Untitled Texas Attorney General Opinion

Au-. 'l-k+& parOa D-- PAcaAk DIKBON L-==-=--==- -- 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 APPROVED: