Untitled Texas Attorney General Opinion ( 1942 )

Honorable Geo~.H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir: Opinion No. O-4891
Re: Whether or not ad valorem
taxes must be collected on ex-
cess land owned by the State
prior to the date of a deed
of acquittance under Article
5421c-1, V.A.C.S.
This is in reply to your inquiry of whether or not,
prior to the giving of a deed of acquittance by the Land Com-
missioner, State and County taxes must be collected on ex-
cess acreage in surveys patented by the State.
The facts given by you are as follows: Survey 65;
Certificate 1225, Abstract 52, original grantee A.B. & M.,
La Salle County, was patented as containing 640 acres, ana
taxes have been paid on 640 acres. A recent survey indicates
that said tract contains excess acreage in the amount of 116
acres; and a deed of acquittance under date of September 2,
1942, was obtained from Hon. Bascom Giles, Commissioner of
the General Land Office, covering Survey 65 as containing 756
'acres. Such deed of acqufttance was obtained under Article
5421c-1, V.A.C.S., being Section 4, House Bill No, 9, 46th
Legislature, approved June 16, 1939; and the land owners paid
the State of Texas the appraised value of such excess acreage.
The question has now arisen as to whether or not there
are State and County ad valorem taxes due for the period prior
to September 2, 1942, on the 116 acre excess In said survey,
State and County taxes having been paid on only 640 acres by
the owners of said 640 acres, who were the good faith claim-
ants of all of said survey.
The statute under which this purchase was made and the
deed of acquittance given was Article 5421c-1, V.A.C.S., which
reads as follows:
"In all cases where the area of a tract of
land titled or patented exceeds the quantity
called for in the title or patent, and where
. -_
Honorable Geo. H. Sheppard, page 2 o -4891
under the existing law the title to all or any
part thereof shall or may be affected by the ex-
istence of such excess, then any person owning
such survey or havingan interesttherein may
pay for such excess acreage at such price as the
empowered authority may fix. Any personowning
any interest in a ~titled or patented survey in
which excess acreagesexists who desires to pay
for ~such excess acreage, shall file with the Land
Commissioner a request for an appraisement of the
land with corrected field notes in the ~form now
provided by law, together with a statement of the
facts pertaining to his right to purchase, which
statement shall be sworn to, and such other evi-
dence of his right to purchase as the Commissioner
may require. Should It appear that such excess
actually exists and that the applicant la en-
titled to the benefits of the law, then the Com-
missioner shall execute a deed of acquittance
covering such land in the name of the orlg~inal
patentee or his assignees with such reservation
of minerals or with no mineral reservation, ac-
cordingly as may have been the case when the
survey was titled or patented. Such transfer
shall inure distributively to the benefit of the
true and lawful owners of the survey in propor-
tion to their holdings."
For the purposes of this opinion we will assume in
this case that the original grantee only obtained title to
640 acres or a 640/756th interest in the 756 acre survey, and
that the State continued to have title to the exceaa~above
640 acres In the survey until the deed of acqulttance was given.
The above quoted Article 5421a-1, we believe, presupposes that
the excess mentioned is State owned land, the title to which
can be acquired by purchase from the State in compliance with
the act. By invoking the terms of said article and making the
purchase thereunder the applicant cannot deny that the State
owned the excess acreage which he seeks to buy and that title
thereto la and always has been in the State. In 34 Tex. Jur.
93 a statement is made as follows:
11
. . . . The State is entitled to recover an
excess of land which has been included in a sur-
vey by mistake; and statutes have from time to time
made provision for the ascertainment and disposl-
tlon of excesses + . . D0'
On the assumption that the State had title to the 11.6
acre excess in this case, we will proceed to discuss whether
Honorable Geo. Ii.Sheppard, Page 3 o -4891
or not that interest was taxable. The State had just as good
a title to a ,116/756thinterest in said survey (a 116 acre
interest in 756 acres) as if it had owned outright and alone
a 116 acre block of land. In the case of Thomas v. Cline,
135 3. W. 2nd 1018, in which the court found that the State
had title to a 6.7 acre'excesa in a section originally con-
veyed as having only 640 acres, but actually containing 646.7
acres, the court said:
"The acreage in excess of 640 acres in said
section 46, until purchased from the State, was
never owned by plaintiff Thomas, nor defendant
Cline, nor their predecessors in title, but it
was owned by the State and held for the beneflt
of the public free schools of Texas. Until the
disputed strip became the property of Cline, by
purchase from the State, plaintiff Thomas could
not acquire title thereto by limitation, and
limitation did not begin to run until the convey-
ance by the State to Hatch for the benefit of
Cline.
. . . . .
"Title to said land belonging to the State was
not acauired by plaintiff Thomas by adverse poasea-
sion, even if Cline recognized the old fence line
as the boundary between the tracts. Weatherly v.
Jackson, 123 Tex. 213, 71 3. w. 2d 259."
It is a well known rule of law that property belong-
ing to the State is not subject to taxation because It would
result in the State taxing itself. Corporation of San Felipe
de Austin v. State, 111 Tex. 108, 229 S.W. 845; State v.
Locke, 29 N. Mex. 148, 219 P. 730, 30 A.L.R. 407. In 2
Cooley on Taxation, 4th Rd., 1317, it says:
. . . . the general rule, independent of
constitution or statute, is that proaerty belong-
ing to the state or a political division thereof
is not taxable, on the theory that such taxation
would merely be taking money out of one pocket
and putti it in another, unless the constitution
or states7 statutes) clearly show an intention to
tax such property; . . . .' (Parenthesis ours)
Our answer to your question is that State and County
taxes are not due on the 116 acre excess of the property in
question for the period prior to the date of the deed of ac-
quittance for said excess, to wit, for the period prior to
September 2, 1942.
Honorable Geo. H. Sheppard, page 4 o-4891
In view of the fact that this excess land became.tax-
able between January 1 and December 31, to wit, on September
2, the following language of Article 7151, V.A.C.S., is ap-
plicable, to wit:
II
. . . ;If any property has, by reason of any
special law, contract or fact, been exempt or has
been claimed 'to be exempted from taxation for any
period or limit of time, and such period of exemp-
tion shall expire between January 1, and December
31 of any year, said property shall be.asaessed
and listed for taxes as other property; but the
taxes assessed against said property shall be for
only the pro rata of taxes for the portion of such
year remaining."
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Cecil C. Rotsch
Cecil C. Rotsch
Assistant
CCR:ff:wc
APPROVED NOV 13, 1942
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman