Honorable T! M. Timble

First Assistant State Superintendent Austln, Texas

Dear Sir: Ouinion No. O-1266 Re: Refunding of school taxes paid to a school district
onproperty, which.is locat& outside of said s&i001 district,

We.are in receipt ofyour letter of August.10, 

### 1939, inwhich you request the opinion of this department on the following question:

"A tax'payer who has Ijropertyadjacent to a school ,districthas been prying taxes for school purposes to this adjacent district for the last several years, bel,#ing that her property was in this district. Now it deveiops~th+t the property isnot in this distri'ct,bvt in an adjoining district which has no school tax. Can
we lawfully refund her taxes paid to us, and, if so,what is theprocuedure?"

It is ageneral principle of law that taxes which nrevoluntarily paid are not thereafter recoverable. Arrott vs. Allegheny County, 

### 194 At. 910 (Supreme Court of Pennsylvania): Burley vs. Lindheimer County, 11 N. E. .(2d) 926 N. W. 8Q.(Supreme Court.of Nebraska). Atkins Guardian
vs. McCoy, 120 S. W. (2d) 1019 (Court of Appeals of Kentucky)'. These cases make no distincticn between apayment under a mistake of law, or apayment under amistake of fact by the taxpayer.

In the case athand, wehave a situation where a legal,tax was paid by a taxpayer under amistake of fact;Honorable T. M. Trimble, page 2 

### o-1266

The taxpsysr believed her property to.be in the taxing district bvhereitwas assessed by the tax assesscn fcr that district. There is a conflict of authority throughout the United States as towhether ornot such apayment under a mistake of fact is avoluntary payment. Several.cases htive held thepayment of school taxes on prcperty not located within the taxing district tcbe voluntary, an&, therefcre, not reco,vsrableby the taxpayer. Gilson vs. Board of Commissioners of Allen County, et al., 

### 1.62Pac. 1158 (Supreme Court ofKansas); Edwards vs. Board of Commi,ssicnerscf Oklahoma County, et al., 

### 36 Pac. (2d)

### 6 (Supreme Court of Oklahona); cialser,et al. vs. Board of Education cf School District No. 1, 42 N. E. 

### 346 (Supreme Court of 111inci.s).

The better view seems tobe, hoc/ever,that the payment of taxes on property outside of a toxin2 district, under amistake of fact, is not avoluntary payment, and
are recoverable by the taxpayer.

"It is awell settled general rule that,-if awrongful or illegal tax is paid by the person assessed voluntarily and without compulsion, it cannot be recovered back in an action at law, or by way of set-off, unless there is some constitutional or statut,oryprovisicn expressly or impliedly giving him such rights, although tl-otax ispaid without compulsion, and this rule has been apelie:,
even though payment wasmade under protest. But the rule does not apnly to a taxpaid on land whcl3,youtside the taxi.;:juu&sc$ction of the county levy!.ng

. 61 C. J. 

### 985.

"In many instances it seems that themistake as to'the correct tax district is, forpractical purposes at least, one cf fact; aswhere there is
no uncertainty as to the location of legal boundaries, or as to the legal authority of the district in question, or the general regulari~tyof the tax proceeding, but merely from factual forgetfulness or inadvertence in the listing of theproperty for tc.xaticn. In suc?~ cases the better view seems to be that there may be recovery if,under the circumstances a denial of recovery would be unjust."

### 95 A.ti.R.1224.*Honorable T.M. Trimble, Page ‘3

### o-1266

A number of $aasesin other jurisdiction3 .have allowed a recovery of taxes paid on prcoerty nbt within the taxing district even thcugh the taxes y/erepaid willingly by the taxpayer who believed his property to be within the taxing district. Churchill vs. Board cf Trustees of Highland rark Graded School, 

### 89 S. ii.122 (Court of Ap Patterson, 1

Eeals of Kentucky); City of Indianapolis vs. I?.E. 551 (Supreme Court of Indiana); Miller vs. City of Oneida, 272 N.Y. Sup;;.(Supreme Court of Nc*vYork); In re: Wing, 295 N.Y. Supp. 

### 336; BridReport.:.

Hydraulic Co. vs. City of Bridgeport, 130 At. 184 (Suprcnc Court of Error of Connecticut); Pederson vs. Stanle7 County, 

### 11;9l?.;ij* 422 (Supreme Court of South~ Dakota

. The 'Supreme'Courtof Texts County of Galveston vs. J. C. Gorham, 5 in the case of the 

### ~9Tex. 279, first recognized that there was adistinction between an illegal taxpaid under amistake of law and alegal tax paid by the taxpayer under amistake of fact. In answering the question of whether ornot a taxpayer had the right to recover taxes paid illegally under amistake of law, the.court said:

"We are of opinion that theyhave not, because in such case it 5svoluntarily paid, and it,.under the circumstances, isnot contrary to good conscience for the county to reta5.nit.' .It was voluntary, because itwas without objectIon paid under amistake of law, if-it was illegal, and there was no mistake or fact inpayin.q it, and no deceit, Fraud. or compulsion used in collectinp: it, or in causing it.to be paid',on the part of the county or of any of its of- i ficers, that prevented the will cf the parties paying it from befingfreely exsecised indoing the act.
Tho court further said:

"When money ispaid under amutual mistake of la:'<, the mistake of !.aw,in and of itself, is no ground for recovcring it back."

"Amistake of fact on the part c,f p_"ctwho

pays, ond deceit or fraud and- ~compulsionon the part of one who re--.

Honorable T.M. Trimble, page 4 

### 0-1266

ceives, under which money'is‘paid,-are each and all legally recognized as facts
sufricient in and of-themselves topervert thewill OS the acrtv dcinn the act. so thatAt could be said knd hayd, that then did not concur with the act done, thereby relieving him from the responsibility for and the consequences of the .& These,are such facts as it isprac-' ,ficableto judicially investigate, and there isr&great public policy in forestalling their investigation, when they exist in a degree vlelldefined, andpractically capable of exerting a controlling influence upon the acts of theparty who has paid themoney, as itmay then be said, against his will, or at least in the abse,nceof its free exercfse."
'Thesame f,actsas outlined inyour letter confronted the fieaumontCkrt of 8ivi.lAppeals in the case of '1 Frost vs. Fowlertcn &:nsolidated School District Ko. L,et al., 111 S.W. (2d) 7.54. In this case, ama? named ‘hiasterson paid school taxes to Fowlerton'Consolidated School aistrict No. 1. frcm theyears 

### 1911 tc 

### 1926, inclusive. ae paid the taxes

in good faith, and the Schcol District accepted them ingood faith. When it WPS discovered tbz~tl&asterson's property was not within the limits of the School District, the ,trusteesof the uistrict, .inan effort to refund him his taxes, excuted and delivered tohim a warrant for the same, which was in issue in the case. The court said:

"The payment of the taxes by Itiasterson, through amutual mistake, on property not within the Schocl District,

was not a 'voluntary payment' within the .ruledenying recovery for taxes paid voluntarily andwithcut compulsion. The general rule is thus well stated by 

### 61 C. J. 

### 985.”

The court thenquotes the section from Corpus Jurisvihichhas been previously quoted in this opinion. The court then qllotesfrom the case of Pederson v3. Stanley Couzt; (p:~~icusly cited) as follows:

"It 5-sthe contention of appel- -lent",:?a';

under the general rule that taxe3 voluntarily paid cannot be re-Honorable T.M. Trimble, page 5 

### O-1266

covered the respondent was not entA.tled to recover a judgment for the said amounts sopaid to Stanley County. rig
are of the view that the said rule has
no apalication to the facts of this case. The property of respondent was .hholly outside of the taxing jurisdicticn or taxing district of Stanley County, and
was therefore not taxable at ell in that county, and the amounts sopaid by respondcnt to said Stanley county were in fact not a tax at cll, Stanley county

was wholly withcut jurisdictio,nor authority to levy and collect such sums as a tax against the property of rospondent

.?

The court, in the same case, stated further;

"The fact that the taxes paid by @asteron - thevery money paid by him

-had been expended by appellee andwas not inhis possession when thewarrant was issued, did not take from the trustees the poner to issue the warrant."

As to the manner of payment of this warrant, .the court states as follows:

II

. . .possible appellee could not have paid the warrant from the state and county funds, but appellee had other funds derived from local taxes, tuition fees, etc. The expenditure of these funds falls within the provisicns of Section 2 ofArtitle 2827; which provides: 'Local school funds from district taxes, tuition fees of pupils not entitled to free tuition and other local sources may be used for the purposes enumerated for State and county fbldS, and for purchas~ingappliances and supplies for the payment of insurance premiums, jnnitors;,, and other employees, for buying school sites, buying, building and repairing school houses, and for other purposes necessary in the conduct of the public schools tobe determined by the Board of '*rustees,the accountsand vouchers for county district tobe ap-,. -__ .

Honorable T.M. Trimble, page 

### 6o-1266

proved by the county superintendent; provided, that when the State "vailable School Fund in any city or district is sufficient tomaintain the schools thereof in any year for at least eight mcnths, and leave a surplus, such surplus may be expended for the purposes mentioned herein."

It is the opinion of this department,,therefore, that the trustees of this school district may refund them,o%aycollected from this taxpayer by issuing her a warrant drawn on the local maintenance fund collected from local taxes, tuition fees, etc, The mcney may not bepaid from the State and county fundafurnished the school district. In this respect, however', o~~~attention is called to the case of Pfluger, ,etalvs, iI..~. utto Independent School aistrict, 3!+&S.V.(2d)

### 632 (Court ofAppeals of Austin), where aplea of limitations v&$Tsustained by the Court in a case where taxes had been paid to a school district on property not located within said SchooIdistrict. The court held that the facts in that particular case were such as to arouse the suspicion of the taxpayer so as to start the running of the two year statute of limitaticns, by which the taxpayer was barred in that case*

BG:FG Yours very truly

ATTORNEY GEKERAL OF TEXAS

BY Billy Goldberg Assistant



### 1939 APPROVED SEPTENBER .5', GERALD C.MANN ATTORNEY GEXERAL OFTEXAS

APPROVED OPINIOK COMMITTEE BY BVVB,CHAIRMAN