              E
                       OF   -XAS




                     December 1.8,1961

Honorable Joe Resweber      Opinion No. NW-1203
County Attorney
Harris County Courthouse    Re:    Method of the sale or
Houston 2, Texas                   destruction of unclaimed
                                   or abandoned property seized
                                   by the Sheriff of Harris
Dear Mr. Resweber:                 County
       You have requested an opinion from this office
covering the following questions:
         "1. Does the Court have the authority to
      enter an order on the request of the Sheriff
      authorizing him to destroy the property seized
      by him belonging to arrested persons or prisoners
      placed in the County Jail, which property is
      not being held as evidence to be used in any
      pending case, and which has remained unclaimed
      for a period of ninety (90) days?
          "2 . If a Court has the authority to enter
       such an order, what court should or could enter
       such an order?
          “3. If some of the said property is capable
       of being used for legal purposes, may the Judge
       in his discretion enter an order and cause the
       same to be delivered to the State, or any
       political subdivision thereof, to be .kept by it
       for its own use and benefit? For instance,could
       the Court order that pistols and guns be delivered
       to Harris County to be used by the Sheriff's
       Department?
          “4 . In the event the Sheriff desires to sell
       property taken from and belonging to persons
       arrested or prisoners placed in the County Jail,
       what procedure should he follow?
          “5. What procedure should or could the
       Sheriff take in disposing of stolen property,
       held by him, where the owners have failed to
       claim it, and the names of such owners are un-
       known to the Sheriff?"
Honorable Joe Resweber   Page 2    Opinion No. ~~-1203


       As you point out House Bill No. 868, Acts 1953 of
the 53rd Legislature, p. 929, ch. 388, covers the pertinent
points of the questions asked. There follows the House
Bill set out in full:
          "An Act authorizing the Sheriff or Purchasing
       Agent of any county of the State of Texas to sell
       and dispose of any unclaimed or abandoned personal
       property, except whiskey, wine and beer, belonging
       to arrested persons or prisoners placed in'the
       county jail; providing for notice of sale; providing
       for disposition of funds derived from sale and
       property unsold; and declaring an emergency.
          "BE IT ENACTED BY THE LEGISLATURE OF THE STATE
       OF TEXAS:
          "Sec. 1 That all unclaimed or abandoned per-
       sonal property, except whiskey, wine and beer, of
       every kind, seized by the Sheriff of any county in
       the State of Texas, which is not held as evidence
       to be used in any pending case and has not been
       ordered destroyed or returned to the person entitled
       to possession of the same by any Justice of the
       Peace, County Judge or District Judge, which shall
       remain unclaimed for a period of ninety (90) days
       without being claimed or reclaimed by the owners,
       whether known or not, shall be delivered to the
       Purchasing Agent of the county for sale. If the
       county has no purchasing ag,ent,the Sheriff of the
       County shall be authorized to sell the same.
          "Sec. 2 Thirty (30) days notice of the time and
       place of sale and a descriptive list of the articles
       or property to be sold, with the names of the alleged
       owners if known, shall be posted in three (3) public
       places in the county where the sale is to be made
       and a copy thereof mailed to the person from whom
       the possession was taken, at his last known address.
          "All money received from said sale shall be paid
       and delivered to the County Treasurer and credited
       to the General Fund for the use and benefit of the
       county. Any property remaining on hand for which no
       bids were received shall be disposed of in such
       manner as the Sheriff of said County shall deem
       advisable.
          "Sec. 3 The fact that there is no provision of
       law for disposing of any unclaimed personal property
Honorable Joe Resweber     Page 3    Opinion No. ~~-1203


      of arrested persons, and the further fact that
      there is a need for such law, create an emergency
      and imperative public necessity that the Consti-
      tutional Rule requiring bills to be read on
      three several days in each House be suspended and
      such Rule is hereby suspended, and this Act shall
      take effect and be in force from and after its
      passage, and it is so enacted."
We have copied House Bill No. 868 in full here because it is
our belief that it is unconsitutional in that it attempts to
deprive persons of their property withoutdue~process of law.
The Texas Constitution provides, Article 1,‘Section 17:
          "No person's property shall be taken, damaged
       or destroyed for or applied to public used without
       adequate compensation being made, unless by the
       consent of such person;...."
And Article 1, Section 19:
          "No citizen of   this State shall be deprived
       of life, liberty,   property, privileges or
       immunities, or in   any manner disfranchised,
       except by the due   course of the law of the
       land."
And the Fourteenth Amendment of the Federal Constitution:
          "Nor shall any state deprive any person of
       life, liberty, or property without due process
       of law; ....'
An analysis of House Bill No. 868 shows that unclaimed or
abandoned property "shall be delivered to the Purche~sing
Agent of the county for sale. If the county has no purchasing
agent, the Sheriff of the County shall be authorized to sell
ti;esame."
       Section 2 of the Act   provides for a thirty day notice
period, Nowhere in the Act    is there any provision for any kind
of a judicial determination   of ownership or is the right of the
true owner protected by any   appeal or any right of redemption.
       There can be no question but that the notice required
in Section 2 is adequate so far as due process of law is con-
cerned. However, before abandoned property can be used or
sold for the benefit of the public certain other procedural
due process steps must be complied with. It would seem that
among these is a judicial determination of some type. If a
Honorable Joe Resweber   Page 4    Opinion No. WW-1203


judicial determination is not provided for the requirements
of due process have not been met and the title to the pro-
perty has not passed to the state. The Supreme Court of
the United States in Anderson National Bank v. Luckett, 321
U.S. 233, 64 S.Ct. 599, decided that a judicial determination
at some step in the proceedings must be provided or consti-
tutional due process has been violated. This was a case
where the State of Kentucky had set up a statutory procedure
which provided a detailed process for the taking over of
accounts in banks unclaimed for long periods of time. The
constitutionality of the act was attacked on the grounds
that It was a deprivation of due process of law. The court
held that it was constitutional because it provided for
adequate notice and for an adequate appeal to the courts
from an action of an administrative agency. The court used
the following language:
          “For this reason also It Is not an lndls-
      pensable requirement of due process that every
      procedure affecting the ownership or dlsposi-
      tlon of property be exclusively by judicial
      proceeding. Statutory proceedings affecting
      property rights, which by later resort to the
      courts, secure to adverse parties an opportun-
      Ity     be heard, suitable to the occasion, do
      not deny due process. Familiar examples are
      the decisions and orders of administrative
      agencies which determine rights subject to a
      subsequent judicial review,,..” (Emphasis added)
Inasmuch as House Bill No. 388 affords no opportunity for a
judicial hearing either directly or by review it Is an
attempt by the Leglslature to deprive persons of their pro-
perty without due probnss of law and is therefore an uncon-
atltutlonal enactment..   We are aware of no other statute
authorizing a court to dlvost title to property under the
circumstances set out. We therefore answer your question
number one in the negative. This means that no answer 1s
required to question number two. Question number three must
be answered in the negative also. Question number four can
be answered only by stating that the sheriff must hold the
property until the Legislature properly provides for its
disposal or sale.
       For similar reasons Article 938, Vernon’s Code of
Criminal Procedure, would be a denial of due process of law
and therefore unconstitutional. It provides:
          “If the property is not claimed within six
       months from the conviction of the person accused
.   .




        Honorable Joe Resweber     Page 5    Opinion No. ~11-3203


                 of illegally acquiring It, the sheriff shall sell
                 It for cash, after advertising for ten days as
                 under execution. The~proceeds of such sale, after
                 deducting all expenses of keeping such property
                 and costs of sale, shall be paid into the treasury
                 of the county where the defendant was convicted.
                 Money stolen shall be paid into the county
                 treasury if not claimed by the proper owner within
                 six months."
        It can be seen once again that although Article 938 provides
        sufficient notice there is no provision for a judicial hear-
        ing. The redemption right set out In 939 does not save,the
        statute because it provides that the owner must sue to recover
        the property after title has already vested in the county and
        the proceeds from the sale of the property placed in the
        county treasury. The answer to question number five therefore
        is that no constitutional provision has been provided for the
        sale of unclaimed stolen property.
                                  SUMMARY
                    House Bill No. 868a Acts 1953,53rd Legls-
                 lature, p. 929, ch. 388 (Article 332a Code of
                 Criminal Procedure) Is unconstitutional because
                 It attempts to provide for the disposal of
                 abandoned property without affording due process
                 of law. Further Article 938 of the Code of
                 Criminal Procedure Is likewise unconstitutional
                 for the same reason.
                                        Yours very truly,




        NVS:sh
        APPROVED:
        OPINION COMMITTEE
        W. V. Geppert, Chairman
        Henry Braswell
        Martin DeStefano
        Colman Gay
        Iola Wilcox
        REVIEWED FOR THE ATTORNEY GENERAL
        BY: Houghton Brownlee,Jr.
