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,er Articles 

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 on mineral awards under Articles 

5388, et seq., duly paid within the month 

of January, but which awards have become 

subject to forfeiture for failure to file 

the proper affidavits of assessment work 

required to have been done during the 

calendar year of 1955. 

"On July 29, 1955, a group of mineral 

awards were made to John, George and S.J. 

McSpadden on Section 132, Block,3, D & P 

Ry Co. Survey, Presidio County, which has 

been sold as school land with a reservation of all minerals 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 that you 
Honorable J. Earl Rudder, page 2 (NO-S-206) 

are concerned over advance -payments made under Article 

5395, Vernon's Civil Statutes. 

Your request continues: 

"On January 27, 1956, this office 

received from John S. McSpadden payment 

to cover the statutory payments on the 

awards for the claims in question, but 

to date no affidavit of assessment work 

has been filed showing that the required 

assessment work was done during the calendar year of 1955. 

"It is my 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. . . . 

"The payment in question was deposited 

in the suspense account when it was 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 the payments 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 in part 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 the month of January 

following, such owner shall file in the 

Land Office his affidavit that such work 

has been done and shall state the extent 

thereof. Such owner shall, during each 

succeeding calendar year beginning January first next after the date 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 is made in 

Article 5395, viz: 

"The owner of each claim shall pay 

fifty (50) cents per acre annually in advance after the award and during the month 

of each 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 to make the payment of any sum within 

thirty days after it becomes due. . . or 

refuse to give 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/d under the location or claim shall 

be subject to forfeiture by the Commissioner. . . .I' 

Under Article 5395, if forfeiture is to be 

avoided, advance rentals must be paid to the State each 

successive January. This requirement is in addition to 

the development work called for by Article 5394. Failure 

to meet the obligation imposed by either of these Articles is reason, among others, for forfeiture under 

Article 5x97. Thus, rental payment and assessment affidavits are both required, and failure to comply with the 

statutes in either regard results in forfeiture. The 

rentals belong to the State upon receipt and the 

statutes are silent as to 'refund in the event of forfeiture for any of the reasons set forth in Article 

Evidently you placed the advance rental in SuSz%e under the provisions of Article 4388, V.C.S 

As this rental belonged to the State and its statis was 

not undetermined you should have deposited same into 

the proper fund in the State Treasury upon its receipt. 

The rule is well established that advance payments of fees, taxes, etc., may not be prorated and a 

refund made where the payee either forfeits or voluntarily 

surrenders the privilege for which the advance payment was 
Honorable J. Earl Rudder, page 4 (No. s-206) 

made unless, of course, the statutes under which the payments were made specifically so provide. See Attorney 

General's Opinions Nos. 0-6302, o-7113 and S-199. 

The same result obtains upon the application 

of the law of ordinary rental payments. The rule is 

stated in 32 American Jurisprudence, 

Section 875, page 741: 

Landlord and Tenant, 

"A forfeiture of the term does not 

release the tenant from liabilities under 

the lease which had accrued at the time of 

the forfeiture. He remains liable for rent 

accrued at that time, including, according 

to the generally accepted view, accrued rent 

payable in advance, though the forfeiture 

occurs before the period to be covered by 

such advance payment; 2 fortiori, where rent 

has ,been paid in advance, under an agreement that it shall be so paid, 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, 246 S.W. 743 (Tex.Civ. 

APP., 1922) and Dearborn Stove Co. v. Caples, 149 Tex. 

563, 236 S.W.Sd -486 (1951). 

It is, therefore, the opinion of this office 

that advance payments on mineral awards are not 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, in whole or in part, 
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