           TEIEA'ITORSEY                      GENERAL




                               Ma.rch   5, 1962

Honorable   Jesse   James               Opinion   No.   W-1264
State Treasurer
State Treasurer’s     Office            Re:   Whether Section      4 of Article
Austin,   Texas                               3272a, V.C.S.,      and the certl-
                                              flcatlon   of the State Treas-
                                              urer to the Attorney       Genera.1
                                              would prohibit      a holder of
                                              property    subject    to the pro-
                                              visions   of said Article,
                                              from making restoration         of
                                              such property      to its reported
                                              owner at any time subsequent
                                              to the 120 day interval         from
                                              the date the report was re-
                                              ceived by the State Treasurer
                                              and the date the suit referred
                                              to in Section      4 is finally
Dear Mr. James:                               adjudicated.

           Your question     is whether Section      4 of Article   3272a.,
Vernon’s Civil    Statutes,    prohibits    a holder of property    subject
to the provisions     of that statute     from restoring   such property
to its reported    owner between the expiration        of 120 days from
the date the report was received         by the State Treasurer     and the
date the suit referred      to in Section     4 is finally  adjudicated.

              Apropos of your in ulry we quote          the relevant     parts
of   subsections    (a), (b) and 9 g) of Section        4 of Article     32723.:

              “(a.) All personal   property    reported   under the
       provisions    of this Article     remaining unclaimed     at
       the expiration    of one hundred and twenty (120) Gys
       from the date upon which the report by the holder
       of such property     was received    by the State Treasurer,
       shall be deemed to be abandoned,         and shall   escheat
       to, and the title     thereto   vest in, the State of Texas,
       and the State Treasurer       shall  so certify    to the At-
       torney General.

              “(b)   The Attorney   General shall immediately
       institute     an action   in a District   Court of the
       county in which the holder        resided  or is domiciled
       to judicially     determine   that such property   has es-
       cheated     to the State.    The suit shall be brought
Honorable    Jesse   James,     page 2    (WW-1264)

      as a class      action,     and may include        the pro,perty
      reported    by more than one holder             from the same or
      other counties,         and the sworn petition           shall   state
      that the action         is brought by the State of Texas
      upon the relation          of the State Treasurer           by the
      Attorney    General for the pur,pose of escheatlng                  and
      vesting    the title       in the State of Texas of the
      property     therein      described,     stating    the descrip-
      tion of the property           which has escheated          to the
      State,    the name of the person or holder possessed
      thereof    and the names of the person or persons
      claiming,     or last known to have claimed,                such
      property,     if any such names are known, all of
      which information          shall be separately         listed    in
      parallel     columns,      and t,he facts      and circumstances
      in consequence        of which such property           is claimed
      to have escheated,           praying    that such property        be
      eschea.ted,     and the title        thereto    vested     in the
      State of Texas.           The petition      shall not be subject
      to objections        as to the misjoinder          of parties     or
      misjoinder      of causes of action.

               “(g)    If it appears to the Court that the prop-
      erty described          in the petition        has be& actually
      abandoned,         and that there is no person entltled~ to
      it,    judgment shall be rendered              declaring     such prop-
       ertv escheated         and vestlne:     the title      thereto    in the
      Stake of Texas.           Tine Judgment shall also direct               the
      holder of the property             so described,        which has been
      actually       abandoned and escheated           and the title        thereto
      vested      in the State,        to deliver     such property        lmme-
      diately       to the State Treasurer.             If no person or
       claimant       to any property       described      in the petition
       shall appear and answer within                the time provided         for
       entering       such appearance       and answer ‘oy the Texas
       Rules of Civil         Procedure,      the Court shall        render
       judgment by default           as to such property          in favor of
       the State of Texas.             If the Court should find that
       such property         has not been actually           abandoned a.nd
       therefore        should not be escheated           and the title
       thereto      vested in the State of Texas, and that the
       title     to such property         should vest in the person or
       persons      claiming     the title      to or an interest        in such
       property,        the Court shall       direct    such property       to be
       delivered        to the person or persons           lawfully     entitled
       to possession         thereof.”       (Emphasis supplied)

           From the foregoing,   it is seen that at the expiration
of the 120 day period   the property  is automatically    deemed to be
abandoned.   While the statute   says that it “shall   escheat  to,
Honorable   Jesse   James,   page   3 (WA1264)

and the title thereto   vest in, the State of Texas",       it is ob-
vious that the property    does not actually    become the property
of the State uniess and until    a final   adjudication   to that
effect is made by t'ne Courts.    This evident     from Section  L!(g)
quoted above.

              It is equally    clear  that the judment      of the Ccurt
would reiate     back to the expiration       of the 120 da.y period    when
ti;   property   was first   deemed abandoned and escheated.          There-
fore,   after   the expiration     of the 120 day period the holder        who
released    the property    to anyone without      the concurrence    of the
proper authorities      runs the risk of being held accountable           to
tha State for the value of such pro~perty by virtue             of a subse-
quent judgment declaring         the property    to have been the property
of the State at the time the holder           released  the property.

             It follows    that after     the expiration    of the 120 day
period,   the holder serves        in the capacity    of custodian   of the
property   pending a determination         as to the ownership of the
property   by the proper authorities.           Tha.t is to say, the holder
does not have it within         his power to decide whether the reported
owner, or anyone else,        is the rightful     ownc   of the property.
T'nls determination      must be made by the Stata Treasurer,          on whose
relation   the suit is brought,         and the Attorney    General,  whose
duty it is to prosecute         a. suit to escheat    the property,   unless
he is convinced      that the rightful       owner has appeared to claim
the property,     and, the Court,       if the Attorney    General proceeds
to place the matter before           the Court.

           Thus, by necessary   implication,     the holder  is prohi:?-
ited from turning the property    over to the "reported      owner" ;1nisst
it is pursuant to the advice    and consent    of the State Treasui-er
and the Attorney  General,   whose duty it wlli be to ask the con-
sent of the Court where such consent       is necessary.    Your questio;;
is answered accordingly.
                             SUMMARY
            Under Article   3272a, Vernon's     Civil  Statutes,     the
      holder is prohibited     from releasing    property   to its
      reported  owner after    the ex~plratlon   OF 120,days     from
      the date the report    was received     by the State Treasurer,
      unless such relea.se   is made pursuant     to the advice      and
      consent of the State Treasurer       and th? Attorney      Genera3
      of Texas.
                                       Very truiy   yours,
                                       WILL WILSON
                                       Attorney   General of   Texas

                                    Byrd;:       L22z- :'
                                       Assistant
                                                   -.   ,




Honorable   Jesse   James,   page   4   (W-1264)

APPROVED:

OPINION COMMITTEE

Howard W. Mays, Chairman
Milton Richardson
Iola B. Wilcox
James Broadhurst

REVIEWEDFOR THE ATTORNEYGENERAL
BY: Houghton Brownlee, Jr.
