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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


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