        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-01-00409-CV


                                 GSC Enterprises, Inc., Appellant

                                                 v.

        Carole Keeton Rylander, Comptroller of Public Accounts of the State of Texas;
             and John Cornyn, Attorney General of the State of Texas, Appellees


      FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
          NO. 98-05733, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING



               Appellant GSC Enterprises (AGSC@) appeals from the district court=s grant of summary

judgment in favor of the Comptroller and the Attorney General (collectively Athe Comptroller@) and

denial of GSC=s motion for summary judgment. GSC=s appeal hinges on the interpretation of section

72.103 of the Texas Property Code. See Tex. Prop. Code Ann. ' 72.103 (West Supp. 2002).

Because our interpretation of section 72.103 supports the district court=s judgment, we will affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND

               GSC is a Texas corporation that issues, administers, and redeems money orders. It

typically partners with small retail outlets such as convenience stores and independent grocers.

Money orders have blanks in which the purchaser identifies the sender and the payee, but the retailer

typically retains only the money order=s amount and serial number. Most money orders are promptly

redeemed, but a small percentage remain unredeemed. Purchasers of GSC money orders agree to pay

a monthly service charge on unredeemed money orders. Prior to July 1998, GSC had a policy of
charging one dollar per month from the date of purchase if the money order was not redeemed within

one year of the purchase date. This policy was generally not enforced against retailers who accepted

these money orders. After July 1998, GSC charged one dollar per month from the date of purchase if

the money order was not used within two years of the purchase date. A service charge accrued until

the money order was redeemed, the service charge exceeded the money order=s face value, or the

money order was deemed abandoned.

               GSC must track its unredeemed money orders and eventually report them to the

Comptroller as abandoned property. At the time of the events germane to this lawsuit, the Texas

Property Code deemed a money order abandoned five years after it was issued or five years after the

last communication from the owner. Once a money order is considered abandoned, GSC must turn it

over to the Comptroller.

               After a 1998 audit, the Comptroller issued GSC a deficiency notice for the money

orders GSC surrendered in 1996 and 1997, stating that under the Comptroller=s interpretation of the

property code, GSC should not have withheld service charges from the money orders. GSC disagreed

with the Comptroller=s interpretation and in May 1998, filed a petition for declaratory judgment

against the Comptroller. GSC deposited the contested funds in the court=s registry. The Comptroller

answered with a general denial and counterclaimed against GSC to recover the deficiency, plus

penalties, interest, and attorney=s fees. In 2000, the parties filed competing motions for summary

judgment. After hearing the motions, the district court granted the Comptroller=s motion and denied

GSC=s motion. By four issues, GSC appeals the judgment, claiming that the trial court erred (1) in its

interpretation of the property code, (2) in granting the Comptroller=s motion for summary judgment

and denying GSC=s motion, (3) in rendering judgment that GSC take nothing, and (4) in rendering

                                                  2
judgment that the Comptroller recover penalties and interest. At stake is the $1,689,728.01

deficiency, plus accumulated interest, penalties, and attorney=s fees. 1


                                            DISCUSSION

Standard of Review

                The parties in this case filed competing motions for summary judgment. When

examining cross-motions for summary judgment, the reviewing court should analyze the summary

judgment evidence produced by each side and determine all questions presented. Commissioners Court

v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). The reviewing court should then render such judgment as

the trial court should have rendered. Id.

                Both motions for summary judgment turn on the statutory construction of Texas

Property Code section 72.103; thus, the case is ideally suited for summary judgment. A[M]atters of

statutory construction are questions of law for the court to decide rather than issues of fact.@ Johnson

v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). The purpose of summary judgment is to

provide a method of terminating a case when it is clear that only a question of law is involved and

there is no genuine issue of material fact. Gaines v. Hamman, 358 S.W.2d 557, 563 (Tex. 1962); Jones

v. Texas Pac. Indem. Co., 853 S.W.2d 791, 794 (Tex. App.CDallas 1993, no writ).

                The appellate court reviews issues involving statutory construction de novo. Texas

Dep=t of Pub. Safety v. LaFleur, 32 S.W.3d 911, 915 (Tex. App.CTexarkana 2000, no pet.). The


   1
     The court awarded the Comptroller penalties of $29,341.38, interest of $21,202.60, plus
accumulated interest in the court=s registry, and attorney=s fees.




                                                   3
court=s primary task when construing a statute is to give effect to the intent of the Legislature. Tex.

Gov=t Code Ann. ' 312.005 (West 1998); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.

2001). To accomplish this, the court scrutinizes the statute=s language. Id. The court should not

Aattribute to the legislature an intention to work an injustice@ or to produce an absurd or unreasonable

result. Southwestern Bell Tel. Co. v. Public Util. Comm=n, 888 S.W.2d 921, 927 (Tex. App.CAustin

1994, writ denied) (quoting State v. Mauritz-Wells Co., 175 S.W.2d 238, 242 (Tex. 1943)).


Property Code Section 72.103

               When legislative intent is plainly expressed in the language of the statute, the court

should give this intent effect. See Tex. Gov=t Code Ann. ' 312.005; Helena Chem. Co., 47 S.W.3d at

493. In addition, the court should consider the statute as a whole, in an attempt to maintain

harmony among all of the provisions. Helena Chem Co., 47 S.W.3d at 493. The general intent of

section 72.103 is evident from its title APreservation of Property.@ The value of unclaimed property is

to be maintained. As GSC points out in its brief, the primary purpose of the unclaimed property laws

in Texas is to reunite owners with their property. See Melton v. State, 993 S.W.2d 95, 97 (Tex. 1999).

Property which cannot be reunited with its owner is turned over to the State. See Tex. Prop. Code

Ann. ' 74.301 (West Supp. 2002). Specifically, section 72.103 provides:


       Notwithstanding any other provision of this title, a holder of abandoned property shall
       preserve the property and may not at any time, by any procedure, including a
       deduction for service, maintenance, or other charge, transfer or convert to the profits
       or assets of the holder or otherwise reduce the value of the property. For purposes of
       this section, value is determined as of the date of the last transaction or contact
       concerning the property.




                                                   4
Id. ' 72.103 (emphasis added).2 We look to the statute itself for definitions of terms used. Hayek v.

Western Steel Co., 478 S.W.2d 786, 793 (Tex. 1972); 67 Tex. Jur. 3d Statutes ' 106 (1989).

AAbandoned property@ as applied to money orders is defined by Texas Property Code as follows:



   2
       In 2001, the Legislature amended section 72.103, to take effect June 1, 2002, as follows:

       Notwithstanding any other provision of this title except a provision of this section relating
       to a money order, a holder of abandoned property shall preserve the property and may not
       at any time, by any procedure, including a deduction for service, maintenance, or other
       charge, transfer or convert to the profits or assets of the holder or otherwise reduce the
       value of the property. For purposes of this section, value is determined as of the date of
       the last transaction or contact concerning the property, except that in the case of a
       money order, value is determined as of the date the property is presumed abandoned
       under Section 72.102(c). If a holder imposes service, maintenance, or other charges on a
       money order prior to the time of presumed abandonment, such charges may not exceed
       the amount of 50 cents per month for each month the money order remains uncashed
       prior to the month in which the money order is presumed abandoned.




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         A money order . . . is presumed to be abandoned on the latest of: (1) the fifth
         anniversary of the date on which the money order was issued; (2) the fifth anniversary
         of the date on which the issuer of the money order last received from the owner of the
         money order communication concerning the money order; or (3) the fifth anniversary
         of the date of the last writing, on file with the issuer, that indicates the owner=s
         interest in the money order.


Tex. Prop. Code Ann. ' 72.102(c).3 We have been unable to find any case law interpreting section

72.103 or 72.102(c).




See Act of May 5, 2001, 77th Leg., R.S., ch. 179, ' 2, 2001 Tex. Gen. Laws 360-61.

        GSC=s claim was pending before the 2001 amendments and is governed by the law applicable at that
time.
   3
     Effective June 1, 2004, money orders will be considered abandoned after seven years instead of five.
See Act of May 5, 2001, 77th Leg., R.S., ch. 179, ' 1, 2001 Tex. Gen. Laws 360.




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                 GSC argues that after examining the plain language of the statute, one should

conclude that the money order is not Aabandoned@ until five years after the last transaction or contact

regarding the money order. GSC includes as a Atransaction or contact@ its unilateral monthly

deductions of service charges from the money order, which begin two years from the money order

purchase date.4 According to GSC, the Avalue@ of the money order is what remains at the time the

money order is deemed Aabandoned.@

                 GSC=s position that its service charges constitute a transaction or contact is a strained

interpretation that has the additional disadvantage of creating an absurd outcome that the Legislature

could not have intended. The words of a statute should be interpreted according to their ordinary

meaning, not in a strained manner. Howell v. Mauzy, 899 S.W.2d 690, 704 (Tex. App.CAustin

1994, writ denied). Furthermore, the court should not attribute to the Legislature an intention to

produce an absurd or unreasonable result. Southwestern Bell, 888 S.W.2d at 927. Instead, we presume

that the Legislature intended a just and reasonable result. See Helena Chem. Co., 47 S.W.3d at 493.

Under GSC=s interpretation, every monthly service charge that GSC levies against an uncashed

money order counts as a transaction that resets the moment in time at which the value of the money

order is determined. Under this logic, GSC is free to unilaterally reduce the value of a money order by

one dollar per month on the strength of its own unilateral assessment against the money order. This

allows GSC, by deducting service charges, to appropriate the entire value of the money order in direct

contravention of the statute=s primary purposeCto preserve the value of unclaimed property.



   4
       The statute does not define Acontact@ or Atransaction.@



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Therefore, GSC=s interpretation produces an absurd or unreasonable result that we presume the

Legislature did not intend.

                If the Alast transaction or contact@ is not the date of GSC=s most recent imposition of a

monthly service charge, it must be the date of the last contact or transaction between the owner of

the money order and its issuer. Having set the value of the property at the last contact or transaction

between the purchaser and the retailer or holder, the language regarding Avalue@ assumes a logical

significance. According to the language of section 72.103, the Alast transaction or contact@ is the

moment that the Avalue@ of the property is to be fixed, for purposes of preservation. Typically, the last

contact or transaction between the purchaser of the money order and the holder is the moment when

the money order is issued. According to the language of the statute then, the value of the property to

be preserved will almost always be the face value of the money order. Thus, GSC may not reduce the

value of the money order below its face value in the absence of further contacts or transactions

involving the owner and the issuer.

                GSC also suggests that it is significant that the Legislature chose to call money orders

Aabandoned,@ without reference to a period of Ainactivity.@ It points to the fact that the Legislature

called the pre-abandonment period during which service charges may not be deducted from a

depository account or a safe deposit box a period of inactivity. See Tex. Prop. Code Ann. '' 73.003;

.101 (West Supp. 2002). According to GSC, the Legislature could have devised a similar scheme for

money orders and chose not to do so. We agree that every word excluded from a statute must be

presumed to have been excluded for a purpose. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d

535, 540 (Tex. 1981). But when we consider the statute as a whole, in an attempt to maintain

harmony among all of the provisions of the Unclaimed Property Title, we note that Chapter 73

                                                   8
addresses not only depository accounts and safe deposit boxes, but also checks. See Tex. Prop. Code

Ann. ' 73.102.5 A money order is more analogous to a check than a safe deposit box or an account.

Unlike safe deposit boxes and depository accounts, the contents of which may constantly fluctuate, a

check, like a money order, is a one-time transaction that represents one unfluctuating value. Section

73.102 speaks of Aabandonment@ of checks, without reference to a period of inactivity. Id. In

attaching no significance to the lack of inclusion of a period of inactivity with regard to money orders,

we do not create disharmony between the provisions of the Act.

                 We conclude that section 72.103 unambiguously provides that a holder of a money

order may not deduct a contracted-for service charge from the money order that is eventually deemed




   5

       A check is presumed to be abandoned on the latest of: (1) the third anniversary of the date the
       check was payable; (2) the third anniversary of the date the issuer or payor of the check last
       received documented communication from the payee of the check; or (3) the third anniversary
       of the date the check was issued if, according to the knowledge and records of the issuer or
       payor of the check, during that period, a claim to the check has not been asserted or an act of
       ownership by the payee has not been exercised.

Tex. Prop. Code Ann. ' 73.102 (West Supp. 2002).




                                                     9
abandoned property. After five years, the holder of the money order is to submit the entire face value

to the Comptroller. Issue one is overruled.6


Penalties and Interest

                Having held that the Comptroller=s interpretation of the statute is correct, we now

turn to GSC=s argument that the Comptroller abused its discretion by failing to waive penalties and

interest on the withheld service charges under section 74.707(a) of the property code. See id. (AThe

comptroller may waive penalty or interest imposed on delinquent property if the comptroller

determines that the holder has made a good faith effort to comply with Chapters 72-75.@). GSC

argues that the joint stipulation it entered into with the Comptroller by which it agreed to pay some

of the disputed funds into a court registry is evidence of its good faith. The Comptroller argues that

there is no statute authorizing judicial review of a section 74.707 determination, and, alternatively,

that its determination was not an abuse of discretion. As GSC cites no authority in its brief for its

argument, we find it has waived this issue on appeal. See Tex. R. App. P. 38.1(h); Trenholm v.

Ratcliff, 646 S.W.2d 927, 934 (Tex. 1983). Furthermore, we note that the Comptroller waived some

of the penalties and interest pursuant to the parties= joint stipulation. We overrule issue four.


                                          CONCLUSION

                Because our interpretation of Texas Property Code section 72.103 supports the district

court=s judgment, we overrule all of GSC=s issues on appeal and affirm the judgment of the district

court.

   6
       GSC=s second and third issues are encompassed by issue one and, thus, are also overruled.



                                                  10
                                             David Puryear, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Puryear

Affirmed

Filed: August 30, 2002

Publish




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