir. 1992).

Tax bills must identify property with reasonable certainty. A judgment foreclosing a tax lien is void if it fails to describe a definite tract of land. The Court upheld the trial court's dismissal of claims to collect delinquent taxes on certain subdivided lots improperly described in appraisal records. Taxing units that impose the statutory penalty for the enforcement of collection may not recover additional attorney fees for bringing a lawsuit. Spring Branch Independent School District v. Siebert, 100 S.W.3d 520 (Tex. App.-Houston [1st Dist.] 2003, no pet.).

The Tax Code provisions for collecting attorney's fees in a suit by a water control and improvement district prevail over Texas Water Code Section 51.591, and attorney's fees were recoverable under Tax Code Section 33.48 since the district did not take official action to adopt Tax Code Section 33.07 or timely notify the taxpayer of the tax delinquency. Harris County Water Control and Improvement District #99 v Duke, 59 S.W.3d 333 (Tex. App. - Houston [1st Dist.] 2001, no pet.).

Sanctions against a taxing unit are inappropriate because the taxpayer may not raise excessive appraisal or nonownership in district court without first exhausting the administrative remedies in the Tax Code. Taxpayer did not protest the property's appraisal or ownership to the appraisal review board, and thus could not raise those issues in a delinquent tax lawsuit. Aldine Independent School District v. Baty, 999 S.W.2d 113 (Tex. App. -- Houston [14th District] 1999).

The cancellation of an exemption without giving notice to the taxpayer is void and the failure to give such notice may be raised as a defense to the collection of delinquent taxes. The mere filing of a certified copy of the delinquent tax roll does not create a presumption that notice was in fact delivered where there is evidence to the contrary. Inwood Dad's Club, Inc. v. Aldine Independent School District, 882 S.W.2d 532 (Tex. App.-Houston [1st District] 1994, rehearing denied).

Section 33.48's provision for taxing units to recover court costs is not absolute. A court has discretion to determine the amount in accordance with other law. State v. Castle Hills Forest, 842 S.W.2d 370 (Tex. App.-San Antonio 1992, writ denied).

Taxing units' acceptance and cashing of taxpayer's check, even though the taxing units understood the condition that funds were to be applied only to undisputed debt, not disputed penalties, costs and/or fees under Sec. 33.48, constituted "accord and satisfaction" and application of funds to disputed debt was a breach of contract, despite absences of express language of contract on taxpayer's remittances. City of Houston v. First City, Texas, 827 S.W.2d 462 (Tex. App.-Houston [1st Dist.] 1992, writ denied). (Note: In 1993, the Legislature added Sec. 31.073, which voids any restriction placed on a check used to pay taxes if the restriction limits the amount of taxes owed to an amount less than that stated on the tax bill unless such restriction is authorized by the Tax Code. However, Sec. 31.073 appears only to pertain to current taxes rather than to the delinquent taxes.)

Section 33.48 allows only for "reasonable attorney's fees approved by the court and not exceeding 15 percent." The section does not provide that the taxing unit must receive 15 percent. Because this section allows for reasonable attorney's fees, reasonableness is a fact that the taxing units must establish. City of Houston v. First City, Texas, 827 S.W.2d 462 (Tex. App.-Houston [1st Dist.] 1992, writ denied).

When a taxpayer pays all taxes, penalties and interest in full owed to the appellees prior to trial, as a matter of law, taxing units were not entitled to recover any attorney's fees from the taxpayer. Gano v. City of Houston, 834 S.W.2d 585 (Tex. App.-Houston [14th Dist.] 1992, writ denied).

By introducing into evidence the delinquent tax rolls, a taxing unit made out a prima facie case which must be rebutted by the property owner. Bryan Independent School District v. Lamountt, 726 S.W.2d 192 (Tex. App.-Houston 1987, no writ).

The reasonableness of attorney fees is a fact that must be proved, and therefore cannot be granted in a motion for summary judgment. Where a taxing unit has brought a delinquent tax action against a taxpayer, the court cannot award attorney fees in a motion for summary judgment unless the amount has been agreed to or there is uncontradicted summary judgment evidence of the reasonableness of the fees. Property descriptions must not be so ambiguous that there is a question as to what property is being taxed. Corporate Funding, Inc. v. City of Houston, 686 S.W.2d 630 (Tex. App.-Texarkana 1984, writ ref'd n.r.e.).

Property Tax Code governing recovery of costs and expenses was in effect when school district filed suit to recover delinquent taxes in 1979 but was tried in 1983, and the district was eligible to recover attorney fees pursuant to the statute. Lakeridge Development Corporation v. Travis County Water Control and Improvement District No. 18, 677 S.W.2d 764 (Tex. App.-Austin 1984, no writ).

The Sec. 33.07 penalty is a substitute for court-ordered attorney fees and can be collected even if no delinquent tax lawsuit is filed. A taxing unit may not apply any of the Sec. 33.07 penalty to cover costs of collection that it incurs; it must use all of the penalty solely to compensate the attorney with whom it has contracted. The maximum penalty under Sec. 33.07 is 15 percent, but the unit may adopt a lower penalty if it chooses to do so. Op. Tex. Att'y Gen. No. JM-857 (1988).

Fees for the service of out-of-county citations on or after September 1, 1981, in delinquent tax suits are the fees set by the commissioners court of the county in which service is performed by the sheriff or constable thereof. In the event the commissioners court has not prescribed such fees, the fees are those provided by the law in effect on August 31, 1981. The date the service is performed, not the date of filing suit, is the criterion for determination of the law involved. Op. Tex. Att'y Gen. No. MW-470 (1982).

Sec. 33.49. Liability of Taxing Unit for Costs.

(a) Except as provided by Subsection (b), a taxing unit is not liable in a suit to collect taxes for court costs, including any fees for service of process, an attorney ad litem, arbitration, or mediation, and may not be required to post security for costs.

(b) A taxing unit shall pay the cost of publishing citations, notices of sale, or other notices from the unit's general fund as soon as practicable after receipt of the publisher's claim for payment. The taxing unit is entitled to reimbursement from other taxing units that are parties to the suit for their proportionate share of the publication costs on satisfaction of any portion of the tax indebtedness before further distribution of the proceeds. A taxing unit may not pay a word or line rate for publication of citation or other required notice that exceeds the rate the newspaper publishing the notice charges private entities for similar classes of advertising.

Amended by 1993 Tex. Laws, p. 3358, ch. 850, Sec. 1; amended by 2001 Tex. Laws, p. 4824, ch. 1430, Sec. 24.

Cross References:
Additional penalty for collection costs, see Sec. 33.07.

Notes:
Taxing units are not liable for court costs in delinquent tax suits. Bailey v. Cherokee County Appraisal Dist., 862 S.W.2d 581 (Tex. 1993).

A taxing unit is not required to pay costs of court in a suit for collection of delinquent taxes. City of Wichita Falls v. ITT Commercial Finance Corp., 835 S.W.2d 65 (Tex. 1992).

Property Tax Code section exempting taxing unit from posting security for costs in suit to collect taxes exempted school district from necessity of filing appeal bond prior to appeal from take-nothing judgment in its action for collection of delinquent taxes. Brady Independent School District v. Davenport, 663 S.W.2d 637 (Tex. App.-Austin 1983, no writ).

In suits to collect delinquent taxes, taxing units cannot be required to pay court costs or suit expenses in advance or give security for payment of costs. Taxing units are not liable for postage expense for service of process, or any other cost or expense of suit except the cost of fees for publishing citations, notices of sale or other notices. All of such costs, fees, or expenses are assessable as costs of court. Op. Tex. Att'y Gen. No. MW-470 (1982).

Sec. 33.50. Adjudged Value.

(a) In a suit for foreclosure of a tax lien on property, the court shall determine the market value of the property on the date of trial. The appraised value of the property according to the most recent appraisal roll approved by the appraisal review board is presumed to be its market value on the date of trial, and the person being sued has the burden of establishing that the market value of the property differs from that appraised value. The court shall incorporate a finding of the market value of the property on the date of trial in the judgment.

(b) If the judgment in a suit to collect a delinquent tax is for the foreclosure of a tax lien on property, the order of sale shall specify that the property may be sold to a taxing unit that is a party to the suit or to any other person, other than a person owning an interest in the property or any party to the suit that is not a taxing unit, for the market value of the property stated in the judgment or the aggregate amount of the judgments against the property, whichever is less.

(c) The order of sale shall also specify that the property may not be sold to a person owning an interest in the property or to a person who is a party to the suit other than a taxing unit unless:

(1) that person is the highest bidder at the tax sale; and

(2) the amount bid by that person is equal to or greater than the aggregate amount of the judgments against the property, including all costs of suit and sale.

Amended by 1997 Tex. Laws, p. 2901, ch. 914, Sec. 5; amended by 1999 Tex. Laws, p. 5103, ch. 1481, Sec. 42(1).

Cross References:
Approval of appraisal records by review board, see Sec. 25.24 & ch. 41, subch. A.
Vacation of judgment, see Sec. 33.56.

Notes:
Taxing units' claims in bankruptcy are based on a property's total value at the time of bankruptcy, not the property's net value after any existing liens against the property. In Re: Milit, Inc., 231 B.R. 604 (W.D. Tex. 1999).

The appraisal district is not a necessary party in bankruptcy court. Protests filed against an appraisal district are a procedural requirement that is not binding on federal court. A written settlement agreement between an appraisal district and taxpayer bars subsequent challenges in bankruptcy court, but failure to appear before the review board hearing does not bar challenge in bankruptcy court. In Re: Blue Cactus Post, L.C., 229 B.R. 379 (N.D. Tex. 1999).

Taxpayer could not have property values changed in bankruptcy court when the taxpayer had reached agreements on the values with the appraisal district. In Re: Crest-Mex. Corp., 223 B.R. 681 (S.D. Tex. 1998).

Sanctions against a taxing unit are inappropriate because the taxpayer may not raise excessive appraisal or nonownership in district court without first exhausting the administrative remedies in the Tax Code. Taxpayer did not protest the property's appraisal or ownership to the appraisal review board, and thus could not raise those issues in a delinquent tax lawsuit. Aldine Independent School District v. Baty, 999 S.W.2d 113 (Tex. App. -- Houston [14th District] 1999).

The minimum bid provision in Property Tax Code Section 33.50(b) and in the order of sale do not apply to a third party not having an interest in the property and who was not a party to the delinquent tax lawsuit. Cash Investments, Inc. v. Clint Independent School District, 940 S.W. 2d 693 (Tex. App.-El Paso 1996, writ granted).

The abbreviations FURN FIXT EQPT together with property owner's name and address are sufficient descriptions of personal property under this section. Castillo v. State of Texas, 733 S.W.2d 530 (Tex. App.-San Antonio 1987, no writ).

The finding of market value in a delinquent tax judgment protects the government's tax revenue and not the taxpayer's privilege of purchasing the property for its market value if it is less than the appraised value. And, the official conducting the sale must have the property's market value in the judgment for enforcing the prohibition against certain persons purchasing the property for a lesser amount. Texas Architectural Aggregate, Inc. v. San Saba County Central Appraisal District, 725 S.W.2d 389 (Tex. App.-Austin 1987, writ ref'd n.r.e.).

Sec. 33.51. Writ of Possession.

(a) If the court orders the foreclosure of a tax lien and the sale of real property, the judgment shall provide for the issuance by the clerk of said court of a writ of possession to the purchaser at the sale or to the purchaser's assigns no sooner than 20 days following the date on which the purchaser's deed from the sheriff or constable is filed of record.

(b) The officer charged with executing the writ shall place the purchaser or the purchaser's assigns in possession of the property described in the purchaser's deed without further order from any court and in the manner provided by the writ, subject to any notice to vacate that may be required to be given to a tenant under Section 24.005(b), Property Code.

(c) The writ of possession shall order the officer executing the writ to:

(1) post a written warning that is at least 8-1/2 by 11 inches on the exterior of the front door of the premises notifying the occupant that the writ has been issued and that the writ will be executed on or after a specific date and time stated in the warning that is not sooner than the 10th day after the date the warning is posted; and

(2) on execution of the writ:

(A) deliver possession of the premises to the purchaser or the purchaser's assigns;

(B) instruct the occupants to immediately leave the premises and, if the occupants fail or refuse to comply, physically remove them from the premises;

(C) instruct the occupants to remove, or to allow the purchaser or purchaser's assigns, representatives, or other persons acting under the officer's supervision to remove, all personal property from the premises; and

(D) place, or have an authorized person place, the removed personal property outside the premises at a nearby location, but not so as to block a public sidewalk, passageway, or street and not while it is raining, sleeting, or snowing.

(d) The writ of possession shall authorize the officer, at the officer's discretion, to engage the services of a bonded or insured warehouseman to remove and store, subject to applicable law, all or part of the personal property at no cost to the purchaser, the purchaser's assigns, or the officer executing the writ. The officer may not require the purchaser or the purchaser's assigns to store the personal property.

(e) The writ of possession shall contain notice to the officer that under Section 7.003, Civil Practice and Remedies Code, the officer is not liable for damages resulting from the execution of the writ if the officer executes the writ in good faith and with reasonable diligence.

(f) The warehouseman's lien on stored property, the officer's duties, and the occupants' rights of redemption as provided by Section 24.0062, Property Code, are all applicable with respect to any personal property that is removed under Subsection (d).

(g) A sheriff or constable may use reasonable force in executing a writ under this section.

(h) If a taxing unit is a purchaser and is entitled to a writ of possession in the taxing unit's name:

(1) a bond may not be required of the taxing unit for issuance or delivery of a writ of possession; and

(2) a fee or court cost may not be charged for issuance or delivery of a writ of possession.

(i) In this section:

(1) "Premises" means all of the property described in the purchaser's deed, including the buildings, dwellings, or other structures located on the property.

(2) "Purchaser" includes a taxing unit to which property is bid off under Section 34.01(j).

Added by Acts 1979, 66th Leg., p. 2296, ch. 841, 1, eff. Jan. 1, 1982. Amended by Acts 1997, 75th Leg., ch. 906, 7, eff. Jan. 1, 1998; Acts 1997, 75th Leg., ch. 914, 6, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1111, 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1481, 42(1); Acts 2005, 79th Leg., ch. 1126, 23, eff. Sept. 1, 2005.

Sec. 33.52. Taxes Included in Judgment.

(a) Only taxes that are delinquent on the date of a judgment may be included in the amount recoverable under the judgment by the taxing units that are parties to the suit.

(b) In lieu of stating as a liquidated amount the aggregate total of taxes, penalties, and interest due, a judgment may:

(1) set out the tax due each taxing unit for each year; and

(2) provide that penalties and interest accrue on the unpaid taxes as provided by Subchapter A.

(c) For purposes of calculating penalties and interest due under the judgment, it is presumed that the delinquency date for a tax is February 1 of the year following the year in which the tax was imposed, unless the judgment provides otherwise.

(d) A taxing unit's claim for taxes that become delinquent after the date of the judgment is not affected by the entry of the judgment or a tax sale conducted under that judgment. Those taxes may be collected by any remedy provided by this title.

Amended by 1997 Tex. Laws, p. 2855, ch. 906, Sec. 8; by p. 3052, ch. 981, Sec. 2; and by p. 4246, ch. 1111, Sec. 3; amended by 1999 Tex. Laws, p. 5103, ch. 1481, Sec. 22.

Notes:
The failure of the taxing unit to give the required five-year notice of delinquent taxes (now repealed) resulted in the cancellation of penalties and interest on taxes when the taxpayer was able to prove that the notice was not delivered. The introduction of tax records establishes a prima facie case to establish every material fact, and a rebuttable presumption arises that all required notices likewise have been delivered. The presumption disappears, however, if the taxpayer produces competent evidence to justify a finding against the presumed fact. Tax notices must be addressed according to the most recent records in the possession of the taxing unit; if no address exists for a taxpayer, statutory notice requirements do not apply. In this case, evidence was sufficient to support the trial court's finding that the school district did not deliver notice, thereby canceling penalties and interest for certain tax years. However, the owner did not overcome the presumption of delivery regarding other taxing units for certain years and therefore cancellation of the penalties and interest was not mandated. The case was remanded for trial court determination of the amounts of penalties, interest, attorney fees, court costs and other fees to be assessed. Aldine Independent School District, et.al. v. Ogg, 122 S.W.3d 257 (Tex. App.-Houston [1st Dist.], 2003, no pet.).

If irreconcilable amendments to the same statute are enacted at the same session of the Texas Legislature, without reference to one another, then the latest amendment in date of enactment prevails. Of the three different bills passed by the 75th Legislature that amended Section 33.52, the amendments by House Bill 2622, which was the last of the enacted provisions, would prevail over the other earlier amendments. House Bill 3306 and House Bill 2587 were the other two bills. Op. Tex. Att'y Gen. Letter Opinion No. 98-083 (1998).

Sec. 33.53. Order of Sale; Payment Before Sale.

(a) If judgment in a suit to collect a delinquent tax is for foreclosure of a tax lien, the court shall order the property sold in satisfaction of the amount of the judgment.

(b) On application by a taxing unit that is a party to the judgment, the district clerk shall prepare an order to an officer authorized to conduct execution sales ordering the sale of the property. If more than one parcel of property is included in the judgment, the taxing unit may specify particular parcels to be sold. A taxing unit may request more than one order of sale as necessary to collect all amounts due under the judgment.

(c) An order of sale:

(1) shall be returned to the district clerk as unexecuted if not executed before the 181st day after the date the order is issued; and

(2) may be accompanied by a copy of the judgment and a bill of costs attached to the order and incorporate the terms of the judgment or bill of costs by reference.

(d) A judgment or a bill of costs attached to the order of sale is not required to be certified.

(e) If the owner pays the amount of the judgment before the property is sold, the taxing unit shall:

(1) release the tax lien held by the taxing unit on the property; and

(2) file for record with the clerk of the court in which the judgment was rendered a release of the lien.

Amended by 1997 Tex. Laws, p. 1904, ch. 537, Sec. 1; amended by 1999 Tex. Laws, p. 5104, ch. 1481, Sec. 23.

Sec. 33.54. Limitation on Actions Relating to Property Sold for Taxes.

(a) Except as provided by Subsection (b), an action relating to the title to property may not be maintained against the purchaser of the property at a tax sale unless the action is commenced:

(1) before the first anniversary of the date that the deed executed to the purchaser at the tax sale is filed of record; or

(2) before the second anniversary of the date that the deed executed to the purchaser is filed of record, if on the date that the suit to collect the delinquent tax was filed the property was:

(A) the residence homestead of the owner; or

(B) land appraised or eligible to be appraised under Subchapter C or D, Chapter 23.

(b) If a person other than the purchaser at the tax sale or the person's successor in interest pays taxes on the property during the applicable limitations period and until the commencement of an action challenging the validity of the tax sale and that person was not served citation in the suit to foreclose the tax lien, that limitations period does not apply to that person.

(c) When actions are barred by this section, the purchaser at the tax sale or the purchaser's successor in interest has full title to the property, precluding all other claims.

Amended by 1997 Tex. Laws, p. 4299, ch. 1136, Sec. 1 and by p. 4594, ch. 1192, Sec. 1.

Notes:
In light of the plain language of section 33.54 and the San Antonio Court of Appeals' decision in Cedillo v. Gaitan, 981 S.W.2d 388 (Tex.App.-San Antonio 1998, no writ), there is no obligation to introduce the tax judgment and order of sale in order to rely on section 33.54 as a limitation as a defense. Jordan v. Bustamante, 158 S.W. 3d. 29 (Tex. App.-Houston [14 Dist.] 2005, pet. denied).

To prove title under a tax deed, a proponent must introduce the decree of foreclosure and the order of sale as evidence. By failing to do so, the purchaser of real property at a tax sale was unable to assert the statute of limitations as a defense to the recorded property owner's claim of ownership. Sani v. Powell, 153 S.W. 3d 736 (Tex. App. -- Dallas 2005, pet. denied).

Taxing units brought suit against a delinquent taxpayer and included as a party a company having a possibility of reverter interest. The reverter interest was not a claim, but a nontaxable interest distinct from the fee simple determinable and not an encumbrance. Thus, the taxing units could not foreclose on that interest and the company was not a proper party to the suit. Cypress-Fairbanks Independent School District v. Glenn W. Loggins, Inc., 115 S.W.3d 67 (Tex. App.-San Antonio 2003, pet. denied).

In a dispute over title to property between purchasers at a deed-of-trust foreclosure sale and others, the Resolution Trust Corporation was held not to be the owner of the interest at the time of foreclosure; therefore, its consent was not required nor did it extend to subsequent assignees. Any suit involving a dispute over title to land was held to be an action in "trespass to try title." As a result, attorney fees are not recoverable. Hawk v. E.K. Arledge, Inc., 107 S.W.3d 79 (Tex. App.-Eastland 2003, pet. denied).

Any challenge to a tax foreclosure proceeding must be filed within the three years after the tax deed is filed of record. Cedillo v. Gaitan, 981 S.W.2d 388 (Tex. App. -- San Antonio 1998).

Party claiming title under a tax deed must prove the validity of the deed by introducing the Decree of Foreclosure and the Order of Sale as well as the deed. Volunteer Council of Denton State School, Inc. v. Berry, 795 S.W.2d 230 (Tex. App.-Dallas 1990, no writ).

Statute providing that cause of action relating to title of property may not be maintained against purchaser who acquired property at tax sale unless action is commenced within three years after tax deed is filed of record was constitutional and could be applied retroactively. Cook v. Slusky, 659 S.W.2d 110 (Tex. App.-Houston 1983, no writ).

Sec. 33.55. Effect of Judgment on Accrual of Penalties and Interest.

(a) judgment for delinquent taxes does not affect the accrual after the date of the judgment of penalties and interest under this chapter on the taxes included in the judgment.

Added by 1997 Tex. Laws, p. 4247, ch. 1111, Sec. 4.

Sec. 33.56. Vacation of Judgment.

(a) If, in a suit to collect a delinquent tax, a court renders a judgment for foreclosure of a tax lien on behalf of a taxing unit, any taxing unit that was a party to the judgment may file a petition to vacate the judgment on one or more of the following grounds:

(1) failure to join a person needed for just adjudication under the Texas Rules of Civil Procedure, including a taxing unit required to be joined under Section 33.44(a);

(2) failure to serve a person needed for just adjudication under the Texas Rules of Civil Procedure, including a taxing unit required to be joined under Section 33.44(a);

(3) failure of the judgment to adequately describe the property that is the subject of the suit; or

(4) that the property described in the judgment was subject to multiple appraisals for the tax years included in the judgment.

(b) The taxing unit must file the petition under the same cause number as the delinquent tax suit and in the same court.

(c) The taxing unit may not file a petition if a tax sale of the property has occurred unless:

(1) the tax sale has been vacated by an order of a court;

(2) the property was bid off to a taxing unit under Section 34.01(j) and has not been resold; or

(3) the tax sale or resale purchaser, or the purchaser's heirs, successors, or assigns, consents to the petition.

(d) Consent of the purchaser to a petition may be shown by:

(1) a written memorandum signed by the purchaser and filed with the court;

(2) the purchaser's joinder in the taxing unit's petition;

(3) a statement of the purchaser made in open court on the record in a hearing on the petition; or

(4) the purchaser's signature of approval to an agreed order to grant the petition.

(e) A copy of the petition must be served in a manner authorized by Rule 21a, Texas Rules of Civil Procedure, on each party to the delinquent tax suit.

(f) If the court grants the petition, the court shall enter an order providing that:

(1) the judgment, any tax sale based on that judgment, and any subsequent resale are vacated;

(2) any applicable tax deed or applicable resale deed is canceled;

(3) the delinquent tax suit is revived; and

(4) except in a case in which judgment is vacated under Subsection (a)(4), the taxes, penalties, interest, and attorney's fees and costs, and the liens that secure each of those items, are reinstated.

Added by 1999 Tex. Laws, p. 3171, ch. 626, Sec. 1; amended by 2001 Tex. Laws, p. 4824, ch. 1430, Sec. 25.

Notes:
The taxing unit filed a motion to vacate a judgment taken two years before in order to include a discovered creditor. The unit did not waive its right to renew the delinquent tax suit because there is no time limit on seeking an order to vacate, and the statute of limitations to file a delinquent tax lawsuit regarding real property is twenty years. Barua v. County of Dallas, 100 S.W.3d 629 (Tex. App.-Texarkana 2003, pet. denied).

Sec. 33.57. Alternative Notice of Tax Foreclosure on Certain Parcels of Real Property.

(a) In this section, "appraised value" means the appraised value according to the most recent appraisal roll approved by the appraisal review board.

(b) This section may be invoked and used by one or more taxing units if there are delinquent taxes, penalties, interest, and attorney's fees owing to a taxing unit on a parcel of real property, and:

(1) the total amount of delinquent taxes, penalties, interest, and attorney's fees owed exceeds the appraised value of the parcel; or

(2) there are 10 or more years for which delinquent taxes are owed on the parcel.

(c) One or more taxing units may file a single petition for foreclosure under this section that includes multiple parcels of property and multiple owners. Alternatively, separate petitions may be filed and docketed separately for each parcel of property. Another taxing unit with a tax claim against the same parcel may intervene in an action for the purpose of establishing and foreclosing its tax lien without further notice to a defendant. The petition must be filed in the county in which the tax was imposed and is sufficient if it is in substantially the form prescribed by Section 33.43 and further alleges that:

(1) the amount owed in delinquent taxes, penalties, interest, and attorney's fees exceeds the appraised value of the parcel; or

(2) there are 10 or more years for which delinquent taxes are owed on the parcel.

(d) Simultaneously with the filing of the petition under this section, a taxing unit shall also file a motion with the court seeking an order approving notice of the petition to each defendant by certified mail in lieu of citation and, if the amount of delinquent taxes, penalties, interest, and attorney's fees alleged to be owed exceeds the appraised value of the parcel, waiving the appointment of an attorney ad litem. The motion must be supported by certified copies of tax records that show the tax years for which delinquent taxes are owed, the amounts of delinquent taxes, penalties, interest, and attorney's fees, and, if appropriate, the appraised value of the parcel.

(e) The court shall approve a motion under Subsection (d) if the documents in support of the motion show that:

(1) the amount of delinquent taxes, penalties, interest, and attorney's fees that are owed exceeds the appraised value of the parcel; or

(2) there are 10 or more years for which delinquent taxes are owed on the parcel.

(f) Before filing a petition under this section, or as soon afterwards as practicable, the taxing unit or its attorney shall determine the address of each owner of a property interest in the parcel for the purpose of providing notice of the pending petition. If the title search, the taxing unit's tax records, and the appraisal district records do not disclose an address of a person with a property interest, consulting the following sources of information is to be considered a reasonable effort by the taxing unit or its attorney to determine the address of a person with a property interest in the parcel subject to foreclosure:

(1) telephone directories, electronic or otherwise, that cover:

(A) the area of any last known address for the person; and

(B) the county in which the parcel is located;

(2) voter registration records in the county in which the parcel is located; and

(3) where applicable, assumed name records maintained by the county clerk of the county in which the parcel is located and corporate records maintained by the secretary of state.

(g) Not later than the 45th day before the date on which a hearing on the merits on a taxing unit's petition is scheduled, the taxing unit or its attorney shall send a copy of the petition and a notice by certified mail to each person whose address is determined under Subsection (f), informing the person of the pending foreclosure action and the scheduled hearing. A copy of each notice shall be filed with the clerk of the court together with an affidavit by the tax collector or by the taxing unit's attorney attesting to the fact and date of mailing of the notice.

(h) In addition to the notice required by Subsection (g), the taxing unit shall provide notice by publication and by posting to all persons with a property interest in the parcel subject to foreclosure. The notice shall be published in the English language once a week for two weeks in a newspaper that is published in the county in which the parcel is located and that has been in general circulation for at least one year immediately before the date of the first publication, with the first publication to be not less than the 45th day before the date on which the taxing unit's petition is scheduled to be heard. When returned and filed in the trial court, an affidavit of the editor or publisher of the newspaper attesting to the date of publication, together with a printed copy of the notice as published, is sufficient proof of publication under this subsection. If a newspaper is not published in the county in which the parcel is located, publication in an otherwise qualifying newspaper published in an adjoining county is sufficient. The maximum fee for publishing the citation shall be the lowest published word or line rate of that newspaper for classified advertising. The notice by posting shall be in the English language and given by posting a copy of the notice at the courthouse door of the county in which the foreclosure is pending not less than the 45th day before the date on which the taxing unit's petition is scheduled to be heard. Proof of the posting of the notice shall be made by affidavit of the attorney for the taxing unit, or of the person posting it. If the publication of the notice cannot be had for the maximum fee established in this subsection, and that fact is supported by the affidavit of the attorney for the taxing unit, the notice by posting under this subsection is sufficient.

(i) The notice required by Subsections (g) and (h) must include:

(1) a statement that foreclosure proceedings have been commenced and the date the petition was filed;

(2) a legal description, tax account number, and, if known, a street address for the parcel in which the addressee owns a property interest;

(3) the name of the person to whom the notice is addressed and the name of each other person who, according to the title search, has an interest in the parcel in which the addressee owns a property interest;

(4) the date, time, and place of the scheduled hearing on the petition;

(5) a statement that the recipient of the notice may lose whatever property interest the recipient owns in the parcel as a result of the hearing and any subsequent tax sale;

(6) a statement explaining how a person may contest the taxing unit's petition as provided by Subsection (j) and that a person's interest in the parcel may be preserved by paying all delinquent taxes, penalties, interest, attorney's fees, and court costs before the date of the scheduled hearing on the petition;

(7) the name, address, and telephone number of the taxing unit and the taxing unit's attorney of record; and

(8) the name of each other taxing unit that imposes taxes on the parcel, together with a notice that any taxing unit may intervene without further notice and set up its claims for delinquent taxes.

(j) A person claiming a property interest in a parcel subject to foreclosure may contest a taxing unit's petition by filing with the clerk of the court a written response to the petition not later than the seventh day before the date scheduled for hearing on the petition and specifying in the response any affirmative defense of the person. A copy of the response must be served on the taxing unit's attorney of record in the manner required by Rule 21a, Texas Rules of Civil Procedure. The taxing unit is entitled on request to a continuance of the hearing if a written response filed to a notice of the hearing contains an affirmative defense or requests affirmative relief against the taxing unit.

(k) Before entry of a judgment under this section, a taxing unit may remove a parcel erroneously included in the petition and may take a voluntary nonsuit as to one or more parcels of property without prejudicing its action against the remaining parcels.

(l) If before the hearing on a taxing unit's petition the taxing unit discovers a deficiency in the provision of notice under this section, the taxing unit shall take reasonable steps in good faith to correct the deficiency before the hearing. A notice provided by Subsections (g)-(i) is in lieu of citation issued and served under Rule 117a, Texas Rules of Civil Procedure. Regardless of the manner in which notice under this section is given, an attorney ad litem may not be appointed for a person with an interest in a parcel with delinquent taxes, penalties, interest, and attorney's fees against the parcel in an amount that exceeds the parcel's appraised value. To the extent of any additional conflict between this section and the Texas Rules of Civil Procedure, this section controls. Except as otherwise provided by this section, a suit brought under this section is governed generally by the Texas Rules of Civil Procedure and by Subchapters C and D of this chapter.

(m) A judgment in favor of a taxing unit under this section must be only for foreclosure of the tax lien against the parcel. The judgment may not include a personal judgment against any person.

(n) A person is considered to have been provided sufficient notice of foreclosure and opportunity to be heard for purposes of a proceeding under this section if the taxing unit follows the procedures required by this section for notice by certified mail or by publication and posting or if one or more of the following apply:

(1) the person had constructive notice of the hearing on the merits by acquiring an interest in the parcel after the date of the filing of the taxing unit's petition;

(2) the person appeared at the hearing on the taxing unit's petition or filed a responsive pleading or other communication with the clerk of the court before the date of the hearing; or

(3) before the hearing on the taxing unit's petition, the person had actual notice of the hearing.

Added by Acts 2005, 79th Leg., ch. 1126, 24, eff. Sept. 1, 2005.

[Sections 33.58 to 33.70 reserved for expansion]