. . -1 ! . OFFICE OF THE ATTORNEY GENERAL OF TEXAS AI+STlN f;O2. ;ildnny’tatha2i Seoretar~ 0r Stats Au&h, Texas Seer Sir: was inproperly rim, dldssed on imtion d April24; 1944,has been ooneid uote from ytxr letter juCgmr&a were entered in a certain benefit of several manufacturing oom- tams under protest on the saze ~roucdo. 3633 jud&-Ante were agreed u>m beoause of the Swlsion iziZIouera v. Fair Amrican Eeflning Coqmnp, 7. 26 382, error rafueod. The olaos ootion properly flied in a ootlrt or ooinpeteat the in&lvlLlual .zctlan mn’;ioned in wxi 1mpropsrl;r riled, iion. Sidney Latha%, page 2 Vearlng in mind tbs foregoing faots, please advise OA t;-.s rdi0whg queetiour *':oes this depsrtmeat have the authority to now voluntarily refund to trre oorwration involved the amounts peid under proteat, suit for reoovery of whiob was filed Sut in?roperly, aod subesqueatlg dis;aissed on uotion of the plalntwr?~ Csotion 1 or Artlo 7057b,V. A. C. S., allow8 any person, rim or oorporation, that is required to pay to tha head of any State department any oooupation, gross.reoelpts, franohlse, lloense or othtr privilege tax or fee, whloh he does not believe he is lawrully required to pap, to aooompany auoh ?a$mnt with a writtea protest, settlng ohIt fully and in detail the grounds for whioh it 1s oontende& that suoh demand I8 unlawful. Seotion 2 of this Artlole provides in part a8 rollavsr "Upon the payment of suoh taxes or feos, aacompanled by such written ;rotest, the taxpayer ahall have ninety (90~).' days fro0 said date within whloh to file ault for the reoavery thereor I.&any oourt or ooskpetent jurlsdlotion in Travis County, Texas, and nooe other . . . Provl.Ced, however, where a olaaa aotlon lo brought by any taxpayer all other taxpayers belongiog to the olass sod repreaeoted'in suoh alas8 aotion who have properlg prOt8Sted a8 herein provided shall not be required to file separate suits but shall be entitled .to a& gOV8raed by the deoision rendered in suoh olass aotion. . . .* In opinion Xo. O-4819this departnent ruled: Wonsequently, it is our opinion that rerund ror taxes paid under iJroteat nay be aooompliahed only by oomplianoe with the provisions of Artlole 7057b, sod that euoh refuods zmy ae -made only after judg.oe.otfavorable to the taxpayer is roaohed in a suit filed within ninety days fron: ths date of myzrt *in any oourt of oonpetant juriadiotion ln Travis Comty, Texas, ,aod'hone other.'" As stated is yam request, the oorporration involved did not obtain judgmmt ravorable to Its oause but rather volm- terily dIsmissed its aotlon. ?crther?;lore,suit 'iyasnot filed within the presoribod tis;e in a court of ooogetent jurlsdiotion 1~ Travis County, 'I"9mS. lion. Sidcey Latham, gaze 3 11 opinion I:o.C-5876 this departusnt ruled that it 1s necessary for me olaiei~ the benefit of the *olass aotlon' povided ln .3wtim 2 of ?rtlcle 70573 to be spclfl- callg nazxd 9s olsi~1~1``or intervening in such suit in. order to recover franotilse taxes gald under protest. ‘e gresu3e ima reading y3ur reqiest that the oorgor: tlon under onnsldera- tion uas not specifioslly namd as a plaintiff or lntervenor in the class aotlon referred to in your letter, and as a cotwequenae thereof, could not olali~ the beAmfit of thls 01~s aotlon. 3ased upon the foregoing, Lt 1s the opknlon of this deparMent that tke Z’eoretary of Stat. does snothave the authority i to voluntarily refund tc the oorporation Involved the amount or rranohlse tax paid under protest. sy &/&maLL Robert 0. Kooh Assistant i