I




                                     The Attorney        General of Texas

    JIM MATTOX
                                                     June 30, 1986
    Attorney General


    Supreme Court Building         Honorable William R. Moore                 Opinion No. JM-510
    P. 0. BOX 12548
    Austin. TX. 78711. 2548
                                   Tom Green County Attorney
    512!47&2501                    County Courthouse                          Re: Validity of articles 4594
    Telex 9101874.1367             San Angelo, Texas   76901                  and 4595, V.T.C.S.. the Texas
    Telecopier  512/475-0266                                                  Hotel/Motel Operators Lien Law

    714 Jackson, Suite 700
                                   Dear Mr. Moore:
    Dallas, TX. 75202.4506
    214/742-a944                        You question the constitutionality of the Texas Hotel/Motel
                                   Operator's Lien Law,, articles 4594 and 4595, V.T.C.S. Article 4594
                                   gives proprietors of hotels and similar establishments a lien on the
    4824 Alberta Ave.. Suite la0
    El Paso, TX. 79905-2793
                                   baggage and other property of guests for all sums due for board,
    915/533-3484                   lodging, and "extras" furnished at the request of the guest. The
                                   statute authorizes proprietors to exercise self-help to seize and
                                   retain the guest's property.      Article 4594 also exempts seized
,A.@’     Texas, Suite 700         property from attachment or execution while the proprietor retains
      ,uston. TX. 77002-3111
                                   possession. Article 4595 authorizes the proprietor to sell the
   I G/223-5886
                                   property at a pub:lic auction to satisfy the lien. The brief you
                                   submit with your request letter, from West Texas Legal Services,
    606 Broadway, Suite 312        alleges that articles 4594 and 4595 violate the Due Process Clause of
    Lubbock, TX. 79401.3479        the Fourteenth Amen&Dent of the United States Constitution. We agree.
    aw47-5238

                                        Article 4594 provides, in full:
    4309 N. Tenth, Suite B
    McAllen. TX. 78501-1885                     Proprietors of hotels, boarding houses, rooming
    512,Sa2-4547
                                             houses, inns, tourist courts, and motels shall
                                             have a l::enon the baggage and other property of
    200 Main Plaza. suite 400                guests in such hotels, boarding houses, rooming
    San Antonio. TX. 762952797               houses, inns, tourist courts, and motels for all
    5121225-4191                             sums due for board, lodging, extras furnished or
                                            'money ad\,ancedat the request of such guest, and
    An Equal Opportunity/
                                             shall have the right to retain possession of such
    Affirmative Action Employer              baggage or other property until the amount of such
                                             charges is paid. Such baggage and other property
                                             shall be exempt from attachment or execution while
                                             in the possession of such proprietor.

                                        Article 4595 provides. in part:

                                               The keeper of the inn, boarding house, or hotel
                                            shall retain such baggage and other property upon
                                            which he has a lien for a period of thirty (30)



                                                                p. 2342   ,
                                                                         ,
Honorable William R. Moore - Page 2   (JM-510)




          days, at the expir.ationof which time if such lien
          is not satisfiers, he may sell such baggage or
          other property at ,publicauction, first giving ten
          days' notice of the time and place of sale by
          posting at least three (3) notices thereof in
          public places in t:hecounty where the inn, hotel,
          or boarding house is situated and also by mailing
          a copy of such notice to said guest or boarder at
          the place of residence shown on the register of
          such inn or hotel, if shown. After satisfying the
          lien and any costs that may accrue, the residue
          shall on demand, within sixty (60) days be paid
          such guest or boarder.

     The Fifth Circuit heltl a similar statute unconstitutional on its
face because it worked a deprivation of property without due process
of law insofar as it failed to provide notice and a hearing before
property was taken from its,possessor. Hall v. Garson, 468 F.2d 845,
847 (5th Cir. 1972). The court in Hall v. Garson struck down the
now-repealed Texas Landlord Lien Law, article 5238a. Acts 1969, 61st
Leg., ch. 686, at 2008. (After Hall v. Garson, the Texas Legislature
replaced the old Landlord Lien Law with article 5236d, Acts 1973, 63rd
Leg., ch. 441, at 1226, now recodified in the Property Code as article
54.041 et seq. for resider.tialtenancies and article 54.021 et seq.
for other tenancies.) The statute considered in Hall v. Garson was
virtually identical to articles 4594 and 4595 in that it authorized
proprietors to seize and rc!taina tenant's property with no provision
for any kind of prior hea:ring. In fact, the old Landlord Liens Law
also specified that seized property "shall be exempt from attachment
or execution to the same extent 8s set out in Article 4594 . . ." and
that the sale of such prol'erty"shall be subject to the same duties
and shall follow the samr nrocedures as set out . . . in Article
4595. . . ." Thus, the rat:ibnale presented in Hall v. Garson also
applies to articles 4594 and 4595.

     The court in Rall v. Garson
                           --    relied primarily on the United States
Supreme Court decision in ;$entes v. Shevin, 407 U.S. 67 (1972). In
Fuentes the Court condemned the complete absence in Florida and
Pennsylvania statutes of notice and an opportunity to be heard prior
to a summary seizure of gcods or chattels under a writ of replevin.
407 U.S. at 69. Both s:atutes authorized the issuance of writs
ordering state agents to seize a person's possessions upon the
application of any other ptersonwho simply claimed a right to the
property and posted bond. Id. The Court deemed the statutes an
abdication of effective strt~ontrol     over state power because the
statutes authorized private parties, serving their own advantage, to
unilaterally invoke state '7ower to replevy goods from another party.
407 U.S. at 93. The Court reiterated the long standing rule that such
a violation of due process could be avoided only by providing adequate
safeguards at a meaningful time and in a meaningful manner so as to



                                  p. 2343
         Honorable William R. Moore - Page 3   (lM-510)


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         obviate the danger of an unfair or mistaken deprivation of property.
         407 U.S. at 80.

              Applying this reasoning and conclusion to the old Landlord Lien
         Law, the Fifth Circuit in H&l v. Garson stated:

                      Here we have no such protections. [Article]
                   5238a clothes the apartment operator with clear
                   statutory authority to enter into another's home
                   and seize proper:), contained therein. This makes
                   his actions thoe;e of the state.        [Citations
                   omitted].   There is no requirement that the
                   landlord first have the validity or the accuracy
                   of his claim im:~artiallydetermined, or that a
                   need for immediate seizure be present. Those
                   decisions are left to the operator himself to act
                   upon with no pr:.or opportunity for challenge by
                   the possessor of the property.

         468 F.2d at 848. Article 5238a denied the fundamental fairness
         required by the Due Process Clause of the Fourteenth Amendment.

              Because Rail v. Garson relied on Fuentes v. Shevin, a caveat
         about Fuentes is in order. --The United States Supreme Court clarified
         the scope of its Fuentes v, Shevin holding in Mitchell v. W. T. Grant
         Company, 416 U.S. 600 (1974), two years after the Fifth Circuit
         decided Hall. The Court in Mitchell upheld the constitutionality of a
         court-orzd    sequestration of personal property, which was subject to
         an installment agreement, on the affidavit of the creditor. The
         debtor challenged the sequestration under the Due Process Clause of
         the Fourteenth Amendment because the sequestration was ordered z
         paste, without prior notL:e or an opportunity for a hearing. The
         Court emphasized that "[,::lhequestion is not whether a debtor's
         property may be seized by his creditors, pendente lite, where they
         hold no present interest tn the property. . . ." 416 U.S. at 604.
         The question regarding arl:icles 4594 and 4595 involves seizures by
         creditors of property in wb,ichthey hold no present interest.

              Although the writ of sequestration was obtainable without notice
         to the debtor or an opportunity for a hearing, the Court upheld the
         procedure. Several factors influenced the Court. First, the statute
         required that the creditor submit facts supporting his need for the
         writ to a judge. 416 U.S. e.t605. Additionally, the statute authorized
         the debtor to seek immediste dissolution of the writ and to regain
         possession of. the property by filing a bond. Further, the writ
         purported only to sequester the property pending the final adjudica-
         tion of the controversy. A Texas court applied this case in the
         context of a commercial Ilandlord-tenant case and summarized the
         requirements of due procesr;as follows:
    Ic




                                           p. 2344
Honorable William R. Moore -'Page 4    (JM-510)




             States may enter provi&ons     for prejudgment
          seizures if such writs are: 1) issued by judicial
          officers; 2) the affidavits and documents in
          support of said mc~tionset out the facts relied on
          and are more than conclusions; 3) the debtor has
          an immediate right to a hearing; and 4) dissolu-
          tion of the writ will be granted absent proof at
          the hearing.

Lincoln Ten, Ltd. v. White, 706 S.W.2d 125, 128 (Tex. App. - Houston
114 Dist.] 1986, writ granted). Articles 4594 and 4595 contain none
of these protections. In fact, article 4594 purports to remove
judicial recourse by exemp,ting seized property from attachment and
execution.

     We recognize that the amended version of the Landlord Lien Law
was upheld in Jacobs v. Hu:&, 447 F. Supp. 478 (N.D. Tex. 1976). The
court in Jacobs v. Huie, hm#ever. upheld the amended act only because
the statute forbade summary seizure of property unless there existed
a conspicuous, written agreement between the landlord and tenant
authorizing the seizure. The court distinguished Hall v. Garson on
the basis that the statute overturned in Hall v. Garson involved both
state authorization for the questioned conduct and the direct
statutory delegation to a private party of an action traditionally
performed by the state. 4si7F. Supp. at 481. Although a contractual
lien and a contractual waiver of the right to notice and a hearing dare
clearly subject to challenge on the basis that they are not entered
into knowingly and Intelligently, this is a different question from
whether there exists suffLcient "state involvement" to trigger due
process concerns. See 447 F. Supp. 478; see generally Fuentes v.
Shevin, 407 U.S. 67;Tnzales
                     --       v. County of Hidalgo. 489 F.2d 1043 (5th
Cir. 1973); Armenta v. Nussbaum, 519 S.W.2d 673 (Tex. Civ. App. -
Corpus Christ1 1975, writ 1pfld.r.e.).

     Unlike the law upheld in Jacobs v. Huie, articles 4594 and 4595
do not involve contractual liens. They contain a direct grant to
hotel proprietors of the statutory authority to seize a guest's
property without notice ant.an impartial hearing and to sell a guest's
property with notice but "11thno hearing whatsoever. Accordingly, we
conclude that articles 4534 and 4595 are facially unconstitutional
because they work a deprivation of property without due process of
law.

                             SUMMARY

            Articles 4594 and 4595, V.T.C.S., the Hotel/
         Motel Operators' Lien Law. are facially unconsti-
         tutional under t:he Due Process Clause of the
         Fourteenth Amendment     to  the   United  States
         Constitution becinlse they fail to provide notice



                                  p. 2345
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$
    Honorable William R. Moore - Page 5    (JM-510)




              and an impartia,l hearing before a proprietor
              exercises statutcrily-authorized self-help to take
              property from the proprietor's business guests.


                                           Very tru1y yours,       ,

                                                                   ’ W’yt
                                           JIM     MATTOX
                                           Attorney General of Texas

    JACK HIGHTOWER
    First Assistant Attorney General

    MARY KELLER
    Executive Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by Jennifer S. Riggs
    Assistant Attorney General




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