## TEIEA'ITORSEY GENERAL

Ma.rch

## 5,1962

Honorable Jesse State Treasurer James Opinion No.

## W-1264

State Treasurer’s Office Austin, Texas

Dear Mr. James: Re: Whether Section 4of Article 3272a, V.C.S., andthe certlflcatlon of the State Treasurer to the Attorney Genera.1 would prohibit aholder of property subject to the provisions of said Article, from making restoration of such property to its reported
owner at any time subsequent to the 120day interval from the date the report was received bythe State Treasurer andthe date the suit referred to in Section 

## 4is finally adjudicated.

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

Apropos of your in of subsections (a), (b) and9ulry wequote the relevant parts g) of Section 4of Article 32723.:

“(a.) All personal property reported under the provisions of this Article remaining unclaimed at the expiration of one hundred andtwenty (120) Gys from the date upon which the report bythe holder of such property was received bythe State Treasurer, shall be deemedto be abandoned, andshall escheat to, andthe title thereto vest in, the State of Texas, andthe State Treasurer shall socertify to the Attorney General.

“(b) TheAttorney General shall immediately institute anaction in aDistrict Court of the county in which the holder resided or is domiciled to judicially determine that such property has escheated to the State. The suit shall bebroughtHonorable Jesse James, page 2 

## (WW-1264)

as aclass action, andmayinclude the pro,perty reported bymore than one holder from the sameor other counties, andthe 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 description of the property which has escheated to the State, the nameof the person or holder possessed thereof and the namesof the person or persons claiming, or last knownto have claimed, such property, if any such names are known, all of which information shall be separately listed in parallel columns, andt,hefacts andcircumstances in consequence of which such property is claimed to have escheated, praying that such property be eschea.ted, andthe title thereto vested in the State of Texas. Thepetition 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 property described in the petition has be& actually abandoned, andthat there is noperson entltled~ to it, judgment shall be rendered declaring such propertv escheated andvestlne: the title thereto in the Stake of Texas. TineJudgment shall also direct the holder of the property so described, which has been actually abandoned and escheated andthe title thereto vested in the State, to deliver such property lmmediately to the State Treasurer. If noperson or claimant to any property described in the petition shall appear andanswer within the time provided for entering such appearance and answer ‘oythe Texas Rules of Civil Procedure, the Court shall render judgment bydefault 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 andthe 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 aninterest in such property, the Court shall direct such property to be delivered to the person or persons lawfully entitled to possession thereof.” (Emphasis supplied)

Fromthe foregoing, it is seen that at the expiration of the 120dayperiod 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 obvious that the property does not actually become the property of the State uniess and until afinal adjudication to that effect is madebyt'neCourts. 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 120da.yperiod when ti; property wasfirst deemed abandoned and escheated. Therefore, 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 byvirtue of a subsequent 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 adetermination as to the ownership of the property bythe proper authorities. Tha.tis 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 bemadeby the Stata Treasurer, onwhose 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 thematter 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 consent of the Court where such consent is necessary. Your questio;; is answered accordingly.

SUMMARY

UnderArticle 3272a, Vernon's Civil Statutes, the holder is prohibited from releasing property to its reported owner after the ex~plratlon OF120,days from the date the report was received bythe State Treasurer, unless such relea.se is madepursuant to the advice and consent ofthe State Treasurer and th? Attorney Genera3 of Texas. Very truiy yours, WILLWILSON Attorney General of Texas

Byrd;: L22z-:' Assistant-. ,

Honorable Jesse James, page 4

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APPROVED:

OPINIONCOMMITTEE

HowardW.Mays, Chairman Milton Richardson Iola B. Wilcox JamesBroadhurst

REVIEWED

FORTHEATTORNEY GENERAL BY: Houghton Brownlee, Jr.