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A-WESUY l

*ncxIcw.%x. November 29, 1976

The HonorableWilson E. Speir Director Texas.Departmentof Public Safety 5805 N. LamarBoulevard Austin, Texas 70773 Opinion No. H-965

Ret Porfeiture of motor vehicles under article 6687-1, section 49, V.T.C.S.

Dear Colonel Speir:

You have inquired about .theforfeiture of vehicles under article 6687-1,section 49. V.T.C.S. Your first question asks whether a specific court order placed valid legal title to the vehicledescribed therein in the Texas Department of Public Safety. Since we cannot sit as a court of appeals to review judgmentsof the trial courts of this State, we decline to answer your first question. See Attorney General Opinion G-1847 (1940). -

You also ask whether article 6687-1, section 49, provides
a constitutionalprocedure for forfeiting vehicles to the State. This,section.states in pertinent part:

(a)Any person who shall alter any certificate of title issued by the Department, or **forge** or counterfeit any certificate of title purporting to have been issued by the Department under the provisions of this Act, or who shall alter or falsify or forge any assignment thereof, shall be guilty of forgery and upon conviction thereof shall be punished as provided by law.

(b) It shall be unlawful **for** any person to alter, change, erase, or mutilate, for the purpose of changing the identity, any motor number, serial number, manufacturer's permanentvehicle identification number or derivative number thereof placed on the vehicle, or any part thereof by themanufacturer,or any **motor** number or serial. . . i

The HonorableWilson E. Speir - page 2 (S-905)

number assignedby the State Xighway Department and placed **or** caused to be placed on a vehicle as provided by law for the purpose

‘of identification. It shall also be unlawful for any personother than a vehicle manufacturer to stamp **or** place any motor number 01 manufacturer'svehicle identificationnumber other than a **number** assigned by the State Highway Department as provided by law, on any vehicle ot any part thereof. Any pereon violating the provisionsof this section comaits a misdemeanorpunisbablebya fine notto exceed Sl.000, by confinement in jail **for** not more than **2** years or by both.
(cl(11A person who possesses, sells or offers for sale a mote* vehicle or any part **of** a motor vehicle that has had the serial number, the **motor ‘**  number, or the manufacturer's permanent identificationnumber removed, changed,
or obliteratedwhen he-knows the number has **been** removed, changedor obliterated comits a misdemeanor punishable **by** a fine not **tt.exceed** $1,000, by confinement in jail **for** not **more than**  **2 years,**  **or by**  **both.**
**(2)** It is q defense to prosecution under this subsection,which shall not be submitted to the jury unless evidence is admitted supporting it but which, if raised, must be negatedbeyond a reasonable doubt, that'the p+rson~

is the rightful or **true** owner**of the**  motor vehicle or part **of** a motor vqhicle.

that is the subject of the prosecution.

. . . . (a)(l) If a person is arrested for possession **of** a motor vehicld or part **of**
a motor vehicle in violation of this section, the arrestingofficer will **take the**  motor vehicle or part of a motor vehicle into his possession.

. . . .The Honorable Wilson E. Speir.--page.3-(H-B115).

(4). If there:is-noprosecutiouzm:&nvictiou for.an.offenseinvolving the.mwtorvehicle or,part of a.mtor vehicle seixed,.the.mugistrate to.whom.theseiztiewas.r.eported..shall notify
. in wr$ting the rightfulowner, if. known, -thathe &s..entitled.to.the anotor.vehicle

or part-of a wctorv~#4cleuponreguestto the iawimforcem.en$ agency holding it,.

iS) it&on convictionoff any-..pe.rgon

fob a violationnf this section, the court*Bhallo&r' that.any'motorvithicle or part of.

a motor vehicle +eized-and.

hpounded in connectiob~withthe pffense be.deliveredto the rightful owner.ot trpe ptmer,*if known.:. .
:(6) If.the aghfful owner of a vehicle. ok part o#..a,mo$or:veh$cle~seized undemthits section'&b unknow+aqdsannot.be:determined the~qourCshall, qf$er fi.na&dispcsition~f+m.chaqes~ or&x it forfeited tp the-side...

(7)Anypersoninterested inany.&orvehiele or.p+rt of a lpotor vehicle.seiseastrndet:thls.gectfon may,.at .anytime, petition the magistrate to.whom .th~~~fzure.waS reporteb-to deliver:possession -Qf.i$ tQ-him., Themagistrate, after:notice to the law.enfQrcemen~.agency. in-pcrssession

of-it, shall conduct a hearing to determine the petitioner's right,..to

possessionof the motor-vehicle or part of
..a motor vehicle. .If.thepetitioner.prwes by a preponderanceof the..evidence that+,he

has a right to possession,.themagistrate shallorder it. delivered to him.-

A' penalty-may.

consti.tutionally

be enforced by forfkue df the.offeudiug article.;. **Leasing Co.,**  Calero-Toledov; Pearson Yacht

416 U.S..663 (1974). However, the forfeiture may only~~ff.e#zed.by due processof law. State L Richards, 301 .STWi2d597 ,(Te.x._..Sup...1957).. .Theowners ofoperty subject to forfeituremust have.notice-andanopportunity to be'heard:, Robinson s;Haurahani 409.U.S. 39 (1972).The Honorable Wilson E. Speir - page 4 (H-905)

I Section 49 contemplates

### forfeitureof a vehicle only when the rightful owner is unknown and cannot be determined. The vehicle is returned to its rightful owner, if known, whatever the outcome of the arrest -- conviction, no conviction,
or no'prosecution. 

### Sections49 (d)(I), (5). If the defendant is the rightful owner he has an opportunity during his trial to prove itI in fact, ownership is a defense to charges 

### under subsection (c)(1.).**Even after**  conviction under subsection (a)


### or (b), the car is returned to the true owner, who might be the defendant. Thus, this **statute** provides an adequate opportunity for a defendant to protect his ownership in a m&or vehicle.

The rightful owner must receivewritten notification of his right to the vehiclewhen there is no prosecution or conviction:when someone is convicted, the owner receives .thevehicle itself. Sections 49(d)(0, (5). Section 

### 49(d)(6) **doell** 

### not provide for service of **process** on~a known owner, because it does not seek to forfeithis interest. It fails to provide a procedure, such as notificationby publication, by which an unknown owner can be given notice, but it does requirea showing thattheowneris unknown and cannot be determined. **We** believe that **the State**  must make this showing by'proving efforts to identifyand inform the owner that comply with the **due** process clause. U.S. Cons& amend. 14,
s 1. Otherwise, an ownerwho could be locatedmight be deprived of hisproperty through lack of knowledge, contrary to the legislative intent 

### expressedin section 49 and to the reguirementscf the due process clause.

**A** statute will be interpretedso that it is constitutional and valid, if it can be sustainedby any reasonable construction. 53 Tex. ,Jur.Zd,Statutes 6 158 and authorities cited therein. The notificationprovided by the State **must** be reasonably calculated to inform the owner of the impending forfeitureproceeding. 40 (1972). Robinsonv- Sanrahan, 409 U.S. 38,

If the **name** and address of the registered owner is available through the Departmentof Public Safety, personal notice should be given. Id.; I4enkarell v. Bureau of Narcotics, 463 F.2d 00, 95 (3dCit. m72). In othercases, nzice reasonable under the circumstancesmust be given, which may be notice by publication for unknown owners. Mullane v. Central Banover Sank a Trust co.,

--- 339 U.S. 306=1!80).

D. **3799**.

The RonorableWilson E. Speir - page 5 (E-905)

**A** forfeitureproceeding is a civil action, to which the Texas Rules of Civil Procedure apply. See Statev. Gra 175 S.W.Zd 224 (Tax.Sup. 1943); Bretz -?&:2d 97 (Tex.Grim, App..1974); Tex.R.Civ.P.3. Thus, the civil.,' rules on notice

### w0uia apply to any forfeitureunder section 49. See a Tex.R.Civ.P, Zlai-21br lQ.09, .109a. - Subsection (d)(7)further protects the owner's property interest in the vehicle, by permitting him to petition the magistrate for,possessionat any time. .Webelieve the proceduresoutlined in section 49(d) adaguatelyprotect property rights 'and provide a constitutionalmode'of.for-" felting vehicles to the State, giving it valid title, subject to the subsection (d)(7)redemption right.
Finally,you ask whether the State must.plead and prove final dispositionof charges in order'to receivevalid legal title to a vehicle forfeited under the statute. Subsection .(d)(6) permits fqrfeiture to the State only when the vehicle' has been.seisedunder section 49, the chargeshave been finally disposedof, and the rightful owner is unknown and cannot be determined. must be followed strictly. Statuf~Ca;~ising a forfeiture

. . ., Forfeitures S 4(b): Cne,essentialelement of the forfeiture case is that.charges brought under-section 49 have been finally disposed of.'.'.The foxfeitureproceedingwould necessarily follow the criminal proceeding, if any, as a separate civil.action. We ahswer your final.guest*onin the.affirmative. :

SUMMARY

. Section 49 of article 6687-1,V.TlC.S..

provides a constitutional procedure for forfeitingvehicles to the State.when the '.vehi.cles,have

altered identificationnumbers and the owners of the vehicles are unknown and cannot be located. The Statemust plead and prove final disposition of the charg'es in order to receive valid legal title to a vehicle forfeited under the statute.The Honorable Wilson E. Speir - page 6 (R-go51

APPROVED: 

# 3

DAVID M. KENDALL, First ASSlS ant