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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