Honorable Peyton Burke
County Auditor
Falls County
Marlin, Texas
Dear Sir:                   Opinion No. O-5739
                            Re8   Can the county auditor of
                                  Falls County legally ap-
                                  prove the claim of the C.O.
                                  Leuschner Estate for a re-
                                  fund of the taxes paid by
                                  said estate to Falls Couritv
                                  for the years 1914 through-
                                  19291

           This is in reply to your request for opinion. Your
said request is contained in two letters.
            In your first letter you say as follews~
          "On December 1, 1913 Mr. Otto Kunkel purchased
    from the C. 0. Leuschner Estate 463 acres of land.
    For the years 1914 through 1929 this land was ren-
    dered for taxation, to Falls County, by the C. 0.
    Leuschner Estate and also by Mr. Otto Kunkel.
          "The C. 0. Leuschner Estate has filed a claim
    with Falls County for refund of taxes paid by said
    estate for the years 1914 through 1929.
          "Can I, as County Auditor of Falls County,
    Texas, legally approve the claim of the C. 0.
    Leuschner Estate for a refund of the taxes paid
    by said estate to Falls County for the years 1914
    through 19297"
            In your second letter you further sayr
          "I am informed that after the sale of the
    property to Mr. Otto Kunkel by the Leuschner Estate,
    Mrs. Leuschner, widow of C. 0. Leuschner, began to
    handle the affairs of thenestate. Mrs. Leuschner
    continued to render, by mistake, the tract of land
    that had been sold to Mr. Kunkel and paid the taxes,
Hon. Peyton Burke, page 2


    when due, throughout the years. Mr, Kunkel, the
    owner of the land, also rendered same for taxes
    and paid same when due.
          "In other words, Mrs. Leuschner rendered
    this property for taxation by mistake and paid the
    taxes, when due, by mistake."
          The taxes paid by the taxpayer, which have gone to
the State, or which are held by the collector for the'State,
may not be rebated or repaid to the taxpayer by the tax col-
lector under any circumstances. Article VIII, Section 6, of
the Constitution of Texas declares:
          "No money shall be drawn from the treasury
     but in pursuance'of a specific appropriation made
     by law."
          With reference to the taxes due the County and paid
by the taxpayer under the mistaken belief that she owned the
property on which the taxes were paid, our understanding of
the law as laid down by the Supreme Court of Texas in the
case of City of Houston v, Pelser, 13 S.W. 266, may be brief-
ly stated as followss
          Taxes paid to a county by a taxpayer who acts under
a mistake of fact which does not arise in connection with his
own negligence may be paid back by the county.
          Mistake of fact can scarcely exist in connection
with negligence; as illegalities which render such a demand
a nullity must appear from the records, and the taxpayer is
just as much bound to inform himself what the records show
or do not show as are the public authorities.
          Your request for opinion does not disclose any fact
or facts which would make the taxpayer's ignorance of her
ownership of the property such a mistake of fact as would ex-
cuse her from knowing she did not own the property at the time
she paid the taxes thereon.
          Of Bourse, if she joined in the deed of conveyance
by which the property was divested out of her estate, or if
the deed by which the grantee held the land was placed of
. ,. .




         Hon. Peyton Burke, page 3


         reoord, her lack or lmowltdge, if any, of the fact that
         she did not own the land when she paid the taxes on same
         was attributableto her own negligence.
                                        Yours very truly,
                                     ATTORNEY OENERAL OF TEXAS

                                     By /s/ Qeorge P. Blackburn
                                                      Assistant
         OPBrAMMrRT




         APPROVED: JAN. 28,   1944

         /B/ GROVER SELLERS
         ATTORNEY GENERAL OF TEXAS
