  JOBS    :xA.’
            “IL”.              AZ;WTIB-.Ty-       76711
A-WESUY    l*nc x I c w.%x.   November 29, 1976




     The Honorable Wilson E. Speir                Opinion No. H-965
     Director
     Texas.Department of Public Safety            Ret Porfeiture of motor
     5805 N. Lamar Boulevard                      vehicles under article
     Austin, Texas 70773                          6687-1, section 49,
                                                  V.T.C.S.
      Dear Colonel Speir:
           You have inquired about .the forfeiture of vehicles under
      article 6687-1,section 49. V.T.C.S. Your first question
      asks whether a specific court order placed valid legal title
      to the vehicle described therein in the Texas Department of
      Public Safety. Since we cannot sit as a court of appeals to
      review judgments of the trial courts of this State, we
      decline to answer your first question. - See Attorney General
      Opinion G-1847 (1940).
           You also ask whether article 6687-1, section 49, provides
      a constitutional procedure for forfeiting vehicles to the
      State. This,section.states in pertinent part:
                      (a) Any person who shall alter any
                   certificate of title issued by the Depart-
                   ment, or forge or counterfeit any certificate
                   of title purporting to have been issued by
                   the Department under the provisions of this
                   Act, or who shall alter or falsify or forge
                   any assignment thereof, shall be guilty of
                   forgery and upon conviction thereof shall
                   be punished as provided by law.
                      (b) It shall be unlawful for any person
                   to alter, change, erase, or mutilate, for
                   the purpose of changing the identity, any
                   motor number, serial number, manufacturer's
                   permanent vehicle identification number or
                   derivative number thereof placed on the
                   vehicle, or any part thereof by the manu-
                   facturer, or any motor number or serial
                                               .   .   .
                                                           i




The Honorable Wilson E. Speir - page 2 (S-905)


           number assigned by the State Xighway Depart-
           ment and placed or caused to be placed on a
           vehicle as provided by law for the purpose
         ‘of identification. It shall also be unlawful
           for any person other than a vehicle manufacturer
           to stamp or place any motor number 01 manu-
           facturer's vehicle identification number other
           than a number assigned by the State Highway
           Department as provided by law, on any vehicle
           ot any part thereof.  Any pereon violating
           the provisions of this section comaits a mis-
           demeanorpunisbablebya    fine notto exceed
           Sl.000, by confinement in jail for not more
           than 2 years or by both.
              (cl(11 A person who possesses, sells or
          offers for sale a mote* vehicle or any part
          of a motor vehicle that has had the serial
          number, the motor‘ number, or the manufacturer's
          permanent identification number removed, changed,
          or obliterated when he-knows the numberhas been
          removed, changed or obliterated comits a mis-
          demeanor punishable by a fine not tt.exceed
          $1,000, by confinement in jail for not more
          than        2 years,   or by both.

             (2) It is q defense to prosecution under
          this subsection, which shall not be sub-
          mitted to the jury unless evidence is
          admitted supporting it but which, if raised,
          must be negated beyond a reasonable doubt,
          that'the p+rson~is the rightful or true
          owner of the motor vehicle or part of a
          motor vqhicle.that is the subject of the
          prosecution.
          .   .   .    .

             (a)(l) If a person is arrested for
          possession of a motor vehicld or part of
          a motor vehicle in violation of this section,
          the arresting officer will take the motor
          vehicle or part of a motor vehicle into his
          possession.
          . . . .
The Honorable Wilson E. Speir.--page.3-(H-B115).



             (4).If there:is-no prosecutiouzm:&nvic-
         tiou for.an.offense involving the.mwtor vehicle
         or, part of a.mtor vehicle seixed,.the.mugistrate
         to.whom.the seiztie was.r.eported..shallnotify .
         in wr$ting the rightful owner, if.known, -thathe
         &s..entitled.to.theanotor.vehicleor part-of a
         wctorv~#4cleuponreguestto      the iawimforce-
         m.en$agency holding it,.

                                               fob a
            iS)it&on conviction of fany-..pe.rgon
         violationnf this section, the court*Bhall o&r'
         that.any'motor vithicleor part of.a motor vehicle
         +eized-and.hpounded in connectiob~with the
         pffense be.delivered to the rightful owner.ot
         trpe ptmer,*if known.:.                       .

            :(6) If.the aghfful owner of a vehicle.ok part
          o#..a,mo$or:veh$cle~seizedundemthits section'&b
          unknow+aqdsannot.be:determined the~qourCshall,
          qf$er fi.na&dispcsition~f+m.chaqes~     or&x
          it forfeited tp the -side...
              (7) Anypersoninterested inany.&orvehiele
          or.p+rt of a lpotorvehicle.seiseastrndet:thls.gectfon
          may,.at .anytime, petition the magistrate to.whom
         .th~~~fzure.waS reporteb-to deliver:possession
         -Qf.i$ tQ-him., The magistrate, after:notice to
          the law.enfQrcemen~.agency. in-pcrssessionof-it,
          shall conduct a hearing to determine the petitioner's
          right,..topossession of the motor-vehicle or part of
          ..amotor vehicle. .If.the petitioner.prwes by a
          preponderance of the..evidencethat+,hehas a right
          to possession,.the magistrate shall order it.
          delivered to him.-
      A'penalty-may.consti.tutionallybe enforced by forfkue
df the.offeudiug article.;.Calero-Toledo v; Pearson Yacht
Leasing Co., 416 U.S..663 (1974). However, the forfeiture
may only~~ff.e#zed.by due process of law. State L Richards,
301 .STWi2d 597 ,(Te.x._..Sup...1957)..
                                  .The owners ofoperty
subject to forfeiture must have.notice-and anopportunity to
be'heard:, Robinson s;Haurahani 409.U.S. 39 (1972).
    The Honorable Wilson E. Speir - page 4 (H-905)


I
         Section 49 contemplates forfeitureof a vehicle only
    when the rightful owner is unknown and cannot be determined.
    The vehicle is returned to its rightful owner, if known,
    whatever the outcome of the arrest -- conviction, no conviction,
    or no'prosecution. Sections 49 (d)(I), (5). If the defendant
    is the rightful owner he has an opportunity during his trial
    to prove itI in fact, ownership is a defense to charges under
    subsection (c)(1.). Even after conviction under subsection (a)
    or (b), the car is returned to the true owner, who might be
    the defendant. Thus, this statute provides an adequate
    opportunity for a defendant to protect his ownership in a
    m&or vehicle.

           The rightful owner must receive written notification of
     his right to the vehicle when there is no prosecution or
     conviction: when someone is convicted, the owner receives
    .the vehicle itself. Sections 49(d) (0, (5). Section 49(d)(6)
     doell not provide for service of process on~a known owner,
     because it does not seek to forfeit his interest. It fails
     to provide a procedure, such as notification by publication,
     by which an unknown owner can be given notice, but it does
     requirea showing thattheowneris      unknown and cannot be
     determined. We believe that the State must make this showing
     by'proving efforts to identify and inform the owner that
     comply with the due process clause. U.S. Cons& amend. 14,
     s 1. Otherwise, an owner who could be located might be
     deprived of hisproperty through lack of knowledge, contrary
     to the legislative intent expressedin section 49 and to the
     reguirementscf the due process clause.
         A statute will be interpreted so that it is constitutional
    and valid, if it can be sustained by any reasonable construc-
    tion. 53 Tex. ,Jur.Zd,Statutes 6 158 and authorities cited
    therein. The notification provided by the State must be
    reasonably calculated to inform the owner of the impending
    forfeiture proceeding. Robinson v- Sanrahan, 409 U.S. 38,
    40 (1972). If the name and address of the registered owner
    is available through the Department of Public Safety, personal
    notice should be given. Id.; I4enkarellv. Bureau of Narcotics,
    463 F.2d 00, 95 (3d Cit. m72).   In othercases, nzice
    reasonable under the circumstances must be given, which may
    be notice by publication for unknown owners. Mullane v.
    Central Banover ---
                    Sank a Trust co., 339 U.S. 306=1!80).




                           D.   3799
                                                                 .




The Ronorable Wilson E. Speir - page 5 (E-905)


A forfeiture proceeding is a civil action, to which the
Texas Rules of Civil Procedure apply. See State v. Gra
175 S.W.Zd 224 (Tax. Sup. 1943); Bretz              -?&:2d
97 (Tex. Grim, App..1974); Tex.R.Civ.P.3. Thus, the civil.,'
rules on notice w0uia apply to any forfeiture under section
49. -See a    Tex.R.Civ.P, Zlai-21br lQ.09,
                                         .109a.

     Subsection (d)(7) further protects the owner's property
interest in the vehicle, by permitting him to petition the
magistrate for,possession at any time. .We believe the
procedures outlined in section 49(d) adaguately protect
property rights 'andprovide a constitutional mode'of.for-"
felting vehicles to the State, giving it valid title, subject
to the subsection (d)(7) redemption right.
     Finally, you ask whether the State must.plead and prove
final disposition of charges in order'to receive valid legal
title to a vehicle forfeited under the statute. Subsection
.(d)(6)permits fqrfeiture to the State only when the vehicle'
has been.seised under section 49, the charges have been
finally disposed of, and the rightful owner is unknown and
cannot be determined. Statuf~Ca;~ising       a forfeiture
must be followed strictly.      . . ., Forfeitures S 4(b):
Cne,essential element of the forfeiture case is that.charges
brought under-section 49 have been finally disposed of.'.'.The
foxfeiture proceeding would necessarily follow the criminal
proceeding, if any, as a separate civil.action. We ahswer
your final.guest*on in the.affirmative.    :
                     SUMMARY
.
           Section 49 of article 6687-1, V.TlC.S..
           provides a constitutional procedure for
           forfeiting vehicles to the State.when the
        '. vehi.cles,havealtered identification numbers
           and the owners of the vehicles are unknown
           and cannot be located. The State must plead
           and prove final disposition of the charg'esin
           order to receive valid legal title to a vehicle
           forfeited under the statute.
The Honorable Wilson E. Speir - page 6 (R-go51




APPROVED:



3
DAVID M. KENDALL,   First ASSlS ant
