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 

on property, which.is locat& outside of said 

s&i001 district, 

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

1939, in which you request the opinion of this department on the following question: 

"A tax'payer who has Ijroperty adjacent to a school ,district has 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 is not 

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 the procuedure?" 

It is a general principle of law that taxes 

which nre voluntarily 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 a payment under a 

mistake of law, or a payment under a mistake of fact by the 

taxpayer. 

In the case at hand, we have a situation where a 

legal,tax was paid by a taxpayer under a mistake of fact; 
Honorable T. M. Trimble, page 2 o-1266 

The taxpsysr believed her property to.be in the taxing district bvhere it was assessed by the tax assesscn fcr that 

district. There is a conflict of authority throughout the 

United States as to whether or not such a payment under a 

mistake of fact is a voluntary payment. Several. cases htive 

held the payment of school taxes on prcperty not located 

within the taxing district tc be voluntary, an&, therefcre, 

not reco,vsrable by the taxpayer. Gilson vs. Board of Commissioners of Allen County, et al., 1.62 Pac. 1158 (Supreme 

Court of Kansas); Edwards vs. Board of Commi,ssicners cf 

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 to be, hoc/ever, that the 

payment of taxes on property outside of a toxin2 district, 

under a mistake of fact, is not a voluntary payment, and 

are recoverable by the taxpayer. 

"It is a well settled general rule 

that,-if a wrongful 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,ory provisicn 

expressly or impliedly giving him such 

rights, although tl-o tax is paid without 

compulsion, and this rule has been apelie:, 

even though payment was made under protest. But the rule does not apnly to a 

tax paid on land whcl3,y outside the taxi.;: juu&sc$ction of the county levy!.ng 

. 61 C. J. 985. 

"In many instances it seems that 

the mistake as to'the correct tax district is, for practical purposes at 

least, one cf fact; as where 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~ty of the tax proceeding, but merely from factual forgetfulness or inadvertence in the listing 

of the property 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 $aases in other jurisdiction3 .have 

allowed a recovery of taxes paid on prcoerty nbt within 

the taxing district even thcugh the taxes y/ere paid 

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 E 

eals 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*v York); 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. 

Stanle 

7 

County, 11;9 l?. ;ij* 422 (Supreme Court of South~ 

Dakota . 

The 'Supreme'Court of Texts 

County of Galveston vs. J. C. Gorham, 5 

in the case of the 

~9 Tex. 279, first 

recognized that there was a distinction between an illegal tax paid under a mistake of law and a legal tax 

paid by the taxpayer under a mistake of fact. In answering the question of whether or not a taxpayer had the 

right to recover taxes paid illegally under a mistake of 

law, the. court said: 

"We are of opinion that they have 

not, because in such case it 5s voluntarily paid, and it,. under the circumstances, is not contrary to good conscience for the county to reta5.n it.' .It 

was voluntary, because it was without 

objectIon paid under a mistake 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 befing freely exsecised in doing the act. 

Tho court further said: 

"When money is paid under a mutual 

mistake of la:'<, the mistake of !.aw, in 

and of itself, is no ground for recovcring it back." 

"A mistake of fact on the part c,f 

p_"c twho pays, ond deceit or fraud and- 

~compulsion on 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 to pervert the will 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 is prac-' 

,ficable to judicially investigate, and 

there is r&great public policy in forestalling their investigation, when they 

exist in a degree vlell defined, and practically capable of exerting a controlling 

influence upon the acts of the party who 

has paid the money, as it may then be said, 

against his will, or at least in the abse,nce of its free exercfse." 

'The same f,acts as outlined in your letter confronted the fieaumont Ckrt of 8ivi.l Appeals in the case of 

'1 Frost vs. Fowlertcn &:nsolidated School District Ko. L, et 

al., 111 S. W. (2d) 7.54. In this case, a ma? named ‘hiasterson paid school taxes to Fowlerton'Consolidated School aistrict No. 1. frcm the years 1911 tc 1926, inclusive. ae paid 

the taxes in good faith, and the Schcol District accepted 

them in good faith. When it WPS discovered tbz~t l&asterson's property was not within the limits of the School District, the ,trustees of the uistrict, .in an effort to refund 

him his taxes, excuted and delivered to him a warrant for 

the same, which was in issue in the case. The court said: 

"The payment of the taxes by Itiasterson, through a mutual mistake, on 

property not within the Schocl District, 

was not a 'voluntary payment' within the 

.rule denying recovery for taxes paid voluntarily and withcut compulsion. The 

general rule is thus well stated by 61 

C. J. 985.” 

The court then quotes the section from Corpus 

Juris vihich has been previously quoted in this opinion. 

The court then qllotes from the case of Pederson v3. Stanley Couzt; (p:~~icusly cited) as follows: 

"It 5-s the 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 so paid 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 so paid by respondcnt to said Stanley county were in 

fact not a tax at cll, Stanley county 

was wholly withcut jurisdictio,n or 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 - the very money paid by him 

- had been expended by appellee and was 

not in his possession when the warrant 

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 of Artitle 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~ing appliances 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 to be determined by the 

Board of '*rustees, the accountsand 

vouchers for county district to be ap- 
,. 

-__ . 

Honorable T. M. Trimble, page 6 o-1266 

proved by the county superintendent; provided, that when the State "vailable School 

Fund in any city or district is sufficient 

to maintain 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 

the m,o%ay collected 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 be paid 

from the State and county fundafurnished the school district. In this respect, however', o~~~attention is called 

to the case of Pfluger, ,et al vs, iI utto ..~. Independent 

School aistrict, 3!+&S.V. (2d) 632 (Court of Appeals of 

Austin), where a plea 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 

APPROVED SEPTENBER .5', 1939 

GERALD C. MANN 

ATTORNEY GEXERAL OF TEXAS 

APPROVED OPINIOK COMMITTEE 

BY BVVB, CHAIRMAN