Hon. Joe Resweber

CountyAttorney Harris county Houston, Texas

Dear Mr. Resweber: May 26, 1967

OpinionNo. M- 79
Re: Sale of unclaimed and abandoned

propertyunder Article 18.30, Vernon's Code of CriminalProcedure.

You have requested our opinion concerning the followingquestions: 1. Can Harris County legally enter into a contractwith an auctioneer for the sale of unclaimed and abandonedpersonal property under Article 18.30,V.C.C.P.? 2. -j

3.

4. CanHarris County legallypay the expense of,keepingunclaimed and abandonedproperty, and the costs of sale of suchproperty? Can the officer handling unclaimed or abandonedproperty under Article 18.30,V.C.C.P., require an owner, claiming such property after expenseshave been duly incurred, to pay such expenses as a conditionprecedent to returning the property to the owner?
Is the officer handling unclaimed and abandonedproperty under Article 18.30,V.C.C.P., entitled to a fee forhis services? Article 18.30 of Vernon's Code of CriminalProcedure provides as follows: "Sec. 1. All unclaitied or abandonedpersonal property except whiskey, wine and beer, of every kind,seizedby a peace officer, which isnot 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 amagistrate,which shall remainunclaimed for a period of thirty (30)days shallbe delivered to the purchasing agent of the county for sale. If the county hasno purchasing agent then suchproperty shallbe sold by the sheriff of the county. "Sec. 2. The purchasing agent or sheriff of the county,as the casemay be, shallmail anotice to the last known address 

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of the owner of such property by certifiedmail. Such notice shall describe the property being held, give thename and address of the officer holding such property, and shall state that if the owner does not claim such property within six (6)months from the date of thenotice such property will be sold and the proceeds of such sale, after deducting the reasonableexpenses of keeping such property and the costs of sale,placed in the county treas- "rY.

. "If the owner of such property isunknown, orif the address

of the owner is unknown then the purchasing'agent or sheriff,as the casemay be, shall cause to be published once in a paper of general circulation in the county anotice containing a description of the property held, the name of the owner if known, the name and address of the officerholding such property, and a statement that if the owner doesnot claim such propertywithin sixmonths from the date of the publication such propertywill be sold and the proceeds of such sale,afterdeducting the reasonable expense of keeping such property and the costs of sale,placed

.- in the county treasury.

. .._. -, -. "Sec. 3. The sale of any propertyhereunder shall be preceded by a notice published once at least threeweeks prior to thedate of such sale in a newspaper of general circulation in the county

. .wherethe sale is to take-place, stating the description of the prop=rty, the names of the owners if known and the date and place that such salewill occur. If the purchasing agent or sheriff, as the casemay be, shall consider any bid as insufficienthe need not sell such property but may decline suchbid and reoffer such property for sale.
"Sec. 4. The real owner of any property sold shall have the right to file a claim to the proceeds of such sale with the commissioners court of the county inwhich the sale took place. If the claim is allowed by the commissionerscourt the county treasurer shallpay the owner such funds aswere paid into the treasury of the county as theproceeds of the sale. If the claim is denied by the commissioners court or if said court fails to act upon such claimwithin ninety (90)days, the claimantmay sue 'thecounty treasurer in a court of competent jurisdiction in the county, and upon sufficient proof of ownership,recover judgment against such county for the recovery of the proceeds of the sale." Acts 59th Leg. 1965, vol. 2, p. 317, ch. 722. Section 1 of Article 18.30,V.C.C.P., specificallyprovides that unclaimed or abandonedpersonal property ".... shall be delivered to the purchasing agent of the county for sale. If the countyhas no purchasing agent then suchproperty shall be sold by the sheriff of the county." The purchasing agent or sheriff of the countyhas the responsibility for conducting the sale, but we perceiveno valid reasonwhy such officermay 

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Hon. Joe Resweber, Page 3 (M-79)

not delegate his function to a professional in the field. It is our view that the commissioners courtmay notmake this delegation, since the statute provides for the sale to be conductedunder the control of a particular county officer. However, the purchasing agent or sheriffmay hire a person to serve as auctioneer, under the direction and control of such designated: officers, for abandoned or unclaimed property, with the customary compensation for suchperson to be paid from the proceeds of the sale.

With regard to your question as to whether the countymay legally pay the expense of keeping unclaimed and abandonedproperty, and the costs of sale of such property, the statute itself requires the expenditure of. county funds prior to the time anymoney can be realized from a sale. Further, storage, advertising and sales costs are continuing charges that must be paid when due. It is our opinion that the countymay properly pay these costs, recovering them from theproceeds of the sale when it is conducted.

In answer to your third question,Article 18.30 V.C.C.P., does not provide for the collecting of the cost of storage,handling andpublication from the owner of such property in situationswhere the property is claimedby its owner before sale. Article 47.09V.C.C.P., provides for the collecting of such costs from the claimant of property seizedby an officer and alleged to have been stolen, but if the property doesnot fit within that category, or unless such charges are authorized by other provisions of law, the purchasing agent or sheriff, as the casemay be, must release the property without such charges until the Legislature authorizes such charges.

Article 18.30,V.C.C.P., doesnot provide for a fee to be paid to the purchasing agent or sheriff for his servicespursuant to such Article. Therefore, the officers cannot lawfully charge a fee therefor.
SUMMARY ------- 1. Harris County is not authorized to contract for the service~s:of a public auctioneer to sell items of unclaimed and abandoned property pursuant to Article 18.30, V.C.C.P.. but the county officer authorized tomake such salesmay hire a parson to conduct the auction inhis behalf, and under his direction and control. 2. Harris County can legallypay the expense of keeping unclaimed and abandoned property and the costs of the sale of such property. 3. In answer to your third question,Article 18.30 V.C.C.P., does not provide for the collecting of the cost of storage,handling and publication from the owner of suchproperty in situationswhere the property is claimedby its owner,before sale. 

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Hon. Joe Resweber, Page 4 (M-79)



### 4. An officerhandling unclaimed and abandoned property underArticle 18.30,V.C.C.P., is not entitled to a fee for such services.

ey General of Texas

._ -- Prepared by

ThomasW. Hack APPROVED: OPINION COKHITTEE Hawthorne Phillips, Chairman W. V. Geppert, Co-Chairman Harold Kennedy Monroe Clayton Malcolm Quick Robert Owen
A. J. CARURBI, JR. Staff LegalAssistant



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