Untitled Texas Attorney General Opinion

The Honorable Tom Creighton Opinion No. H- 720 Chairman, Senate Committee on Economic Development Re: Constitutionality of article Senate Chambers, Capitol Building 1. 07, Taxation-General. Austin, Texas 78711 Dear Senator Creighton: You have requested our opinion concerning the constitutionality of article 1.07, Taxation-General, which establishes a state tax lien and provides: (l)(f)(ii) No bank or savings and loan institution shall be required to recognize the claim of the State to any deposit or withhold pay- ment of any deposit to the depositor or to his order unless and until it is served by the Comptroller with notice of the State’s claim. In our view article 1. 07 contemplates that upon proper notice a bank will, withhold payment of deposits in the sum of the lien. You ask whether such freezing of a person’s deoosits on the basis of an administrative decision by the Comptroller is constitutional. You have referred us to Fuentes v. Shevin, 407 U.S. 67 (1972) and Sni>Jach v. Family Finance Corp., 395 U. S. 337 (1969). Snia- dach involved a Wisconsin wage garnishment statute which allowed private creditors to garnish a defendant’s wages without a prior hearing. In ruling the statute un- constitutional the Court indicated that such summary procedures would meet the requirements of due process only in “extraordinary circumstances” 395 U. S. at 339. These extraordinary situations were more fully discussed in Fuentes, a case which involved the summary seizure, without prior notice or hearing, of household goods under a writ of replevin issued by the State on application of a private creditor. In holding the statute before it unconstitutional the Court stated: . . . Only in a few limited situations has this Court allowed outright seizure without opportunity for a prior hearing. First, in each case, the seizure has been directly necessary to secure an important govern- mental or general public interest. Second, there has p. 3004 .. The Honorable Tom Creighton - page 2 (H-720) been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for deter- mining under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. Thus, the Court has allowed summary seizure of property to collect the internal revenue of the United States, to meet the needs of a national war effort, to protect against the economic disaster of a bank failure, and to protect the public from misbranded drugs and contaminated food. 407 U. S. at 90-92. Regarding the collection of internal revenue, the Court cited Phillips v. Commissioner, 283 U.S. 589 (1931), in which summary administrative proceedings were upheld. The Court stated: Where only property rights are involved, mere p~ost- ponement of the judicial inquiry is not a denial of due process if the opportunity given for ultimate judicial determination of liability is adequate. 283 U.S. at 596-597. This la.nguage was quoted and Phillips cited without criticism in Mitchell v. W. T. Grant Co., 416 U.S. 600, a-73). In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1973), the Court upheld the summary seizure of a boat upon which contraband had been dis- covered, stating: . . . unlike the situation in Fuentes, [the] seizure is not initiated by self interested private parties; rather [government] officials determine whether seizure is appropriate under the provisions of the . . statutes. 416 U.S. at 679 We believe our courts probably would hold that article 1.07 (l)(f)(ii) satisfies the criteria presented in Phillips and Calero-Toledo. The, State has an important governmental interest in securing revenues, the seizure is initiated by a responsible p. 3085 The Honorable Tom Creighton - page 3 (H-720) government official under specific statutory authority and the taxpayer has opportunity to bring any dispute before the courts. Taxation-General, articles 1. 032(c), 1. 05, 1. 07B. Accordingly, in our opinion article 1. 07 probably would be held constitutional under the present case law. SUMMARY Article 1. 07, Taxation-General authorizing a state tax lien is constitutional. i Very truly yours, u Attorney General of Texas First Assistant C. ROBERT HEATH, Chairman Opinion Committee jad: p. 3086