OFFICE OF THE ATTORNEY GENERAL OF **TEXAS** AUSTIN

nonar&ble Jo&n T
.tlutohioon 

### county **Atbornq** l&Ear **COulaf** Plbri8,Eexns

and wthority Of refund suoh t-seaCOlto original payers.

we quote from cominicatioti, which

Description OS Property

Thlr i8 to cortlfy that i hove uam.lneclthe Tax llecordoof &MP CWnty, f(lxas,ra8 oo fw no I con ascertain all Couatf,’State 81~3School Taxes othi Aesamswmt8 bole **been** paid on the *bore de+ &r&bed property to and including theyear 1949 l nd 811 County and state Tax?8 and A~~e~~cmts hare been paid to and inaludlng theyear with the t0110w1ng exceptiona,

### . . GC?4

uonorable John T. uutchlaon - page 2



## T i5; ColleOtor, Laam County, T-am. Deputy. Such ltatementaare signed '0.w. Ieodard, Tax Aaaeaaor4olle&or **of Lamar** **County ’**  **or ‘** **0. 1.**  **Ioodard,** TM Aareaaor-Colltotor **of** Lamar **County w**  m?puty. *The Tax Aaaeaaor-Colleetor of L8mnarCounty **haa lurniahod**  such Tax Statementa to meatbermot ,the general pub116 **requesting ame** * **without** charge, however, 8 tee of fifty oenta (aof!), For eaoh auoh statement laaued, haa **been**aollected by the TaxAaaeaaor-ColleCtOr ot taarr County from iadiriduala engaged in the 8batraot budnesa* **The** l**batraat** aompaniea, rpproxirutel~ l/3 of the tI&e, charged their euotomera one (ti.00) dollar for ,meh certificate. Uowevc, z/3 of the abatrwta towhich suchcertiflaatea mere rttacbed no ohbrge uaa wde by the abatrrat yaopany for attaching such**certificate,** the abatraetlng COBpauy loring 

### orobaorbing theamount paid for nueh certificate.

**‘ On**  **or about**  **Jagaary 1,**  **1944 the**  **Tax Aaaeaaor**  

### Collector

OS Lawr County tiled, with the **County** 

### Auditorof Lomar **County, hia**  **raaaunt** ahorlng that he **had** oollected, for **the** 18uUtOe ot ueh **atatc menta,**  the urn of aevenhundred few ($?tM,f~o)dallara, from April 1, 1941 to **Deeember I,**  **loI?,** which mum or money raa,ruxd+ed by theAuditor and was **deposited** to the~8ecountot Lamnr County. *The abatroot **aompanlea enga@d**  **in the**  **buai neas**  OS **Eaklng** abetracts **in** Lamar County hare riled aith tbe Comiaalonerga **Court t**  **alrim** lor the refund of muchToes, aIlszing th8f meh fees rere illegally collectedwlthout authOrit. of law mtxirequesting repaysent of'such fee8 to th@m by the Coraiaaioner* a hurt. *The Coaiiaaloner~a Court baa **requested my**  **opinion &a**  **County Attorney**  rith **retcrcnoe to**  the following qucationa, aubatanti811~~Honorable John T. hutohlson - page 3 .. 

### 605

. '1. Is the Tax Assessor-Collector at Lamar County, Texas, authorized to charge and collect a tee of fifty aents (no{) from persona engaged in the abstractbusiness for the issuance of such Tax Statements am hereinbefore met out? s2. Is the Tax Assessor-Colleotor of Lamar County required by law to account for and pay over to Lamar County the fees Collated by him for the Issuance of such Tax Statements? l3.Is the Commissloner~a Court of Lamar County authorized to refund, to the persons or firms originallypaying euchfees, the fees colleoted.by the Tax Assessor-Collector of Lamar County from abstractors for the issuance of such Tax Statements upon theirpresenting a olrlm to the Coxnuiasioner~s Court for therefund of such Pees?.
According has a population of to the 1940 Federal oenaua, Lamar County 50,426.
(Sup.Ct.)In the case of Nueoea County v. Currington et al,

I62 S. Yr.(2) 687, wherein Nueoea County sought a money judgment against its tax assessor and collector for the amount of certain fees or charges collected by such assessorand collector for the issuance of tax certificates, aubstantlally the same (Lathe *tax statementas aboutwhich you inquire, It was held that the tax assessor and collector acted in her official capacity In issuing the tax oertiflcatea and reoeivlng therefor the fees sued for by the oounty; also, that it was her duty to aocount for and pay same into the county treasury for the benefit of the Offioer Salary Fund, and that having failed to do so, and having breached her officialduty in that respect, both she andher surety became liable to the county therefor. However, said opinionheld further thatunless a tee is provided by law 

### for an ottlcial servicerequired to be performed and the amount thereof fixed by law, none can lawfully be charged therefor.

Artiole 72460, V.A.C.S., was amended In 1941 to provide for certain tees to be charged for the Issuance of such 

### taxcertifioate in countiee containing a population of 

### fire hundred thousand (M)O,Ooo)or more, aocording to the last preceding or any future Federal census,but re have found no fee

### 606

gonorable John T. gutchison - page 4

fixedby law for such acrvioeaas provided in Article 1224, 'g&.8., 1925,in counties ot a population of leas than tire hundred thousand.

Therefore, in view of theabove, we answer your first two questions as follovs:

Quoatlon No. 11 lo. Question No. 28 Yes.
In the case of Stegall, sheriff,T. McLennan County, (civ.Apps. -- wit dims., opinion oorrect) 144 5. Y. (2) 1111,wherein the sheriff sued the county for excessfees paid the county,the following rule of lax ram announoed;

"@Ien money 18 paid under a ItutU sdStake 

### oflaw, the mistake of law, in and ot itself, is no ground for recovering it back. All persona are equsllypresumed to liiro+,the law, and In such case both parties are equally at fault, and equallyinnocent of wrong done. l'oadmit ignorance of law tobe legally recognized as a fact sufficientIn itself to pervert the will of the partiesdoing the Lot, so that it shouldbe said **and** held that the will d.idnot concurwith the ect done, thereby relieving him from the responsibility for and the oonaequences of the act, would render the edministrations of the law impraotiaable; **and** hence the rule is founded upon a political necessity, as reli as upon public policy. l * +. &rely, this record discloses that each of the **acts** done by Sheriff Leslie Stegall and kcLcanan **County in**  **connection** xith the Eatter in questionwas done voluntarily, without compulsion or duressunder a mutual mistake of law. cil l.fl
It is the opinion of this department thatunder the facts submIttedby you **the** payment of the fees to the TaxAaaeaaor-Collectorram done voluntarily and without oompulslon or duress under amutual mlatake of law, and re answer your Qeatlon No. 3 in the negative.b’ ’

nonorable John 1. ilutchlson- page 6

Trusting the **foregoing** satisfactorily answers your questions,re are

Very truly **yours** ATTOHNEXGENEUL OF TEXAS


## m**Robert** L. Lattlmore, Jr. Assistant

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