DAN MORALES 

ATTORNEY GENERAL 

QBffice of the PXttornep Qhneral 

Mate of Eexae 

June 13,199s 

Honorable Paul Sadler 

Chair 

Committee on Public Education 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

Opinion No. DM-352 

Re: Application to leased paging devices of 

Education Code section 21.309, requiring 

forfeiture of paging devices possessed by 

student on school property or at school 

activities, and related questions (RQ-702) 

Dear Representative Sadler: 

You are concerned with the implementation of section 21.309, Education Code, 

which provides: 

(a) A student in a public school may not possess a paging device 

while on school property or while attending a school-sponsored or 

school-related activity on or off school property, [with exceptions for 

certain tImfighting and medical emergency service personnel]. 

(b) [School district’s written standards of student conduct must 

include subsection (a) prohibition. Student violating prohibition 

subject to discipline as provided by district policy]. 

(c) A person who discovers a stuaknt in possession of a paging 

device in violation of this section shall report ihe viokztion to the 

qpropriate school ariministrator, as determined by school policy, 

who shall order a peace oflcer or appropriate school employee to 

confiscale the device, which is fodeited to ihe school district. 

(d) In this section, “paging device” means a telecommunications 

device that emits an audible signal, vibrates, displays a message, or 

otherwise summons or delivers a communication to the possessor. 

@Xmphasis added.] 

You ask: 

Are there any unanswered legal questions surrounding a 

district’s confiscation of a paging device on& leased by, and not 

uctuully owned by any given student? Is the business company 

owning the device entitled at all to its recovery given its innocence in 

the whole matter7 [Emphasis in original.] 
Honorable Paul Sadler - Page 2 (DM-352) 

We note at the outset that we cannot in an attorney general opinion attempt to 

anticipate all situations that may arise in the implementation of section 21.039 with regard 

to leased paging devices. See generally Attorney General Opinion N-1225 (1990) 

(whether a car telephone is a paging device subject to section 21.309). Moreover, as we 

have noted before, where a statute is not unconstitutional on its face, we are generally 

unable in an attorney general opinion to weigh or balance the competing interests involved 

so as to determine its constitutionality, especially for purposes of all possible applications. 

Such determina tions would be made by a court after affording the parties opportunity to 

introduce evidence relevant thereto, a procedure we are unable to perform in the opinion 

process. See, e.g., Attorney General Opiion DM-261 (1993) (constitutionality of 

provisions for impoundment of vehicle where proof of financial responsibiity not shown). 

We offer the following for your guidance. 

State v. Richcvds, 301 S.W.Zd 597 (Ten. 1957) dealt with a forfeiture of a vehicle 

under former V.T.C.S. article 725d. Richards, the owner, had lent the vehicle to another 

person, a customer at his place of business, on the latter’s representation that he needed it 

“for thirty or forty minutes” to drive to his brother’s apartment to change clothes. The 

borrower of the vehicle was subsequently arrested with narcotics, that is, “two dolophine 

pills,” in his pocket and it was shown that he had had them on his person while driving the 

vehicle. The statute in question made it unlawful to transport or possess wntraband 

narcotics in a vehicle, and tbrther provided for the seizure and forfeiture to the 

Department of Public Safety of any vehicle thus used. The supreme court noted that the 

statute specifically excepted from its operation vehicles used by a wmmon carrier unless 

the wmplicity of the owner or person in charge could be shown, vehicles illegally retained 

or acquired from the proper owner, and also by specific provisions protected the rights of 

bona fide mortgagees (hen holders). Applying the rule of statutory wnstruction that “[a]n 

exception. makes plain the intent that the statute should apply in all cases not 

excepted,” the court concluded that forfeiture of Richards’s vehicle was within the intent 

of the statute. 

With respect to the wnstitutionahty of the forfeiture there, the Richor& wurt 

noted the strong state interest in suppressing trafiic in narcotics, including deterring 

owners of vehicles from, even unwittingly, abetting it.1 It found that procedural due 

process requirements were satisfied in the case at hand since the statute specifically 

required that the owner of the vehicle be given notice and an opportunity for hearing prior 

to actual forfeiture. Finally, in holding the vehicle forfeit, the wurt noted that the innocent 

owner there might retain a cause of action against the borrower of the car for his loss. 

United States Supreme Court decisions appear to be in accord with the proposition 

of Ricboru!r, that given a sufficient state interest in the punishment and deterrence of the 

unlawful activity which was the object of the forfeiture statute, the innocence of the 

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Honorable Paul Sadler - Page 3 (DM-352) 

unlawfid activity which was the object of the forfeiture statute, the innocence of the 

property owner, absent specific statutory provision otherwise, is by itself no defense to 

forfeiture. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) 

Annot., 76 L. Ed.2d 852, 854-55 (citing Calero-Toledo and other cases). The CaleroToledo opinion, which incidentally, upheld the forfeiture of a yacht of an “innocent” 

lessor, strongly suggested, however, that it would be di&ult to reject the constitutional 

claim of an owner whose property subjected to forfeiture had been taken by the person 

who used it for unlawful purposes without the owner’s “privity or consent,” or where the 

owner was not only unaware of the unlatil use but had “done all that reasonably could 

be expected to prevent the proscribed use of his property.” 416 U.S. at 689; see also 

SrCrre v. Young’sMarker Co., 369 S.W.Zd 659 (Tex. Civ. App.-Eastland 1963, writ refd 

n.r.e.) (although common carrier’s failure to show proper documentation for cargo of 

whisky to patrolman technically made liquor “illicit” and subjected cargo and vehicle to 

forfeiture under Liquor Control Act, where buyer’s and seller’s transaction was otherwise 

legal and they were later able to produce proper documentation, and only unlatil act 

involved was unexplained dereliction of driver in failing to produce documentation which 

seller had furnished him, forfeiture was not within contemplation of act). 

In response to your question, we note first that we find no exception to forfeiture 

under section 21.309 where the paging device is leased. Especially as the statute does 

make other exceptions to its application--the ones in subsection (a) for fire and emergency 

medical personnel-we conclude, following the Ricbur& analysis, that forfeiture of even 

leased paging devices is within the intent of the statute, Further, we do not believe, based 

on the authorities cited above, that application of section 21.309 to the paging devices of 

“innocent” lessors would be per se unconstitutional. Although there may be a variety of 

constitutional theories under which the statute could be attacked-from due process and 

equal protection to cruel abd unusual punishment-we tind no tindamental rights or 

suspect classifications facially implicated by the provision such as to render it 

unconstitutional on its face. Notably, the bill analysis to section 21.309 asserted 

significant state interests in the matter: that the presence of paging devices in the 

educational setting was both generally disruptive and in particular facilitated trafficking in 

illegal drugs. Subsection (b) of the section, in providing for the implementation of the 

prohibition on paging devices through the school district’s written standards of student 

conduct, allows for the inclusion in such standards or procedures for giving notice and the 

opportunity for hearing to the student from whom a paging device is confiscated. Where a 

lessor is also involved, notice and opportunity for hearing should, we believe, also be 

provided, sufficient to afford procedural due process. See, e.g., R&ax& 301 S.W.2d 

597 see aZso Annot., 76 L. Ed.2d at 855-57 (citing cases). Although the statute does not 

specifically provide for such notice and hearing, we do not believe that deficiency is such 

as to render it unconstitutional on its face. Rather, such due process requirements should 

be read into statutes by implication to as to sustain their constitutionality so long as the 

statutes do not specifically and aflirmatively provide for procedures violative of due 

process. See, e.g., House of Tobacco v. Culvert, 394 S.W.2d 654 (Tex. 1965) (notice and 

hearing requirements necessary to comport with due process should be read into statute 
Honorable Paul Sadler - Page 4 (DM-352) 

providing for forfeiture of cigarette permits rather than striking down statute where it 

lacks express provisions to such et&@. 

We acknowledge, however, that fact situations may arise where, a court after 

hearing the evidence and arguments of the parties, could find that particular forfeitures 

exceeded wnstitutional limits. For example, a lease contract’s specitically forbidding the 

lessee’s possessing or permitting possession of the leased device on property or at 

+ivities within the section 21.309 prohibition might weigh in favor of the lessor’s 

opposition to forfeiture, particularly where there were other exonerating factors. See 

CalemToieab, 416 U.S. 663; see also, e.g., Austin v. unired Bates, 113 S. Ct. 2801 

(1993) (application of Eighth Amendment protection against excessive punishment to civil 

forfeiture). 

You also ask: 

What precisely is a public school district allowedkequiredkdvised to do with any or all paging devices contiscated under 

Section 21.309. . ? The section itself makes no provision and 

Article 3, Section 52 of the State Constitution and, perhaps, Section 

2330 of the [Education] [C]ode clearly complicate any district action 

subsequent to the confiscation. Would it be legally acceptable for the 

district to: (a) a&r issuing an appropriate and standard public 

notice, sell the devices to the highest bidder; or (b) dispose of them 

as if the devices were ordinary garbage; or (c) simply do nothing and 

keep them locked away forever7 

We note first that we think it clear under the terms of section 21.309 that the 

devices, once forfeited to the district become the property of the district. We do not 

believe that section 23.30 of the Education Code, referenced in your question, is relevant 

to the disposition of wnfkcated pagmg devices. Although subsection (a) facially provides 

for the disposition by school districts of “any property, other than minerals, held in trust 

for free school purposes,” reading the section as a whole, we think its scope is limited to 

real property. Subsection (b) provides with respect to sales under the section that “‘the 

president of the board of trustees shah execute his deed to the purchaser[s].” Subsection 

(d) provides that sates of “school houses, buildings or lands” made in substantial 

compliance with the section and authorized by the board of trustees shah not be invalid for 

any lack of authority to make them. Moreover, former V.T.C.S. article 2773, the 

predecessor provision of section 23.30, which was codified in the 1969 adoption of the 

Education Code, specified that the school district sales addressed by those provisions were 

ones of “houses or lands.” See V.T.C.S. art. 2773; 8 1 (repeated by Act of 

May 31, 1969, 61st Leg., RS., ch. 889, 3 2, 1969 Tex. Gen. Laws 2735, 3024; see also 

id. 3 23.30, at 2955). We find nothing in the legislative history of the 1969 codification 

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Honorable Paul Sadler - Page 5 (DM-352) 

indicating an intent to extend the ambit of those provisions to include personal property.’ 

We believe, however, that the school district has the implied authority to use and dispose 

of the property as it sees fit. See Educ. Code 5 23.26 @oard’s authority to manage 

diStliCt). 

Of wurse, the school district’s authority to use and dispose of the devices is 

subject to the article III, section 52 restrictions. Article JII, section 52 prohibits political 

subdivisions, such as school districts, Tom “granting” “anything of value” “‘to any 

‘individual, association or corporation whatsoever.” See, e.g., Attorney General Opinion 

MW-36 (1979). Of the alternatives for disposition of forfeited paging devices you 

suggest, selling such devices to the highest bidder, would appear to be an effective means 

for the district to obtain a reasonable quid pro quo for such devices and thus not run afoul 

of article III, section 52. See, e.g., Attorney General Opinion h4W-373 (1981). Other 

methods of sale, so long as they were reasonably calculated to obtain an adequate quid pro 

quo, might also suffice.3 If the district is unable to sell the paging devices, we believe the 

board of trustees should determine other appropriate ways of disposing of them as it does 

with other school personnel no longer wanted or needed by the district. See also, e.g., 

Attorney General Opinion MW-93 (1979) (board’s discretion to determine whether to 

seek reimbursement for payments made for certain travel expenses, based on costs of 

collection and other factors) (citing authorities). 

2Tbc bill analysis to House Bill 534, the bill meking the 1%9 codification of which se&an 23.30 

wasapan,Qatachatthein~mtofthebilIwas~makeitclearwhat~lawi~aottomaLeanynew 

law.” Home Comm. on Pnblic Education, Bill Analysis, XB. 534,61st Leg. (1%9). 

3Wbile we find no requirement that school distaicts sell sech pmpcrly through bidding, WC think 

tbatbiddingmaykusedasameansofsale,andwouldbeappropriateinthisinstanainvicwofthe 

ankle III, se&on 52 rcslriclions. Again, however, it is the obtaining of en edcquete quid pro quo that is 

required for article IJI, se&on 52 purposes, end thex might be other sale methods which could echieve 

that end. 

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HonorablePaul Sadler - Page 6 (DM-352) 

SUMMARY 

Application to leased paging devices of the provisions of 

Education Code section 21.309~-requiring the forfeiture to a school 

district of paging devices possessed by a student on school property 

or at school activities-would not be per se unwnstitutional where 

notice and opportunity for hearing are given to affected parties. 

Where the district desires to dispose of forfeited devices, it is advised 

that, in order to comply with the restrictions of article III, section 52 

of the state wnstitution, it must tirst attempt to sell them through 

bidding or other means calculated to obtain a reasonable quid pro 

quo. 

~~‘““izlD,I, 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fii Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, opinion Committee 

Prepared by William walker 

Assistant Attorney General 

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