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OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AI+STlN 

f;O2. ;ildnny’ tatha2i 

Seoretar~ 0r Stats 

Au&h, Texas 

Seer Sir: 

was inproperly rim, 

dldssed on imtion 

been ooneid 

d April 24; 1944, has 

uote from ytxr letter 

juCgmr&a were entered in a certain 

benefit of several manufacturing oomtams under protest on the 

saze ~roucdo. 3633 jud&-Ante were agreed u>m beoause 

of the Swlsion izi ZIouera v. Fair Amrican Eeflning Coqmnp, 

7. 26 382, error rafueod. The olaos ootion 

properly flied in a ootlrt or ooinpeteat 

the in&lvlLlual .zctlan mn’;ioned in 

wxi 1mpropsrl;r riled, 
iion. Sidney Latha%, page 2 

Vearlng in mind tbs foregoing faots, please advise 

OA t;-.s rdi0whg queetiour 

*':oes this depsrtmeat have the authority to now 

voluntarily refund to trre oorwration involved the amounts 

peid under proteat, suit for reoovery of whiob was filed 

Sut in?roperly, aod subesqueatlg dis;aissed on uotion of 

the plalntwr?~ 

Csotion 1 or Artlo 7057b, V. A. C. S., allow8 any 

person, rim or oorporation, that is required to pay to tha head 

of any State department any oooupation, gross.reoelpts, franohlse, 

lloense or othtr privilege tax or fee, whloh he does not believe 

he is lawrully required to pap, to aooompany auoh ?a$mnt with a 

writtea protest, settlng ohIt fully and in detail the grounds for 

whioh it 1s oontende& that suoh demand I8 unlawful. 

Seotion 2 of this Artlole provides in part a8 rollavsr 

"Upon the payment of suoh taxes or feos, aacompanled 

by such written ;rotest, the taxpayer ahall have ninety (90~) .' 

days fro0 said date within whloh to file ault for the reoavery 

thereor I.&any oourt or ooskpetent jurlsdlotion in Travis 

County, Texas, and nooe other . . . Provl.Ced, however, where 

a olaaa aotlon lo brought by any taxpayer all other taxpayers 

belongiog to the olass sod repreaeoted'in suoh alas8 aotion 

who have properlg prOt8Sted a8 herein provided shall not be 

required to file separate suits but shall be entitled .to a& 

gOV8raed by the deoision rendered in suoh olass aotion. . . .* 

In opinion Xo. O-4819 this departnent ruled: 

Wonsequently, it is our opinion that rerund ror taxes 

paid under iJroteat nay be aooompliahed only by oomplianoe 

with the provisions of Artlole 7057b, sod that euoh refuods 

zmy ae -made only after judg.oe.ot favorable to the taxpayer 

is roaohed in a suit filed within ninety days fron: ths date 

of myzrt *in any oourt of oonpetant juriadiotion ln Travis 

Comty, Texas, ,aod'hone other.'" 

As stated is yam request, the oorporration involved 

did not obtain judgmmt ravorable to Its oause but rather volmterily dIsmissed its aotlon. ?crther?;lore, suit 'iyas not filed 

within the presoribod tis;e in a court of ooogetent jurlsdiotion 

1~ Travis County, 'I"9mS. 
lion. Sidcey Latham, gaze 3 

11 opinion I:o. C-5876 this departusnt ruled that 

it 1s necessary for me olaiei~ the benefit of the *olass 

aotlon' povided ln .3wtim 2 of ?rtlcle 70573 to be spclflcallg nazxd 9s olsi~1~1~~ or intervening in such suit in. order 

to recover franotilse taxes gald under protest. ‘e gresu3e 

ima reading y3ur reqiest that the oorgor: tlon under onnslderation uas not specifioslly namd as a plaintiff or lntervenor 

in the class aotlon referred to in your letter, and as a 

cotwequenae thereof, could not olali~ the beAmfit of thls 01~s 

aotlon. 

3ased upon the foregoing, Lt 1s the opknlon of this 

deparMent that tke Z’eoretary of Stat. does snot have the authority 

to voluntarily refund tc the oorporation Involved the amount or 

rranohlse tax paid under protest. 

sy &/&maLL 

Robert 0. Kooh 

Assistant 

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