TEEIG ATIY~RNEY GENERAL 

OF TEXAS 

Grover Sellers AUSTIN I~.TEXAR 

Hon. G. A. Neal 

County Auditor 

Ellis County 

Waxahachie, Texas 

Dear Mr. Neal: 

Opinion No. O-6183 

Re: Right of county to recover back 

excess salaries paid to County Attorney. 

In your letter of August 24, 1944, you propound the 

following question for an opinion with respect to the above 

subject matter: 

“Under an opinion of the Attorney General’s 

Department of several years ago, we paid a salary 

of $5500.00 to the District Attorney, but after we 

had paid our District Attorney for Fourteen months 

salary at $5500.00 per year, the Supreme Court 

ruled that we had no District Attorney, but County 

Attorney, that his salary was $4250.00 per year. 

This finds that we have overpaid the last Attorney 

$1500.00. Does the law require the Auditor shall 

hold this amount out of his salary until paid, as 

it does in other cases due the County?” 

You are respectfully advised it is the opinion of 

this department that you, as Auditor, are not authorized to 

withhold any,sum from the amount due to a County Attorney as 

salary to reimburse the county for an over-payment previously 

made to such officer. 

The principle of law underlying this rule is that 

where there has been a payment of money by one to another under a mutual mistake of law, the payment being voluntary, there 

can be no recovery back. 

Chief Justice Roberts said in an early case: 

“When money is paid under a mutual mistake of 

law, the mistake of law, in and of itself, is no 

ground for recovering it back. A11 persons are 

equally presumed to know the law, and in such case 

both parties are equally at fault, and equally 

innocent of wrong done. To admit ignorance of law 

to be legally recognized as a fact sufficient in 

itself to pervert the will of the parties doing the 
. - 

Hon. G. A. Neal, page 2 (o-6183) 

act, so that it should be said and held that the will 

did not concur with the act done, thereby relieving 

him from the responsibility for and the consequences 

of the act, would render the administration of the law 

impracticable; and hence the rule 1s founded upon a 

political necessity as well as upon public policy.“-- 

Galveston County vI Gorham, 49 Tex. at p* 303U 

See also, Limestone County v. Robbins, 38 S.W.(2) 581. 

In the quite recent case of Stegall, Sheriff, v. McLennan County, 144 S.W. (2) 1111, following and quoting the Old 

Alcalde, Justice Tire said in affirming a judgment: 

“We think the directed verdict must be sustained 

on two grounds. First of all, the plaintiff’s cause of 

action as pleaded, as well as the facts introduced to 

support same, shows that the fees in question collected 

by him from the state and accounted by him to said 

county were done solely as the result of a mistake of 

law. As we view the matter, there was no mistake of 

fact. That is to say, the sheriff rendered the service 

that he claimed to have rendered on each of the warrants 

for which payment was made to him by the state, and his 

charge to the state therefor and collection of the items 

so charged was a mistake of law. It was likewise a mfstake of law when he took such sums into c,onsideration 

in his accounting to and with defendant county. It appears that our courts have uniformly held that an action 

does not lie in such cases. Limestone County v. Robbins, 

120 Tex. 341, 38 s.w.2d 580, point p0 582; Gfiliaft~ V* 

Alford, 69 Tex. 267, 6 S.W. 757; Taylor v. Hall, 71 Tex. 

213, 216, 9 S.W. 141. We think the rule in Texas is: 

‘When money is paid under a mutual mistake of law 9 the 

mistake of law, in and of itself, is no ground for recovering it back. All persons are equally presumed to 

know the law, and in such case both parties are equally 

at fault, and equally innocent of wrong done. To admit 

ignorance of law to be legally recognized as a fact sufficient in itself to pervert the will of the parties 

doing the act, so that it should be said and held that 

the will did not concur with the act done, thereby relieving him from the responsibility for and the consequences of the act, would render the administration of 

the law impracticable; and hence the rule is founded 

upon a political necessity, as well as upon public policya ’ Galveston County v. Gorham, 49 Tex. 279, point 

page 303 -It 

The Supreme Court dismissed the application--correct 

judgment. 
Hon. G. A. Neal, page 3 (0-6183) 

There is appended to the case of Chrysler Light & P. 

Co. v. Belfield, (N.D.) 224 N.W. 871, 63 A.L.R, at p. 1354, a 

valuable annotation on the application of this rule to payments made by governmental authorities. It is there said: 

“The general rule that money paid under a mistake 

of law, rather than one of fact, cannot be recovered back, 

has been applied in many cases to payments made to private individuals or concerns by governmental authority, 

most of the courts being unwilling to make any exceptions 

in such a case.” 

Some exceptions follow , among which the annotator has 

listed Cameron County v. Fox, 2. S.W.(2) 433. 

An examination of that case will show, however, that 

it is not an exception at all. It is easily distinguishable 

from the rule we are discussing, in this, that the right of the 

county there recognized to recover from the County Assessor a 

sum of money paid to cover the premium on the Assessor’s official bond, was allowed upon the specific ground that the Commissioners’ Court in the first place had no authority--jurisdiction-- 

to pay out money upon any such item. The Coamissionerst Court, 

therefore, was not acting as officers of the county, in contemplation of law, for they had exceeded their powers under the 

statute, and assumed to act with respect to such matter, and to 

pay out the county’s money without any authority of law whatsoever. This is made clear in the opinion which says: 

ltWe think the rule invoked cannot be applied to the 

action of the Commissioners t Court in allowing this claim, 

for the reason that the statute under which the same was 

allowed has no application to Cameron County, unless its 

total taxable valuations are in excess of $30,000,000.00. 

Unless the conditions stated in the statute existed in 

Cameron County, the Commissioners’ Court was wholly lacking in power or authority to allow such claim. *** 

was 

ity, 

the 

APPROVED 

/s’ Grover 

ATTORNEY 

APPROVED: 

BY: 

OS-Hi :wb 

~~Notwithstanding the payment to defendant in error 

voluntarily made, the same being without lawful authorthe amount so paid may be recovered in an action by 

county.” 

Very truly yours 

SEP 22, 1944 

I Sellers 

GENERAL OF TFZAS 

OPINION COMMITTEE 

BWB, CHAIRMAN 

ATTORNEY GENERAL OF TEXAS 

By /s/ Ocie Speer 

Ocie Spe er , Assistant