Untitled Texas Attorney General Opinion ( 1948 )

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parOa D-- PAcaAk DIKBON
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July 19, i948
Hon. Wm. B. Martin Opinion No. V-639.
County Attorney
Hill County Re: Esoheat or.money remain-
Hillsboro, Texas ing in a County Deposi-
tory road district ao-
count arter dissolutions
or the distriot and re-
lated questions.
Dear Sir:
We gather the rollowing~aotual situation
from your letter:
In 1919 the Commissioders~ .Court of' Hill
County created road district No. ll:kaown as-Penelope
Road District No. 11 in Hill County, end.bonds of the
distriot .were voted for the purpose. of-oonstruoting,
maintaining, and operating maoaasmized; graveled and-.
paved roads and turnpikea and In aid thereof.
It&September 1919 the:Commissioners' Court
levied a tax of $1.50 on each $100 valuation.of' taxa-
ble property in the districtto pay the .interest.e.nd
sinking ruIdr0r said bonds.
.
:On September 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.* The Commissioners'
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 ana before the .au-
thority to :levy same wasp revoked, .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 Deposi-
tory.
At the December term, 1920, of the District
court of Hill county a judgment was entered in favor
Hon. WmB. Martin - Page 2 (V-639)
of the taxpayers against the Depository; the Commission-
ers’ Court and Treasurer of Hill County, bordering the
rerund t.o.,,the taxpayers of their ratable portion or the
money available in.the funds or said district derived
from said tax levy, based upon tax receipts presented
by them to said Commissioners* Court.
The sum of $313.07 of said tax money now re-
mains in the County Depository to the oreait of vPene-
lope Trust Fund,* whioh, in ract, belonged to the indi-
vidual taxpayers under the district court judgment.
We are assuming from your letters and the pe-
tition riled by Mr. Calvert, a copy of which you en-
closed, that no claim has been made for any part of said
$313.07 by anyone at any .time, and at this time the name
or address of no person or the heirs or representatives
or any person who is entitled to any part thereor is
known or ascertainablei
Article 3272, V. C. S. reads:
“If any person die seized of any real
estate .or possessed 0r &ny~peawonal estate,
without any devise thereor, and having no
heirs, or where the .owner of any reals or
personal estate shall be absent for the
term of seven years, ana is not known to ex-
.ist, leaving- no heirs, or, devisee of his
estate, such estate shall esoheat to and
vest in .the State. Where no will is reaora-
ed 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 no will, and where 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 owner without heirs. Any one paying
taxes to the State on suoh property, either
personally or through ‘an agent, shall .be held
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 made a party by personal
P9!3
Ron. Wm. B. Martin - Page 3 (V-63,9 1
service OS oitation, to such esqheat,proq%ed-
ings, if a resident OS this State, and his
addrgss can be secured by reasonable dill-
genhe, but, if he be a non-resident oS the
State or oen not be Sound, the personal ser-
vice 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 OS the
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 condi-
tion 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 per-
son last lawSully -seized .or possessed. 0r same,.
the .&me.oS the tenants or p.ersqqs, in actual
.~ossessicm. if snr. and the.nemes 0r the ner-
sons cla& the-estate,-if any such 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 and for
a writ 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 Unknown Heirs 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 Upon the
last trial which was without the aid of a jury,
the'court Sound that Williem Braafora, deceased,
aiea *"having no heirs* *** no heirs who can be
ascertained by the exercise of reasonable dili-
gence.' Upon this and other Sinaings made,
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., 109 S. W.
,.It was there held the phrase 'having
no he& -'means no lmown heirs, and no heirs
who oan ie ascertained by the exercise of rea-
the same or similar oircumstances. We adhere
-t
$lanappellantc' first
pZoposit~0n.v
We.are of the opinion that in the oiroumstenoes
stated in.yourrequest that 27 years have passed since
the District Court of Hill County rendered judgment in Sa-
vor of the persons entitled to tax refund and during that
timeno.one has claimed any part oSthe $313.07;and that
neither such'persons nor the heirs or representatives of.
any of them can now be ascertained by the exercise of
reasonable diligenoe, renders said sum of $313.07 subject
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; a judgment
was rendered by the district court ordering
the oSSioials and depository to refundsuch tax
money prorata to the persons who paid it and
the sumof $313.07 thereof has 'not been claim-
ea for a period or.27 years and those ~CUI~ en-
,titled to receive .it cannot. be ascertained by
Wm. B. Martin - .Page 5 (V-639) ZWI
reasonable diligknoe, said sum 0r $313.07 is
now subjeat to -cheat prooeedings by the
State.
Yours very truly,
A!lTORNEYGENERALOF TE?IAS
By sp#y3G~ d ,..d
w. T. w1111ams
'Kr#:wb Assistent
APPROVED: