                           RNEX-       GENERAL
                               RZKAS




                         August 25, 1969

Honorable Henry Wade            Opinion No. M-456
District Attorney
Dallas County Government Center Re: Discretion of District
Dallas, Texas 75202                  Attorney to refrain
                                     from filing forfeiture
                                     suits under Article 725d,
                                     Penal Code, and whether
                                     proposed alternate pro-
Dear Mr. Wade:                       cedures are prohibited.
     your letter requesting an opinion presents the
above questions and states that:

        "The proposed procedure is proposed
     to be used only in a fact situation
     limited to one wherein a motor vehicle
     has been seized as having been used in
     the transportation, concealment or pos-
     session of contraband narcotics. It
     is further limited to cases in which
     it is clearly evident that there exists
     a registered bona fide lienholder whose
     interest is greater than the present
     value of the seized motor vehicle."
     You further state generally that your office must
handle a multitude of these situations and that filing
forfeiture proceedings in court inherently involve ex-
pense and delay because of necessary service upon the
registered owner, the driver if he is other than the
registered owner, and the lienholder; that often all of
the parties cannot be located, the proceedings must be
delayed, and that service of citation, particularly
out-of-state, is expensive; that considerable time is
consumed in a hearing even after the case has been




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Honorable Henry Wade, Page 2, (M-456)



reached on the court calendar: and after such expenditure
of time and effort the seized automobile is released
to the lienholder.
     Pertinent portions of Section 2 of Article 725d,
Vernon's Penal Code, read as follows:
        "Any . . .vehicle . . .which is being
    used in violation of Section 1 of this
    Act shall be seized and forfeited to
    the Texas Department of Public Safety,
    Narcotics Section, under the provisions
    of this Act; . . . and provided further,
    no.  . .vehicle. . .shall be forfeited
    where it is shown that the illegal act
    has been committed by some person other
    than the owner thereof while such . . .
    vehicle. . .was in the possession of any
    person who acquired or retained such pos-
    session in violation of any law of this
    State or of the United States."
     Section 3 provides for enforcement of the Act and
reads:
        "Any officer authorized by the pro-
     visions of~the Acts enumerated in Section
     1 of this Act to enforce such acts may
     seize any vessel, vehicle or aircraft
     violating the provisions of this Act."
     Article 725b, Penal Code, (Narcotic Drug Regulations)
is specifically enumerated in Section 1 of Article 725d.
Section 22 of Article 725b provides, in part, as follows:
        "It is hereby made the du
     Department of Public Safety,
     ficers, agents, inspectors, and repre-
     sentatives, and of all peace officers
     within the State, including all peace
     officers operating under the juris-
     diction of the Department of Public
     Safety, or that may hereafter operate




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Honorable Henry Wade, Page 3, (M-456)


     under its jurisdiction and all County
     Attorneys, District Attorneys, and the
     Attorney General to enforce all pro-
     visions of this-Act, except those
     specifically delegated, and to co-
     operate with all agen~ciescharged
     with the enforcement of the laws df
     the United States, of this State,~and
     of all other States, relating to nar-
     cotlc drugs.   (Emphasis added)


     Section 4 of Article 725d concerning notice to the
parties provides, in part:
        "The seizing officer shall im-
     mediately file in the name of the
     State of Texas. . .a notice of said
     seizure and intended forfeiture. . .'I
     Subsections (a) and (b) of Section 4 provide for
service of citation, as in other civil cases, upon
the owner of the vehicle and upon any registered lien-
holder.
     Subsection (c) provides that if the motor vehicle
to be forfeited is susceutible to recistration in this
State and is believed to-be registered under the laws
of this State, the officer in charge of filing the for-
feiture suit shall make inquiry to the Highway Depart-
ment as to who is the record owner and who, if any, holds
any lien or liens against such vehicle. The officer in
charge of filing such suit shall cause any lienholder
to be made a party to the suit together with the record
owner ifsthe owner is any person other than the person
in possession of the vehicle when it was seized. Pro-
vision is also made for the Attorney General, District
Attorney and County Attorney, or any of them, to ascertain
the licensee and lienholders if the vehicle is not
registered in this State.




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Honorable Henry Wade, Page 4,   (M-456)




     Subsection (d) provides that if a person was in
possession of the vehicle when it was seized he shall
be made a party defendant in such forfeiture suit and
provides for service of citation if no one was in pos-
session of the vehicle at the time it was seized and
the owner thereof is unknown.
     Subsection (e) provides that no suit instituted
pursuant to the Act shall proceed to trial unless all
the provisions of subsections (c) and (d) have been com-
plied with.
     Sections 6 and 7 of Article 7258 read as follows:
       "Sec. 6. If it shall appear that the
    owner of the . . .vehicle. . . has filed
    a verified answer denying the use of such
    . . .vehicle. . . in violation of this
    Act, then the burden shall rest upon the
    State, represented by the District Attorney
    to prove as in other penal cases, the
    violation of the provisions of this Act.
    Provided, however, that in the,event no
    answer has been filed by the owner of
    said . . .vehicle. . ., the notice of
    seizure may be introduced into evidence
    and shall be prima facie evidence of said
    violation.
       "At the hearing, any claimant of any
    right, title or interest in the . . .
    vehicle . . . may prove his lien,
    mortgage or conditional sales contract,
    to be bona fide and created without
    knowledge that the . . .vehicle
                            -I      . . .
    was to be used in violation of this Act.
        "Sec. 7.      roof at the hearing
     shall disclos    at the interest of any
     bona fide lienholder, mortgagee or
     conditional vendor is greater than the
     oresent value of the . . .vehicle. . .,
     khe court shall order such . . . vehicle
     . . . released to him. If such interest




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    Honorable   Henry   Wade, Page 5, (M-456)


         is less than the present value, and upon
         proof of violation of this Act, the court
         shall order the . . .vehicle . . . for-
         feited to the State." (All emphasis added.)
         In view of the foregoing provisions, and particularly
    in light of the duties imposed upon enforcement personnel
    and district attorneys by the provisions of Article 725b,
    Section 22, it is the opinion of this office that once
    a motor vehicle has been seized by an officer for
    violation of Article 725d, it is the mandatory duty of
    the district attorney to file and prosecute the forfeiture
    suit in full accordance with the provisions of that Act.
         However, once such a suit has been filed, the district
    attorney, in representing the State as lead counsel, has
    control over the suit and, under proper motion and hearing
    thereon, may discontinue the same upon order of the court.
    State ex rel Dishman v. Gary, 163 Tex. 565, 359 S.W.2d
    456 (1962).
            Your second question presents an alternative to
    court proceedings and is "based on a determination in
    advance by the district attorney as to whether the parti-
    cular facts clearly show a bona fide lienholder whose
    interest    is greater than the present value of the seized
    automobile," which in substance is proposed as follows:
              "1. When the seizing officer has
         notified this office of the facts con-
         cerning  the seizure of an automobile,
         the lienholder will be notified.
            "2. If and when the lienholder, by
         affidavit and other proof, discloses to
         this office facts demonstrating himself
         to be a bona fide lienholder, that
         his lien is in an amount exceeding
         the present value of the seized
         automobile, that the record owner
         is in default on his obligation
         and the lienholder intends to fore-
         close his obligation, and that the
         lienholder's contract authorizes




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Honorable Henry Wade, Page 6, (M-456)


    him to repossess such automobile and
    he requests delivery to him for such
    purpose, then, as a matter of~law;
    under the facts, even court pro-
    ceedings.could result only in such
    car being released to the lienholder.
    Under such uncontroverted facts, it
    is proposed that this office decline
    to file court proceedings, and so
    notify the seizing officer and the
    lienholder of such action and the,
    grounds therefor.
       “3 * If and when the lienholder
    prepares and submits to the seizing
    officer a sworn statement summarizing
    his authority and his desire to re-
    possess such seized automobile; and
    that if it is released to him for such
    purpose; then the lienholder will'hold
    the cityand the seizing~officer harm-
    less from any suit or liability arising
    out of such'delivery to him, then such
    seized automobile will be released to
    such lienholder.""
     In State v. Cherry, 387 S.W.2d 149, 153 (Tex.Civ.App.
1965, no writ), the court said:
       "The right of the State to forfeit
    a vehicle'used in this vicious illegal
    traffic'comes into~existence instanter
    upon the commission of the~proscribed
    act, and it remains only for the State
    to perfect its title by'~seizing the
    vehicle and obtaining the decree of
    forfeiture. 7 FifthXof'Old Grand-Dad
    Whiskey v. United States, lO.Cir;;
    158 F.2d 34, cert. den. 33O‘U;S; 828;"~
    67 S.Ct. 870, 91 L.Ed.-1277. The law-
    specifies those innocent persons whose
    rights may transcend that of the State';
    and appellees simply'fafled to'~carry
    the burden of showing their inclusion
    within that favored group."




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Honorable Henry Wade, Page 7,   (M-456)




     Article 725d places a duty upon the district attorney
to institute forfeiture proceedings concerning a seized
vehicle, and prove in the first instance, that the vehicle
was being used in violation of this Act. The hearing pro-
vides an owner thereof the opportunity to bring himself
within forfeiture exceptions and provides a lienholder
the opportunity to prove his bona fide lien at the
        and prove that his interest is greater than the
s       value of the vehicle. We therefore find, upon
the facts presented, that the district attorney has no
authority to release a seized vehicle to a lienholder
in the absence of forfeiture proceedings and a proper
court order.
     Moreover, a forfeiture occurs where a person loses
some property, right, privilege, or benefit in consequence
of having done or omitted to do a certain act. The extra-
judicial release of a seized vehicle by a district attorney
to a lienholder would deprive the owner of a right'in the
vehicle when such issues could only be determined in an
action for forfeiture and to which the owner -
                                             and the
lienholder are made parties.
     Therefore, the procedure proposed by you as an
alternative to court action is prohibited.
                       SUMMARY
        When a motor vehicle has been seized
     by an officer pursuant to Article 725d,
     Vernon's Penal Code, it is the mandatory
     duty of a District Attorney to institute
     forfeiture proceedings; and, under the
     facts submitted, a procedure for re-
     leasing a seized vehicle to a lien-
     holder by a District Attorney in
     absence of a proper court order would
     be prohibited.
                           Very'truly yours,



                                          General of Texas




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Honorable Henry Wade, Page 8, (M-456)


Prepared by Monroe   Clayton
Assistant Attorney   General

APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Lonny F. Zwiener
2. T. Fortescue
Linward Shivers
Malcolm Quick
Hawthorne Phillips
Executive Assistant
W. V. Geppert
Staff Legal Assistant




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