### DAN MORALES

ATTORNEY GENERAL 

## QBffice of the PXttornep Qhneral Mate ofEexae

June 13,199s
Honorable Paul Sadler Chair Committee onPublic Education Texas House ofRepresentatives 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 apublic school may not possess apaging device

while on school property or while attending a school-sponsored or school-related activity on or offschool property, [with exceptions for certain tImfighting andmedical emergency service personnel]. (b) [School district’s written standards of student conduct must include subsection (a) prohibition. Student violating prohibition subject to discipline asprovided by district policy]. (c) Aperson whodiscovers astuakntinpossession ofapaging device in violation ofthis section shall report ihe viokztion to the qpropriate school ariministrator, as determined by schoolpolicy, who shall order apeace oflcer or appropriate school employee to confiscale thedevice, whichis fodeited to iheschooldistrict. (d) In this section, “paging device” means atelecommunications 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 allto 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 inthe implementation of section 21.039 with regard to leased paging devices. See generally Attorney General Opinion N-1225 (1990) (whether a car telephone is apaging 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 asto determine its constitutionality, especially for purposes of all possible applications. Such determinations 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 ofvehicle 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 aforfeiture of avehicle under former V.T.C.S. article 725d. Richards, the owner, had lent the vehicle to another person, a customer at his place ofbusiness, 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 ofthe vehicle was subsequently arrested with narcotics, that is, “two dolophine pills,” in hispocket and itwas shown that he had had them on hisperson 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 ofthe 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 ofthe 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 ofthe vehicle be given notice and an opportunity for hearing prior to actual forfeiture. Finally, inholding the vehicle forfeit, the wurt noted that the innocent
owner there might retain a cause ofaction against the borrower ofthe car for his loss.
United States Supreme Court decisions appear to be in accord with the proposition ofRicboru!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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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 itfor unlawful purposes without the owner’s “privity or consent,” or where the
owner was not only unaware ofthe 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’stransaction 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 hadfurnishedhim,forfeiture wasnotwithin contemplationofact).

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 iswithin the intent ofthe 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 apaging device isconfiscated. 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 aZsoAnnot., 76L. 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 ofTobacco v.Culvert, 394 S.W.2d 654 (Tex. 1965) (notice and hearing requirements necessary to comport with due process should be read into statuteHonorable 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 ofEighth Amendment protection against excessive punishment to civil forfeiture).

You also ask: What precisely is a public school district allowedkequiredkdvised to do with any or allpaging 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 ofthe [Education] [C]ode clearly complicate any district action subsequent to the confiscation. Would itbelegally 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 ifthe 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 ofthe Education Code, referenced in your question, is relevant to the disposition ofwnfkcated 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 ofthe board oftrustees 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 oftrustees 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 bythose 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, 32, 1969 Tex. Gen. Laws 2735, 3024; see also id. 323.30, at 2955). We find nothing in the legislative history of the 1969 codification

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indicating an intent to extend the ambit ofthose 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 523.26 @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 areasonable 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 asthey were reasonably calculated to obtain an adequate quid pro quo, might also suffice.3 Ifthe district isunable to sellthe paging devices, we believe the board oftrustees should determine other appropriate ways of disposing ofthem 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).

2Tbcbillanalysis

toHouse Bill534,thebillmekingthe1%9codification ofwhichse&an23.30 wasapan,Qatachatthein~mtofthebilIwas~makeitclearwhat~lawi~aottomaLeanynew law.” HomeComm.onPnblicEducation, BillAnalysis,

XB. 534,61stLeg.(1%9).
3Wbilewe find norequirementthatschooldistaictssellsechpmpcrly throughbidding,

WC think tbatbiddingmaykusedasameansofsale,andwouldbeappropriateinthisinstanainvicwofthe ankle III,se&on52rcslriclions.Again,however, itistheobtaining

ofenedcquete

quidproquothatis required forarticleIJI,se&on 52purposes, endthex mightbeothersalemethodswhichcouldechieve thatend.

p. 1878HonorablePaul 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 ofarticle 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 ofTexas
JORGE VEGA Fii Assistant Attorney General

SARAH J. SHIRLEY Chair, opinion Committee Prepared byWilliam walker Assistant Attorney General

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