March 9, 1959

Hon. V. L..Ramsey,Chairman Oplnlori No. WI-570 Revenue and Taxation Committee House of Representatives Re: Constltutlonalltyof ~H.B. ~Austln,

Texas 32, 56th Legislature ‘7 the Abandoned Property Dear ,Mr..‘Ram~ey: Act;

This Is in responses to yoer.reqtie& for the opinion ” of this offI& al,to the‘constltutlona,llty of H.B. 3g.’: ~,,
Wehave carefully read and donsldered the contents of H.B. 32. We find that said H., B. 32 Is essentially an escheat law, and; Ifpassed, will bk.supplementaryto exlstlng escheat laua, namely, &tlcles 3272-3288, V.C.S. The enaqtment of escheat laprs1s not only authorizedbut,16 demanded by the Texas Constitution,ArticleXIII, Section 1. The subjectmatter of the law which.18 to be acted upon IS$roperty whichhas no owner. Such property, in the United States, and each of the several States, IS tradit;;;-

. ally the proper subjectmatter of eacheatproceedings. legalmechanism provided by Ii. B. 32 for actingupon this subjectmatter Is essentially the, mechanism of the,,e~scheat. groceedfin&js.

c. B. 32 provides (i$);;rtitlt;;y;;e iE?,z;i;- notlce,.,.b

&r,~inqu&st of office, ture In the State of all the title and possession of all ownerless property. These provisions are all proper and necessary parts of all eecheat laws.

Insomuch as escheat laws are conrmanded by our Constitution to be enacted, as shown above, It necessarily follows that enactment of such a law as 8. B. 32 (same being an escheat law) Is authorized by OUT C6nstltutlon.

YOU have asked four (4)differ&& que~stlons

. For the sake,of clarity, each question, Will nor bd set out in substances

and the answerwlJ1 im@edl&teJy, fpLlow,

the question .~~ an net out. ,. . _. I8 the Act Invalid as a retko-

### Hon.V. L. Ramsey, Chairman,Pa&e 2 (WW-570)

We answer the question In the negative. There Is nothing "retroactive"in said Bill. .TheTexas Constitution positivelyprohibits the enactment.bythe Legislature of a retroactive law.

Article I, Section 16 of our Constitutionprovides as follows:

"No. .,,.

retroactive law

. . . shallbe made. The "retroactive law" thus prohibitedby the Texas Co&tltutlon has been defined In varyingphraseologyby the ,~mlmerous

courts and legalwriters having occasion to define 6ame. But in stibstance these severaldefinitions are the ~' .pame . The Texas Courts have defined the words "retroactive lew* as follows:

In the aa6e of Keith et al vs. auedry, 114 S.W. 392 the Court of Civil Appeals, speakingthrough Judge Nelll, said thlb:

(a) "A'retroactlveIaw' 1s one made to affect " acts or transactlons,occurrlngbefo?e It came into effect, or rights already accrued, and which imparts to them characteristicsor ascribes to them ef\Sects,

which were not Inherent In their nature 'inthe contizmplatlon ofthe law as It-. stood at the time of their occurrence. It gives. a right where none before existed, or takes away one which before existed.

. . . Here the State Constitution,eo nomlne, forbids, and has forbidden since the days of the republic, the passage of retroactive laws. However, this provision has been construedby the courts of this state and some other stateshaving like constitutional lnhibitions, only as restrictionupon the power of the :3e@sSature to pass such laws as Impair the obllgatlons of contracts,divest vested rights, such as exceed the generalpowers of the Legislature or invade the province of other departments of government". i Substantiallythe same definition of "retroactive law" Is set forth In the opinion of our Commlsrion of Appeal8 In American Surety Company of New York vs. Axtel Companr, 36 S.W. 26 715.Hon. V. &. Ramsey, Chelrman,pag$ 3 (W-570)

The provisions of H.B. 32 do not In any way come within the terms of.salddefinition of "retroactive"law and there%a nothing ,lnthe Bill which makes It an act in violation of the constitutionalprohlbltlons against the enactment of retroactive laws.

"A statutedoes not operate retroactively from the mere,fact that It relates to the antecedent facts.". (37A Words'and Phrases;permanent ,ebltion, page 232 citing among other authorities,Black Interp. of Laws, pa&e 237)There l~nothlng In any provision of H. B. 32 which make8 It a retroactive,lau.

Even In a jurlsdlctlonsuch as Texas where retro- ,aot.iye

laws are expresslyprohibited by the Constitution, it is said to be well settledthat a retroactive law which a#Yects only remedy or procedure (ahdoes H.B. 32) Is valldl,; provided, the changesmade are reasonable changes. (See ~16A C.J.S. pages 108 and 109 citing of Mason v8. ,Weat Texar Utllltles Company, 237 S.W. 2d 150 Te 16 and other Texas cases.) In order to be d retroa%lve'iaw '. within the prohlbltlon.of the constitutionthere vst be a disturbance of vested rights and without such disturbance there Is no retroactive law. (Wilsonvs. Work, 62 S.W. 26 490, 122 

### T&x.,545:Covington vs. Covington, Civ. App. 27~1. SdW. 26 

### 849;City 03 F t Y th S.W. ,275). It has furE;er Eien Eiid in Texas that a statute Moprow, Ctr.App. 284 which although it Is retroactive,now provides a:repledyfor

.. an eilrting right ls’valld. (Lyon-GrayLumber Compahy vs 

### ?!ommlaslon

Appeals, 269 S ri mlth, Clvl> Appeals, 194 i.' 

### me retroactivebecause It pqovldes a new remedy where none existed before. (McCutchlon & Church vs. Smith, supra.)



### ,(2)Second Question. .'I8the Act Invalid as lmpalring contract6 In violation of the Texas Constitution?

Our anewer to ihis question 18 In the negative. The Act is not ltivalld an lmpalrlng aontracts ln~vlolatlono? the Te.xar 

### Comt ltut 

### Ion. L'Hon.~ v: L. Ramsey, Chairman,page 4 .(wW-570)

Ii. B. 32 operatesupon property onl.y which has no ,‘owner,

either by reason of (a) the title to the property his ~been”abandoned by the owner of the title or (b) the oivner of the propertyhas died Intestate and left no heirs. ,~When the possession of property 6f either or both of sald n&med classes is In the hands of a custodian, the c,.uatodlan .has the cuetody, that Is, the possessionbut the title does not rest In the custodian. The original contractbetween the then owner and the custodianwhich obllgateU.8.the custodian to render~thepossesklon, at some designated ,tlme,on demand, t,othe possessor of the title has become * ~’ lrpossible of performanceby reason of the loss of the title by ,hlm.

whopforswirly

possessed It. The provlslons ‘- of H;B. 32~merelyprovide a legalmechanismbywhich the possession and the title oP this, property are unli;ed~ In the owner thereof, the State of Texas.

. . 

### (3) Third Question. Is the Act Invalid as an ex post facto law? ,,

There Is no provision In’H. B. 32; which constitutes any part of an ex post facto law. An ex pant facto law has to do wholly with crime. The criminalprovisions in H.B. 32 are those set out In Section 27 thereof and theseprovisions i apply wholly to Acts of commission or omissionwhich can only occur In the future and after the passage of said Bill. An ex post facto law Is otie which makes criminal an act which viasInnocentwhen done and which punishes It. (Hill

. vs. St&tie,171 S.W. 2d 880, 146 Tex. CriminalReports petition dismissed 64 S.Ct. 72, 320 U.S. 806, 8 AL or which aggravates a crimemaking It a greater crime than when committed: 111 vs. State, supra) or which changes the punishment and f??zes a more severepenalty than the penalty wan when the orlme was committed. (Hillv5. State supra and Mllligan va. State, 167 S.W. 2dm8) or alters the rules 

## ofevidence so as to receive less testimony or different testimony thanwas required to convict att.hetime the ~,offense

was committed (Hillvs. State, aupra and Allllgan vs. State,,

supra.) There Is nothink'in the contents of H. B. 32 which makes It in any way an 6x poat facto law.

.44)‘FourthQuestion. The fourth question In substance,

r&uests that the Attorney General’s opinion consider .wh&hex there Is tiy,provlslonof the Texas Constitutionnot Inquired about which-wouldmike H.B. 32 invalid.

:--_ .

. I

Hon. V; L. Ramsey, Chairman, .page5 (WU-570)

Thin question Is very general and we can. only anawer It in general temm.

We have foundno provlrion of the Texan Conetltutlon which would make H. B. 32 invalid an a whole, but we ,areof the opinion that the conrtitutionalityof Section 17,which provide6 far pagrent of lnterert ir doubtful.~ However, this bill contalna a neverability clause and in the event the courtsdeclare this eectlon to be unoonstltu-

. Mona1 it would not affect the otherprovlrlonr of the Act. Under Article 3272,V.C.S. - Ellis vs. State,2zl ~S.Y.66 and Robinson et al vs. State,, et .al,87 ,S.W. 297, the $lt~6~~ in the State by operation of.law where clro~etances exist ercheatlngproperty to the State. Since the property transferred to the State Is prbaumed abandoned, the title 18 presumed to have 

### alreadyvented in the State at the time of the transfer.

Ali the provisions of both the Federal and State Constltutlc+awhich require “due process” are amply oomplied with by the provision8 of this Bill. “Dueprocem of law In each particular cane mean8 buch an exercire of the power&of the government aa the nettledmaxims of law permit uid ‘aanc$lon,and under such safeguard6 for the protection oftindividual rights as those maxlme preecrlbe f’or the clars of caeee to which the one in queetlonbelong.” (Cooley,Conet. Lla. 441). We find each df the eletintr of due :processan&y provided for 1s~ II. ,B. -32. Article III, Section 50, of the Conetltutlon of Texas lr as Pollowe:

“The Legislature shallhave no power to give or to lend, or’to authorize the giving or lending, of the crkdlt.of the State in aid of, or to any person, aasocfation or-‘~corporhtlbn, whether municipal or other, or to pledge the credit of the State in any manner whatsoever, for thb payment of the llabllltlis,preient”or proepectlve, of any lndivldtial, are’ociatlon of lndlvldualr,municipal or other corpora- :tlon whatsoever.”
, .aMd’hrtlaleIII in Seotlon’49OS th! Conrtltutlop of Tkxu, i ray6:Hon. V. L. Rameey, Chairman,, page 6 (VW-5701

. "No debt shaP1~ be createdby or on behalf of the State, except to supply casual deficienciesOF revenue, repel Invasion, suppress Insurrection,defend the State In war, or pay existing debt; and the debt created to supply deficiencies in the revenue,shallnever exceed In the aggregate :atcnycne-,tlme

two hundred thousanddollars." Neither of these constltutlonalprovisionsprohibits the doing of anythingwhich is provided for In this Bill. These laws do not prohibit the Legislature from using the credit,of the 'Statefor State purposes. (Cltvof Aransao Pysa va’.State,,112 Tex. 339, 247 S.W. 81r 8lon vs. Vaugfian, Civil Appeals 288 S.W. 875w
Here the title ispresumed to be in the State at the time of transfer and hence there is no debt created. Section 23 gives any person asserting an interest In the property the right to file a claim against the State, Section 24 gives him an administrativedeterminationof the justness of his claim, and Section 25 gives him a judicial review. This satlsfJ.es all the process requirementsraised by the transfer of propertywhich has not in fact already e&heated to the State at the time of transfer. This "claim" for property transferedwhich has not under the facts of a particular case already escheated-Isneither a "d;ebt" nor a pledge of "the credit of the State"within themeaning of the Constitution,but Is comparable to a claim for taxes paid under,

protest which are later determined to be not actuallydue.
SUMMARY

H..B. 32 1s not a retroactive law; It does not iit pair the obligation of contracts in viol ion of the Texas Constltutlon and Is not invalid as an ex post facto law. H.B. 32 Is a constitutionalAct.

GPB/fbHon. v. L. Rameey, Chairman Page 7 (WW-570)

APPROVED: OPINIONCOMMITTEE Jim Rogers, Chairman Fred Werkenthin Wallace Flnfrock Arthur Sandlin Morgan Nerbltt
REVIEWED FOR T,p ATTORNEY 5ENERAL By: W. V. Qeppert

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