Untitled Texas Attorney General Opinion ( 1943 )

Honorable Peyton Burke
County Auditor
Falls County
Marlin, Texas
Dear Sir: Opinion No. O-5739
Re8 Can the county auditor of
Falls County legally ap-
prove the claim of the C.O.
Leuschner Estate for a re-
fund of the taxes paid by
said estate to Falls Couritv
for the years 1914 through-
19291
This is in reply to your request for opinion. Your
said request is contained in two letters.
In your first letter you say as follews~
"On December 1, 1913 Mr. Otto Kunkel purchased
from the C. 0. Leuschner Estate 463 acres of land.
For the years 1914 through 1929 this land was ren-
dered for taxation, to Falls County, by the C. 0.
Leuschner Estate and also by Mr. Otto Kunkel.
"The C. 0. Leuschner Estate has filed a claim
with Falls County for refund of taxes paid by said
estate for the years 1914 through 1929.
"Can I, as County Auditor of Falls County,
Texas, legally approve the claim of the C. 0.
Leuschner Estate for a refund of the taxes paid
by said estate to Falls County for the years 1914
through 19297"
In your second letter you further sayr
"I am informed that after the sale of the
property to Mr. Otto Kunkel by the Leuschner Estate,
Mrs. Leuschner, widow of C. 0. Leuschner, began to
handle the affairs of thenestate. Mrs. Leuschner
continued to render, by mistake, the tract of land
that had been sold to Mr. Kunkel and paid the taxes,
Hon. Peyton Burke, page 2
when due, throughout the years. Mr, Kunkel, the
owner of the land, also rendered same for taxes
and paid same when due.
"In other words, Mrs. Leuschner rendered
this property for taxation by mistake and paid the
taxes, when due, by mistake."
The taxes paid by the taxpayer, which have gone to
the State, or which are held by the collector for the'State,
may not be rebated or repaid to the taxpayer by the tax col-
lector under any circumstances. Article VIII, Section 6, of
the Constitution of Texas declares:
"No money shall be drawn from the treasury
but in pursuance'of a specific appropriation made
by law."
With reference to the taxes due the County and paid
by the taxpayer under the mistaken belief that she owned the
property on which the taxes were paid, our understanding of
the law as laid down by the Supreme Court of Texas in the
case of City of Houston v, Pelser, 13 S.W. 266, may be brief-
ly stated as followss
Taxes paid to a county by a taxpayer who acts under
a mistake of fact which does not arise in connection with his
own negligence may be paid back by the county.
Mistake of fact can scarcely exist in connection
with negligence; as illegalities which render such a demand
a nullity must appear from the records, and the taxpayer is
just as much bound to inform himself what the records show
or do not show as are the public authorities.
Your request for opinion does not disclose any fact
or facts which would make the taxpayer's ignorance of her
ownership of the property such a mistake of fact as would ex-
cuse her from knowing she did not own the property at the time
she paid the taxes thereon.
Of Bourse, if she joined in the deed of conveyance
by which the property was divested out of her estate, or if
the deed by which the grantee held the land was placed of
. ,. .
Hon. Peyton Burke, page 3
reoord, her lack or lmowltdge, if any, of the fact that
she did not own the land when she paid the taxes on same
was attributableto her own negligence.
Yours very truly,
ATTORNEY OENERAL OF TEXAS
By /s/ Qeorge P. Blackburn
Assistant
OPBrAMMrRT
APPROVED: JAN. 28, 1944
/B/ GROVER SELLERS
ATTORNEY GENERAL OF TEXAS