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                    OFFICE   OF THE   ATTORNEY    GENERAL    OF   TEXAS
                                          AI+STlN




      f;O2. ;ildnny’tatha2i
      Seoretar~ 0r Stats
      Au&h,     Texas

          Seer Sir:




                                                             was inproperly rim,
                                                            dldssed   on imtion


                                                       d April24; 1944,has
          been ooneid                                  uote from ytxr letter




                                        juCgmr&a were entered in a certain
                                     benefit of several manufacturing oom-
                                              tams under protest on the
                saze ~roucdo.  3633 jud&-Ante were agreed u>m beoause
                of the Swlsion  iziZIouera v. Fair Amrican  Eeflning  Coqmnp,
                                 7. 26 382, error rafueod.   The olaos ootion
                                      properly flied in a ootlrt or ooinpeteat
                                       the in&lvlLlual .zctlan mn’;ioned in
                                            wxi 1mpropsrl;r riled,
iion. Sidney Latha%, page 2


             Vearlng in mind tbs foregoing     faots, please advise
     OA t;-.s rdi0whg  queetiour

            *':oes this depsrtmeat have the authority to now
     voluntarily refund to trre oorwration   involved the amounts
     peid under proteat, suit for reoovery of whiob was filed
     Sut in?roperly, aod subesqueatlg dis;aissed on uotion of
     the plalntwr?~

           Csotion 1 or Artlo    7057b,V. A. C. S., allow8 any
person, rim or oorporation, that is required to pay to tha head
of any State department any oooupation, gross.reoelpts, franohlse,
lloense or othtr privilege tax or fee, whloh he does not believe
he is lawrully required to pap, to aooompany auoh ?a$mnt with a
writtea protest, settlng ohIt fully and in detail the grounds for
whioh it 1s oontende& that suoh demand I8 unlawful.

           Seotion   2 of this Artlole provides in part a8 rollavsr

           "Upon the payment of suoh taxes or feos, aacompanled
     by such written ;rotest, the taxpayer ahall have ninety (90~).'
     days fro0 said date within whloh to file ault for the reoavery
     thereor I.&any oourt or ooskpetent jurlsdlotion in Travis
     County, Texas, and nooe other . . . Provl.Ced, however, where
     a olaaa aotlon lo brought by any taxpayer all other taxpayers
     belongiog to the olass sod repreaeoted'in suoh alas8 aotion
     who have properlg prOt8Sted a8 herein provided shall not be
     required to file separate suits but shall be entitled .to a&
     gOV8raed by the deoision rendered in suoh olass aotion. . . .*
           In opinion Xo.     O-4819this   departnent   ruled:

            Wonsequently,    it is our opinion that rerund ror taxes
     paid under iJroteat nay be aooompliahed only by oomplianoe
     with the provisions of Artlole 7057b, sod that euoh refuods
     zmy ae -made only after   judg.oe.otfavorable to the taxpayer
     is roaohed in a suit    filed within ninety days fron: ths date
     of myzrt    *in any oourt of oonpetant juriadiotion ln Travis
     Comty,   Texas, ,aod'hone other.'"

           As stated is yam request, the oorporration involved
did not obtain judgmmt ravorable to Its oause but rather volm-
terily dIsmissed its aotlon.   ?crther?;lore,suit 'iyasnot filed
within the presoribod tis;e in a court of ooogetent jurlsdiotion
1~ Travis County, 'I"9mS.
lion. Sidcey Latham, gaze 3


           11 opinion I:o.C-5876 this departusnt ruled that
it 1s necessary for me olaiei~ the benefit of the *olass
aotlon' povided ln .3wtim 2 of ?rtlcle 70573 to be spclfl-
callg nazxd 9s olsi~1~1~~or intervening in such suit in. order
to recover franotilse taxes gald under protest.   ‘e gresu3e
ima  reading y3ur reqiest that the oorgor: tlon under onnsldera-
tion uas not specifioslly namd as a plaintiff or lntervenor
in the class aotlon referred to in your letter, and as a
cotwequenae thereof, could not olali~ the beAmfit of thls 01~s
aotlon.

          3ased upon the foregoing, Lt 1s the opknlon of this
deparMent that tke Z’eoretary of Stat. does snothave the authority    i
to voluntarily refund tc the oorporation Involved the amount or
rranohlse   tax paid under protest.




                                      sy   &/&maLL
                                                     Robert 0. Kooh
                                                          Assistant




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