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A-WESUY l *nc xIc w.%x. November 29, 1976 

The Honorable Wilson E. Speir 

Director 

Texas.Department of Public Safety 

5805 N. Lamar Boulevard 

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 .the forfeiture 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 vehicle described therein in the Texas Department of 

Public Safety. Since we cannot sit as a court of appeals to 

review judgments of 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 constitutional procedure 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 

permanent vehicle identification number or 

derivative number thereof placed on the 

vehicle, or any part thereof by the manufacturer, or any motor number or serial 
. . . 

i 

The Honorable Wilson E. Speir - page 2 (S-905) 

number assigned by 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 person other than a vehicle manufacturer 

to stamp or place any motor number 01 manufacturer's vehicle identification number 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 provisions of this section comaits a misdemeanorpunisbablebya fine notto exceed 

Sl.000, by confinement in jail for not more 

than 2 years or by both. 

(cl (11 A 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 identification number removed, changed, 

or obliterated when he-knows the number has been 

removed, changed or 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 negated beyond 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 arresting officer 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-no prosecutiouzm:&nvictiou for.an.offense involving the.mwtor vehicle 

or, part of a.mtor vehicle seixed,.the.mugistrate 

to.whom.the seiztie was.r.eported..shall notify . 

in wr$ting the rightful owner, if. known, -that he 

&s..entitled.to.the anotor.vehicle or part-of a 

wctorv~#4cleuponreguestto the iawimforcem.en$ agency holding it,. 

iS) it&on conviction of f any-..pe.rgon fob a 

violationnf this section, the court*Bhall o&r' 

that.any'motor vithicle or part of. a motor vehicle 

+eized-and. hpounded in connectiob~with the 

pffense be.delivered to 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 .any time, petition the magistrate to.whom 

.th~~~fzure.waS reporteb-to deliver:possession 

-Qf.i$ tQ-him., The magistrate, after:notice to 

the law.enfQrcemen~.agency. in-pcrssession of-it, 

shall conduct a hearing to determine the petitioner's 

right,..to possession of the motor-vehicle or part of 

..a motor vehicle. .If.the petitioner.prwes by a 

preponderance of the..evidence that+,he has a right 

to possession,.the magistrate shall order it. 

delivered to him.- 

A' penalty-may. consti.tutionally be enforced by forfkue 

df the.offeudiug article.;. 

Leasing Co., 

Calero-Toledo v; Pearson Yacht 

416 U.S.. 663 (1974). However, the forfeiture 

may only~~ff.e#zed.by due process of law. State L Richards, 

301 .STWi2d 597 ,(Te.x._..Sup...1957).. .The owners ofoperty 

subject to forfeiture must have.notice-and anopportunity to 

be'heard:, Robinson s;Haurahani 409.U.S. 39 (1972). 
The Honorable Wilson E. Speir - page 4 (H-905) 

I Section 49 contemplates forfeiture of 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. Sections 49 (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 receive written notification of 

his right to the vehicle when there is no prosecution or 

conviction: when someone is convicted, the owner receives 

.the vehicle 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 forfeit his interest. It fails 

to provide a procedure, such as notification by 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 identify and inform the owner that 

comply with the due process clause. U.S. Cons& amend. 14, 

s 1. Otherwise, an owner who could be located might be 

deprived of hisproperty through lack of knowledge, contrary 

to the legislative intent expressed in section 49 and to the 

reguirementscf the due process clause. 

A statute will be interpreted so that it is constitutional 

and valid, if it can be sustained by any reasonable construction. 53 Tex. ,Jur.Zd, Statutes 6 158 and authorities cited 

therein. The notification provided by the State must be 

reasonably calculated to inform the owner of the impending 

forfeiture proceeding. 

40 (1972). 

Robinson v- Sanrahan, 409 U.S. 38, 

If the name and address of the registered owner 

is available through the Department of Public Safety, personal 

notice should be given. Id.; I4enkarell v. Bureau of Narcotics, 

463 F.2d 00, 95 (3d Cit. m72). In othercases, nzice 

reasonable under the circumstances must 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 Ronorable Wilson E. Speir - page 5 (E-905) 

A forfeiture proceeding is a civil action, to which the 

Texas Rules of Civil Procedure apply. See State v. 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 forfeiture under 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,possession at any time. .We believe the 

procedures outlined in section 49(d) adaguately protect 

property rights 'and provide a constitutional mode'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 disposition of charges in order'to receive valid legal 

title to a vehicle forfeited under the statute. Subsection 

.(d)(6) permits fqrfeiture to the State only when the vehicle' 

has been.seised under section 49, the charges have been 

finally disposed of, and the rightful owner is unknown and 

cannot be determined. 

must be followed strictly. 

Statuf~Ca;~ising a forfeiture 

. . ., Forfeitures S 4(b): 

Cne,essential element of the forfeiture case is that.charges 

brought under-section 49 have been finally disposed of.'.'.The 

foxfeiture proceeding would necessarily follow the criminal 

proceeding, if any, as a separate civil.action. We ahswer 

your final.guest*on in the.affirmative. : 

SUMMARY 

. 

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

provides a constitutional procedure for 

forfeiting vehicles to the State.when the 

'. vehi.cles,have altered identification numbers 

and the owners of the vehicles are unknown 

and cannot be located. The State must 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