                       March 9, 1959

Hon. V. L. .Ramsey, Chairman   OplnloriNo. WI-570
Revenue and Taxation Committee
House of Representatives       Re: Constltutlonallty of ~H.B.
~Austln,Texas                      32, 56th Legislature ‘7
                                   the Abandoned Property
Dear ,Mr..‘Ram~ey:                 Act;
        This Is in responsesto yoer.reqtie& for the opinion ”   ~,,
of this offI& al,to the ‘constltutlona,lltyof H.B. 3g.’ :
        We have carefully read and donsldered the contents
of H.B. 32.   We find that said H.,B. 32 Is essentially an
escheat law, and; If passed, will bk.supplementary to exlst-
lng escheat laua, namely, &tlcles 3272-3288,   V.C.S.  The
enaqtment of escheat laprs1s not only authorized but,16
demanded by the Texas Constitution, Article XIII, Section
1. The subject matter of the law which.18 to be acted upon
IS $roperty which has no owner. Such property, in the
United States, and each of the several States, IS tradit;;;-    .
ally the proper subject matter of eacheat proceedings.
legal mechanism provided by Ii.B. 32 for acting upon this
subject matter Is essentially the,mechanism of the,,e~scheat.
groceedfin&js.c. B. 32 provides (i$);;rtitlt;;y;;e iE?,z;i;-
 notlce,.,.b&r,~inqu&st of office,
ture In the State of all the title and possession of all
ownerless property. These provisions are all proper and
necessary parts of all eecheat laws.
        Insomuch as escheat laws are conrmandedby our Con-
stitution to be enacted, as shown above, It necessarily
follows that enactment of such a law as 8. B. 32 (same
being an escheat law) Is authorized by OUT C6nstltutlon.
        YOU have asked four (4) differ&& que~stlons. For
the sake,of clarity, each question,Will nor bd set out in
substancesand the answer wlJ1 im@edl&teJy,fpLlow,the question       .~~
an net out.                 ,.   .      _.
                             I8 the Act Invalid as a retko-
Hon. V. L. Ramsey, Chairman, Pa&e 2   (WW-570)


        We answer the question In the negative. There Is
nothing "retroactive" in said Bill. .The Texas Constitution
positively prohibits the enactment.by the Legislature of
a retroactive law.
         Article I, Section 16 of our Constitution provides
 as follows:
         "No. .,,.retroactive law . . . shall be
          made.
         The "retroactive law" thus prohibited by the Texas
 Co&tltutlon has been defined In varying phraseology by the
,~mlmerouscourts and legal writers having occasion to define
 6ame. But in stibstancethese several definitions are the
 .pame. The Texas Courts have defined the words "retroactive
~'
 lew* as follows:
         In the aa6e of Keith et al vs. auedry, 114 S.W. 392
 the Court of Civil Appeals, speaking through Judge Nelll,
 said thlb:
         (a) "A'retroactlve Iaw' 1s one made to affect    "
         acts or transactlons,occurrlng befo?e It came
         into effect, or rights already accrued, and
         which imparts to them characteristics or ascribes
         to them ef\Sects,which were not Inherent In their
         nature 'in the contizmplatlonof the law as It-.
         stood at the time of their occurrence. It gives.
         a right where none before existed, or takes away
         one which before existed. . . . Here the State
         Constitution, eo nomlne, forbids, and has for-
         bidden since the days of the republic, the passage
         of retroactive laws. However, this provision has
         been construed by the courts of this state and
         some other states having like constitutional lnhi-
         bitions, only as restriction upon the power of the
        :3e@sSature to pass such laws as Impair the obllga-
         tlons of contracts, divest vested rights, such as
         exceed the general powers of the Legislature or
         invade the province of other departments of govern-
         ment".
       i Substantially the same definition of "retroactive
 law" Is set forth In the opinion of our Commlsrion of Appeal8
 In American Surety Company of New York vs. Axtel Companr,
 36 S.W. 26 715.
Hon. V. &. Ramsey, Chelrman, pag$ 3   (W-570)



        The provisions of H.B. 32 do not In any way come
within the terms of.sald definition of "retroactive" law
and there %a nothing ,lnthe Bill which makes It an act
in violation of the constitutional prohlbltlons against
the enactment of retroactive laws.
          "A statute does not operate retroactively from
the mere,fact that It relates to the antecedent facts.".
(37A Words'and Phrases; permanent ,ebltion,page 232
citing among other authorities, Black Interp. of Laws,
pa&e 237)
        There l~nothlng In any provision of H. B. 32
which make8 It a retroactive ,lau.
           Even In a jurlsdlctlon such as Texas where retro-
,aot.iye  laws are expressly prohibited by the Constitution,
it is said to be well settled that a retroactive law which
a#Yects only remedy or procedure (ah does H.B. 32) Is valldl,;
provided, the changes made are reasonable changes. (See
~16A C.J.S. pages 108 and 109 citing        of Mason v8. ,Weat
Texar Utllltles Company, 237 S.W. 2d         150 Te   16
and other Texas cases.) In order to be d retroa%lve'iaw
'.
within the prohlbltlon.of the constitution there vst be
a disturbance of vested rights and without such disturbance
there Is no retroactive law. (Wilson vs. Work, 62 S.W. 26
490, 122 T&x.,545: Covington vs. Covington, Civ. App. 27~1.
SdW. 26 849; City 03 F t Y th          Moprow, Ctr.App. 284
S.W. ,275). It has furE;er Eien Eiid in Texas that a statute
which although it Is retroactive, now provides a:repledyfor ..
an eilrting    right ls’valld. (Lyon-Gray Lumber Compahy vs
                                ?!ommlaslonAppeals, 269 S ri
                                mlth, Clvl> Appeals, 194 i.'
                                me retroactive because It pqo-
vldes a new remedy where none existed before. (McCutchlon
& Church vs. Smith, supra.)
       ,(2) Second Question. .'I8 the Act Invalid as lmpalr-
ing contract6 In violation of the Texas Constitution?
          Our anewer to ihis question 18 In the negative. The
Act is not ltivalldan lmpalrlng aontracts ln~vlolatlon o?
the Te.xar Comt ltutIon.
                                          L'
Hon.~v: L. Ramsey, Chairman, page 4 .(wW-570)


         Ii.B. 32 operates upon property onl.ywhich has no
,‘owner,either by reason of (a) the title to the property
 his ~been”abandonedby the owner of the title or (b) the
 oivnerof the property has died Intestate and left no heirs.
,~Whenthe possession of property 6f either or both of sald
 n&med classes is In the hands of a custodian, the c,.uatodlan
.has the cuetody, that Is, the possession but the title does
 not rest In the custodian. The original contract between
 the then owner and the custodian which obllgateU.8.the
 custodian to render ~the possesklon, at some designated
 ,tlme,on demand, t,othe possessor of the title has become     * ~’
 lrpossible of performance by reason of the loss of the
 title by ,hlm.whop forswirlypossessed It. The provlslons  ‘-
 of H;B. 32 ~merely provide a legal mechanism by which
 the possession and the title oP this,property are unli;ed~
 In the owner thereof, the
                         .. State
                              .     of Texas.
          (3) Third Question. Is the Act Invalid as an ex
 post facto law?      ,,
           There Is no provision In’H. B. 32; which constitutes
 any part of an ex post facto law. An ex pant facto law has
 to do wholly with crime. The criminal provisions in H.B. 32
 are those set out In Section 27 thereof and these provisions         i
 apply wholly to Acts of commission or omission which can
 only occur In the future and after the passage of said Bill.
 An ex post facto law Is otiewhich makes criminal an act
 which vias Innocent when done and which punishes It. (Hill       .
 vs. St&tie,171 S.W. 2d 880, 146 Tex. Criminal Reports
 petition dismissed 64 S.Ct. 72, 320 U.S. 806, 8 AL
 or which aggravates a crime making It a greater crime than
 when committed : 111 vs. State, supra) or which changes the
 punishment and f??zesa more severe penalty than the penalty
 wan when the orlme was committed. (Hill v5. State supra
 and Mllligan   va. State, 167 S.W. 2d m8) or alters the rules
 of evidence so as to receive less testimony or different
 testimony than was required to convict at t.he time the
~,offensewas committed (Hill vs. State, aupra and Allllgan
 vs. State,,supra.)
         There Is nothink'in the contents of H. B. 32 which
 makes It in any way an 6x poat facto law.
        .44) ‘Fourth Question. The fourth question In sub-
 stance,r&uests that the Attorney General’s opinion consider
 .wh&hex there Is tiy,provlslon of the Texas Constitution not
 Inquired about which-would mike H.B. 32 invalid.




             :
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                                                                             I




              Hon. V; L. Ramsey, Chairman, .page 5 (WU-570)
                      Thin question Is very general and we can.only
              anawer It in general temm.
                      We have found no provlrion of the Texan Conetltu-
              tlon which would make H. B. 32 invalid an a whole, but we
              ,areof the opinion that the conrtitutionality of Section
              17, which provide6 far pagrent of lnterert ir doubtful.~
              However, this bill contalna a neverability clause and in
              the event the courts declare this eectlon to be unoonstltu-        .
              Mona1 it would not affect the other provlrlonr of the
              Act.
                       Under Article 3272, V.C.S. - Ellis vs. State,2zl
              ~S.Y. 66 and Robinson et al vs. State,,et .al, 87 ,S.W.
              297, the $lt~6~~       in the State by operation of. law
              where clro~etances exist ercheatlng property to the State.
              Since the property transferred to the State Is prbaumed
              abandoned, the title 18 presumed to have already vented
               in the State at the time of the transfer.
                      Ali the provisions of both the Federal and State
              Constltutlc+a which require “due process”  are amply oom-
              plied with by the provision8 of this Bill. “Due procem
              of law In each particular cane mean8 buch an exercire of
              the power&of the government aa the nettled maxims of law
              permit uid ‘aanc$lon, and under such safeguard6 for the pro-
              tection oftindividual rights as those maxlme preecrlbe f’or
              the clars of caeee to which the one in queetlon belong.”
              (Cooley, Conet. Lla. 441). We find each df the eletintr
              of due :process an&y provided for 1s~II.,B.-32.
                      Article III, Section 50,   of the Conetltutlon of
          .
              Texas lr as Pollowe:
                       “The Legislature shall have no power to
                       give or to lend, or’to authorize the
                       giving or lending, of the crkdlt.of the
                       State in aid of, or to any person, aaso-
                       cfation or-‘~corporhtlbn,
                                               whether municipal
                       or other, or to pledge the credit of the
                       State in any manner whatsoever, for thb
                       payment of the llabllltlis, preient”or
                       proepectlve, of any lndivldtial,are’ociatlon
                       of lndlvldualr, municipal or other corpora-
                       :tlonwhatsoever.”                ,
               .aMd’hrtlale III in Seotlon’49 OS th! Conrtltutlop of Tkxu,
              iray6:
Hon. V. L. Rameey, Chairman,,page 6 (VW-5701


         "No debt shaP1~be created by or on behalf
         of the State, except to supply casual de-
         ficiencies OF revenue, repel Invasion,
         suppress Insurrection, defend the State
         In war, or pay existing debt; and the debt
         created to supply deficiencies in the
         revenue,shall never exceed In the aggregate
         :atcny cne-,tlmetwo hundred thousand dollars."
   .
        Neither of these constltutlonal provisions prohibits
the doing of anything which is provided for In this Bill.
These laws do not prohibit the Legislature from using the
credit,of the 'State for State purposes. (Cltv of Aransao
Pysa va’.State,,112 Tex. 339, 247 S.W. 81r
8lon vs. Vaugfian,Civil Appeals 288 S.W. 875w
        Here the title is presumed to be in the State at the
time of transfer and hence there is no debt created.
Section 23 gives any person asserting an interest In the
property the right to file a claim against the State,
Section 24 gives him an administrative determination of the
justness of his claim, and Section 25 gives him a judicial
review. This satlsfJ.esall the process requirements raised
by the transfer of property which has not in fact already
e&heated to the State at the time of transfer. This "claim"
for property transfered which has not under the facts of
a particular case already escheated-Is neither a "d;ebt"
nor a pledge of "the credit of the State" within the mean-
ing of the Constitution, but Is comparable to a claim for
taxes paid under,protest which are later determined to be
not actually due.
                     SUMMARY
         H..B. 32 1s not a retroactive law; It does
         not   pair the obligation of contracts in
               ion of the Texas Constltutlon and Is
         violiit
         not invalid as an ex post facto law. H.B.
         32 Is a constitutional Act.




GPB/fb
Hon. v. L. Rameey, Chairman Page 7 (WW-570)


APPROVED:
OPINION COMMITTEE
Jim Rogers, Chairman
Fred Werkenthin
Wallace Flnfrock
Arthur Sandlin
Morgan Nerbltt
REVIEWED FOR T,p ATTORNEY 5ENERAL
By: W. V. Qeppert                              .   -




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