Untitled Texas Attorney General Opinion ( 1956 )

ER
OF TEXAS
Honorable J. Earl Rudder
Commissioner, General Land
Office
Austin, Texas
Opinion NO. s-206
Re: Refund of annual advance pay-
ments held in suspense on
mineral awards! und,er Articles
5388, et seq., v.C.S., upon
forfeiture for failure to
file the required affidavit
of assessment.
Dear Mr. Rudder:
Recently you have made an opinion request of
this office as follows:
"This office desires your official
opinion regarding the refund of annual
payments on mineral awards under Articles
5388, et seq., duly paid within the month
of January, but which awards have become
subject to forfeiture for failure to file
the proper affidavits of assessment work
required to have been done during the
calendar year of 1955.
"On July 29, 1955, a group of mineral
awards were made to John, George and S.J.
McSpadden on Section 132, Block,3, D & P
Ry Co. Survey, Presidio County, which has
been sold as school land with a reserva-
tion of all minerals thereon and there-
under."
Your request indicates that initial payments
for the awards were made by the awardees at the time of
their acquisition. Your request further shows that you
Honorable J. Earl Rudder, page 2 (NO-S-206)
are concerned over advance -payments made under Article
5395, Vernon's Civil Statutes.
Your request continues:
"On January 27, 1956, this office
received from John S. McSpadden payment
to cover the statutory payments on the
awards for the claims in question, but
to date no affidavit of assessment work
has been filed showing that the required
assessment work was done during the calen-
dar year of 1955.
"It is my interpretation of the law
that these claims are subject to forfeiture
for failure to file the correct affidavit
bf assessment work, and they have been so
forfeited. . . .
"The payment in question was deposited
in the suspense account when it was re-
ceived pending the filing of the proper
affidavit of assessment work. . . ."
You then in substance ask the following question:
Am I required by statute to forfeit the payments received
January 27, 1956, which payments have been placed in
suspense?
The requirements concerning annual assessment
;;;;o;;pear in Article 5394, V.C.S., reading in part as
. . . if an award is issued prior to
the first day of October of any year
the first annual assessment work shall
be done before the end of that calendar
year, and during the month of January
following, such owner shall file in the
Land Office his affidavit that such work
has been done and shall state the extent
thereof. Such owner shall, during each
succeeding calendar year beginning Janu-
ary first next after the date of such
award, perform the required annual assess-
ment work and file an affidavit thereof
as in the first instance. . . ."
L
.
Honorable J. Earl Rudder, page 3 (No.S-206)
Provision for annual advance rental is made in
Article 5395, viz:
"The owner of each claim shall pay
fifty (50) cents per acre annually in ad-
vance after the award and during the month
of each wceeding January of each year
thereafter: D . ."
Article 5397, V.C.S., calls for forfeiture of
awards as follows:
"If the locator or owner of any claim
obtained under this law shall fail or re-
fuse to make the payment of any sum within
thirty days after it becomes due. . . or
refuse to give correct information to then
proper authority or knowingly fail or refuse
to furnish the Land Office all correct re-
ports required by this law, the rights
acquire/d under the location or claim shall
be subject to forfeiture by the Com-
missioner. . . .I'
Under Article 5395, if forfeiture is to be
avoided, advance rentals must be paid to the State each
successive January. This requirement is in addition to
the development work called for by Article 5394. Failure
to meet the obligation imposed by either of these Arti-
cles is reason, among others, for forfeiture under
Article 5x97. Thus, rental payment and assessment affi-
davits are both required, and failure to comply with the
statutes in either regard results in forfeiture. The
rentals belong to the State upon receipt and the
statutes are silent as to 'refund in the event of for-
feiture for any of the reasons set forth in Article
Evidently you placed the advance rental in SuS-
z%e under the provisions of Article 4388, V.C.S
As this rental belonged to the State and its statis was
not undetermined you should have deposited same into
the proper fund in the State Treasury upon its receipt.
The rule is well established that advance pay-
ments of fees, taxes, etc., may not be prorated and a
refund made where the payee either forfeits or voluntarily
surrenders the privilege for which the advance payment was
Honorable J. Earl Rudder, page 4 (No. s-206)
made unless, of course, the statutes under which the pay-
ments were made specifically so provide. See Attorney
General's Opinions Nos. 0-6302, o-7113 and S-199.
The same result obtains upon the application
of the law of ordinary rental payments. The rule is
stated in 32 American Jurisprudence, Landlord and Tenant,
Section 875, page 741:
"A forfeiture of the term does not
release the tenant from liabilities under
the lease which had accrued at the time of
the forfeiture. He remains liable for rent
accrued at that time, including, according
to the generally accepted view, accrued rent
payable in advance, though the forfeiture
occurs before the period to be covered by
such advance payment; 2 fortiori, where rent
has ,been paid in advance, under an agree-
ment that it shall be so paid, and the lessor re-
enters for. conditions broken, he is enti-
tled to retain the rent so paid."
The Texas courts have adhered to this rule in
such cases as Collier v. Wages, 246 S.W. 743 (Tex.Civ.
APP., 1922) and Dearborn Stove Co. v. Caples, 149 Tex.
563, 236 S.W.Sd -486 (1951).
It is, therefore, the opinion of this office
that advance payments on mineral awards are not re-
fundable under the fact Situation recited above.
SLJMMARY
Annual advance payments on
mineral awards issued pursuant to
Articles 5388, et seq., V.C.S., are
not refundable, in whole or in part,
r
Honorable J. Earl Rudder, page 5 (~0.,$-206)
upon forfeiture of the award for
failure of the awardee to file the
required affidavits of assessment
work.
Yours very truly,
JOHN BEN SHEPPERD
Attorney General
APPROVED:
J. Arthur Sandlin By d&d [LA'-
Land Division Robert E./Anderson
Assistant
W. V. Geppert
Reviewer
Mary K. Wall
Reviewer
L. W. Gray
Special Reviewer
Davis Grant
First Assistant
John Ben Shepperd
Attorney General
REA:bt