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



### nuabw# .bl **aad**

### IZ9 propartyla **QUbl** 

### t60. .ZWnear**ths** 

### imn **416tr10:** 

### E9, **.a66a66Od** 

### in

### dls**0 ownersUp**  **of l&b**  **$reprtg** d&I **Ahat.** par **6mLd propr**  **666666&in dlrtriet**  **Ho.** 

### e9. **p of**  6atB'~proputy **pu86d**

lr reauus a66866- 

### la **dlrtriat ’**  

### 89vu omitlaueCuatll thir **~l&~u~6** 

### dlroarersd**oit6r,th6 p6yawnt**  **of** 

### the

tortherourtua~pmr6 from19t6to 1958 **lnoluhr~, thb**  **pro** 

### Dirtriott9 **(lamtoad** 

### ei ;E: **rtx wnr**  **a68~8sed** 

### la Dtrtrlrtaa)and 

### the taxer**paid** 

### lntadbtrlot Ho.89u&or themutual airtaken 

### bellofthat thr

### property*Otutilylay inDlattilot

29. TM **t6x66** 

### dur **3** 

### 6uohrowtua par6 

### morebothpaid**and me81**  

### inl triotmrt 

### goodfaith."Honorable Edgar Hell, page 2

qUeStiOll6:

!3asedon the above facts, you ask the following

cyEsTION NO. 1
%adaythe tax payer6 **reoofer** iroa Dfstrlct **No. 29**  the full amount of the 5423.50 peAI through suah mutual **mistake** to District No. 29?*

In our Opinion No. O-1266 we held that taxes could be refunded by a school distriot to a taxpayer who oUn6 **property** adJaoent to a SOhool di6triot **and** has been pg~~,taxam to the wrong bLatriot under,a wtual mIstaka

Ia our opinion we pointed out.tbat the rule announ0ed*thar6In nould be subjeot, 

### hoverer,to a plea of llmltatfon uhlcrhmight arise under oertala faots in eaoh Individual ease. A6 we iaal that this opinion answsrs your question No. 1, a oopp of the Same is.enoloaed hero5.n.

QUYSTION NO. 2

.Can Dl6trIat No. 31 legallY **ohsrge** this property with delinquent sohool taxes on this property aihlah**is actwlly**  lwated la fri6triOt 91 but on which taxes were srroneously paid **during** these Sourteen years to DIStrI& 29.w

Artiole 2795 OS 

### theRevised Clril Statutes~provides that the oommIssIoners* oourt shall also levy upon all taxable property within a cologlon school district the rate of taxes 

### votedby **said** dlstriot. Said Artlole turther provides that the 

### taxesof a common sahool diEtrIot
are to be assessed and oolleoted by the county ;fflgIzls the same as taxes lerled for county purpoae6. well establIshed rule of law that taxes may be assessed and collected 

### onproperty whIah has been omItted from the tax rolls 

### forback years only when there Is 6peoIfla statutory authority authoriziag such aa assessment and Colleatlfon. see state vs. Cage, 176 S. vi.928 and Xlllers xutual **Fire ~n6urano6**  Company vs. City of 

### Austin,210 9. 1. 829. Beoause of the faot 

### thatthe taXO6 of a oommon school 

### dlstrlotare oolleoted like county taxes by the county officials, the **StstUtsS** authorizing the aSSeSS!Wnt of property omitted Srom the tax rolls by the ootmnIseIoners*oourt Is In our opInIon sufficient statutary authority to authorize the assessment and colleotion ot **tsxe6** on property thus omItted from the tax 

### rollsof the oommon school district.Banorablo 

### Edgar~foll, 

### psgo3

artlolo7346ai t&o 

### R&sod CIrIl statutes pro**rides in**  put a6 follows:

*wheaomr any coad,66lonors oourt shall dl6oeror 

### throughnotlae fr0n t2iotax aollootOr
**or** otherwise t&t aay **real** property has been omitted fron the tax rolls 

### forany, pearor years 61a007334, **or suul**  rind thatmy 

### prorlopmas6066m6&6 k any

### realproperty formthe y&m moatlone

### 4aTo 

### lnralld,or bare bsen doolarod In**valid** for

### any reason by any dlstrlct court 

### lna Sait

# to**oaforoo** thec0110at10a or t6XoS oa 

### said proportI66, they say, at any aootlag of the-. Qourt, order a list of StiOhproportlos to be **made** la 

### trlfl

llaato **aad**fir a ocanpeniatlontharsfor; the ma **d** 

### lirt to 

### showa 

### oomplotodssariptlon 

### of suoh preportios and 

### for what years suah proportIo6 ware aalttad 

### from the tax rolls, or **for What** **;l8arS** the a66O66mO~S arm found to be invalid aad should bo aanoeled by any dlstrlot court la a 

### suit to

### eaforoethe collection 

### of tu66.' (undor6aorlng ours).

Article 

### 7347of the **Revised** 

### CivilStatutes reads in part a6 r0110tm:

"When **said** list has booa so made **up**the ooadsslon8rs **court nay,**  at **any** meetI*, order
a aanoellatIoa of suah properties ln said lfst that are shown to have been prortously assessed, but whlah assossnonts aro round to be Invalid and hate not bean aenaolsd by 

### anyfornrnrorder of the co~lsrloners oourt, or by deoree of any dlstriot aourt; and shall then 

### refer such llrt of properties t0 be asros66d or r8-aSSeSSed to 

### thetax **a6s866or**who shall **prooeed** 

### atonceto **aako**on assessment **of** all said properties, iron the data gltea by 

### said1Ist (theoortlffaato of the Comptroller a8 to as8es6ments or r8-asseESmOnt6 **mad6**by the taJ assessOr shall **not be**  neaessmry as **required** under irtl010 7207, **but** ho shall furnish all blank forms noedod, that 

### unlformltymaybo~had In all Oountl86), andwhen oompleted shall 

### sub&t the ssmsto the OOnBiIiS- #loners OoWt, who shall pa66 **UpOIl**the Y~UatlOlIS rlxed by big; and, when approved as to thevaluer, shall oaus8 the taxes to be computed and 

### extendedHonorable **Edgar**Ffoll, page 4

at tho,tax rate ia offoot for eaoh SoparatO year montloned la 

### said list; and, in addition **thereto,** 6halloau6oto be added a penalty -equalIn amount tc tiat would be sir **per** cent tier8St to the date of **msklag** Said list from the date such prQpkrtl86 rrouldhav6,beon doliaqaont had 6S1no**been pro$mrly**  **rondorod by**  

### the owaor thereof at tho tine end tar tho years Stat%& in said list; * * **

It l6 the opinion of this **d%paI'ta8at,** based upon above artIalo6, that tho oomai66loaor6~ court muld hare authority to aS8esS conecOnSOhool taxes against the property in que6tlon booau6o the 6-O has **bee0 onittod**  from the tsx rolls of DlStrlOt lo. 31. You call our ettentlon to ~tiolo 7156, ReTieed Civil Statutes, whloh **read8** a+ r0lw6 t

*Any 

### lads which may have bsoa a6sos6od i6 any OcuUty aOOOrding t0 th8 abstract Of land titles and the taxes paid thereon aoaordfag to faw, shall 

### not be **aftermrds** subjoot to **the** payment 

### 0s tams 

### ror the mu0 porlod in a

## dirrw00t oounty, although a subsequent 6ur~ay aad **detomiaation** of the county bOundarIeo+ay show said lends to bo In a difrorsat county from that inwhloh they wore originally aSSes68d; and any sales.or such llaed~o;r IlllOgOd dellnquenoy Shall **be** illegal

.n

The abwo quoted Article applio6 in a Case WhOrS taxes hare been paid La the rrang county aooording tc law. %a **do** not believe that this Article would fit the situation hero beoauso 

### afterthe ti%XOShave boon rofundod by Distrlot No. 29 the taxpayer wuuld not bo 5.na po6Itlon of havl paid taxes 

### lathe wrong county and, thoroforo, thl6 AX% ? 01% would not bo a bar to the a66O66I08lrt **and** OOl.lOOtiOnOf taX06 agalnst him by Dfstriot p?o.31. You also a6ll our attention teArticle 7298whloh roads la part as follow6:

** + * prcvldod, that no salt 6hhallbe brought for tho colloatlon or dolinquont txuos 

### of a School Distrlat or Road Dlotrlot unless instituted within ten years iron tho tlxnothe aam0 shall become delinquent.* * *'

## 398

Honorable 3dgar Meil, page 5

It might seem that the effect of the above quoted Limitation Statute would be that Distriot 31 could not assess and oolleot taxes against the property in question baok oi 193C. You are advised, however, that the Llmltatlon Statute deals dth the bringing of a suit for the collection of tares within ten ears after the same ohall beoome delinquent
. The questPon then arises whether
or not the taxes for the baok peara which hate nerer been assessed and oolleeted by Distrlot 31 have ever become detin uent It P 60 a8 to be barred by this Limitation Statute. s our opinion that the same have not beoome delinquent tit&In the meaning of the Limitation Statute. The Supreme Court of Texas in the ease of Clegg vs. State, 42 Tex. 603, stated as followS:

*It has been repeatedly decided, that no right of action exists for the non-payment oi
an ad

### wdorea property tax until an assessment has been made as prop 

### dad i by law.*

nhlle the coawniasionersrcourt inassessing taxes against property whloh has beea originally omitted trom the tax rolls is assessing a tax against that property for eaoh of the baok years, still it cannot be said that those taxes
were delinquent until after the tfme of the assessment by the cm~~jdsloners' oourt. This oonstruotion ir reoognized by the Legislature in ztiole 7347, supra, which reads in 

### p-t a8 follows:

w* * * and, in addition thereto, shall
cause to be added a penalty equal laamount to what would be elx er oent interest to the date ofmaklng said 1% t from the date suoh properties snuld have been dalinquent had
same been properly renaerea b tn thereof at the time and for tie yiazfated l.naaid list; + * I”
‘#efind here the Legislature saying thae the tax Would have been delin uent if the property had been

### rendered by the owner. 8he only logical inference resulting 

### fromthat statement Is that nlnoe such property WaB not rendered 6nd not assessed then the tares 

### werenot delinquent. It 1s our opinion, therefore, that the Limitation Statute Wuld be no bar to the assessment and collection of the tax88 against the property in question by District 31 and that the same may be properly assessed and collected by the mm

### ai8sloners*court.Rsnorable iZdgar Hell, page 6

Would the Two Year Limitation Statute apply under the clrowtanoes of thls ease and entitle the tax payers to 280over only thet part of the $423.30 not barred by the Two Year Statute! or, rould the statute of Llml$atlons be considered as tolled as amatter of law under the olroumstanoes 

### 0r this aase, and Chereby entitle the tax payers to recover the full .>423.50from said Dlstrlot No. 29..

The exact faot situation presented in-your letter oonfronted the Austin Court of C1~l.l.ipp&ls In the ease of ptluger vs. HUttO Independent School Dlstrlot, 34 9. 'R.**(2d)** 632. In that case the oourt held that the taxpayer was entitled to reoover taxes whl@h had been paid **under** a mutual mistake of raot but that his reoovery was barred by the two year Statute 

### 0r Limitation under the partloulnr faots In that case. You are advlsed that whether **or** not the two year Statute of Llmltatlons vauld operate as to 

### barthe collection of the taxes lh your casewould depend upon the particular facts whleh aonfront you. If there are no faots 

### whichwould bring your ease within the rule announced In tie Ffluger oase, supra, then the recovery ot the taxes would be allpwed in aooordanoe wlth our Opinion Ko. 1266.

V;ould the trustees of CommonSohool uistriat Eo. 29 be authorized to disregard any question of llmlttatlon,K It should be found that the Two 

### YearStatute of Llmltatlon does apply, and as 

### amatter of fairness to all arties oonoarned, **refund** to the tax payers tii e 3354.75, whloh was paid to Dlstrlot no. 29 

### overand above the 368.75 eotually due to District 31 for such rourteen years, and pay directly to Dlstrlot 31 the $68.75 towhloh Dlstrlot 31 is entitled, or should the trustees pay the full amount of .$423.50to the tax pay**ers** and let them in turn pay out of that the ~$68.75to Dlstrlct 3lS*

In this question you are conaerned with the right ot the trustees of the common school dlstrlot to disregard any question 

### or llmitatlon. The eraot-question whloh-you

## 400

Honorable Edgar Hell, page 7

present was passed upon by the Beaumnt Court of Civil Appeals ln the ease of Frost vs. Parlerton Coneolidated Sohool Dlstrlot Ilo.1, ill S. W. (2d) 734. In.that case the facts your t lett ere identical with the iaots you present ln
**r** es to the payment **under** amutual mlstake of faot
. The aourt held that the sohool dlstrlot had the **power** to **disregard** any question of limitation and to refund the taxes paid **under** the mutual mistake ot fact. The aourt stated as follows:

*Appellee had the power to renew Yasterson*8 ola.lm**for** a **rerund** of the taxes 

### agaimt any Qefense of limitation that might ham been available to it. under the holding of our Supreme Court inHatcher Y. State, 125 Tex. 84, 81 S. 111.

2d 499, 98 A.L.R. 12X5, appellee is
a body polltlo and oorporate, and may oontraot and be oontraoted with, sue and be sued, and, in its llmlted 

### sphere,is a looal pub110 corporation of the same oharaoter as amunlclpal corporation; as suoh, it had the 

### powerto

### renew and extend a past-due obligation, though barred by limltatlon. City of Tyler v. Jester 6rCo. ('Ser.CIT. App.) 74 S. 3. 359, amned 97 Tex. 344, 78 3. w. 1058; City or 

### RoustonY. Jsnkowskie, 76 Tex. 368, 13 5. W. 269, 15 da. St. Rep. 57.”

You are therefore advised that the trustees nould hare the authority to disregard any question of llmitetlon. AS to the method of rerundlng the money we 

### findno authority for eny other procedure than to return the aoney to the teupayers who have paid the same. There is no statute which rauld authorize the Sohool Distrlot No. 29 to deliver such money to soho District Xo. 31. It ls the opinion of this department that the

### money should be rerunded to the taxpayers who have paid the same and that the proper procedure then is **tar** said taxpayers to pay the tax owing to Distrlot 3l after the same have been assessed by the oomm1ssloners~ COUrt.

your questions No. 6 and No. 6 dsslwith the manner of repayment of the money by Dlstrlot Ko. 29. said questions read es follows:

## 401

Honorable B%gar Frail, page 8

CUEsTION NO. 5

‘In oase 

### reiundof the ?ull amount 15 

### permitted to be made by DlstrlOt No. 29, may suoh 

### re?tmdbe made out o? the Local Xalntenanoe Fund and out of the Interest and SinkIng Lund of the clstrlot in proportion to the percentage OS the **t&al** that fs deposited 5.neaoh or these two ?unds O? the dlstrlotsw

**~IJZSTION**NO, 6

*I? either ?und **does** not have suirleient surplus at this time to pay the -11 $423.50, mould the trustees o? District 29 be authorized to issue a warrant on suoh funds to be paid at such a ruture date as another surplus wlll 

### exist?*

The same 

### questionsoonfronted the court in the 

### easeo? Frost ~8. Fowlerton SOhool District, supra. In that Case the contention 

### wasmade that the tax money had already been expended by the school distrlot. In that oase the taxes which **had** been erroneously paid were 

### paid 

### forthe years 19l.lthrough 1926. The sohool distrlot lssued a warrant on August l2, 1931, some five years arter the last taxes were paid, for the repayment o? the taxes erroneously paid. The warrant was issued on the local maintenance ?und **and** the court held that the same had been properly issued even though the money oolleoted from the taxes had been expended by the dlstrlot 3rd rurther held that the waxraut was properly to be pald out of the malntenanoe fund. The court stated as ?allows:

*The iaot that the taxes paid byUasterson-the 

### verymoney paid by him-had been expended by appellee andwas not III’ its posses

### sionwhen the warrant was issued did not take fron Its trustees the power to issue the war

### rant. Bridgeport dceta. v. City o? *ldgeport, 103 Corm. 249, 130 .,.164, 169, involved taxes paid ror the years 1915-1922 on property not within the limits o? the taxing dlstriot; a?ter holding that the taxes were not *voluntarily* paid, the court said: ‘The remaining reasons o? appeal relate to olalms that the defendant, having reoeirsd the money, tingled ltwith its general iunds, expended it for munioi al pWposes, and, not having in its posses5 on the leHonorable Edgar Fiell, page 9

ldentiaal funds, the taxpayers, who 

### werenot suah when the plalntl?? paid the money, cannot be now oalled upon, or taxed, to pay It back, and thererare the oourt 

### erredin rendering juqnt for the plalntlr?. The defendant says that bemuse it has not the identleal money it reoeired from the plaintiff 

### itshouldnot be 

### requiredto return it. It olalms a8 a prlnolple o? law that, because it has spent the .money, reoelred no matter how wrongfully **or** unooasolonably from the plalntl??, it oannot now be reeorerad baok. The 

### mere5tatement of suoh a proposition seems to be a suitiulent reiutation 'ofit. Where a party reoeivea 

### moneyrromgino

### therwhloh in equity and good cons.Olenoe

### it ought not to keep it cannot, by spending 

### it, escapethe llablllty to repay It. The **law** r0aOhes further than 

### tothe ldentloaloolns endbillswhloharereoelred. Thedefendant city la not the agent o? the taxpayers. **rt** ir the inhabitants. .lncludlngthe taxpayers, aatlng under a oharter as amunlslpal oarporatlon with perpetual existence. AS such oorporatlon it has acted, lerled the tax, and reoelred the money. It has no shadow of right ingood oonsolenoe to retain the money 50 paid. The 

### plalntl??broughtthea&ion as soon 

### as itdlsoooered the error. Neither the !&take of the 

### plainti??in paying or the #p2odfaith of the de?endant.'lnreoelring, 

### northe ?aOt that the **money** has been spent, 

### givesthedefendant any equitable right to **retain** the money. Ollpatrlo **Y.** Hartford, 

### supra {OSCorm.471,at page) 481 (120 A. 3171.'



### qnder this restriction, po5slbly appelles oould not **have** paid the warrant 

### fromthe state and county funds, but appellee had other ?unds derived from local taxes, tuition roes, and, eta. ***

*In Adams **Y. ?zlles**  (Tex.Com.App.) 35 8. IV. 26 123, 127, the Coimalssionof iippealeheld that artlole 2827 authorlz;edsohool tIWtO8s to use 

### themalntenanoe **fund** *for any reasonable purpose deemed by **them** sufflolent, hating rela-pItto 

## theoacauot of the mwolo in that ais- .' :jeo,nlm, Churahlll tm &mrU of Trtm- 

## tcte8,zy. BP 3. 3. 128, lZ4, where lt 5s 

### said: *In oreat& these 

### oorpomtlons theieglslattim aidnotosntmp~ato, ln

## aer.ining their poeera, 

### toi.revent

tliern **fros** 

### b&kg Just,3rto take witayfroa thm tla **pow&r** 

## todQ ri t wen an Lnnooent ahtake hrrabean Irudo. P**ha pawar**  **to** conduct t%e eohool nsaaoearlly 

### oarriee with lt the pawn to meet those 

### obligations which are 

### Justlyincurredlnoofiduot13g the80hool.**



### trlot*oouldrefund at a;I

### thelntereet

### andsinkingfund 

### the**portion ot**  the tcu annby ~rroneowly placed themin. There omla be no cp.mttlm of airereion 

### of runar beoauee the tax nonry Ln qw3srtlonnotar 

## ala trelmg in

## the iiitw3et u3dalnklnp,ma nor in sny other fund 

## man though it YBB 

### nlatabmly gala into 

### ml4 

## tunas. Tbroiore the 

### alstrlot 

## aouldrar4ma 

## out0rthe lntereat and slnkine fuad the px

### bionpaidinto

## da fund ov4r 

### the r;eriod of years 

## ena could rarund out of the ~uhtanancs 

### fundthe 

### portionpaLa late eala funtlor on ths other hani?the ratlrr arao~snt eorild 

### boreiunded

## out0r 

### themlnteaanco 

### funaonthe 

### authority3s ths 

### above bldlng of tha 

### Eeaw?ontCourt of Clrll i.ppeal@.

It 

### 1souropinionalsotnRtthin 

### soasy should h reftmdsd when aollected into the femaleeven thou&b 

### aal& funds do 53t now bavS Stifid~At t0 ~18ks the 

### refund. The debt 

### herelo4114which sms 

### acaruednot 

### in one 

### yearbut
avera perlcd 3f f~mfie~n yesra sna the nomy zay be sofunded when s wftcient -wi lo cdkit9d to 00 63.

::otr%at that the labor.dieortsnlonwill adv;r* yxa aa to the proper **?roaedure** to be taken ia this izattvn.