                              QBffice
                                    of the 5Tlttornep                QBeneral
                                          diMateof Qtxari
DAN MORALES
      GENERAL
 ATTORNEY                                     May   16.1995


      Honorable Tii Curry                            OpinionNo. DM-348
      Tarrant County CriminalDistrict Attorney
      401 West Belknap                               Re: Validity and umstitutionality of section
      Fort Worth, Texas 76196-0201                   117.002 of the Local Govemment Code,
                                                     which concems the turn OVKof abandoned
                                                     fundsheldbytbecountyordistrictclerkto
                                                     the Skateof Texas (RQ-673)

      DKWlbkcUny:

             You have asked this 05ce a series of. questions as to the validity and
      constiMionality of section 117.002 of the Local Govermnent Code, w&b concuns the
      turn OVKof abandoned fbnds held by the county or district derk to the State of Texas. In
      our view, section 117.002 is both valid and constimtional.

             Section 117.002 states:
                     Any funds deposited under this chapter that are presumed
                abandoned under Chapter 72, 73, or 75, Property Code, shall be
                nporttdMddelivaedbythecauntyordishi*claktothesWe
                treasum without fiuther action by any court. The donnamy period
                for funds deposited under this chapter begins on the later of:
                           il) the date of entry of finaljudgment or order of dismissal
                      in the action in which the funds were deposited;
                          (2) the 18th biiday of the minor for whom the ibnds were
                      deposited; or
                           (3) a reasonable date established by rule by the state
                      treasury   to promote the public interest in disposing of
                      unclaimed funds.
             ChaptK     117    Of the   bCd   (bUTIment       code    COncQns   the   PhCCmCm   iII a
      depository bank of “money deposited in court pending the result of a legal pmceed&”
      Local Gov’t Code 5 117.052. Section 117.053 of the code provides that payment thorn
      such funds most be made on court order, but section 117.002, the b&r enacted statute,
      creates an exception to the usual rule. See Act of April 28, 1959. 56th Leg.. RS.. &I.
      270, 1959 TAX.Gen. Laws 586 (adopting former V.T.C.S. art. 2558a, 8 44 predecessor
Honorable Tii Curry - Page 2            (DM-348)




Ofhad      &w’t Code 0 117.053); Act ofMay 9,1991,72d Leg., R.S., ch. 153,s 26, 1991
‘k.     SWS.LW SKV. 744,750 (adopting Local Gov’t Code 4 117.002).

       The relevant explanations of the presumption of abandonment in the Property
Code are sections 72.101 (abandoned personal property), 72.102 (abandoned travel~‘s
checks and money ordas), 73.101 (abandoned accounts and safety deposit boxes), and
75.101 (aband0Wd mineral proceeds). While the statutory periods before the property is
PrrJumed abandoned -K-three     yedrs for persomd property and mind proceeds; five
years for money onks, atwmts, and safety deposit boxes; 6fteen years for travela’s
checks-the gend d&r&ion of what is ‘Nandoned” is that provided by section 72.101:


                     (1) the exist-   and location of the owner of the property
                is tmknown to the holder of the proper& and
                    (2) accord& to the knowledge and records of the holder
                oftbepropaty.adrimtothepropatyha9notban~edor
                anactofowwshipoftbeproperlyhasnotbeenexercised.




        Thatbeiagtheuse,wereem,~tionalimpedimenttotherequirrment~t
ruchpropertyheldwrdachapterll7~isdeanedlbandonedbenportedMddelivaed
to the tseasum %ithout fbrtlm action by any court.” Local G&t. Code 5 117.002. In
your brief. you analogize such delivery to garnishment and note that “[a] fimd deposited
~aclaLofacourtisgeaaallydeemedtobeinnrstodiaiegisandisnotsubjectto
gtunishment.” Houston Drywall, Inc. v. Consfru~~on Sys., Inc.. 541 S.W.2d 220, 221
(Tar. Cii. App.-Houston [ 1st Dist.] 1976, no writ). Assumiq for the sake of argument
thatrcportandddiverytothe        tmasumr is anslogous to garnishment, “D]t has been held
that an exception to [the] rule [against gamishment] exists.. .where under the
-0fthecasethcrersmains                      nothingfbrthe&rktodootherthme&ct
&,ii.MJ ui payment to the person entitled.” Id. whar the court has rardaed judpmt
udthetimeformodifyingthejudgmenthas~~thecourt~lostrubj~matter
jurisdictionoverthefimds,~thejustificationfortherule~~dunentcuuesto
 exist. Hardy v. Carrrructior, Sys. inc.. 556 S.W.2d 843,844 (Tex. Cii. App.-Houston
 [14th Dia.1 1977, writ ref’d n.r.e.). When properly is deemed abandoned, which is to say
~~~~~totbepropatybyapason~ouurbelocatedMdhavebecnno
 such claims for the statutory period, there is nothing for the clerk to do 0th~ than effect
 delimy of such properly to the trewrer.



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HonorabteTiiCurry      - Page 3            (DM-348)




         You suggest that for the legislature to dii that abandoned property be delivered
to the treasmw without tiMher cotut action is an invasion of the jurisdiction of the courts
and More       a violation of separation of powers. The court of uiminal appeals has
WtittKl:
              Thecoreof . . . judicial powK embraces the power (1) to hear
          evidence; (2) to decide the issues of fact raised by the pleadings; (3)
          to decide the relevant questions of law: (4) to enter a 6nal judgment
          onthefrctsmdtheirw;ud(S)toa~tetbefinaljudgmentor
          awtKlce.
Arm&i110Boll Bon& v. Bate, 802 S.W.2d 237,23940 (Ta. Ctim. App. 1990). See
a&o Eicklberger v. Eichehergerr, 582 S.W.2d 395,398 (Ta. 1979).

        Section 117.002 does not implicate these core judicial powers, since, as we have
noted, so long as there is any unadjudicated claim of right to the funds held by the county
or district clerk, such tbnds are not presumed abandoned. The statutory period does not
kgintorununtilrhektao~the~eof~offinaljudgmartorordaofdirmi~
the 18th bhthday of a minor for whom such fimds are deposited, or “a reasonable date”
which the tmasumrmayestablishbymle.

        You have suggested that there is some ambiguity in t&se dates, since an appeal
might be taken from the district court’s judgment. But an appeal would be an assertion of
a claim of right to the fund. Accordingly, the tend would not be property tar which “a
claim . . . has not been asserted.” Prop. Code 5 72.101. Nor is it a problem, as your brief
aswts, that section 117.002 ‘%ils to address an incapacitated beneliciary whose money
might be subject to comt order for an indefiniteperiod of time.” Such a beneficiary is an
identitied person with a claim of right to the liu@ the tbnd, the&ore is not abandoned by
the tums of the Property Code.

         You nat ask what lids are cotwed by section 117.002. By its terms, the statute
refers to “any timds deposited” under chapter 117. As this office informed you in
Attorney Gend Opiion JM-1162 (1990). such t&Is “include, inter olio, civil court
deposits, probate court deposits, child support payments paid through the clerh’s office,
interpleader funds, supers&as deposits, funds paid in satisfhction of judgments, other
cash deposits made in lieu of bonds, minor’strust funds, and eminent domain deposits.”

       You suggest that the donnancy period for these fbnds is somehow uncertain. We
disagme. The relevant paiod depends on the nature of the property, and is governed by
the appropriate Property Code sections already cited.

       Fiiy, you ask whether section 117.002 wngicts with section 117.058 of the
Local Government Code. As you point out, section 117.058 requires that, in a county
with a population of 190,009 or more, checks disbursed by county or district clerks from



                                            p. 1855
Honorable Tii Curry - Pqe 4                  (DM-348)




their trust funds must be wuntersigned by the wunty auditor. and the auditor may only
wuntersign them “on written evidence of the orda of the judge of the court in which the
iimds have been depositd that wthorizes the disbursement of the funds.” Local Gov’t
Code 8 117.058(d). This requirement does wrdlict with the dire&e of section 117.002
thathndonedfundsbedeliveredtothetr       KSlNKViithOUtfiUthKOldKOfKQ’WUlt.


       Seotion 117.002 deals only with those funds in the wstody of the district or wunty
chk which am pmsum~I abandoned. It is Wore           more spei6c than section 117.058.
h4omov~~ section 117.002, which was added by the’henty-sewnd             Legislature snd
hecame effeotive on Septemb~ 1.1991, is later in time than section 117.058, which WIS
adopted by the Forty-third Legislature and became d%ctive in 1933. See Act qproved
Apd29.1933, 43d Leg., RS.. ch. 98. 1933 Ta. GUI. Laws 217 (adopting forma
V.T.C.S. art. 1656b, rewdified as Local Gov’t Code 0 117.058). Smce section 117.002 is
themore~cftaMe,rrwellrsthekta~optednatute,totheaasatofc6nfli*
hetwe~~itsndseotion 117.058,aection 117.002prevds. Gov’tCode~~311.025. .026.

                                 SUMMARY
              Section 117.002 of the Local Govamnem Codeisbothvalid
          and constitutional. Funds subject to section 117.W2 me those tknds
          wveredbychaper117,~definedbyAtknncyGwKmlGpinion
          JIM-1162(1990). To the atent of wntlict between section 117.002
          and section 117.058 ofthew      Government Cude, kction 117.002
          PRVldS   18 ItlO= S&ECitk Md htK    dO@?d.




                                                         DAN MORALES
                                                         Anomey Genaal ofTa

JORGE VEGA
Fii AKistant Attorney GKlKal

SARAH J. SHIRLEY
Chair, Gpiion Committee

Repared by James Tourtelott
Assistant Attorney General




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