Honorable PeytonBurke

County Auditor Falls County Marlin, Texas Dear Sir: Opinion No. O-5739 Re8 Can the county auditor of Falls County legally approve the claim of the C.O. Leuschner Estate for a refund of the taxes paid by said estate to Falls Couritv for the years 1914 through19291 This is in reply to your request for opinion. Your said request is contained in two letters.

In your first letter you say as follews~ "OnDecember 1, 1913Mr. Otto Kunkel purchased from the C. 0. Leuschner Estate 463 acres of land. For the years 1914 through 1929 this land was rendered for taxation, to Falls County, by the C. 0. LeuschnerEstate and also by Mr. Otto Kunkel. "The C. 0. Leuschner Estate has filed a claim with Falls County for refund of taxes paid by said estate for the years 1914 through 1929. "Can I, as County Auditor of Falls County, Texas, legally approve the claim of the C. 0. LeuschnerEstate for a refund of the taxes paid by said estate to Falls County for the years 1914 through 19297" In your second letter you further sayr "I am informed that after the sale of the property to Mr. Otto Kunkel by the Leuschner Estate, Mrs. Leuschner,widow of C. 0. Leuschner,began to handle the affairs of then estate. Mrs. Leuschner continued to render,by mistake, the tract of land that had been sold to Mr. Kunkel and paid the taxes,Hon. PeytonBurke, page 2

when due, throughout the years. Mr, Kunkel, the owner of the land, also rendered same for taxes and paid same when due. "In other words, Mrs. Leuschner rendered this property for taxationby mistake and paid the taxes, when due, by mistake." The taxes paid by the taxpayer,which have gone to the State, or which are held by the collector for the'State, may not be rebated or repaid to the taxpayerby the tax collector under any circumstances. ArticleVIII, Section 6, of the Constitution of Texas declares:

"Nomoney shallbe drawn from the treasury but in pursuance'ofa specific appropriationmade by law." With reference to the taxes due the County and paid by the taxpayerunder the mistakenbelief that she owned the property on which the taxes were paid, our understanding of the law as laid down by the Supreme Court of Texas in the case of City of Houston v, Pelser, 13 S.W. 266, may be briefly stated as followss

Taxes paid to a countyby a taxpayerwho acts under a mistake of fact which does not arise in connectionwith his own negligencemay be paid back by the county.

Mistake of fact can scarcely exist in connection with negligence; as illegalitieswhich render such a demand a nullity must appear from the records, and the taxpayer is justas much bound to informhimself what the records show or do not show as are the public authorities.

Your request for opinion does not disclose any fact or facts which would make the taxpayer's ignoranceof her ownership of the property such a mistake of fact as would excuse her from knowing she did not own the property at the time she paid the taxes thereon.

Of Bourse, if she joined in the deed of conveyance by which the propertywas divested out of her estate, or if the deed by which the grantee held the land was placed of. ,. .



### Hon. PeytonBurke,page 3



### reoord,her lack or 

### lmowltdge,ifany,of the factthat shedidnot own the landwhen shepaidthe taxeson same was attributableto her ownnegligence. Yoursvery truly, ATTORNEYOENERALOF TEXAS By /s/QeorgeP.Blackburn

Assistant OPBrAMMrRT

APPROVED:JAN.28, 1944 

### /B/GROVERSELLERS ATTORNEYGENERALOFTEXAS