Can a Texas county change the spot at the courthouse where foreclosure sales are held?

Texas AG Opinion JM-1044: Can a County Move Where Courthouse Foreclosure Sales Happen?

Plain-English summary

When a lender forecloses under a deed of trust in Texas, the property is sold at a public auction. State law is picky about when and where: the sale happens on the first Tuesday of the month, between 10 a.m. and 4 p.m., at the county courthouse. A 1987 change to the law added another requirement, that the county commissioners court pick the exact area at the courthouse where these sales take place and record that choice in the county's property records, so buyers know where to show up.

That created two practical questions, which a state legislator brought to the Attorney General. The trigger was a calendar quirk: the first Tuesday of July 1989 fell on July 4, a holiday when many courthouses would be closed. Some counties had designated a spot inside the courthouse, which would be locked on the holiday. So, first, can a commissioners court change the spot it already picked? And second, can it set up a standing backup spot to use whenever the main one is unavailable?

The Attorney General split the answers. On the first question, yes. Because the whole point of the statute is a genuinely public sale, and a designated spot can become unusable (remodeling, a new courthouse, a fire, or just being locked on a holiday), the commissioners court has implied authority to formally change the designated area for future sales. The catch is that any change has to be recorded in the county's deed records, the same as the original designation.

On the second question, no. The statute says the commissioners court "shall designate the area," singular, and does not authorize a backup. The AG would not read in implied authority for an alternate site either. The Legislature passed House Bill 1504 specifically to fix the old problem of an "uncertain location" for these sales, and a scheme of alternate sites that switch based on weather, holidays, or other events would bring back exactly the confusion the law was meant to end. The AG suggested cleaner fixes: designate an exterior spot that stays accessible, spell the location out precisely ("outside the north entrance"), or just open the courthouse for the short time the sale takes. The opinion also pointed out, citing Koehler v. Pioneer Am. Ins. Co., that a foreclosure sale on July 4 itself is not prohibited.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 51.002 of the Property Code has been amended several times since 1989, including changes to how and where the designated area is set and to the notice requirements. Anyone dealing with a present-day foreclosure sale location should check the current version of section 51.002 and the county's current recorded designation rather than rely on this 1989 analysis.

Who this opinion affected (as of 1989)

Commissioners courts: The opinion told them they could change a previously designated sale area (recording the change in the deed records) but could not set up a standing alternate location.

Lenders, trustees, and foreclosure buyers: The opinion gave them certainty that the recorded designated area governs where a courthouse sale occurs, and that a holiday like July 4 does not by itself invalidate a first-Tuesday sale.

Counties with an interior designated spot: The opinion pointed them toward practical fixes, opening the building for the limited sale, moving the spot outside, or precisely describing the location, rather than relying on an ad hoc backup.

Common questions

Can a Texas commissioners court change the courthouse area it designated for foreclosure sales?
Yes. The AG concluded the commissioners court has implied authority to formally change the previously designated area under section 51.002(a), and must reflect the change in the county's deed records.

Can the county set up a backup location to use when the main one is closed or inaccessible?
No. The AG concluded the statute does not authorize a commissioners court, expressly or by implication, to designate a standing alternate site, because the law was written to make the place of sale certain.

Does a foreclosure sale falling on July 4 have to be moved or canceled?
Not because of the holiday. The AG noted, citing Koehler v. Pioneer Am. Ins. Co., that neither the deed-of-trust statute nor the holiday statute nor Rule 6 of the Rules of Civil Procedure prohibits such a sale on July 4.

Background and statutory framework

The request came from the chairman of the House Financial Institutions Committee and concerned section 51.002 of the Property Code, which governs sales of real property held under a power of sale conferred by a deed of trust or other lien. The section requires such a sale to be a public auction held between 10 a.m. and 4 p.m. on the first Tuesday of a month at the courthouse, and it sets out how notice is to be given. House Bill 1504, Acts 1987, 70th Leg., ch. 540, § 1, effective January 1, 1988, amended section 51.002(a) to require that the sale take place at the courthouse in the county where the land is located, that the commissioners court designate the area at the courthouse where sales are to take place and record that designation in the county's real property records, and that the sale occur in the designated area (with the notice of sale designating the area if the commissioners court has not).

On the first question, the AG reasoned that the purpose of a public sale and its notice is, as stated in Reisenberg v. Hankins, 258 S.W. 904 (Tex. Civ. App.—Amarillo 1924, writ dism'd), to secure the attendance of purchasers and obtain a fair price for the property. A designated area can become inaccessible to the public over time, whether from becoming unsafe, remodeling or construction of a new courthouse, or destruction by fire or other calamity. Because section 51.002 requires the sale to be public, the AG concluded the commissioners court has implied authority to formally change the designated area for future sales when the previously designated site becomes inaccessible, and that any such change must be reflected in the county's deed records. In a footnote, the AG cited Koehler v. Pioneer Am. Ins. Co., 425 S.W.2d 889, 891 (Tex. Civ. App.—Fort Worth 1968, no writ), for the point that neither the deed-of-trust statute (former article 3810, now section 51.002(a)), nor the holiday statute (article 4591, V.A.T.S.), nor Rule 6 of the Texas Rules of Civil Procedure prohibits a deed-of-trust sale on July 4.

On the second question, the AG began from the rule that commissioners courts may exercise only the powers the constitution or statutes specifically confer. Tex. Const. art. V, § 18; Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App.—Eastland 1978, writ ref'd n.r.e.). Section 51.002(a) directs that the commissioners court "shall designate the area at the courthouse where the sales are to take place," and does not expressly authorize an alternate site. The AG declined to read in implied authority for a backup, noting the bill analysis to House Bill 1504 stated one purpose of the act was to cure the existing law's "uncertain location" problem. Bill Analysis, H.B. 1504, 70th Leg. (1987). The AG observed that confusion already arises where counties designate "at the entrance," leaving open whether that means inside or outside, and that this could be avoided by specifying, for example, "outside the north entrance." Allowing alternate sites that vary with weather, holidays, or other events would be confusing and contrary to the legislative intent to make the place of sale certain. The AG added that opening the courthouse for the limited purpose of the sale, or designating an exterior area, would be viable alternatives.

Citations

Cases:

• Reisenberg v. Hankins, 258 S.W. 904 (Tex. Civ. App.—Amarillo 1924, writ dism'd) (purpose of public sale and notice is to secure purchasers and a fair price)
• Koehler v. Pioneer Am. Ins. Co., 425 S.W.2d 889 (Tex. Civ. App.—Fort Worth 1968, no writ) (July 4 deed-of-trust sale not prohibited)
• Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App.—Eastland 1978, writ ref'd n.r.e.) (commissioners courts exercise only specifically conferred powers)

Statutory authority and rules:

• Property Code § 51.002 (public sale of real property under power of sale)
• Property Code § 51.002(a) (as amended by House Bill 1504, Acts 1987, 70th Leg., ch. 540, § 1, effective January 1, 1988; commissioners court designates and records the sale area)
• Former V.A.T.S. art. 3810 (predecessor deed-of-trust sale statute)
• V.A.T.S. art. 4591 (holiday statute)
• Tex. R. Civ. Proc. 6 (does not prohibit a July 4 sale)
• Tex. Const. art. V, § 18 (commissioners court powers)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1044
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1044.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

May 12, 1989

Honorable Ashley Smith
Chairman
Financial Institutions Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JM-1044

Re: Authority of a commissioners court to designate a new area of the county courthouse for sales of real property (RQ-1677)

Dear Representative Smith:

You ask whether under section 51.002(a) of the Property Code a commissioners court, after having designated an area at the courthouse for public sale of real property under a power of sale conferred by a deed of trust or other contract lien, may subsequently change the place for such a sale to another area at the courthouse. You also ask whether the commissioners court may designate an alternate area for times when the previously designated area may not be accessible to the public.

Section 51.002 provides that sales of real property held under power conferred by a deed of trust or other liens must be at public sale to be held between 10 a.m. and 4 p.m. on the first Tuesday of a month at the courthouse. This section further provides for the giving of notice of the sale and the manner in which notice shall be given. Section 51.002(a) was amended by House Bill 1504, Acts 1987, 70th Leg., ch. 540, § 1, effective January 1, 1988, to provide the following additional provisions:

The sale must take place at the county courthouse in the county in which the land is located, or if the property is located in more than one county, the sale may be made at the courthouse in any county in which the property is located. The commissioners court shall designate the area at the courthouse where the sales are to take place and shall record the designation in the real property records of the county. The sale must occur in the designated area. If no area is designated by the commissioners court, the notice of sale must designate the area at the courthouse where the sale covered by that notice is to take place, and the sale must occur in that area.

(Emphasis added to reflect provisions added by amendment.)

You note that your questions were prompted by the fact that the first Tuesday in July 1989, is July 4, a holiday when many courthouses will be closed. You state that a number of counties have designated an area on the exterior of the courthouse, some have designated the place of sale to be at the courthouse door and others have designated an area inside the courthouse. It is the latter group of counties that pose the problem that prompted your request.

A sale under section 51.002 "must be a public sale at auction held between 10 a.m. and 4 p.m. on the first Tuesday of a month." The very purpose for a public sale and the giving of notices thereof "is to secure the attendance of purchasers and obtain a fair price for the property." Reisenberg v. Hankins, 258 S.W. 904 (Tex. Civ. App. - Amarillo 1924, writ dism'd). It is not difficult to imagine that an area designated as the place for sale at the courthouse by the commissioners court may at some future date become inaccessible to the public for numerous reasons. The designated area may become unsafe for use by the public, inaccessible due to remodeling or building of a new courthouse, and conceivably, the designated area may be destroyed by fire or other calamity. If for any reason the designated area becomes inaccessible to the public, serious questions would arise as to compliance with the public sale requirement of this section. Given the fact that section 51.002 requires that the sale be public, it follows that the commissioners court has the implied authority to formally change the designated area for the sale at the courthouse for future sales when the previously designated site becomes inaccessible to the public. Pursuant to the requirements of this section any order of the commissioners court changing the designated area must be reflected in the deed records of the county.[1]

In your second question, you ask whether the commissioners court may designate an alternate area for times when the designated site may be inaccessible.

Commissioners courts may exercise only such powers as the constitution or the statutes have specifically conferred upon them. Tex. Const. art. V, § 18; Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App. - Eastland 1978, writ ref'd n.r.e.).

Section 51.002(a), as amended by House Bill 1504, provides "the commissioners court shall designate the area at the courthouse where the sales are to take place." The commissioners court is not expressly authorized to designate an alternate site. Nor do we believe that the act may be construed to give the commissioners court implied authority to designate an alternate site to be used in the event that the designated area is inaccessible. The bill analysis to House Bill 1504 states that one of its purposes is to cure the problem area of the existing law as to the "uncertain location" of the sale. Bill Analysis, H.B. 1504, 70th Leg. (1987). You furnish an example of how easily confusion may arise as to a location by noting that where counties have designated "at the entrance" to the courthouse as a designated site, questions are presented as to whether the site is on the inside or outside of such entrance, or both. This confusion could easily be avoided if the commissioners court would specify, for example, "outside the north entrance" of the courthouse, or the like. Further, construction of section 51.002 that would allow the commissioners court to provide alternative sites, depending upon the weather, holidays, or other events would not only be confusing but also contrary to the intent of the legislature to make certain the place of the sale.[2]

SUMMARY

A commissioners court may change the area at the courthouse previously designated for public sales of real property pursuant to the provisions of section 51.002(a) of the Property Code. The commissioners court is not authorized under such section to designate an alternate area for times when the designated area may become inaccessible to the public.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

Footnotes

1. In Koehler v. Pioneer Am. Ins. Co., 425 S.W.2d 889, 891 (Tex. Civ. App. - Fort Worth 1968, no writ) the court addressed the validity of a sale on July 4, as follows: "Neither the sale under the deed of trust statute, Art. 3810, Vernon's Ann. Tex. Civ. St., [now section 51.002(a)] nor the Holiday statute, Art. 4591, V.A.T.S., nor Rule 6, Texas Rules of Civil Procedure, prohibits a deed of trust sale, equivalent to a court of equity proceeding, being made on July 4th."

2. While, as you point out, the cost of opening the courthouse for the limited purpose of the sale may be a consideration, this would appear to be a viable option since it would be for a limited time on infrequent occasions. Another solution, as you suggest, would be to designate the place of sale at an exterior area of the courthouse.