                   ~'~EA~TOFZNEY              GENERAL
                               OP TEXAS
                              AUSTIN   m.TEIxAB
   WILL     WILSON
A--           GENERAL


                                   October 25, 1961

      Honorable J. S. Grlsham               Opinion No. WW-1172
      Criminal District Attorney
      Van Zandt County                      Re: Refund of taxes paid
      Canton, Texas                             upon land subsequently
                                                determined to be a part
      Dear Mr. Grlsham:                         of the public domain.
                   We are in receipt of your letter In which you request
          an opinion regarding the following facts stated In your letter
          as follows:
                      "Where owners of land in Van Zandt County
                   had fenced, occupied and believed that the lands
                   so included in their enclosure belonged to them
                   over a period of years and which was rendered by
                   them for taxation, in some instances, and in
                   other Instances, It was assessed by the collector
                   as belonging to them and which taxes were paid
                   by them on said la@s up until recently, when
                   It was discovered that such lands were not In
                   fact owned'by them'but was either excess or vacant
                   lands belonging to the,State,but upon which they
                   had paid ad valorem tax for several~years and on
                   some of the tracts, which was not homestead,
                   they had paid State tax as well as County and
                   school and on other tracts designated as home-
                   steads, they had paid taxes as for County and
                   school, but not State and in which, In every
                   instance, the Tax Collector had made property
                   distribution of such tax fund so paid them
                   within the last two or three years, when It was
                   found that it was excess or vancant lands and
                   they purchased same from the State and, of
                   course, they continued to pay State and County
                   taxes thereon, but the question here to be
                   determined, Is as to whether or not the County
                   can refund these taxes so paid on the land
                   while it belonged to the State and during which
                   time no taxes were due and if so, whether this
                   refund to the Individual be payable by the,,Tax
                   Collector or separate funds of the County.
Honorable ;. S. Grlsham,.page2 (WW-1172)


          In your request, you refer to an attached letter
from Honorable Truett Mayo, County Judge of Van Zandt County,
which states, In part:
             "I have had Inquiry from taxpayers
          regarding refund of taxes paid by those
          individual owners on acreage thought to
          be excess but later determined to be
          vacant land by the Land Commissioner."
In view of Judge Mayo's letter, we are assuming that the land
In question Is "vacant land."
          Excess lands are not vacant lands and are treated
by the Court as sold lands segregatedfrom the public
domain. Foster v. Duval County~RanchCo., 260 S.W.2d 103
(Civ.App.,19~53) Vacant unpatented land Is wholly outaide
the taxing jurisdictionof counties.
          Your request shows there +re ,seVeraltaxpayers
as well as several tracts of land involvdd. Sonictracts
seem to have been rendered and some asseseed for taxation.
On some tracts, County, school, tid State taxes were paid
and on some, only County and school taxes.
          We are unable, on th@,facts submitted, to deter-
mine the status of any particulartract or the taxes paid
thereon. However, we set out what we believe to be the
applicable law.
          We enolose Attorney General's Opinion No. o-6282
(1945) which contains an excellent treatment of the law
,regardlngretids of taxes. As pointed out, refund of taxes
may be mad~eonly upon a showing of.(l) fraud, (2) duress,
and (3) mistake of fact. However, Oplnlon,No.o-6282
quotes from 61 C.J. 991 in part as follows:
                It Is otherwise where the mistake
         1; &aie by the taxpayer himself, and Is the
         result of his neglect of some legal duty,
         or where the facts whloh would have shown
         the mistake were within his oWn possession
         or within his reach."
That opinion also shows that the Intention of the parties
must be examined In situations such B'sthese.
          Your request does not.ralse an lmplloatlon of
either fraud or duress; we shall'assumenone exists.
Honorable J. S. Grlsham, page 3 (WW-1172) '


          The location, on the ground, of boundary lines of
States, Counties, political sub-divisions,land patents and
all land field notes Involve a fact finding determination.
This was recognized In the case of Frost v. Fowlerton
ConsolidatedSchool District, 111 Sm      734 (Clv.App., 1937)
wherein the Court held that a warrant issued to refund taxes
paid on land under the mistaken belief that the prope,rty'was
within the boundaries of the taxing school district was a
valid obligation of the school district. The Court stated:
             "The payment of the tax, by Masterson
          through a mutual,ml~stake,on property not
          within the school districtwas not a
          'voluntarypayment' within the rule deny-
          ing recovery for taxes Raid voluntarily
          and without compulsion.
          Whether such a mutual mistake of fact exists
sufficient to allow refunds of the taxes paid requires
factual determinationsupon which this offloe cannot pass.
However, assuming the taxpayer can establish a mutual mls-
take of fact, the taxes remltted to the County and the
school districts could be refunded; County taxes from the
general fund and school taxes from the school's general
fund. Taxes remitted to the State could be refunded, but
only pursuant to a specific legislativeappropriationIn
compliance with Section 6, Article VIII of the ~Constltutlon
of Texas.
                    SUMMARY
          Taxes paid on land later determined to be
          vacant public land may be ~refundedto the
          taxpayer If such payments were made under
          (;~kr$d~a~~) duress, and (3) mutual mls-
                       .
                          Very truly yours,
                          WILL WILSON




TIM/jas
Honorable J. S. Grisham, page 4 (WW-1172)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Riley Eugene,Fletoher
Joe Osborn
Coleman Gay, III
Henry Braswell
REVIEWED FOR THE ATTORNEYGENWAL
BY: Houghton Brownlee, Jr.
