Honorable Homer Garrison  Jr., Director
Texas Department of Publjc Safety
Box 4087 North Austin Station
Austin, sexas
                      Opinion No. S-211
                      Re:    Whether the State Department of
                             Public Safety may have title      to,
                             operate aa ~aispose~of Vessels
                             vehicles  and aircraft   forfeite d
                             to it under Article    72.5a, V.P~.C.,
                             there being no bona fide lien
                             holders or other uersonsclaim-
                             ing any right,   t&e    or interest
                             therein.
Dear.Col~onel    Garrison:
              You have requested    our opinion   on the following
que'stion:,
              9.    If a vehicle upon which no lien is
       claimed is forfeited       to the Department ,of
     .Publ~ic Safety through the procedure estab-
     lishea      by House Bill 308 and an order is is-
      .sued directing      then certificate   of title tombe
       transferred     to the Department of Public Safety
       and the Department, pursuant to~th.at order
       makes due application        and receives  the cer 4 I-
       ficate    of title,   can the Department then con-
     sider this vehicle         as lawful State property
       for the,purpose      of the expenditure of States
       funds for its operation ana maintenance?"
            The provision  of Article    725d, Vernon's Penal
Code, 'providing for the disposal of forfeited      automobiles,
vehicles,   ana aircraft  is as follows:
             “Sec. 8.    Sale.  All forfeited  vessels,
      vehicles    or aircraft  shall be sold at a public.
      auction under~the direction      of the County Shes-
      iff after notice ~of sale as provided bye law for
Honorable     Homer Garrison,   Jr.,   page 2   (S-211)


        other sheriff’s  sales. The proceeds of such
        sale shall be delivered to the District Clerk
        and shall be disposed of as follows:

             ,“(l>    To the bona fide lien holder, mort-
        gagee or conditional    vendor to the extent of
        his interest;

              “(2)  The balance   if any, after deduc-
        tion of all storage ancl court costs,   shall be
        forwarded by the District   Clerk to the State
        Treasury for deposit in the general revenue
        fund.”
           The question involved is whether this section of
Article 725d means that there is to be a sale of the for-
feited vehicle,    vessel or aircraft     in every case, or
whether the ~section is merely descriptive        of the procedure
to be followed where there ‘are lienholders         and a sale is
had under the statute.       In reaching a construction     of the
section involved,     it should be pointed out that the word
‘Ishall” , as used in statutes end contracts         is generally’
mandatory end imperative.        Black’s Law DicCionary (4th Ed.
1 9!m    lThe section ‘above quoted concerning sale of for-
feited vehicles    is the only section in the statute involv-
ing a sale or other disposition        of the property,   and
states unequivocally      that the forfeited    vehicle “shall be
s0ialJ. It then proceeds to prescribe the method of sale,
and the conclusion      is inescapable   that the statute com-
mands a sale in any event, and any other use of the vehicle
is not authorized by the statute.         Thus the Department of
Public Safety would not be authorized to retain the for-
feited vehicle,    vessel or aircraft     for its own use, nor
could it be considered lawful State property for the pur-
pose of expenditures      of State funds for its operation and
maintenance.
           This construction   of the statutory provision   is
further substantiated     by the legislative   history of Article
72% as House Bill 308, 54th Legislature,        1955.  The bill,
as originally   introduced,   reads as follows:
             “Sec.     14a.
             18. . .

             “(2)    . . . If upon the trial of such suit
        it is found that such vehicle was used for the
        transportation    of narcotic drugs in violation
Honorable Homer Garrison,      Jr.,   .page 3   (S-211)


       of this act then the court trying-said   cause
       shall render judgment forfeiting   said prop-
       erty to the State of Texas end ordering the
       same disposed of as provided,for   by subseo-
       tion (4) of this section,   or if in the opin-
       ion of the Director  of the Department of
       Public Safety, such property is needed for the
       use of the department then the same shall be
       retained and so used until such time as such
       property is sold by the Department as provided
       herein."
            In the committee report on this bill it was recom-
mended that the bill do pass, but that it be .not printed,
and that a~substituted       bill presented by the committee be
printed.     The'substitutea     bill was eventually passed~~and
is now Article 725d,~ from which the above provision-was
taken.    The intention of the Leg~islature as indicated by
the above action is clearly         shown. It was pre~sented a bill
allowing the Department of Public Safety to keep the for-
feited vehicle for its own use but instead the Legislature
substituted    a bill which prov1Ae.e that the vehicle be sold.
Thus the intent of the Legislature          wasthat   the Department
of Public Safety.not      be allowed by the present Article to
retain a forfeited      vehicle,    vessel,  or aircraft  for its own
use.
          Therefore,  under this article. all property for-
feited  to the State must be sold in the manner indicated,
and retention   of the vehicle by the Departmentof    Public
Safety or expenditure of State funds in its care and main-
tenance is without statutory    authority.
          As to the portion of the question ,presented which
deals with the certificate   of title to the forfeited   vehi-
cle, vessel or aircraft,   Section 9 of particle 725dprovides:
            8fSec. 9. The State Highway Department is
       hereby directed   to issue a certificate    of~title,-'l
       to any oerson, purchw         a vessel,  vehicle,   or
       aircraft   under the provisions   of this act, when.
       said certific,ate  of title   is required under the
       laws of this State."     (Emphasis added.)
            Section 35.of the Certificate       of Title,   Act,   Arti-
cle   1436-1,  V.P.C., provides:
Honorable   Homer Garrisonj    Jr::     page 4     (S-211)


           Whenever the ownership of a motor vehicle
     registered    or licensed within this State is
     transferred     by operation of law, as upon . . .
     judicial    sale, or any other involuntary dives-
     titure of ownership, the Department shall issue
     a new certificate     of title  upon being provided
     with certified     copy of . . . bill of sale from
     the officer     maklng the judicial,sa3.e. . . .'I
            There is no provision      for a transfer of title       of
the forfeited     vehicle   in either the article     here under
construction     or the Certificate      of Title Act except to the
purchaser at the'sale       prescribed    in Section 8 of Article
72%.    Therefore,     there  is  no  statutory   authorization    for
a transfer    of the title    to the forfeited     vehicle,   vessel,
or aircraft     to the Department of Public Safety pending the
sale of the vehicle prescribed         in Section 8 of Article
72,sd either in the other provisions          of this article,     or in
the 6ertificate     of Title Act.
                                SUMMARY
            Article    725cI, V.P.C.,   does not allow the
      Department of Public Safety to keep and use or
      to expend State funds for the maintenance o1 ,
      vehicles,     vessels   or aircraft    forfeited  under
      that article,      but provides~ that such forfeited
      vehicle,    vessel,    or aircraft    shall be sold ac-
      cording to the statute.         Further, Article    725d
      does not authorize transfer.of          the title  to such
      vehicle,     vessel,   or aircraft   to ~the Department
      of Public Safety .pending the sale of such vehi-
      cle, vessel,      or aircraft   under Section 9 of such
      article.
.APPROVED:                            Very truly    yours,

J. Fred Jones                         JOEINBRNSRRPPWD
State Affairs Division                Attorney General
W. V. Geppert
Reviewer
J. C. Davis,    Jr.
Reviewer
Davis Grant
First Assistant
John Ben Shepperd
Attorney General
