Syntax, Inc. v. Hall

899 S.W.2d 189, 1995 WL 276974

• Court: Texas Supreme Court
• Decided: June 8, 1995
• Docket: 94-0922
• Status: Published

Opinions

HIGHTOWER, Justice,

delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and CORNYN, GAMMAGE, SPECTOR, and OWEN, Justices, join.

In this case we must decide whether the Tax Code gives taxing units the authority to profit from excess funds derived from the sale of property taken in satisfaction of a judgment for delinquent taxes. The trial court answered this question affirmatively, and the court of appeals agreed. We reverse the judgment of the court of appeals, and remand this ease to that court for further proceedings consistent with our opinion.

On February 8, 1988, the Klein Independent School District (KISD) and Harris County secured a judgment against Verna Neal for delinquent real property taxes and for foreclosure of their tax lien. The amount of the delinquent taxes, including penalties and interest, was $38,542.79. On May 3, 1988, a tax sale was held by public auction, but no bids were received. As a consequence, the property was “struck off’ to KISD for the minimum bid amount, the amount of the delinquent taxes. After two years had passed, KISD again arranged to sell the property. On April 20,1991 John L. Hall, Sr. and Steve Ray Kasprzak successfully bid $85,000 for the property. The property was deeded to Hall and Kasprzak on May 13, 1991. That deed was then recorded. KISD paid Harris County for the taxes due to the county, but did not tender the excess of the funds received over the total taxes, interest, costs and penalties due into the registry of the court for distribution to Neal. On May 18, 1991, Neal executed an assignment to Syntax. Syntax recorded this assignment after the deed to Hall and Kaspr-zak was recorded. Hall and Kasprzak then filed the present suit to quiet title to the property.

Syntax filed counterclaims against Hall and Kasprzak, as well as KISD and Harris County, seeking the distribution of the excess funds. The trial court granted summary judgment for Hall and Kasprzak on their suit to quiet title and against Syntax on its counterclaim and the court of appeals affirmed. 881 S.W.2d 719. The sole issue in this appeal is whether the taxing authorities are required to deposit with the court any excess proceeds from a resale of foreclosed property when the resale occurs after the period of redemption has expired. We hold that Sections 34.02 and 34.06 of the Tax Code require such a deposit.

The taxing authorities argue that Section 34.01 of the Tax Code extinguishes any right which a taxpayer may have had to excess proceeds arising from the sale of the property. We disagree. Section 34.01 of the Tax Code provides that when the taxing unit takes title to property in the absence of a sufficient bid at the initial foreclosure sale, the taxing unit’s title includes “all the interest owned by the defendant ... subject only to the defendant’s right of redemption.” Tex. Tax Code Ann. § 34.01 (Vernon 1992). This provision describes the state of the taxing unit’s title, however we do not perceive that this section would extinguish any rights held by the former landowner which are not interests in the title to the property. Thus, this section does not extinguish the rights of the landowner to excess proceeds, if any, upon the sale of the property. Such an interest is not a burden upon the title to the land, but rather is a chose in action which exists if and when an excess fund is created. See Walsh v. Spencer, 275 S.W.2d 220 (Tex. Civ.App.—San Antonio 1954, no writ).¹

The Texas Tax Code contains a specific provision, section 34.06, for resales following foreclosure that is separate from section 34.02, the provision that addresses the distribution of proceeds following a foreclosure sale at which a third party purchases the property and it is not struck off to the taxing authority. However, section 34.06 refers to section 34.02 for instructions as to how excess proceeds will be distributed following a resale. Section 34.06 provides:

§ 34.06. Distribution of Proceeds of Resale

(a) The proceeds of a resale of property purchased by a taxing unit at a tax foreclosure sale shall be paid to the purchasing taxing unit.

(b) The purchasing taxing unit shall pay all costs and expenses of court and sale and shall distribute the remainder of the proceeds as provided by Section Si.. 02 of this code for distribution of proceeds after payment of costs.

Tex. Tax Code Ann. § 34.06 (Vernon 1992) (emphasis added).

Under this section, once there has been a resale to a third party, the procedure for distribution of any excess proceeds is the same as the distribution of proceeds where there has been an initial sale to a third party under section 34.02. Section 34.02 provides:

§ 34.02. Distribution of Proceeds.

(a) The proceeds of a tax sale shall be applied first to the payment of cost. The remainder shall be distributed to all taxing units participating in the sale in satisfaction of the taxes, penalties, and interest due each.

(b) If the proceeds are not sufficient to pay the costs and taxes, penalties, and interest due all participants in the sale, each participant is entitled to a share of the proceeds after payment of costs in an amount equal to the proportion its taxes, penalties, and interest bear to the total amount of taxes, penalties, and interest due all participants in the sale.

(c) If the sale is pursuant to foreclosure of a tax lien, the officer conducting the sale shall pay any excess proceeds after payment of all costs and of all taxes, penalties, and interest due all participants in the sale to the clerk of the court issuing the order of sale.

(d) If the sale is pursuant to seizure of personal property, the officer conducting the sale shall distribute any excess of proceeds as provided by law for excess proceeds in the case of execution.

Id. at § 34.02. The foregoing procedure specifies that the taxing authorities are to receive only taxes, penalties, and interest due. Under subsection (c), any excess is to be paid to the clerk of the court issuing the order of sale. There is no statutory authority under section 34.02 for distribution of excess proceeds to any taxing authority. The taxing authorities would only receive excess proceeds if, at the end of seven years, no claimant has established a right to those funds under section 34.03.

Under the terms of the statutes discussed above, if a resale of property which has been “struck off’ to the taxing authority is “pursuant to foreclosure of a tax lien,” section 34.02(c) affirmatively requires disgorgement of the excess proceeds. The taxing authorities argue that a resale such as this one is not “pursuant to foreclosure of a tax lien.” We disagree.

The statute in question does not define what “pursuant to foreclosure of a tax lien” means, so we are bound to interpret the words according to their common usage. See Tex. Gov’t Code Ann. §§ 311.011 & 312.002 (Vernon 1988). According to the common usage of the English language, a sale is “pursuant to foreclosure of a tax lien” if it is a sale consummated “in carrying out” foreclosure of a tax lien. See, e.g., Webster’s Third New International Dictionary of the English Language (Unabridged) 1848 (1961). Taxing authorities are not (nor should they be) in the business of buying and selling real estate for profit. The only reason they hold this property at all is “pursuant to” their powers of foreclosure as a taxing entity. The words “pursuant to foreclosure of a tax lien” were not included in the statute to distinguish resales from sales of real property at the time of foreclosure; rather, they were included to distinguish transactions involving liens on real property from transactions involving seizures of personal property which are addressed in subsection (d) of the same code section. Compare Tex. Tax Code Ann. §§ 34.02(c) & 34.02(d) (Vernon 1992). We find that a taxing authority that resells property to which it has acquired title by foreclosure does so “in carrying out” or “pursuant to” the foreclosure of its tax lien.

The taxing authorities criticize this approach by arguing that the taxpayer is better off if he fails to exercise his right of redemption and merely waits for the sales proceeds to roll in. Even if this were sometimes the case, it does not change the wording of the statute. The purpose of a taxing entity is merely to assess and collect revenues, and these code provisions are merely a tool toward that end. Upon the resale of the property, the taxing authority is made whole by its collection of delinquent taxes, costs, interest and penalties from the proceeds of the sale. Tex. Tax.Code Ann. § 34.06 (Vernon 1988). While it is true that the taxing unit can not collect taxes during the time which it holds the property, the taxing authorities themselves control the length of this time. Thus, the effect of the provisions is to encourage taxing authorities to sell the property and return it to the tax rolls as soon as possible.²

The dissent would give taxing authorities the right to excess proceeds, in part, because these proceeds “result from the very increase in the market value of the property occurring while the property was held by the taxing authority.” 899 S.W.2d at 194. This reasoning ignores the reality that there can be excess proceeds generated even if the property plummets in value while the authorities are holding it. Consider, for example, a property valued at $100,000.00 against which the taxing authorities claim for taxes and costs amounts to $40,000.00. Even if the fair market value of the property declines by 50%, a $10,000 excess fund is created if the property is resold at the $50,000.00 fair market value. Giving the taxpayer who has been deprived, albeit legally, of the use and enjoyment of his property, the right to these proceeds does not seem unreasonable in light of the language chosen by the legislature. If the language as construed is merely unwise, the wisdom or expediency of law is the sole prerogative of the legislature. Smith v. Davis, 426 S.W.2d 827 (Tex.1968); Board of Insurance Commissioners of Texas v. Guardian Life Ins. Co. of Texas, 142 Tex. 630, 180 S.W.2d 906 (1944); Texas Nat’l Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627 (1939).

The legislature has expressly allowed the assessment of a 25% penalty in the event that the right of redemption is exercised within the first year after foreclosure, and a 50% penalty if the right is exercised in the second year. Tex. Tax Code Ann. § 34.21 (Vernon 1992). If it was the intent of the legislature to exact an additional penalty upon the taxpayer by granting the taxing authorities the right to profit from the sale of property bought at sales at which it was the only legitimate bidder, we perceive that such a penalty would have been (and should have been) set out explicitly. In this case, the legislature has incorporated a statute which, by its terms, contemplates that once the taxing authority has been made whole, the remainder returns to the taxpayer. If this is not the legislature’s intent, it is certainly the legislature’s prerogative to make its desires clearer by amendment.

Accordingly, a majority of the Court holds that Sections 34.02 & 34.06 require taxing authorities to deposit the excess proceeds with the registry of the trial court. Although we note that Booty v. State, 149 S.W.2d 216 (Tex.CivApp.—Austin 1941, no writ) was decided well prior to the codification of the language construed in this opinion, to the extent that it is inconsistent with this holding, it is disapproved. We reverse the judgment of the court of appeals and remand to that court for further proceedings consistent with this opinion.

PHILLIPS, Chief Justice, and CORNYN, GAMMAGE, SPECTOR and OWEN, Justices, join. ENOCH, Justice, joined by GONZALEZ and HECHT, Justices, dissenting.

1 . We are further persuaded by the manner in which the legislature has purposefully distinguished between the right of redemption and the right to excess proceeds in other portions of the code. The right of redemption provides the taxpayer a right to compel the reconveyance of the property upon payment of taxes and other expenses. Because the mere existence of this right can retard any future productive use of the property until the right has expired, the legislature has limited redemption periods to a maximum of two years. See Tex.Tax Code Ann. § 34.21 (Vernon 1992). The claim for excess proceeds concedes the loss of ownership and simply seeks a return of the excess value that was received at the sale. Because this right is less disruptive to potential productive uses of the property, the legislature extended the period for making these claims to seven years. See Id. at § 34.04(a). Given the distinctions between these two taxpayer protections, opting to forego the right of redemption need not foreclose one’s right to receive the excess value of a foreclosed property.

2 . We note in addition that prior to the expiration of the taxpayer's right of redemption, the taxing unit which purchased the property is forbidden from selling it below the market value specified in the judgment of foreclosure absent the consent of the other taxing units entitled to share in the proceeds. Id. at § 34.05(b). Thus, the risk that the property has been assessed at a value out of all proportion to its actual worth also resides with the taxing authorities.