OFFICE OF THE, ATTORNEY GENERAL OF TEXAS 

AUSTIN 

nuabw# .bl aad IZ9 

proparty la QUblt 60. .ZWnear ths 

imn 416tr10: E9, 

.a66a66Od in dls0 ownersUp of l&b $reprtg 

d &I Ahat. par 6mLd propr666666&in dlrtriet Ho. e9. 

p of 6atB'~proputy pu86d 

l r r ea uus a 66866- 

la dlrtriat’ 89 vu omitlaueCuatll thir 

~l&~u~6 dlroarersd oit6r,th6 p6yawnt of the 

tor the rourtua~pmr6 from 19t6 to 

1958 lnoluhr~, thb pro 

Dirtriot t9 (lamtoad ei ;E: 

rtx wnr a68~8sed la 

Dtrtrlrt aa) and the 

taxer paid lnta dbtrlot Ho. 89 u&or the mutual 

airtaken bellof that thr property*Otutily lay 

in Dlattilot 29. TM t6x66 dur 

3 

6uoh rowtua 

par6 more both paid and me81 in l tr io tmr t 

good faith." 
Honorable Edgar Hell, page 2 

qUeStiOll6: 

!3ased on the above facts, you ask the following 

cyEsTION NO. 1 

%aday the 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 uhlcrh might 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 the Revised Clril Statutes~ provides that the oommIssIoners* oourt shall also levy upon 

all taxable property within a cologlon school district the 

rate of taxes voted by said dlstriot. Said Artlole turther provides that the taxes of 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 on property whIah has been omItted from the 

tax rolls for back 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 that the taXO6 of a oommon school dlstrlot are 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 rolls of the oommon school district. 
Banorablo Edgar ~foll, psgo 3 

artlolo 7346 ai t&o R&sod CIrIl statutes prorides in put a6 follows: 

*wheaomr any coad,66lonors oourt shall 

dl6oeror through notlae fr0n t2io tax aollootOr 

or otherwise t&t aay real property has been 

omitted fron the tax rolls for any, pear or years 

61a007334, or suul rind that my prorlopm as6066m6&6 k any real property formthe y&m 

moatlone 4 aTo lnralld, or bare bsen doolarod Invalid for any reason by any dlstrlct court ln a 

Sait to oaforoo the c0110at10a or t6XoS oa said 

proportI66, they say, at any aootlag of the-. 

Qourt, order a list of StiOh proportlos to be 

made la trl 

fl 

llaato aad fir a ocanpeniatlon tharsfor; the ma d lirt to show a oomploto dssariptlon 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 eaforoe the collection of 

tu66.' (undor6aorlng ours). 

Article 7347 of the Revised Civil Statutes 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 any fornrnr order 

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 

the tax a6s866or who shall prooeed at once to 

aako on assessment of all said properties, iron 

the data gltea by said 1Ist (the oortlffaato of 

the Comptroller a8 to as8es6ments or r8-asseESmOnt6 mad6 by the t aJ assessOr shall not be 

neaessmry as required under irtl010 7207, but 

ho shall furnish all blank forms noedod, that 

unlformlty may bo~had In all Oountl86), and when 

oompleted shall sub&t the ssms to the OOnBiIiS- 

#loners OoWt, who shall pa66 UpOIl the Y~UatlOlIS 

rlxed by big; and, when approved as to the valuer, 

shall oaus8 the taxes to be computed and extended 
Honorable 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 

-equal In amount tc tiat would be sir per cent 

tier8St to the date of msklag Said list from 

the date such prQpkrtl86 rrould hav6,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 conecOn SOhool 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 in whloh 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 after the ti%XOS have boon rofundod by Distrlot 

No. 29 the taxpayer wuuld not bo 5.n a po6Itlon of havl 

paid taxes la the wrong county and, thoroforo, thl6 AX% ?01% 

would not bo a bar to the a66O66I08lrt and OOl.lOOtiOn Of taX06 agalnst him by Dfstriot p?o. 31. You also a6ll our attention te Article 7298 whloh roads la part as follow6: 

** + * prcvldod, that no salt 6hhall be 

brought for tho colloatlon or dolinquont 

txuos of a School Distrlat or Road Dlotrlot 

unless instituted within ten years iron tho 

tlxno the 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 quest P on 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 i dad by law.* 

nhlle the coawniasionersr court in assessing 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 la amount 

to what would be elx er oent interest to the 

date of maklng 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.n aaid list; + * I” 

‘#e find here the Legislature saying thae the tax 

Would have been delin uent if the property had been rendered by the owner. 8 he only logical inference resulting 

from that statement Is that nlnoe such property WaB not 

rendered 6n d not assessed then the tares were not 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 mmai8sloners* 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 a matter of law 

under the olroumstanoes 0r this aase, and Chereby entitle the tax payers to recover the full 

.>423.50 from 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 bar the collection of the taxes lh your case would depend upon the particular facts whleh aonfront you. If there are no faots 

which would 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 Common Sohool uistriat Eo. 29 be authorized to disregard any 

question of llmlttatlon, K It should be found 

that the Two Year Statute of Llmltatlon does 

apply, and as a matter of fairness to all arties oonoarned, refund to the tax payers t ii e 

3354.75, whloh was paid to Dlstrlot no. 29 

over and above the 368.75 eotually due to District 31 for such rourteen years, and pay 

directly to Dlstrlot 31 the $68.75 to whloh 

Dlstrlot 31 is entitled, or should the trustees 

pay the full amount of .$423.50 to the tax payers and let them in turn pay out of that the 

~$68.75 to 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 lett t 

ere identical with the iaots you present ln 

r es to the payment under a mutual 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 in Hatcher 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 a munlclpal 

corporation; as suoh, it had the power to renew 

and extend a past-due obligation, though barred 

by limltatlon. City of Tyler v. Jester 6r Co. 

('Ser. CIT. App.) 74 S. 3. 359, amned 97 Tex. 

344, 78 3. w. 1058; City or Rouston Y. 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 find no 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 dssl with 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 reiund of the ?ull amount 15 permitted to be made by DlstrlOt No. 29, may suoh 

re?tmd be 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.n eaoh 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 questions oonfronted the court in the 

ease o? Frost ~8. Fowlerton SOhool District, supra. In 

that Case the contention was made that the tax money had 

already been expended by the school distrlot. In that 

oase the taxes which had been erroneously paid were paid 

for the years 19l.l through 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 by Uasterson-the very money paid by him-had been expended by appellee and was not III’ its possession when the warrant was issued did not take 

fron Its trustees the power to issue the warrant. Bridgeport dc eta. 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 lt with its 

general iunds, expended it for munioi al pWposes, and, not having in its posses5 le on the 
Honorable Edgar Fiell, page 9 

ldentiaal funds, the taxpayers, who were not 

suah when the plalntl?? paid the money, cannot 

be now oalled upon, or taxed, to pay It back, 

and thererare the oourt erred in rendering 

juqnt for the plalntlr?. The defendant says 

that bemuse it has not the identleal money it 

reoeired from the plaintiff it should not be 

required to 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 mere 5tatement of suoh a 

proposition seems to be a suitiulent reiutation 

'of it. Where a party reoeivea money rromginother whloh in equity and good cons.Olenoe it 

ought not to keep it cannot, by spending it, 

escape the llablllty to repay It. The law 

r0aOhes further than to the ldentloal oolns 

end bills whloh are reoelred. The defendant 

city la not the agent o? the taxpayers. rt ir 

the inhabitants. .lncludlng the taxpayers, aatlng under a oharter as a munlslpal oarporatlon 

with perpetual existence. AS such oorporatlon 

it has acted, lerled the tax, and reoelred the 

money. It has no shadow of right in good oonsolenoe to retain the money 50 paid. The 

plalntl?? brought the a&ion as soon as it dlsoooered the error. Neither the !&take of the 

plainti?? in paying or the #p2od faith of the 

de?endant.'ln reoelring, nor the ?aOt that the 

money has been spent, gives the defendant any 

equitable right to retain the money. Ollpatrlo 

Y. Hartford, supra {OS Corm. 471, at page) 481 

(120 A. 3171.' 

qnder this restriction, po5slbly appelles 

oould not have paid the warrant from the 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 Coimalssion of iippeale held 

that artlole 2827 authorlz;ed sohool tIWtO8s to 

use the malntenanoe fund *for any reasonable 

purpose deemed by them sufflolent, hating rela- 
pItto the oacauot 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 the ieglslattim 

aid not osntmp~ato, ln aer.ining their poeera, 

to i.revent tliern fros b&kg Just, 3r to take 

witay froa thm tla pow&r to dQ ri t wen an 

Lnnooent ahtake hrra bean Irudo. P ha pawar to 

conduct t%e eohool nsaaoearlly oarriee with lt 

the pawn to meet those obligations which are 

Justly incurred ln oofiduot13g the 80hool.** 

trlot*oould refund at a;I the lntereet and sinking fund 

the portion ot the tcu annby ~rroneowly placed themin. 

There omla be no cp.mttlm of airereion of runar beoauee 

the tax nonry Ln qw3srtlon notar ala trelmg in the iiitw3et 

u3dalnklnp, ma nor in sny other fund man though it YBB 

nlatabmly gala into ml4 tunas. Tbroiore the alstrlot aould rar4ma out 0r the lntereat and slnkine fuad the pxbion paid into da fund ov4r the r;eriod of years ena 

could rarund out of the ~uhtanancs fund the portion paLa 

late eala funtl or on ths other hani? the ratlrr arao~snt eorild 

bo reiunded out 0r the mlnteaanco funa on the authority 3s 

ths above bldlng of tha Eeaw?ont Court of Clrll i.ppeal@. 

It 1s our opinion also tnRt thin soasy should h 

reftmdsd when aollected into the female even thou&b aal& 

funds do 53t now bavS Stifid~At t0 ~18ks the refund. The 

debt here lo 4114 which sms acarued not in one year but 

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

::o tr%at that the labor. dieortsnlon will adv;r* 

yxa aa to the proper ?roaedure to be taken ia this izattvn.