ER OF TEXAS

Honorable J. Earl Rudder Commissioner, General Land Office Austin, Texas

Dear
this Opinion NO. s-206

Re: Refund of annual advance payments held in suspense on mineral awards!und,erArticles 5388, et seq., v.C.S., upon forfeiture for failure to file the required affidavit of assessment. Mr. Rudder: Recently you have made an opinion request of office as follows: "This office desires your official opinion regarding the refund of annual payments onmineral awards under Articles 5388, et seq., duly paidwithin themonth ofJanuary, butwhich awards have become subject to forfeiture for failure to file theproper affidavits of assessment work required tohave been done during the calendar year of 1955. "OnJuly 29, 1955, a group ofmineral awards were made toJohn, George and S.J. McSpadden on Section 132,Block,3, D & P Ry Co. Survey, Presidio County, which has been sold as school landwith a reservation of allminerals thereon and thereunder." Your request indicates that initial payments for the awards were made by the awardees at the time of their acquisition. Your request further shows thatyouHonorable J. Earl Rudder, page 2 (NO-S-206)

are concerned over advance-paymentsmade under Article 5395,Vernon's Civil Statutes.

Your request continues: "OnJanuary 27, 1956, this office received from John S.McSpadden payment to cover the statutory payments on the awards for the claims in question, but todate no affidavit of assessment work has been filed showing that the required assessment work was done during the calendar year of 1955. "It ismy interpretation of the law that these claims are subject to forfeiture for failure to file the correct affidavit bf assessment work, and they have been so forfeited.
. . . "Thepayment in question was deposited in the suspense account when itwas received pending the filing of the proper affidavit of assessment work.
. . ." You then in substance ask the following question: Am I required by statute to forfeit thepayments received January 27, 1956, which payments have been placed in suspense? The requirements concerning annual assessment ;;;;o;;pear in Article 5394, V.C.S., reading inpart as

. . .if an award is issued prior to the first day of October of any year the first annual assessment work shall be done before the end of that calendar year, and during themonth of January following, such owner shall file in the Land Office his affidavit that suchwork has been done and shall state the extent thereof. Such owner shall, during each succeeding calendar year beginning January first next after thedate of such award, perform the required annual assessment work and file an affidavit thereof as in the first instance.
. . ."L

.

Honorable J. Earl Rudder, page 3 (No.S-206)

Provision for annual advance rental ismade in Article 5395, viz:

"The owner ofeach 

### claimshall pay fifty 

### (50)cents per acre annually in advance after the award and during themonth ofeach wceeding January of each year thereafter: D . ." Article 5397,V.C.S., calls for forfeiture of awards as follows:

"If the locator or owner of any claim obtained under this law shall fail or refuse tomake thepayment of any sumwithin thirty days after itbecomes due.
. .or refuse togive correct information to then proper authority or knowingly fail or refuse to furnish the Land Office all correct reports required by this law, the rights acquire/dunder the location or 

### claimshall be subject to forfeiture by theCommissioner.
. . .I' Under Article 5395, if forfeiture is tobe avoided, advance rentals must be paid to the State each successive January. This requirement is in addition to thedevelopment work called forby Article 5394. Failure tomeet the obligation imposed by either of theseArticles is reason, among others, for forfeiture under Article 5x97. Thus, rental payment and assessment affidavits areboth required, and failure to complywith the statutes ineither regard results in forfeiture. The rentals belong to the State upon receipt and the statutes are silent as to 'refundin the event of forfeiture for any of the reasons set forth inArticle

Evidently you placed the advance rental in SuSz%e under theprovisions ofArticle 4388, V.C.S As this rental belonged to the State and its statiswas not undetermined you should have deposited same into the proper fund in the State Treasury upon its receipt.

The rule iswell established that advance payments of fees, taxes, etc., may not be prorated and a refund made where thepayee either forfeits or voluntarily surrenders the privilege forwhich the advance payment wasHonorable J. Earl Rudder, page 4 (No. 

### s-206)

made unless, of course, the statutes underwhich thepayments were made specifically soprovide. SeeAttorney General's Opinions Nos. 

### 0-6302,o-7113and S-199.

The same result obtains upon the application of the law of ordinary rental payments. The rule is stated in 32American Jurisprudence, Section 

### 875,page 

### 741: Landlord andTenant,

"A forfeiture of the term does not release the tenant from liabilities under the leasewhich had accrued at the time of the forfeiture. He remains liable for rent accrued at that time, including, according to thegenerally accepted view, accrued rent payable in advance, though the forfeiture occurs before the period tobe covered by such advance payment; 2 fortiori, where rent has ,beenpaid in advance, under an agreement that it shall be sopaid, and the lessor reenters for. conditions broken, he is entitled to retain the rent so paid." The Texas courts have adhered to this rule in such cases as Collier v.Wages, 

### 246S.W. 

### 743 (Tex.Civ. APP., 1922) andDearborn Stove Co. v. Caples, 149Tex. 

### 563,236S.W.Sd -486

### (1951).

It is, therefore, the opinion of this office that advance payments onmineral awards arenot refundable under the fact Situation recited above.

SLJMMARY

Annual advance payments on mineral awards issued pursuant to Articles 

### 5388,et seq.,V.C.S., are not refundable, inwhole or inpart,r

Honorable J. Earl Rudder, page 

### 5 (~0.,$-206)

upon forfeiture of the award for failure of the awardee to file the required affidavits of assessment work.

APPROVED:

J. Arthur Sandlin Land Division W. V.Geppert Reviewer Mary K.Wall Reviewer L.W. Gray Special Reviewer Davis Grant First Assistant John Ben Shepperd Attorney General REA:bt Yours very truly, JOHN BEN SHEPPERD Attorney General

By d&d [LA'- Robert E./Anderson Assistant