                          QBffice of the PXttornep Qhneral
                                    Mate of Eexae
DAN MORALES
 ATTORNEY
      GENERAL                              June 13,199s

     Honorable Paul Sadler                          Opinion No. DM-352
     Chair
     Committee on Public Education                 Re: Application to leased paging devices of
     Texas House of Representatives                Education Code section 21.309, requiring
     P.O. Box 2910                                 forfeiture of paging devices possessed by
     Austin, Texas 78768-2910                      student on school property or at school
                                                   activities, and related questions (RQ-702)

     Dear Representative Sadler:

            You are concerned with the implementation of section 21.309, Education Code,
     which provides:
                    (a) A student in a public school may not possess a paging device
               while on school property or while attending a school-sponsored or
               school-related activity on or off school property, [with exceptions for
               certain tImfighting and medical emergency service personnel].

                    (b) [School district’s written standards of student conduct must
               include subsection (a) prohibition.      Student violating prohibition
               subject to discipline as provided by district policy].
                    (c) A person who discovers a stuaknt in possession of a paging
               device in violation of this section shall report ihe viokztion to the
               qpropriate school ariministrator, as determined by school policy,
               who shall order a peace oflcer or appropriate school employee to
               confiscale the device, which is fodeited to ihe school district.

                    (d) In this section, “paging device” means a telecommunications
               device that emits an audible signal, vibrates, displays a message, or
               otherwise summons or delivers a communication to the possessor.
               @Xmphasisadded.]

            You ask:

                     Are there any unanswered legal questions surrounding a
               district’s confiscation of a paging device on& leased by, and not
               uctuully owned by any given student? Is the business company
               owning the device entitled at all to its recovery given its innocence in
               the whole matter7 [Emphasis in original.]
Honorable Paul Sadler - Page 2          (DM-352)




        We note at the outset that we cannot in an attorney general opinion attempt to
anticipate all situations that may arise in the implementation of section 21.039 with regard
to leased paging devices. See generally Attorney General Opinion N-1225 (1990)
(whether a car telephone is a paging device subject to section 21.309). Moreover, as we
have noted before, where a statute is not unconstitutional on its face, we are generally
unable in an attorney general opinion to weigh or balance the competing interests involved
so as to determine its constitutionality, especially for purposes of all possible applications.
Such determina tions would be made by a court after affording the parties opportunity to
introduce evidence relevant thereto, a procedure we are unable to perform in the opinion
process. See, e.g., Attorney General Opiion DM-261 (1993) (constitutionality of
provisions for impoundment of vehicle where proof of financial responsibiity not shown).
We offer the following for your guidance.

         State v. Richcvds, 301 S.W.Zd 597 (Ten. 1957) dealt with a forfeiture of a vehicle
under former V.T.C.S. article 725d. Richards, the owner, had lent the vehicle to another
person, a customer at his place of business, on the latter’s representation that he needed it
“for thirty or forty minutes” to drive to his brother’s apartment to change clothes. The
borrower of the vehicle was subsequently arrested with narcotics, that is, “two dolophine
pills,” in his pocket and it was shown that he had had them on his person while driving the
vehicle. The statute in question made it unlawful to transport or possess wntraband
narcotics in a vehicle, and tbrther provided for the seizure and forfeiture to the
Department of Public Safety of any vehicle thus used. The supreme court noted that the
statute specifically excepted from its operation vehicles used by a wmmon carrier unless
the wmplicity of the owner or person in charge could be shown, vehicles illegally retained
or acquired from the proper owner, and also by specific provisions protected the rights of
bona fide mortgagees (hen holders). Applying the rule of statutory wnstruction that “[a]n
exception.       makes plain the intent that the statute should apply in all cases not
excepted,” the court concluded that forfeiture of Richards’s vehicle was within the intent
of the statute.

        With respect to the wnstitutionahty of the forfeiture there, the Richor& wurt
noted the strong state interest in suppressing trafiic in narcotics, including deterring
owners of vehicles from, even unwittingly, abetting it.1 It found that procedural due
process requirements were satisfied in the case at hand since the statute specifically
required that the owner of the vehicle be given notice and an opportunity for hearing prior
to actual forfeiture. Finally, in holding the vehicle forfeit, the wurt noted that the innocent
owner there might retain a cause of action against the borrower of the car for his loss.

       United States Supreme Court decisions appear to be in accord with the proposition
of Ricboru!r, that given a sufficient state interest in the punishment and deterrence of the
unlawful activity which was the object of the forfeiture statute, the innocence of the




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unlawfid activity which was the object of the forfeiture statute, the innocence of the
property owner, absent specific statutory provision otherwise, is by itself no defense to
forfeiture. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974)
Annot., 76 L. Ed.2d 852, 854-55 (citing Calero-Toledo and other cases). The Calero-
Toledo opinion, which incidentally, upheld the forfeiture of a yacht of an “innocent”
lessor, strongly suggested, however, that it would be di&ult to reject the constitutional
claim of an owner whose property subjected to forfeiture had been taken by the person
who used it for unlawful purposes without the owner’s “privity or consent,” or where the
owner was not only unaware of the unlatil use but had “done all that reasonably could
be expected to prevent the proscribed use of his property.” 416 U.S. at 689; see also
SrCrrev. Young’sMarker Co., 369 S.W.Zd 659 (Tex. Civ. App.-Eastland 1963, writ refd
n.r.e.) (although common carrier’s failure to show proper documentation for cargo of
whisky to patrolman technically made liquor “illicit” and subjected cargo and vehicle to
forfeiture under Liquor Control Act, where buyer’s and seller’s transaction was otherwise
legal and they were later able to produce proper documentation, and only unlatil       act
involved was unexplained dereliction of driver in failing to produce documentation which
seller had furnished him, forfeiture was not within contemplation of act).

         In response to your question, we note first that we find no exception to forfeiture
under section 21.309 where the paging device is leased. Especially as the statute does
make other exceptions to its application--the ones in subsection (a) for fire and emergency
medical personnel-we conclude, following the Ricbur& analysis, that forfeiture of even
leased paging devices is within the intent of the statute, Further, we do not believe, based
on the authorities cited above, that application of section 21.309 to the paging devices of
“innocent” lessors would be per se unconstitutional. Although there may be a variety of
constitutional theories under which the statute could be attacked-from due process and
equal protection to cruel abd unusual punishment-we tind no tindamental rights or
suspect classifications facially implicated by the provision such as to render it
unconstitutional on its face. Notably, the bill analysis to section 21.309 asserted
significant state interests in the matter: that the presence of paging devices in the
educational setting was both generally disruptive and in particular facilitated trafficking in
illegal drugs. Subsection (b) of the section, in providing for the implementation of the
prohibition on paging devices through the school district’s written standards of student
conduct, allows for the inclusion in such standards or procedures for giving notice and the
opportunity for hearing to the student from whom a paging device is confiscated. Where a
lessor is also involved, notice and opportunity for hearing should, we believe, also be
provided, sufficient to afford procedural due process. See, e.g., R&ax& 301 S.W.2d
597 see aZso Annot., 76 L. Ed.2d at 855-57 (citing cases). Although the statute does not
specifically provide for such notice and hearing, we do not believe that deficiency is such
as to render it unconstitutional on its face. Rather, such due process requirements should
be read into statutes by implication to as to sustain their constitutionality so long as the
statutes do not specifically and aflirmatively provide for procedures violative of due
process. See, e.g., House ofTobacco v. Culvert, 394 S.W.2d 654 (Tex. 1965) (notice and
hearing requirements necessary to comport with due process should be read into statute
Honorable Paul Sadler - Page 4        (DM-352)




providing for forfeiture of cigarette permits rather than striking down statute where it
lacks express provisions to such et&@.

         We acknowledge, however, that fact situations may arise where, a court after
hearing the evidence and arguments of the parties, could find that particular forfeitures
exceeded wnstitutional limits. For example, a lease contract’s specitically forbidding the
lessee’s possessing or permitting possession of the leased device on property or at
+ivities within the section 21.309 prohibition might weigh in favor of the lessor’s
opposition to forfeiture, particularly where there were other exonerating factors. See
CalemToieab, 416 U.S. 663; see also, e.g., Austin v. unired Bates, 113 S. Ct. 2801
(1993) (application of Eighth Amendment protection against excessive punishment to civil
forfeiture).

       You also ask:

                What precisely is a public school district allowedke-
          quiredkdvised to do with any or all paging devices contiscated under
          Section 21.309. . ? The section itself makes no provision and
          Article 3, Section 52 of the State Constitution and, perhaps, Section
          2330 of the [Education] [C]ode clearly complicate any district action
          subsequent to the confiscation. Would it be legally acceptable for the
          district to: (a) a&r issuing an appropriate and standard public
          notice, sell the devices to the highest bidder; or (b) dispose of them
          as if the devices were ordinary garbage; or (c) simply do nothing and
          keepthem locked away forever7

        We note first that we think it clear under the terms of section 21.309 that the
devices, once forfeited to the district become the property of the district. We do not
believe that section 23.30 of the Education Code, referenced in your question, is relevant
to the disposition of wnfkcated pagmg devices. Although subsection (a) facially provides
for the disposition by school districts of “any property, other than minerals, held in trust
for free school purposes,” reading the section as a whole, we think its scope is limited to
real property. Subsection (b) provides with respect to sales under the section that “‘the
president of the board of trustees shah execute his deed to the purchaser[s].” Subsection
(d) provides that sates of “school houses, buildings or lands” made in substantial
compliance with the section and authorized by the board of trustees shah not be invalid for
any lack of authority to make them. Moreover, former V.T.C.S. article 2773, the
predecessor provision of section 23.30, which was codified in the 1969 adoption of the
Education Code, specified that the school district sales addressed by those provisions were
ones of “houses or lands.” See V.T.C.S. art. 2773; 8 1 (repeated by Act of
May 31, 1969, 61st Leg., RS., ch. 889, 3 2, 1969 Tex. Gen. Laws 2735, 3024; see also
id. 3 23.30, at 2955). We find nothing in the legislative history of the 1969 codification




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Honorable Paul Sadler - Page 5            (DM-352)




indicating an intent to extend the ambit of those provisions to include personal property.’
We believe, however, that the school district has the implied authority to use and dispose
of the property as it sees fit. See Educ. Code 5 23.26 @oard’s authority to manage
diStliCt).

         Of wurse, the school district’s authority to use and dispose of the devices is
subject to the article III, section 52 restrictions. Article JII, section 52 prohibits political
subdivisions, such as school districts, Tom “granting” “anything of value” “‘to any
‘individual, association or corporation whatsoever.” See, e.g., Attorney General Opinion
MW-36 (1979). Of the alternatives for disposition of forfeited paging devices you
suggest, selling such devices to the highest bidder, would appear to be an effective means
for the district to obtain a reasonable quid pro quo for such devices and thus not run afoul
of article III, section 52. See, e.g., Attorney General Opinion h4W-373 (1981). Other
methods of sale, so long as they were reasonably calculated to obtain an adequate quid pro
quo, might also suffice.3 If the district is unable to sell the paging devices, we believe the
board of trustees should determine other appropriate ways of disposing of them as it does
with other school personnel no longer wanted or needed by the district. See also, e.g.,
Attorney General Opinion MW-93 (1979) (board’s discretion to determine whether to
seek reimbursement for payments made for certain travel expenses, based on costs of
collection and other factors) (citing authorities).




       2Tbc bill analysisto HouseBill 534, the bill meking the 1%9 codificationof which se&an 23.30
wasapan,Qatachatthein~mtofthebilIwas~makeitclearwhat~lawi~aottomaLeanynew
law.” Home Comm.on PnblicEducation,Bill Analysis,XB. 534,61st Leg. (1%9).

        3Wbilewe find no requirement that school distaictssell sech pmpcrlythroughbidding,WCthink
tbatbiddingmaykusedasameansofsale,andwouldbeappropriateinthisinstanainvicwofthe
ankle III, se&on 52 rcslriclions. Again, however,it is the obtainingof en edcquetequid pro quo that is
requiredfor articleIJI, se&on 52 purposes,end thex might be other sale methodswhich could echieve
that end.


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HonorablePaul   Sadler - Page 6       (DM-352)




                                  SUMMARY

               Application to leased paging devices of the provisions of
         Education Code section 21.309~-requiring the forfeiture to a school
         district of paging devices possessed by a student on school property
         or at school activities-would not be per se unwnstitutional where
         notice and opportunity for hearing are given to affected parties.
         Where the district desires to dispose of forfeited devices, it is advised
         that, in order to comply with the restrictions of article III, section 52
         of the state wnstitution, it must tirst attempt to sell them through
         bidding or other means calculated to obtain a reasonable quid pro
         quo.
                                                  ~~‘““izlD,I,



                                                     DAN MORALES
                                                     Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, opinion Committee

Prepared by William walker
Assistant Attorney General




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