DAN MORALES 

ATTORNEY GENERAL 

QBffice of the 5Tlttornep QBeneral 

diMate of Qtxari 

May 16.1995 

Honorable Tii Curry Opinion No. 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 abandoned fbnds held by the county or district derk to the State of Texas. In 

our view, section 117.002 is 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 deposited under this chapter begins on the later of: 

il) the date of entry of final judgment or order of dismissal 

in the action in which the funds were deposited; 

(2) the 18th biiday of the minor for whom the ibnds were 

deposited; or 

(3) a reasonable date established by rule by the state 

treasury to promote the public interest in disposing of 

unclaimed funds. 

ChaptK 117 Of the bCd (bUTIment code COncQns the PhCCmCm iII a 

depository bank of “money deposited in court pending the 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 predecessor 
Honorable Tii 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 (adopting Local 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 mineral proceeds). 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 of what is ‘Nandoned” is that provided by section 72.101: 

(1) the exist- and location of the owner of the property 

is tmknown to the holder of the 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 garnishment and note that “[a] fimd deposited 

~aclaLofacourtisgeaaallydeemedtobeinnrstodiaiegisandisnotsubjectto 

gtunishment.” Houston Drywall, Inc. v. Consfru~~on Sys., 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]t has 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.). When properly is deemed abandoned, which is 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. 

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HonorabteTiiCurry - Page 3 (DM-348) 

You suggest that for the legislature to dii that abandoned property be delivered 

to the treasmw without tiMher cotut action is an invasion of the jurisdiction of the courts 

and More a violation of separation of powers. The court of uiminal appeals has 

WtittKl: 

Thecoreof . . . judicial powK embraces the power (1) to hear 

evidence; (2) to decide the issues of fact raised by the pleadings; (3) 

to decide the relevant questions of law: (4) to enter a 6nal judgment 

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.2d 395,398 (Ta. 1979). 

Section 117.002 does not implicate these core judicial powers, since, as we have 

noted, so long as there is any unadjudicated claim of right to the funds held by 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” 

which the tmasumrmayestablishbymle. 

You have suggested that there is some ambiguity in t&se dates, since an appeal 

might be taken from the district court’s judgment. But an appeal would 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 incapacitated beneliciary whose money 

might be subject to comt order for an indefinite period of time.” Such a beneficiary is an 

identitied person with a claim of right to the liu@ the tbnd, the&ore is not abandoned by 

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’s trust funds, and eminent domain deposits.” 

You suggest that the donnancy period for these fbnds is somehow uncertain. We 

disagme. The relevant paiod depends on the nature of the property, and is governed by 

the appropriate Property Code sections already 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 requires that, in a county 

with a population of 190,009 or more, checks disbursed by county or district clerks from 

p. 1855 
Honorable Tii 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 the judge of the court in which the 

iimds have been depositd that wthorizes the disbursement of the funds.” Local Gov’t 

Code 8 117.058(d). This requirement does wrdlict with the dire&e of section 117.002 

thathndonedfundsbedeliveredtothetr KSlNKViithOUtfiUthKOldKOfKQ’WUlt. 

Seotion 117.002 deals only with those funds in the wstody of the 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 117.002 is 

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 subject to section 117.W2 me those tknds 

wveredbychaper117,~definedbyAtknncyGwKmlGpinion 

JIM-1162 (1990). To the atent of wntlict between section 117.002 

and section 117.058 ofthew Government Cude, kction 117.002 

PRVldS 18 ItlO= S&ECitk Md htK dO@?d. 

DAN MORALES 

Anomey Genaal ofTa 

JORGE VEGA 

Fii AKistant Attorney GKlKal 

SARAH J. SHIRLEY 

Chair, Gpiion Committee 

Repared by James Tourtelott 

Assistant Attorney General 

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