         ER

                    OF    TEXAS




Honorable J. Earl Rudder
Commissioner, General Land
    Office
Austin, Texas

                   Opinion NO. s-206

                   Re:   Refund of annual advance pay-
                         ments held in suspense on
                         mineral awards! und,er Articles
                         5388, et seq., v.C.S., upon
                         forfeiture for failure to
                         file the required affidavit
                         of assessment.

Dear Mr. Rudder:

          Recently you have made an opinion request of
this office as follows:

          "This office desires your official
     opinion regarding the refund of annual
     payments on mineral awards under Articles
     5388, et seq., duly paid within the month
     of January, but which awards have become
     subject to forfeiture for failure to file
     the proper affidavits of assessment work
     required to have been done during the
     calendar year of 1955.

          "On July 29, 1955, a group of mineral
     awards were made to John, George and S.J.
     McSpadden on Section 132, Block,3, D & P
     Ry Co. Survey, Presidio County, which has
     been sold as school land with a reserva-
     tion of all minerals thereon and there-
     under."

          Your request indicates that initial payments
for the awards were made by the awardees at the time of
their acquisition. Your request further shows that you
Honorable J. Earl Rudder, page 2    (NO-S-206)




are concerned over advance -payments made under Article
5395, Vernon's Civil Statutes.

          Your request continues:

          "On January 27, 1956, this office
     received from John S. McSpadden payment
     to cover the statutory payments on the
     awards for the claims in question, but
     to date no affidavit of assessment work
     has been filed showing that the required
     assessment work was done during the calen-
     dar year of 1955.

          "It is my interpretation of the law
     that these claims are subject to forfeiture
     for failure to file the correct affidavit
     bf assessment work, and they have been so
     forfeited. . . .

          "The payment in question was deposited
     in the suspense account when it was re-
     ceived pending the filing of the proper
     affidavit of assessment work. . . ."

          You then in substance ask the following question:
Am I required by statute to forfeit the payments received
January 27, 1956, which payments have been placed in
suspense?
          The requirements concerning annual assessment
;;;;o;;pear in Article 5394, V.C.S., reading in part as


      . . . if an award is issued prior to
     the first day of October of any year
     the first annual assessment work shall
     be done before the end of that calendar
     year, and during the month of January
     following, such owner shall file in the
     Land Office his affidavit that such work
     has been done and shall state the extent
     thereof. Such owner shall, during each
     succeeding calendar year beginning Janu-
     ary first next after the date of such
     award, perform the required annual assess-
     ment work and file an affidavit thereof
     as in the first instance. . . ."
    L


.




        Honorable J. Earl Rudder, page 3 (No.S-206)



                  Provision for annual advance rental is made in
        Article 5395, viz:

                  "The owner of each claim shall pay
             fifty (50) cents per acre annually in ad-
             vance after the award and during the month
             of each wceeding   January of each year
             thereafter: D . ."

                  Article 5397, V.C.S., calls for forfeiture of
        awards as follows:

                  "If the locator or owner of any claim
             obtained under this law shall fail or re-
             fuse to make the payment of any sum within
             thirty days after it becomes due. . . or
             refuse to give correct information to then
             proper authority or knowingly fail or refuse
             to furnish the Land Office all correct re-
             ports required by this law, the rights
             acquire/d under the location or claim shall
             be subject to forfeiture by the Com-
             missioner. . . .I'

                  Under Article 5395, if forfeiture is to be
        avoided, advance rentals must be paid to the State each
        successive January. This requirement is in addition to
        the development work called for by Article 5394. Failure
        to meet the obligation imposed by either of these Arti-
        cles is reason, among others, for forfeiture under
        Article 5x97. Thus, rental payment and assessment affi-
        davits are both required, and failure to comply with the
        statutes in either regard results in forfeiture. The
        rentals belong to the State upon receipt and the
        statutes are silent as to 'refund in the event of for-
        feiture for any of the reasons set forth in Article
               Evidently you placed the advance rental in SuS-
        z%e   under the provisions of Article 4388, V.C.S
        As this rental belonged to the State and its statis was
        not undetermined you should have deposited same into
        the proper fund in the State Treasury upon its receipt.

                  The rule is well established that advance pay-
        ments of fees, taxes, etc., may not be prorated and a
        refund made where the payee either forfeits or voluntarily
        surrenders the privilege for which the advance payment was
Honorable J. Earl Rudder, page 4 (No. s-206)



made unless, of course, the statutes under which the pay-
ments were made specifically so provide.  See Attorney
General's Opinions Nos. 0-6302, o-7113 and S-199.

          The same result obtains upon the application
of the law of ordinary rental payments. The rule is
stated in 32 American Jurisprudence, Landlord and Tenant,
Section 875, page 741:

          "A forfeiture of the term does not
    release the tenant from liabilities under
    the lease which had accrued at the time of
    the forfeiture. He remains liable for rent
    accrued at that time, including, according
    to the generally accepted view, accrued rent
    payable in advance, though the forfeiture
    occurs before the period to be covered by
    such advance payment; 2 fortiori, where rent
    has ,been paid in advance, under an agree-
    ment that it shall be so paid, and the lessor re-
    enters   for. conditions broken, he is enti-
    tled to retain the rent so paid."

          The Texas courts have adhered to this rule in
such cases as Collier v. Wages, 246 S.W. 743 (Tex.Civ.
APP., 1922) and Dearborn Stove Co. v. Caples, 149 Tex.
563, 236 S.W.Sd -486 (1951).
          It is, therefore, the opinion of this office
that advance payments on mineral awards are not re-
fundable under the fact Situation recited above.


                      SLJMMARY



              Annual advance payments on
        mineral awards issued pursuant to
       Articles 5388, et seq., V.C.S., are
       not refundable, in whole or in part,
r




    Honorable J. Earl Rudder, page 5 (~0.,$-206)




                upon forfeiture of the award for
                failure of the awardee to file the
                required affidavits of assessment
                work.
                                        Yours very truly,

                                        JOHN BEN SHEPPERD
                                         Attorney General
    APPROVED:


    J. Arthur Sandlin                  By   d&d      [LA'-
    Land Division                            Robert E./Anderson
                                             Assistant
    W. V. Geppert
    Reviewer

    Mary K. Wall
    Reviewer

    L. W. Gray
    Special Reviewer

    Davis Grant
    First Assistant

    John Ben Shepperd
    Attorney General

    REA:bt
