Honorable Peyton Burke 

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~ 

"On December 1, 1913 Mr. 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. 

Leuschner Estate 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. 

Leuschner Estate 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. Peyton Burke, 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 taxation by 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 taxpayer by the tax collector under any circumstances. Article VIII, Section 6, of 

the Constitution of Texas declares: 

"No money shall be drawn from the treasury 

but in pursuance'of a specific appropriation made 

by law." 

With reference to the taxes due the County and paid 

by the taxpayer under the mistaken belief 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 county by a taxpayer who acts under 

a mistake of fact which does not arise in connection with his 

own negligence may be paid back by the county. 

Mistake of fact can scarcely exist in connection 

with negligence; as illegalities which render such a demand 

a nullity must appear from the records, and the taxpayer is 

just as much bound to inform himself 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 ignorance of 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 property was divested out of her estate, or if 

the deed by which the grantee held the land was placed of 
. ,. . 

Hon. Peyton Burke, page 3 

reoord, her lack or lmowltdge, if any, of the fact that 

she did not own the land when she paid the taxes on same 

was attributable to her own negligence. 

Yours very truly, 

ATTORNEY OENERAL OF TEXAS 

By /s/ Qeorge P. Blackburn 

Assistant 

OPBrAMMrRT 

APPROVED: JAN. 28, 1944 

/B/ GROVER SELLERS 

ATTORNEY GENERAL OF TEXAS