Honorable Geo~.H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir:                 Opinion No. O-4891
                          Re: Whether or not ad valorem
                               taxes must be collected on ex-
                               cess land owned by the State
                               prior to the date of a deed
                               of acquittance under Article
                               5421c-1, V.A.C.S.
        This is in reply to your inquiry of whether or not,
prior to the giving of a deed of acquittance by the Land Com-
missioner, State and County taxes must be collected on ex-
cess acreage in surveys patented by the State.
        The facts given by you are as follows: Survey 65;
Certificate 1225, Abstract 52, original grantee A.B. & M.,
La Salle County, was patented as containing 640 acres, ana
taxes have been paid on 640 acres. A recent survey indicates
that said tract contains excess acreage in the amount of 116
acres; and a deed of acquittance under date of September 2,
1942, was obtained from Hon. Bascom Giles, Commissioner of
the General Land Office, covering Survey 65 as containing 756
'acres. Such deed of acqufttance was obtained under Article
5421c-1, V.A.C.S., being Section 4, House Bill No, 9, 46th
Legislature, approved June 16, 1939; and the land owners paid
the State of Texas the appraised value of such excess acreage.
        The question has now arisen as to whether or not there
are State and County ad valorem taxes due for the period prior
to September 2, 1942, on the 116 acre excess In said survey,
State and County taxes having been paid on only 640 acres by
the owners of said 640 acres, who were the good faith claim-
ants of all of said survey.
        The statute under which this purchase was made and the
deed of acquittance given was Article 5421c-1, V.A.C.S., which
reads as follows:
        "In all cases where the area of a tract of
    land titled or patented exceeds the quantity
    called for in the title or patent, and where
                                                            .      -_




Honorable Geo. H. Sheppard, page 2         o -4891


    under the existing law the title to all or any
    part thereof shall or may be affected by the ex-
    istence of such excess, then any person owning
    such survey or havingan interesttherein may
    pay for such excess acreage at such price as the
    empowered authority may fix. Any personowning
    any interest in a ~titled or patented survey in
    which excess acreagesexists who desires to pay
    for ~such excess acreage, shall file with the Land
    Commissioner a request for an appraisement of the
    land with corrected field notes in the ~form now
    provided by law, together with a statement of the
    facts pertaining to his right to purchase, which
    statement shall be sworn to, and such other evi-
    dence of his right to purchase as the Commissioner
    may require. Should It appear that such excess
    actually exists and that the applicant la en-
    titled to the benefits of the law, then the Com-
    missioner shall execute a deed of acquittance
    covering such land in the name of the orlg~inal
    patentee or his assignees with such reservation
    of minerals or with no mineral reservation, ac-
    cordingly as may have been the case when the
    survey was titled or patented. Such transfer
    shall inure distributively to the benefit of the
    true and lawful owners of the survey in propor-
    tion to their holdings."
        For the purposes of this opinion we will assume in
this case that the original grantee only obtained title to
640 acres or a 640/756th interest in the 756 acre survey, and
that the State continued to have title to the exceaa~above
640 acres In the survey until the deed of acqulttance was given.
The above quoted Article 5421a-1, we believe, presupposes that
the excess mentioned is State owned land, the title to which
can be acquired by purchase from the State in compliance with
the act. By invoking the terms of said article and making the
purchase thereunder the applicant cannot deny that the State
owned the excess acreage which he seeks to buy and that title
thereto la and always has been in the State. In 34 Tex. Jur.
93 a statement is made as follows:
        11
         . . . . The State is entitled to recover an
    excess of land which has been included in a sur-
    vey by mistake; and statutes have from time to time
    made provision for the ascertainment and disposl-
    tlon of excesses + . . D0'
        On the assumption that the State had title to the 11.6
acre excess in this case, we will proceed to discuss whether
Honorable Geo. Ii.Sheppard, Page 3         o -4891



or not that interest was taxable. The State had just as good
a title to a ,116/756thinterest in said survey (a 116 acre
interest in 756 acres) as if it had owned outright and alone
a 116 acre block of land. In the case of Thomas v. Cline,
135 3. W. 2nd 1018, in which the court found that the State
had title to a 6.7 acre'excesa in a section originally con-
veyed as having only 640 acres, but actually containing 646.7
acres, the court said:
       "The acreage in excess of 640 acres in said
   section 46, until purchased from the State, was
   never owned by plaintiff Thomas, nor defendant
   Cline, nor their predecessors in title, but it
   was owned by the State and held for the beneflt
   of the public free schools of Texas. Until the
   disputed strip became the property of Cline, by
   purchase from the State, plaintiff Thomas could
   not acquire title thereto by limitation, and
   limitation did not begin to run until the convey-
   ance by the State to Hatch for the benefit of
   Cline.
         .   .   .   .   .

         "Title to said land belonging to the State was
   not acauired by plaintiff Thomas by adverse poasea-
   sion,   even if Cline recognized the old fence line
   as the boundary between the tracts. Weatherly v.
   Jackson, 123 Tex. 213, 71 3. w. 2d 259."
        It is a well known rule of law that property belong-
ing to the State is not subject to taxation because It would
result in the State taxing itself. Corporation of San Felipe
de Austin v. State, 111 Tex. 108, 229 S.W. 845; State v.
Locke, 29 N. Mex. 148, 219 Pac. 730, 30 A.L.R. 407.  In 2
Cooley on Taxation, 4th Rd., 1317, it says:
        . . . . the general rule, independent of
   constitution or statute, is that proaerty belong-
   ing to the state or a political division thereof
   is not taxable, on the theory that such taxation
   would merely be taking money out of one pocket
   and putti   it in another, unless the constitution
   or states7 statutes) clearly show an intention to
   tax such property; . . . .' (Parenthesis ours)
        Our answer to your question is that State and County
taxes are not due on the 116 acre excess of the property in
question for the period prior to the date of the deed of ac-
quittance for said excess, to wit, for the period prior to
September 2, 1942.
Honorable Geo. H. Sheppard, page 4        o-4891


        In view of the fact that this excess land became.tax-
able between January 1 and December 31, to wit, on September
2, the following language of Article 7151, V.A.C.S., is ap-
plicable, to wit:
        II
         . . . ;If any property has, by reason of any
    special law, contract or fact, been exempt or has
    been claimed 'to be exempted from taxation for any
    period or limit of time, and such period of exemp-
    tion shall expire between January 1, and December
    31 of any year, said property shall be.asaessed
    and listed for taxes as other property; but the
    taxes assessed against said property shall be for
    only the pro rata of taxes for the portion of such
    year remaining."
                               Yours very truly
                             ATTORNEY GENERAL OF TEXAS


                               By s/Cecil C. Rotsch
                                    Cecil C. Rotsch
                                          Assistant
CCR:ff:wc

APPROVED NOV 13, 1942
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
