The Attorney General of Texas 

June 4. 1980 

MARK WHITE 

Attorney General 

Honorable Warren G. Harding 

State Treasurer 

P. 0. Box 12608, Capitol Station 

Austin, Texas 78711 

Opinion No. ~~-18 6 

Re: Whether article l581h, 

V.T.C.S., relating to unclaimed 

funds held by a county, is constitutional. 

Dear Mr. Hard@ 

You ask whether article 1581h, V.T.C.S., is constitutional. This statute 

applies to unclaimed funds in the custody cr control of a county or precinct 

officer, including a court. The officer holding the funds is required to give 

written notice to the owner that the funds will become county property if he 

does not claim them within the time prescribed by law. Sec. 3. If the funds 

are not claimed within four years after notice is given, they become the 

property of the county. Sec. 4. 

Article 1581h, V.T.C.S., vests ownership of the funds in the county 

without any judicial proceedings It is in the nature of an escheat statute, 

because it provides for the transfer of unclaimed property to the county. 

See State of Texas v. State of New Jersey, 379 U.S. 674 (1965). It, however, 

mers in a constitutionally significant way from the other Texas es&eat 

statutes. Article 3272, V.T.C.S., provides for the escheat of real estate 

through a judicial proceeding. Branham v. Minear, 199 S.W.2d 841 (Tex. Civ. 

App. - Eastland 1947, writ ref’d n.r.e.); Robinson v. State, 87 S.W.2d 297 

(Tex. Civ. ADD. - El Paso 1935. writ dism’dl. Article 3272a. V.T.C.S.. which 

applies to personal property, is custodial in nature. State v. Liquidating 

Trustees of Republic Petroleum Co., 510 S.W.2d 311 (Tex. 1974). See 

Comment, 29 SW. L.J. 575 (1976). The state never actually takes title tothe 

property, since the owner may claim the property or its-value at any time. 

Sec. 6. Article 3272b, V.T.C.S., provides for the escheat of bank accounts, 

also subject to future claims of owners. Article 4.08 of the Insurance Code 

applies to unclaimed funds of life insurance companies. Again, there is 

provision for reimbursement when a claimant appears. Sec. 8. 

Article 1581h, V.T.C.S., vests title to unclaimed property in the county 

four years following notice to the owner. There is no judicial proceeding to 

determine whether the facts exist which would support an escheat under 

article 1581h, V.T.C.S., nor may the owner claim the property after four 

P. 594 
Honorable Warren G. Harding - Page Two (NW-186 1 

years have elapsed. In our opinion, article 1581h, V.T.C.S., deprives the owner of property 

without &e process of law because it vests title in the county without a judicial 

proceed@. 

The Supreme Court of California has stated that a judicial procedure is necessary to 

perfect the escheat of an estate. State v. Savings Union Bank & Trust Co., 199 P. 26 (Cal. 

19211. If a statute orovided for an immediate escheat without iudicial oroceedims it would 

deprive the owner- of property without due process of law. Id. Sek also M&nheim v. 

Superior Court of Los Angeles County, 478 P.2d 17 (Cal. 1970) (i&uiiUnited States 

Supreme Court has held that the state mav take custodv of unclaimed bank denosits end 

later institute judicial proceedixs to estabiish conclusively that the property was actually 

abandoned. Anderson National Bank v. Luckett, 321 U.S. 233 (1943). The court stated as 

follows: 

The fundamental requirement of due process is an opportunity to be 

beard won such notice ‘and proceedings as are adequate to 

safeguard the right for which the constitutional protection is 

invoked. If that is preserved, the demands of due process are 

fulfilled.. . . 

For this reason also it is not an indispensable requirement of due 

process that every procedure affecting the ownership or disposition 

of property be exclusively by judicial proceeding. Statutory 

proceedings affecting property rights, which, by later resort to the 

courts, secure to adverse parties an opportunity to be heard, 

suitable to the occasion, do not deny due process. 

Id. at 246-247, article 1581h, V.T.C.S., does not provide any judicial proceeding at’ any 

pint to determine whether funds are actually unclaimed funds within its terms. Nor is 

there any provision for determining whether a claimant who comes forward within four 

years is the actual owner of the funds. In our opinion, article 1581h, V.T.C.S., would 

unconstitutionally deprive owners of property without due process of law, in violation of 

the 14th amendment of the United States Constitution and article I, section 19 of the 

Texas Constitution. 

SUMMARY 

Article 1581h, V.T.C.S., authorizes the county to take title to 

unclaimed property without a judicial proceeding. It is therefore 

unconstitutional as permitting the deprivation of property without 

due process of law. 

MARK WHITE 

Attorney General of Texas 

P. 595 
, 

Honorable Warren G. Harding - Page Three (Mw-186) 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Susan Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

Jim Allison 

Jon Bible 

Susan Garrison 

Rick Gilpin 

Bruce Youngblood 

P. 596