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1993 Texas Attorney General Reports and Opinions 1031 (1993)

handle is hein.sag/sagtx0051 and id is 1 raw text is: @ffice of the Attornep @eneral btate of Mexas DAN MORALES ATTORNEY GENERAL January 5, 1993 Honorable Tim Curry Opinion No. DM- 195 Criminal District Attorney Tarrant County Re. Whether a proceeding to recover Justice Center excess proceeds after a tax lien foreclosure 401 West Belknap requires a separate cause of action, and Fort Worth, Texas 76196-0201 related question (RQ-456) Dear Mr. Curry: You have requested that we construe section 34.04 of the Tax Code with regard to the following two questions: 1) Does Tax Code §34.04 require a new lawsuit, separate from the suit to foreclose the tax lien, in a proceeding to recover excess tax proceeds? 2) Does Tax Code §34.04 require personal service on the parties and the county attorney or district attorney in a proceeding to recover excess tax proceeds? Chapter 34 of the Tax Code provides, in part, for the sale of property that has been seized pursuant to foreclosure of a tax lien. See Tax Code § 34.01(a). The officer conducting the sale is to apply the proceeds of the sale first toward the costs of the sale. Id. § 34.02(a). Next, the officer is to distribute proceeds to all taxing units that participated in the sale for the payment of taxes, penalties, and interest due each taxing unit. Id. Finally, the officer is to pay any excess proceeds to the clerk of the court that ordered the sale. Id. § 34.02(c). The clerk is to keep the excess proceeds for a period of seven years after the date of the sale, unless the court has ordered otherwise. Id. § 34.03(a); International Paper Co. v. State, 380 S.W.2d 18, 21 (Tex. Civ. App.-- Texarkana 1964, writ refd n.r.e.) (stating that district court has exclusive jurisdiction for suit to foreclose tax lien). Section 34.04 provides the procedure by which a person may file a claim to the excess proceeds: (a) A person may file a petition in the court that ordered the sale setting forth a claim to the excess proceeds within seven years from the date of the sale of the property. (b) A copy of the petition shall be served on the county attorney or, if there is no county attorney, the district attorney and on p. 1031

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