144 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AWlIN 

Eonorable Riohard s. xorrlr 

county Attorney Almrtrong county 

OlaPd., hrrr 

Dear 8ira 

r 14, 1940, mqurrtlng all oplnQiertlonr a8 8re h8roin 8t#trd 

ter read8 in part a8 follows: 

e Or SWL9tO 3111 567 Of the 46th h#3i8- 

ding ?or trarrllng rxpenaer for County 

OS orrtsln oountlea, rule4 unconstltudepartment In opinion No. o-2127, each 

IA county drew traveling l xpens,\r ior approximately ten months. After reoelring 

the above numbered opinlcn whioh was approve4 by t!m 

Attorney General April 15, 1940, ruoh paysent of traveliItl & XpelU* -8 di8OOntiZlUed. 

The majority of autt.oritie8 apparently hold that 

a atatute is speeurmd to be oonrtitutlonal until adjudged 
’ rp 

Ronorable Richard S. Morris, Page 2 

UnOOn8titUtiOMl by a court of competent ?urI8- 

diction. 9 Tex. Jur. 467, Sea. SO; 16 C. J. s. 

277, Sea. 100; Tex.98 National Guard Armory Boar4 v. 

MoCrar, Atty. General. 126 S. F. 2nd 627; ,;uIm v. 

JOhn8on, County Judge et al, 91 S. #. 2nd 499. 

‘The majority ot 8uthorltier alma hold that a 

rtatute deolared unoonrtitution81 18 null an4 ~014 and 

Or no effect a8 of the date of it8 enaotment. 10 CJS 287, 

S8o. 101; An4 generally all act8 under an unconstltutional rtatute are null and void. 16 CJS 290. 

*The question I have in mind an4 upon rklch I 

have been unable to fin4 authorltle8 in point and therefore wl8h to 8ubmlt to your department for an opinion 

Is a6 followe: Ie the expenditure of county fun48 for 

traveling expenres of county oomlrsloner8 by virtue of 

the above-mentioned statute of ruoh an illegal nature 

a8 to require rrpapnent thereof at thle time? 

“Ii, 8t t>l8 time, the oomml8rioner8 are not llablo 

for return of the funds drawn under thr rtatute in quertion, would they be liable for return thereor In the 

event a court of competent jurl8dlotIon adjudged the 

statute In question to be unoon8tltutional?W 

In our Oplnlon No. O-23 (Conference O?lnlon 3032) 

It wa8 he14 that Howe Bill 727 of the Regular Se88ion, Chapter 

4M of the Cen8ral and Speolal Laws of the 45th Legi8lature, 

an amendatory Act to Article 1055, Code OS Criminal Proce4ure, 

was unoonatltutlonal. Xrter the above mentioned 8tatute wac. 

held to be unoonstltutlonal by thlr Department, In Opinion No. 

O-142, ltwa8 held that counties could not recover halt co&a 

paid ofrlcers under the law declared unconstltutlonal. 

;w quote rrom Opinion NC. O-142 as follows: 

“It Is true the mark ‘1Enorance of the 1a.N excuses no one’, is f:enerallvaccepted. The argument ‘5ae 

been made it should sp~ly in the case of en unccnfititutional etotute fcr the reason WC!? an Act stands on tf.8 

same bee‘-s ae no law et all, but there are scme exception0.w 

The general rule as stated in Texas Jurisprudence, 

Volume 34, psEe 473, reads as f0110ws: 
. 

Honorable Richard S. Eorrie, Wge 3 

“An ofrloer who, without authority of law, oollectr taxes or exoesrlve fees may be oompelled to relmburm the persona from whom the money was received. 

But Seem paid voluntarily end with full knowledge of 

the faots, though under a mIstUce of law, oannot, under 

art%led prinolpler, be reoovare4.w (34 Tex. Jur. 476; 

32 Tax. Jur. 739; Hirrhfirl4 v. Fort worth National Rank, 

03 Tax. 452; 18 S. W. 745; County of Galveston v. Gorham, 

49 TOX. 279, 303; City of Hourton V. Fearer, 76 Tax. 565, 

13 s. w. 266.) 

The Supreme Court or the Unite4 Stete8 in the cam of 

United State8 v. Realty Company, 163 U. S. 427, 41 U. S. (L. 

Ed.) 215, held knOWledge 0s the invalidity 0s an Act of Congrees 

will not be imputed, in advance of any authoritative decleretIon to that errect, to those who ere acting under its provi8lOIll!, 60 ae to preclude then from having equitlea baaed on 

their rolianor upon the Aot, 

It ha8 been raid that e mlnit.terlal orrioer ha0 not 

the right to deolde upon the oonrtitutionalfty or unoonatitutlonellty 0s an Aot parred with all the formality 0s law. It 

18 the duty 0s such ofrioer8 to execute an4 not to pas8 judgment on the law. Volume 9, Texas Jurlrprudenoe, 468; Seseums 

v. Bott8, 34 TAX. 335 (holding en UnOOnstitUtiOWl Aot regUlab 

lng the oolleotlon of debts protected clerks of courts acting 

under it). 

In view of the foregoing authorltlrr, you ere respeotfully advised that it is the oplnlon of thin Department thet 

the oounty funds expended for traveling sxpenees of county oommledoner‘r by virtue of the above mentioned statute8 cannot be 

recovers4 by the county. 

In reply to your second lusstlon, ycu are further advised that it Is our opinion that, in the event a court of competent Jurisdiction held the statute in questloh to be unconstitutional, the coml.?sloners wald not be liable for tte funds 

dram under the stetute held to be unconstitutional. 

Trustlw t??at the forecoiw fully easwers your inWry. we are 

Yours very truly 

.i’?TiN%Y C?ZNii!bL OF TXXAS