DAN MORALES

ATTORNEY

**GENERAL** 

## QBffice

of the5Tlttornep 

## QBeneral diMate of Qtxari

May 16.1995

HonorableTii Curry OpinionNo. DM-348 Tarrant County Criminal

District Attorney 401 West Belknap Re: Validity and umstitutionality of section Fort Worth, Texas 76196-0201 117.002 of the Local Govemment Code, which concems the turn OVK of abandoned fundsheldbytbecountyordistrictclerkto the Skate of Texas (RQ-673) DKWlbkcUny:
You have asked this 05ce a series of. questions as to the validity and constiMionality of section 117.002 of the Local Govermnent Code, w&b concuns the turn OVK of abandonedfbndsheldby the county or district derk to the State of Texas. In our view, section 117.002is both valid and constimtional. Section 117.002 states: Any funds deposited under this chapter that are presumed abandoned under Chapter 72, 73, or 75, Property Code, shall be nporttdMddelivaedbythecauntyordishi*claktothesWe treasum without fiuther action by any court. The donnamy period for funds depositedunder this chapterbeginson the later of: il) the date of entry of final judgment or order of dismissal in the action in whichthe fundswere deposited; (2) the 18thbiiday of the minor for whomthe ibnds were deposited; or (3) a reasonable date established by rule by the state **treasury** to promote the public interest in disposing of unclaimedfunds.
**ChaptK** 117 Of the bCd (bUTIment code COncQns the PhCCmCm iII a depository bank of “money deposited in court pendingthe result of a legal pmceed&” Local Gov’ t Code 5 117.052. Section 117.053 of the code provides that payment thorn such funds most be made on court order, but section 117.002,the b&r enacted statute, creates an exception to the usual rule. See Act of April 28, 1959. 56th Leg.. RS.. &I. 270, 1959 TAX.

Gen. Laws 586 (adopting former V.T.C.S. art. 2558a, 8 44 predecessorHonorableTii Curry - Page 2 (DM-348)

Ofhad &w’ t Code 0 117.053);Act ofMay 9,1991,72d Leg., R.S., ch. 153,s 26, 1991

‘k. SWS.LW SKV. 744,750 (adoptingLocal Gov’ t Code 4 117.002). The relevant explanations of the presumption of abandonment in the Property Code are sections 72.101 (abandoned personal property), 72.102 (abandoned **travel~ ‘** **s** checks and money ordas), 73.101 (abandoned accounts and safety deposit boxes), and 75.101 **(aband0Wd** mineralproceeds). While the statutory periods before the property is PrrJumed **abandoned -K-three**  yedrs for persomd property and mind proceeds; five years for money onks, atwmts, and safety deposit boxes; 6fteen years for **travela ’** **s** checks-the gend d&r&ion ofwhat is ‘Nandoned” is that provided by section 72.101:

(1) the exist- and location of the owner of the property is tmknownto the holder ofthe proper& and (2) accord& to the knowledge and records of the holder oftbepropaty.adrimtothepropatyha9notban~edor anactofowwshipoftbeproperlyhasnotbeenexercised.

Thatbeiagtheuse,wereem,~tionalimpedimenttotherequirrment~t ruchpropertyheldwrdachapterll7~isdeanedlbandonedbenportedMddelivaed to the tseasum %ithout fbrtlm action by any court.” Local G&t. Code 5 117.002. In your brief. you analogize such delivery to garnishmentand note that “[a] fimd deposited ~aclaLofacourtisgeaaallydeemedtobeinnrstodiaiegisandisnotsubjectto gtunishment.” Houston Drywall, Inc. v. Consfru~~onSys., Inc.. 541 S.W.2d 220, 221 (Tar. Cii. App.-Houston [ 1st Dist.] 1976,no writ). Assumiq for the sake of argument thatrcportandddiverytothe tmasumr is anslogous to garnishment, “D]thas been held that an exception to [the] rule [against gamishment] exists.. .where **under** the -0fthecasethcrersmains nothingfbrthe&rktodootherthme&ct &,ii.MJ ui payment to the person entitled.” Id. whar the court has rardaed judpmt udthetimeformodifyingthejudgmenthas~~thecourt~lostrubj~matter jurisdictionoverthefimds,~thejustificationfortherule~~dunentcuuesto exist. Hardy v. Carrrructior, Sys. inc.. 556 S.W.2d 843,844 (Tex. Cii. App.-Houston [14th Dia.1 1977,writ ref’ d n.r.e.). Whenproperly is deemedabandoned,whichis to say ~~~~~totbepropatybyapason~ouurbelocatedMdhavebecnno such claims for the statutory period, there is nothing for the clerk to do **0th~ than**  **effect** delimy of such properly to the trewrer.

p. 1854HonorabteTiiCurry - Page 3 (DM-348)

You suggest that for the legislatureto dii that abandonedproperty be delivered to the treasmw without tiMher cotut action is an invasionof thejurisdiction ofthe courts and More a violation of separation of powers. The court of uiminal appeals has WtittKl: Thecoreof

. . .judicial powK embracesthe power (1) to hear

evidence;(2) to decidethe issues of fact raisedby the pleadings; (3) to decidethe relevantquestions of law: (4) to enter a 6naljudgment onthefrctsmdtheirw;ud(S)toa~tetbefinaljudgmentor awtKlce. Arm&i110

Boll Bon& v. Bate, 802 S.W.2d 237,23940 (Ta. Ctim. App. 1990). See a&o Eicklberger v. Eichehergerr, 582 S.W.2d395,398 (Ta. 1979).
Section 117.002 does not implicatethese corejudicial powers, since, as we have noted, so long as there is any unadjudicatedclaimof right to the funds heldby the county or district clerk, such tbnds are not presumed abandoned. The statutory period does not kgintorununtilrhektao~the~eof~offinaljudgmartorordaofdirmi~ the 18th bhthday of a minor for whom such fimds are deposited, or “a reasonable date” whichthe tmasumrmayestablishbymle.
You have suggested that there is some ambiguity in t&se dates, since an appeal mightbe taken from the district court’ sjudgment. But an appealwould be an assertion of a claim of right to the fund. Accordingly,the tend would not be property tar which “a claim

. . . has not been asserted.” Prop. Code 5 72.101. Nor is it a problem, as your brief aswts, that section 117.002 ‘ %ils to address an incapacitatedbeneliciary whose money might be subject to comt order for an indefinite period of time.” Such a beneficiaryis an identitied person with a claimof right to the liu@ the tbnd, the&ore is not abandonedby the tums of the Property Code.
You nat ask what lids are cotwed by section 117.002. By its terms, the statute refers to “any timds deposited” under chapter 117. As this office informed you in Attorney Gend Opiion JM-1162 (1990). such t&Is “include, inter olio, civil court deposits, probate court deposits, child support payments paid through the clerh’ s office, **interpleader** funds, supers&as deposits, funds paid in satisfhction of judgments, other cash deposits made in lieu of bonds, minor’ strust funds, and eminentdomaindeposits.”
You suggest that the donnancy period for these fbnds is somehowuncertain. We disagme. The relevant paiod depends on the nature of the property, and is governed by the appropriateProperty Code sectionsalready cited. Fiiy, you ask whether section 117.002 wngicts with section 117.058 of the Local Government Code. As you point out, section 117.058 requiresthat, in a county with a population of 190,009 or more, checks disbursedby county or district clerks from

p. 1855HonorableTii Curry - Pqe 4 (DM-348)

their trust funds must be wuntersigned by the wunty auditor. and the auditor may only wuntersign them “on written evidence of the orda of thejudge of the court in which the iimds have been depositd that wthorizes the disbursementof the funds.” Local Gov’ t Code 8 117.058(d). This requirementdoes wrdlict with the dire&e of section 117.002 thathndonedfundsbedeliveredtothetr KSlNKViithOUtfiUthKOldKOfKQ’WUlt. Seotion 117.002deals only with those fundsin the wstody ofthe district or wunty chk which am pmsum~I abandoned. It is Wore more spei6c than section 117.058. h4omov~~ section 117.002, which was added by the’henty-sewnd Legislature snd hecame effeotive on Septemb~ 1.1991, is later in time than section 117.058, which WIS adopted by the Forty-third Legislature and became d%ctive in 1933. See Act qproved Apd29.1933, 43d Leg., RS.. ch. 98. 1933 Ta. GUI. Laws 217 (adopting forma V.T.C.S. art. 1656b,rewdified as Local Gov’ t Code 0 117.058). Smce section 117.002is themore~cftaMe,rrwellrsthekta~optednatute,totheaasatofc6nfli* hetwe~~itsndseotion 117.058,aection 117.002prevds. Gov’ tCode~~311.025. .026. 

### SUMMARY Section 117.002 of the Local Govamnem Codeisbothvalid and constitutional. Funds subjectto section 117.W2 me those tknds wveredbychaper117,~definedbyAtknncyGwKmlGpinion JIM-1162 (1990). To the atent of wntlict between section 117.002 and section 117.058ofthew GovernmentCude, kction 117.002 PRVldS 18 ItlO= S&ECitk Md htK dO@?d.

DAN MORALES Anomey Genaal ofTa
JORGE VEGA Fii AKistant Attorney GKlKal
SARAHJ. SHIRLEY Chair, Gpiion Committee Repared by James Tourtelott Assistant Attorney General

p. 1856