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parOa D-- **PAcaAk** DIKBON L-==-=--==- -- July 

### 19,i948

Hon. Wm.B. Martin Opinion No. 

### V-639. County Attorney Hill County Re: Hillsboro, Texas Esoheat or.money remaining in a County Depository road district aocount arter dissolutions or the distriot andreDear Sir: lated questions.

Wegather the rollowing~aotual situation from your letter:

In 

### 1919the Commissioders~ .Court of' Hill County created road district No. ll:kaown as-Penelope RoadDistrict No. 11 in Hill County, end.bonds of the distriot .werevoted for the purpose. of-oonstruoting, maintaining, andoperating maoaasmized; graveled and-. paved roads and turnpikea and In aid thereof.

It&September 1919 the:Commissioners' Court levied a tax of 

### $1.50on each $100valuation.of' taxable property in the districtto pay the .interest.e.nd sinking ruIdr0r said bonds.

. :OnSeptember 11, lq20 at an election-held for the purpose, the qualified votersof-the District voted:in ravor..of canceling andrevoking,the authority to levy..the taxahd issue.the bonds.* TheCommissioners' Court‘c‘anvassed the returns. of'sa&d ele&tion,.deolared the result; .and'entered iti? order oenceling the road bonds and,:oPdered'them,destroyed, :The.,road district was abolijijh&L

After the tax was levied anabefore the.authority to :levy samewasprevoked, .the t'axpayers of then distric.t.paia. @6,.327.0o intaxes. to the tax .oollebtor, the net sum.from which was-placed in the County Depository. At the December term, 1920, of the District court of Hill county ajudgment was entered in favorHon. Wm B. Martin - Page 2 (V-639)

of the taxpayers against the Depository; the Commissioners’ Court andTreasurer of Hill County, bordering the rerund t.o.,,thetaxpayers of their ratable portion or the moneyavailable in.the funds or said district derived from said tax levy, based upon tax receipts presented by themto said Commissioners* Court.

Thesumof $313.07 of said tax moneynowremains in the County Depository to the oreait of vPenelope Trust Fund,* whioh, in ract, belonged to the individual taxpayers under the district court judgment.

Weare assuming from your letters and the petition riled byMr. Calvert, a copy of which you enclosed, that no claim has been madefor any part of said $313.07 by anyone at any.time, and at this time the name or address of noperson or the heirs or representatives or anyperson whois entitled to any part thereor is knownor ascertainablei

Article 3272, V. C. S. reads:

“If anyperson die seized of any real estate .or possessed 0r &ny~peawonal estate, without anydevise thereor, andhaving no heirs, or where the .ownerof anyreals or personal estate shall be absent for the term of seven years, ana is not knownto ex- .ist, leaving- no heirs, or, devisee of his estate, such estate shall esoheat to and vest in .the State. Wherenowill is reaoraed or probated in the oountywhere such prop- .erty is situated within seven years after the death of the owner it’ shall be prima facie evidence that there was nowill, andwhere no lawful olaim is asserted to, or lawful acts or ownership exercised in such property for the Feriod of seven years, and this has been proved to the satisfaction of the court, it shall be prima faoiemenoe of the death of the ownerwithout heirs. Anyone paying taxes to the State on suoh property, either personally or through ‘an agent, shall .beheld to be exercising lawful acts of ownershipin such property within the.meaning.of this ti-. tle, ena shall not be conclUded by any jUa#3; ment, unless he be madea party by personalRon. Wm.B. Martin - Page 3 (V-63,91

service OSoitation, to such esqheat,proq%edings, if a resident OSthis State, andhis addrgss can be secured by reasonable dillgenhe, but, if he be a non-resident oS the State or oen not be Sound, the personal service of citation shall be made,upon any agent of such claimant, IS such agent, by the use of reasonable diligence, can be Sound; such diligence to include an investigation OSthe reo.ords of the office ana.inquiry oi the tax ool~lector and tax assessor of the oounty in which the property sought to be esoheated is situated. Acts 1885, p. 35;G.L. vo1..9, p.:655; tits 1907, p. 111." '(Emphasis-aaded throughout )'. Article 3273 reads: qvhen the district or county attorney shall be informea, or have reason to believe, that any.estate, real or personal, is in the condition specified in the preceding artiol'e, he shall rile a sworn .petition which shall s.etrorth a,description of the estate, ,the.name.oS the person last lawSully -seized .or possessed. 0r same,. the .&me.oS the tenants or p.ersqqs, in actual .~ossessicm. if snr. andthe.nemes 0r the nersons cla& the-estate,-if anysuch areknown to olaimor whose claim maybe disoovered bithe exeroise of reasonable diligence, and the facts or circumstances in consequence of whioh suoh estate is claimed to have-esoheated and the dill-' genoe exercised to discover the claimants orxe, praying th t such property be escheated andfor awrit of iossession therefor'in behalf of the State,"

c In Robinson v. State,.117 g..W. 2d.809 (Error refusgd) the Court said in part;

."This is a prooeeding by.$heState:or Texas against the UnknownHeirs of William.RradSord, de.oeased, to escheat the estate of said aeogased: Tennie V. Robinson and others intervened.. This is the third appeal in the case;
. . 9 Uponthe last trial which waswithout the aid of ajury, the'court Sound that Williem Braafora, deceased, aiea *"having no heirs* *** no heirs whocan be ascertained by the exercise of reasonable diligence.' Uponthis and other Sinaings made, 

### P9!3

### 200 Hon. Wm.B. Martin - 

### P%g%4 (V-639)

.judment was rendered esoheating the estate, ~~'whieh Tennie V. Robinson and others ap-

."It is first asserted the Sinding stated is not a finding that williem Bradford died having no heirs. Wherefore, the judgment in the State's Savor was unauthorized. This proposition is ruled against appellants by the ;$.nn~ reported in Tex. Civ. &pp., 

### 109S. W.

no he& ,.It was there held the phrase 'having

-'means no lmownheirs, andno heirs whooanie ascertained by the exercise of reathe sameor similar oircumstances. Weadhere -t $lanappellantc' first pZoposit~0n.v We.are of the opinion that in the oiroumstenoes stated in.yourrequest that 27years have passed since the District Court of Hill County rendered judgment in Savor of the persons entitled to tax refund andduring that timeno.one has claimed any part oSthe 

### $313.07;and that neither such'persons nor the heirs or representatives of. any of themcan nowbe ascertained by the exercise of reasonable diligenoe, renders said sumof 

### $313.07subject to esoheat proceeding by the State.



### SUMMARY
Where taxes were levied and collected to pay interest and create a sinhing fund to pay bonds of a road aistrict, which district was abolished and.no bonds were issued; ajudgment was rendered by the district court ordering the oSSioials and depository torefundsuch tax moneyprorata to the persons whopaid it and the sumof 

### $313.07thereof has 'not been claimea for a period or.27 years and those ~CUI~ en- ,titled to receive .it cannot. be ascertained byWm.B. Martin - .Page 5 

### (V-639) 

### ZWI

reasonable diligknoe, said sum0r $313.07 is nowsubjeat to -cheat prooeedings by the State. Yours very truly, A!lTORNEY

GENERAL

OFTE?IAS 

## Bysp#y3G~ d,..d w.T.w1111ams 'Kr#:wb Assistent

APPROVED: