Texas Attorney General Opinion: V-109 Page: 3 of 8
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Hon. George T. Thomas - Page 3 (V-109)
trict attorneys in nearly everything
pertaining to indictments and other
criminal proceedings local to their
respective counties, the Legislature,
finding the power in so many hands,
and fearing its abuse, provided that
it should not thereafter be lawful for
any district attorney to enter a nolle
prosequi upon any indictment or in any
other way discontinue or abandon same
without the leave of the court having
jurisdiction to try the offense charged.'"
In view of the foregoing authorities and the
facts set out in your request, it is the opinion of this
Department that the County Attorney may, with the permis-
sion of the Court, legally dismiss such cases.
If such cases are dismissed, you ask further
what effect does that have toward making the county lia-
ble for return of the fines and costs collected. The an-
swer to this question depends on whether the finesxwere
paid voluntarily or involuntarily. In 40 Am. Jur., 3 157,
pp. 820-821, we find the following:
It is a universally recognized
rule that money voluntarily paid under
a claim of right to the payment and
with knowledge of the facts by the per-
son making the payment cannot be re-
covered back on the ground that the
olaim was illegal."
We quote from 40 Am. Jur., 5 220, pp. 864-
865 as follows:
"The rule that illegal payments
coerced under duress or compulsion may
be recovered, provided the compulsion
furnishes the motive for the payment
sought to be recovered, and proceeds
from the person against whom the action
is brought, is supported by a number of
cases in which fines have been illegal-
ly or improperly imposed and paid by the
accused under circumstances constituting
duress, especially where the payment is
to avoid or secure release from impris-
onment for nonpayment of the fine, it
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Texas. Attorney-General's Office. Texas Attorney General Opinion: V-109, text, March 28, 1947; (https://texashistory.unt.edu/ark:/67531/metapth264929/m1/3/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.