 OFFICE     OF THE, ATTORNEY GENERAL             OF TEXAS
                        AUSTIN




                                      nuabw# .blaad IZ9
                                      proparty la QUbl-
                                     t 60. .ZWnear ths
                                      imn   416tr10:    E9,
                                     .a66a66Od    in dls-

                       0 ownersUp of l&b   $reprtg
                           d &I Ahat. par 6mLd propr-
                           666666&in    dlrtriet  Ho. e9.
                           p of 6atB'~proputy    pu86d
                                       lr r ea uus a 66866-
      la   dlrtriat’ 89 vu omitlaueCuatll thir
~l&~u~6        dlroarersd oit6r,th6  p6yawnt of the
                tor the rourtua~pmr6 from 19t6 to
1958 lnoluhr~,     thb   pro  rtx wnr a68~8sed la
Dirtriot t9 (lamtoad ei ;E:Dtrtrlrt aa) and the
taxer paid lnta dbtrlot Ho. 89 u&or the mutual
airtaken  bellof that thr property*Otutily lay
in Dlattilot29. TM t6x66 dur          6uoh rowtua
par6 more both paid and me81 3        inltr io tmr t
good faith."
Honorable   Edgar Hell,   page 2



           !3ased on the above facts, you ask the following
qUeStiOll6:

                          cyEsTION NO. 1

            %aday the tax payer6 reoofer       iroa Dfstrlct
     No. 29 the full amount of the 5423.50 peAI
     through suah mutual mistake to District No. 29?*

           In our Opinion No. O-1266 we held that taxes
could be refunded by a school distriot to a taxpayer who
oUn6 property  adJaoent to a SOhool di6triot and has been
pg~~,taxam    to the wrong bLatriot under,a wtual mIstaka
           Ia our opinion we pointed out.tbat the rule an-
noun0ed*thar6In nould be subjeot, hoverer, to a plea of
llmltatfon uhlcrh might arise under oertala faots in eaoh
Individual ease. A6 we iaal that this opinion answsrs
your question No. 1, a oopp of the Same is.enoloaed hero5.n.

                           QUYSTION NO.    2

            .Can Dl6trIat No. 31 legallY ohsrge this
     property with delinquent sohool taxes on this
     property aihlah is actwlly   lwated  la fri6triOt
     91 but on which taxes were srroneously paid
     during   these Sourteen years to DIStrI&  29.w

           Artiole 2795 OS the Revised Clril Statutes~ pro-
vides that the oommIssIoners* oourt shall also levy upon
all taxable property within a cologlonschool district the
rate of taxes voted by said dlstriot.   Said Artlole tur-
ther provides that the taxes of a common sahool diEtrIot
are to be assessed  and oolleoted by the county ;fflgIzls
the same as taxes lerled for county purpoae6.
well establIshed rule of law that taxes may be assessed
and collected on property whIah has been omItted from the
tax rolls for back years only when there Is 6peoIfla stat-
utory authority authoriziag such aa assessment and Collea-
tlfon. see state vs. Cage, 176 S. vi. 928 and Xlllers xutual
Fire ~n6urano6 Company vs. City of Austin, 210 9. 1. 829.
Beoause of the faot that the taXO6 of a oommon school dls-
trlot are oolleoted like county taxes by the county offi-
cials, the StstUtsS  authorizing the aSSeSS!Wnt of property
omitted Srom the tax rolls by the ootmnIseIoners* oourt Is
In our opInIon sufficient statutary authority to authorize
the assessment and colleotion ot tsxe6 on property thus
omItted from the tax rolls of the oommon school district.
Banorablo    Edgar ~foll, psgo 3


             artlolo 7346 ai t&o R&sod      CIrIl statutes     pro-
rides    in put   a6 follows:

               *wheaomr any coad,66lonors oourt shall
        dl6oeror through notlae fr0n t2io tax aollootOr
        or otherwise t&t       aay real property has been
        omitted fron the tax rolls for any,pear or years
        61a007334,     or suul    rind that my prorlopm as-
        6066m6&6     k any real property formthe y&m
        moatlone 4 aTo lnralld, or bare bsen doolarod In-
        valid   for any reason by any dlstrlct court ln a
        Sait to oaforoo the c0110at10a or t6XoS oa said
        proportI66, they say, at any aootlag of the-.
        Qourt, order a list of StiOh proportlos to be
        made la trl llaato aad fir a ocanpeniatlon thars-
        for; the ma fld lirt to show a oomploto dssarip-
        tlon of suoh preportios and for what years suah
        proportIo6 ware aalttad from the tax rolls, or
        for What ;l8arS the a66O66mO~S       arm found to be
        invalid aad should bo aanoeled by any dlstrlot
        court la a suit to eaforoethe collection of
        tu66.'     (undor6aorlng ours).

          Article 7347 of the Revised      Civil Statutes reads
in part a6 r0110tm:

               "When said list has booa so made up the
        ooadsslon8rs   court nay, at any meetI*, order
        a aanoellatIoa of suah properties ln said lfst
        that are shown to have been prortously assessed,
         but whlah assossnonts aro round to be Invalid
        and hate not bean aenaolsd by any fornrnr order
        of the co~lsrloners   oourt, or by deoree of any
        dlstriot aourt; and shall then refer such llrt
        of properties t0 be asros66d or r8-aSSeSSed to
        the tax a6s866or who shall prooeed at once to
        aako on assessment of all said properties, iron
        the data gltea by said 1Ist (the oortlffaato of
        the Comptroller a8 to as8es6ments or r8-asseES-
        mOnt6  mad6 by the taJ assessOr shall not be
        neaessmry as required  under irtl010 7207, but
        ho shall furnish all blank forms noedod, that
        unlformltymay bo~had In all Oountl86), and when
        oompleted shall sub&t the ssms to the OOnBiIiS-
        #loners OoWt, who shall pa66 UpOIl the Y~UatlOlIS
        rlxed by big; and, when approved as to the valuer,
        shall oaus8 the taxes to be computed and extended
Honorable   Edgar Ffoll,   page 4



     at tho,tax rate ia offoot for eaoh SoparatO
     year montloned la said list; and, in addition
     thereto,  6halloau6oto   be added a penalty
     -equal In amount tc tiat would be sir per cent
     tier8St to the date of msklag Said list from
     the date such prQpkrtl86 rrould hav6,beon do-
     liaqaont had 6S1no been pro$mrly rondorod by
     the owaor thereof at tho tine end tar tho
     years Stat%& in said list; * * **

            It l6 the opinion of this d%paI'ta8at, based upon
      above artIalo6, that tho oomai66loaor6~ court muld hare
      authority to aS8esS conecOn SOhool taxes against the
property in que6tlon booau6o the 6-O has bee0 onittod      from
the tsx   rolls of DlStrlOt lo. 31. You call our ettentlon
to ~tiolo 7156, ReTieed Civil Statutes, whloh read8 a+
r0lw6    t

          *Any lads which may have bsoa a6sos6od
     i6 any OcuUty aOOOrding t0 th8 abstract Of
     land titles and the taxes paid thereon ao-
     aordfag to faw, shall not be aftermrds   sub-
     joot to the payment 0s tams ror the mu0
     porlod in a dirrw00t   oounty, although a sub-
     sequent 6ur~ay aad detomiaation   of the county
     bOundarIeo+ay   show said lends to bo In a dif-
     rorsat county from that in whloh they wore
     originally aSSes68d; and any sales.or such
     llaed~o;r IlllOgOd dellnquenoy Shall be illegal
              .n

          The abwo quoted Article applio6 in a Case WhOrS
taxes hare been paid La the rrang county aooording tc law.
%a do not believe that this Article would fit the situation
hero beoauso after the ti%XOS have boon rofundod by Distrlot
No. 29 the taxpayer wuuld not bo 5.na po6Itlon of havl
paid taxes la the wrong county and, thoroforo, thl6 AX% ? 01%
would not bo a bar to the a66O66I08lrtand OOl.lOOtiOn Of taX-
06 agalnst him by Dfstriot p?o. 31. You also a6ll our atten-
tion te Article 7298 whloh roads la part as follow6:

           ** + * prcvldod, that no salt 6hhall be
     brought for tho colloatlon or dolinquont
     txuos of a School Distrlat or Road Dlotrlot
     unless instituted within ten years iron tho
     tlxno the aam0 shall become delinquent.* * *'
                                                                 398

Honorable 3dgar Meil,   page 5



          It might seem that the effect of the above
quoted Limitation Statute would be that Distriot 31 could
not assess and oolleot taxes against the property in ques-
tion baok oi 193C. You are advised, however, that the
Llmltatlon Statute deals dth the bringing of a suit for
the collection of tares within ten ears after the same
ohall beoome delinquent . The quest Pon then arises whether
or not the taxes for the baok peara which hate nerer been
assessed and oolleeted by Distrlot 31 have ever become de-
tin uent 60 a8 to be barred by this Limitation Statute.
It Ps our opinion that the same have not beoome delinquent
tit&In the meaning of the Limitation Statute. The Supreme
Court of Texas in the ease of Clegg vs. State, 42 Tex. 603,
stated as followS:

          *It has been repeatedly decided, that no
     right of action exists for the non-payment oi
     an ad wdorea property tax    until an assess-
     ment has been made as prop idad by law.*

          nhlle the coawniasionersr court in assessing taxes
against property whloh has beea originally omitted trom the
tax rolls is assessing a tax against that property for eaoh
of the baok years, still it cannot be said that those taxes
were delinquent until after the tfme of the assessment by
the cm~~jdsloners' oourt.  This oonstruotion ir reoognized
by the Legislature in ztiole  7347, supra, which reads in
p-t a8 follows:
           w* * * and, in addition thereto, shall
     cause to be added a penalty equal la amount
     to what would be elx er oent interest to the
     date of maklng said 1% t from the date suoh
     properties snuld have been dalinquent had
     same been properly renaerea b tn
     thereof at the time and for tie yiazfated
     l.n aaid list; + * I”

          ‘#e find here the Legislature saying thae the tax
Would have been delin uent if the property had been ren-
dered by the owner. 8he only logical inference resulting
from that statement Is that nlnoe such property WaB not
rendered 6n d not assessed then the tares were not delinquent.
It 1s our opinion, therefore, that the  Limitation Statute
Wuld be no bar to the assessment and collection of the tax-
88 against the property in question by District 31 and that
the same may be properly assessed and collected by the mm-
ai8sloners* court.
Rsnorable     iZdgar   Hell,   page 6




            Would the Two Year Limitation Statute
      apply under the clrowtanoes    of thls ease and
      entitle the tax payers to 280over only thet
      part of the $423.30 not barred by the Two Year
      Statute! or, rould the statute of Llml$atlons
      be considered as tolled as a matter of law
      under the olroumstanoes 0r this aase, and Chere-
      by entitle the tax payers to recover the full
      .>423.50 from said Dlstrlot No. 29..

           The exact faot situation   presented in- your letter
oonfronted the Austin Court of C1~l.l .ipp&ls In the ease of
ptluger vs. HUttO Independent School Dlstrlot, 34 9. 'R. (2d)
632. In that case the oourt held that the taxpayer was en-
titled to reoover taxes whl@h had been paid under a mutual
mistake of raot but that his reoovery was barred by the two
year Statute 0r Limitation   under the partloulnr  faots In
that case. You are advlsed that whether or not the two
year Statute of Llmltatlons vauld operate as to bar the col-
lection of the taxes lh your case would depend upon the par-
ticular facts whleh aonfront you. If there are no faots
which would bring your ease within the rule announced In tie
Ffluger oase, supra, then the recovery ot the taxes would be
allpwed in aooordanoe wlth our Opinion Ko. 1266.



            V;ould the trustees of Common Sohool uis-
      triat  Eo. 29 be authorized to disregard any
      question of llmlttatlon, K It should be found
      that the Two Year Statute  of Llmltatlon does
      apply, and as a matter of fairness to all ar-
      ties oonoarned, refund to the tax payers t iie
      3354.75, whloh was paid to Dlstrlot no. 29
      over and above the 368.75 eotually  due to Dis-
      trict  31 for such rourteen years, and pay
      directly to Dlstrlot 31 the $68.75 to whloh
      Dlstrlot 31 is entitled, or should the trustees
      pay the full amount of .$423.50 to the tax pay-
      ers and let them in turn pay out of that the
      ~$68.75 to Dlstrlct 3lS*

             In this question you are conaerned with the right
ot the trustees of the common school dlstrlot to disregard
any question    or llmitatlon. The eraot-question whloh-you
                                                               400

Honorable   Edgar Hell,   page 7



present was passed upon by the Beaumnt    Court of Civil
Appeals ln the ease of Frost vs. Parlerton Coneolidated
Sohool Dlstrlot Ilo. 1, ill S. W. (2d) 734. In.that case
the facts ere identical with the iaots you present ln
your lettt r es to the payment under a mutual mlstake of
faot . The aourt held that the sohool dlstrlot had the
power to disregard   any question of limitation and to re-
fund the taxes paid under the mutual mistake ot fact.
The aourt stated   as follows:

          *Appellee  had the power to renew Yaster-
     son*8 ola.lmfor a rerund of the taxes agaimt
     any Qefense of limitation that might ham been
     available to it. under the holding of our Su-
     preme Court in Hatcher Y. State, 125 Tex. 84,
     81 S. 111.2d 499, 98 A.L.R. 12X5, appellee is
     a body polltlo and oorporate, and may oontraot
     and be oontraoted with, sue and be sued, and,
     in its llmlted sphere, is a looal pub110 cor-
     poration of the same oharaoter as a munlclpal
     corporation; as suoh, it had the power to renew
     and extend a past-due obligation, though barred
     by limltatlon.   City of Tyler v. Jester 6r Co.
     ('Ser. CIT. App.) 74 S. 3. 359, amned    97 Tex.
     344, 78 3. w. 1058; City or Rouston Y. Jsnkowskie,
     76 Tex. 368, 13 5. W. 269, 15 da. St. Rep. 57.”

           You are therefore advised that the trustees nould
hare the authority to disregard any question of llmitetlon.
AS to the method of rerundlng the money we find no authority
for eny other procedure than to return the aoney to the teu-
payers who have paid the same. There is no statute which
rauld authorize the Sohool Distrlot No. 29 to deliver such
money to soho    District Xo. 31. It ls the opinion of this
department that the money should be rerunded to the taxpay-
ers who have paid the same and that the proper procedure
then is tar said taxpayers to pay the tax owing to Distrlot
3l after the same have been assessed by the oomm1ssloners~
COUrt.

          your questions No. 6 and No. 6 dssl with the man-
ner of repayment of the money by Dlstrlot Ko. 29. said
questions read es follows:
                                                             401
Honorable     B%gar Frail, page 8



                           CUEsTION NO. 5

          ‘In oase reiund of the ?ull amount 15 per-
     mitted to be made by DlstrlOt No. 29, may suoh
     re?tmd be made out o? the Local Xalntenanoe Fund
     and out of the Interest and SinkIng Lund of the
     clstrlot in proportion to the percentage OS the
     t&al  that fs deposited 5.neaoh or these two
     ?unds O? the dlstrlotsw

                           ~IJZSTION NO, 6

          *I? either ?und does not have suirleient
     surplus at this time to pay the -11 $423.50,
     mould the trustees o? District 29 be authorized
     to issue a warrant on suoh funds to be paid at
     such a ruture date as another surplus wlll exist?*

          The same questions oonfronted the court in the
ease o? Frost ~8. Fowlerton SOhool District, supra. In
that Case the contention was made that the tax money had
already been expended by the school distrlot.  In that
oase the taxes which had been erroneously paid were paid
for the years 19l.l through 1926. The sohool distrlot ls-
sued a warrant on August l2, 1931, some five years arter
the last taxes were paid, for the repayment o? the taxes
erroneously paid. The warrant was issued on the local
maintenance ?und and the court held that the same had been
properly issued even though the money oolleoted from the
taxes had been expended by the dlstrlot 3rd rurther held
that the waxraut was properly to be pald out of the maln-
tenanoe fund. The court stated as ? allows:

         *The iaot that the taxes paid by Uaster-
    son-the very money paid by him-had    been ex-
    pended by appellee and was not III’its posses-
    sion when the warrant was issued did not take
    fron Its trustees the power to issue the war-
    rant. Bridgeport dc eta. v. City o? *ldgeport,
    103 Corm. 249, 130 .,. 164, 169, involved taxes
    paid ror the years 1915-1922 on property not
    within the limits o? the taxing dlstriot; a?ter
    holding that the taxes were not *voluntarily*
    paid, the court said:   ‘The remaining reasons
    o? appeal relate to olalms that the defendant,
    having reoeirsd the money, tingled lt with its
    general iunds, expended it for munioi al pW-
    poses, and, not having in its posses5 le
                                           on the
Honorable Edgar Fiell, page 9



     ldentiaal funds, the taxpayers, who were not
     suah when the plalntl?? paid the money, cannot
     be now oalled upon, or taxed,  to pay It back,
    and thererare the oourt erred in rendering
     juqnt    for the plalntlr?.   The defendant says
    that bemuse   it has not the identleal money it
    reoeired  from the plaintiff it should not be
    required to return it. It olalms a8 a prlnol-
    ple o? law that, because it has spent the .money,
    reoelred no matter how wrongfully or unooa-
    solonably from the plalntl??, it oannot now be
    reeorerad baok. The mere 5tatement of suoh a
    proposition seems to be a suitiulent reiutation
    'of it. Where a party reoeivea money rromgino-
    ther whloh in equity and good cons.Olenoe it
    ought not to keep it cannot, by spending it,
    escape the llablllty to repay It. The law
    r0aOhes further than to the ldentloaloolns
    end bills whloh are reoelred. The defendant
    city la not the agent o? the taxpayers.    rt ir
    the inhabitants. .lncludlng the taxpayers, aat-
    lng under a oharter as a munlslpal oarporatlon
    with perpetual existence.    AS such oorporatlon
    it has acted, lerled   the tax, and reoelred the
    money. It has no shadow of right in good oon-
    solenoe to retain the money 50 paid. The
    plalntl?? brought the a&ion as soon as it dls-
    oooered the error. Neither the !&take of the
    plainti?? in paying or the #p2od faith of the
    de?endant.'ln reoelring, nor the ?aOt that the
    money has been spent, gives the defendant any
    equitable right to retain   the money. Ollpatrlo
    Y. Hartford, supra {OS Corm. 471, at page) 481
    (120 A. 3171.'



         qnder this restriction, po5slbly appelles
    oould not have paid the warrant from the state
    and county funds, but appellee had other ?unds
    derived from local taxes, tuition roes, and, eta.
    ***

         *In Adams Y. ?zlles (Tex.Com.App.) 35 8. IV.
    26 123, 127, the Coimalssion of iippeale held
    that artlole 2827 authorlz;ed sohool tIWtO8s to
    use the malntenanoe fund *for any reasonable
    purpose deemed by them sufflolent, hating rela-
     pItto    the oacauotof the mwolo in that ais-
           .' :jeo, nlm, Churahlll tm &mrU of Trtm-
     tcte8, zy. BP 3. 3. 128, lZ4, where lt 5s said:
     *In oreat&    these oorpomtlons the ieglslattim
     aid not osntmp~ato, ln aer.ining their poeera,
     to i.reventtliernfros   b&kg Just, 3r to take
     witay froa thm tla pow&r to dQ ri t wen an
     Lnnooent ahtake    hrra bean Irudo. P ha pawar to
     conduct t%e eohool nsaaoearlly oarriee with lt
     the pawn to meet those obligations      which are
     Justly incurred ln oofiduot13gthe 80hool.**



trlot*oould refund at a;I the lntereet and sinking fund
the portion ot the tcu annby ~rroneowly  placed themin.
There omla be no cp.mttlm    of airereion   of runar beoauee
the tax nonry Ln qw3srtlon notar ala trelmg in the iiitw3et
u3dalnklnp, ma   nor in sny other fund man though it YBB
nlatabmly gala into ml4 tunas. Tbroiore the alstrlot
aould rar4ma out 0r the lntereat and slnkine fuad the px-
bion paid into da    fund ov4r the r;eriod of years ena
could rarund out of the ~uhtanancs      fund the portion paLa
late eala funtl or on ths other hani? the ratlrr arao~snt eorild
bo reiunded out 0r the mlnteaanco funa on the authority 3s
ths above bldlng of tha Eeaw?ont Court of Clrll      i.ppeal@.

          It 1s our opinion also tnRt thin soasy should h
reftmdsd when aollected into the female even thou&b aal&
funds do 53t now bavS Stifid~At  t0 ~18ks the refund. The
debt here lo 4114which sms acarued not in one year but
aver a perlcd 3f f~mfie~n yesra sna the nomy zay be so-
funded when s wftcient   -wi    lo cdkit9d    to 00 63.

          ::o tr%at that the labor. dieortsnlon will adv;r*
yxa aa to the proper ?roaedure  to be taken ia this izattvn.
