March 9, 1959 

Hon. V. L. .Ramsey, Chairman Oplnlori No. WI-570 

Revenue and Taxation Committee 

House of Representatives Re: Constltutlonallty of ~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.’ : 

~,, 

We have carefully read and donsldered the contents 

of H.B. 32. We find that said H., B. 32 Is essentially an 

escheat law, and; If passed, will bk.supplementary to exlstlng escheat laua, namely, &tlcles 3272-3288, V.C.S. The 

enaqtment of escheat laprs 1s not only authorized but,16 

demanded by the Texas Constitution, Article XIII, Section 

1. The subject matter of the law which.18 to be acted upon 

IS $roperty which has no owner. Such property, in the 

United States, and each of the several States, IS tradit;;;- . 

ally the proper subject matter of eacheat proceedings. 

legal mechanism provided by Ii. B. 32 for acting upon this 

subject matter 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 answer wlJ1 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. .The Texas Constitution 

positively prohibits the enactment.by the Legislature of 

a retroactive law. 

Article I, Section 16 of our Constitution provides 

as follows: 

"No. .,,. retroactive law . . . shall be 

made. 

The "retroactive law" thus prohibited by the Texas 

Co&tltutlon has been defined In varying phraseology by the 

,~mlmerous courts and legal writers having occasion to define 

6ame. But in stibstance these several definitions 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, speaking through Judge Nelll, 

said thlb: 

(a) "A'retroactlve Iaw' 1s one made to affect " 

acts or transactlons,occurrlng befo?e It came 

into effect, or rights already accrued, and 

which imparts to them characteristics or ascribes 

to them ef\Sects, which were not Inherent In their 

nature 'in the contizmplatlon of the 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 construed by the courts of this state and 

some other states having like constitutional lnhibitions, only as restriction upon the power of the 

:3e@sSature to pass such laws as Impair the obllgatlons of contracts, divest vested rights, such as 

exceed the general powers of the Legislature or 

invade the province of other departments of government". 

i Substantially the 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.sald definition of "retroactive" law 

and there %a nothing ,ln the Bill which makes It an act 

in violation of the constitutional prohlbltlons against 

the enactment of retroactive laws. 

"A statute does 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 jurlsdlctlon such as Texas where retro- 

,aot.iye laws are expressly prohibited by the Constitution, 

it is said to be well settled that a retroactive law which 

a#Yects only remedy or procedure (ah does H.B. 32) Is valldl,; 

provided, the changes made 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 constitution there vst be 

a disturbance of vested rights and without such disturbance 

there Is no retroactive law. (Wilson vs. 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:repledy for .. 

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

?!ommlaslon Appeals, 269 S ri 

mlth, Clvl> Appeals, 194 i.' 

me retroactive because It pqovldes a new remedy where none existed before. (McCutchlon 

& Church vs. Smith, supra.) 

,(2) Second Question. .'I8 the 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~vlolatlon o? 

the Te.xar Comt ltut Ion. 

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

Ii. B. 32 operates upon 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 property has 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 possession but the title does 

not rest In the custodian. The original contract between 

the then owner and the custodian which obllgateU.8.the 

custodian to render ~the possesklon, at some designated 

,tlme, on demand, t,o the possessor of the title has become * ~’ 

lrpossible of performance by reason of the loss of the 

title by ,hlm. whop forswirly possessed It. The provlslons ‘- 

of H;B. 32 ~merely provide a legal mechanism by which 

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 criminal provisions in H.B. 32 

are those set out In Section 27 thereof and these provisions i 

apply wholly to Acts of commission or omission which 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 vias Innocent when done and which punishes It. (Hill . 

vs. St&tie, 171 S.W. 2d 880, 146 Tex. Criminal Reports 

petition dismissed 64 S.Ct. 72, 320 U.S. 806, 8 AL 

or which aggravates a crime making It a greater crime than 

when committed : 111 vs. State, supra) or which changes the 

punishment and f??zes a more severe penalty than the penalty 

wan when the orlme was committed. (Hill v5. State supra 

and Mllligan va. State, 167 S.W. 2d m8) or alters the rules 

of evidence so as to receive less testimony or different 

testimony than was required to convict at t.he time the 

~,offense was committed (Hill vs. 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) ‘Fourth Question. The fourth question In substance, r&uests that the Attorney General’s opinion consider 

.wh&hex there Is tiy,provlslon of the Texas Constitution not 

Inquired about which-would mike H.B. 32 invalid. 

: 
--_ . 

. 

I 

Hon. V; L. Ramsey, Chairman, .page 5 (WU-570) 

Thin question Is very general and we can. only 

anawer It in general temm. 

We have found no provlrion of the Texan Conetltutlon which would make H. B. 32 invalid an a whole, but we 

,are of the opinion that the conrtitutionality of Section 

17, which provide6 far pagrent of lnterert ir doubtful.~ 

However, this bill contalna a neverability clause and in 

the event the courts declare this eectlon to be unoonstltu- . 

Mona1 it would not affect the other provlrlonr 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 ercheatlng property to the State. 

Since the property transferred to the State Is prbaumed 

abandoned, the title 18 presumed to have already vented 

in the State at the time of the transfer. 

Ali the provisions of both the Federal and State 

Constltutlc+a which require “due process” are amply oomplied with by the provision8 of this Bill. “Due procem 

of law In each particular cane mean8 buch an exercire of 

the power&of the government aa the nettled maxims of law 

permit uid ‘aanc$lon, and under such safeguard6 for the protection oft individual rights as those maxlme preecrlbe f’or 

the clars of caeee to which the one in queetlon belong.” 

(Cooley, Conet. Lla. 441). We find each df the eletintr 

of due :process an&y provided for 1s~ II. ,B. -32. 

Article III, Section 50, of the Conetltutlon of 

Texas lr as Pollowe: 

“The Legislature shall have 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’hrtlale III in Seotlon’49 OS th! Conrtltutlop of Tkxu, 

i ray6: 
Hon. V. L. Rameey, Chairman,, page 6 (VW-5701 

. 

"No debt shaP1~ be created by or on behalf 

of the State, except to supply casual deficiencies OF revenue, repel Invasion, 

suppress Insurrection, defend the State 

In war, or pay existing debt; and the debt 

created to supply deficiencies in the 

revenue,shall never exceed In the aggregate 

:atcny cne-,tlme two hundred thousand dollars." 

Neither of these constltutlonal provisions prohibits 

the doing of anything which is provided for In this Bill. 

These laws do not prohibit the Legislature from using the 

credit,of the 'State for State purposes. (Cltv of Aransao 

Pysa va’. State,, 112 Tex. 339, 247 S.W. 81r 

8lon vs. Vaugfian, Civil Appeals 288 S.W. 875w 

Here the title is presumed 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 administrative determination of the 

justness of his claim, and Section 25 gives him a judicial 

review. This satlsfJ.es all the process requirements raised 

by the transfer of property which has not in fact already 

e&heated to the State at the time of transfer. This "claim" 

for property transfered which has not under the facts of 

a particular case already escheated-Is neither a "d;ebt" 

nor a pledge of "the credit of the State" within the meaning of the Constitution, but Is comparable to a claim for 

taxes paid under, protest which are later determined to be 

not actually due. 

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 constitutional Act. 

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

APPROVED: 

OPINION COMMITTEE 

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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