RNEX- GENERAL
RZKAS
August 25, 1969
Honorable Henry Wade Opinion No. M-456
District Attorney
Dallas County Government Center Re: Discretion of District
Dallas, Texas 75202 Attorney to refrain
from filing forfeiture
suits under Article 725d,
Penal Code, and whether
proposed alternate pro-
Dear Mr. Wade: cedures are prohibited.
your letter requesting an opinion presents the
above questions and states that:
"The proposed procedure is proposed
to be used only in a fact situation
limited to one wherein a motor vehicle
has been seized as having been used in
the transportation, concealment or pos-
session of contraband narcotics. It
is further limited to cases in which
it is clearly evident that there exists
a registered bona fide lienholder whose
interest is greater than the present
value of the seized motor vehicle."
You further state generally that your office must
handle a multitude of these situations and that filing
forfeiture proceedings in court inherently involve ex-
pense and delay because of necessary service upon the
registered owner, the driver if he is other than the
registered owner, and the lienholder; that often all of
the parties cannot be located, the proceedings must be
delayed, and that service of citation, particularly
out-of-state, is expensive; that considerable time is
consumed in a hearing even after the case has been
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Honorable Henry Wade, Page 2, (M-456)
reached on the court calendar: and after such expenditure
of time and effort the seized automobile is released
to the lienholder.
Pertinent portions of Section 2 of Article 725d,
Vernon's Penal Code, read as follows:
"Any . . .vehicle . . .which is being
used in violation of Section 1 of this
Act shall be seized and forfeited to
the Texas Department of Public Safety,
Narcotics Section, under the provisions
of this Act; . . . and provided further,
no. . .vehicle. . .shall be forfeited
where it is shown that the illegal act
has been committed by some person other
than the owner thereof while such . . .
vehicle. . .was in the possession of any
person who acquired or retained such pos-
session in violation of any law of this
State or of the United States."
Section 3 provides for enforcement of the Act and
reads:
"Any officer authorized by the pro-
visions of~the Acts enumerated in Section
1 of this Act to enforce such acts may
seize any vessel, vehicle or aircraft
violating the provisions of this Act."
Article 725b, Penal Code, (Narcotic Drug Regulations)
is specifically enumerated in Section 1 of Article 725d.
Section 22 of Article 725b provides, in part, as follows:
"It is hereby made the du
Department of Public Safety,
ficers, agents, inspectors, and repre-
sentatives, and of all peace officers
within the State, including all peace
officers operating under the juris-
diction of the Department of Public
Safety, or that may hereafter operate
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Honorable Henry Wade, Page 3, (M-456)
under its jurisdiction and all County
Attorneys, District Attorneys, and the
Attorney General to enforce all pro-
visions of this-Act, except those
specifically delegated, and to co-
operate with all agen~ciescharged
with the enforcement of the laws df
the United States, of this State,~and
of all other States, relating to nar-
cotlc drugs. (Emphasis added)
Section 4 of Article 725d concerning notice to the
parties provides, in part:
"The seizing officer shall im-
mediately file in the name of the
State of Texas. . .a notice of said
seizure and intended forfeiture. . .'I
Subsections (a) and (b) of Section 4 provide for
service of citation, as in other civil cases, upon
the owner of the vehicle and upon any registered lien-
holder.
Subsection (c) provides that if the motor vehicle
to be forfeited is susceutible to recistration in this
State and is believed to-be registered under the laws
of this State, the officer in charge of filing the for-
feiture suit shall make inquiry to the Highway Depart-
ment as to who is the record owner and who, if any, holds
any lien or liens against such vehicle. The officer in
charge of filing such suit shall cause any lienholder
to be made a party to the suit together with the record
owner ifsthe owner is any person other than the person
in possession of the vehicle when it was seized. Pro-
vision is also made for the Attorney General, District
Attorney and County Attorney, or any of them, to ascertain
the licensee and lienholders if the vehicle is not
registered in this State.
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Honorable Henry Wade, Page 4, (M-456)
Subsection (d) provides that if a person was in
possession of the vehicle when it was seized he shall
be made a party defendant in such forfeiture suit and
provides for service of citation if no one was in pos-
session of the vehicle at the time it was seized and
the owner thereof is unknown.
Subsection (e) provides that no suit instituted
pursuant to the Act shall proceed to trial unless all
the provisions of subsections (c) and (d) have been com-
plied with.
Sections 6 and 7 of Article 7258 read as follows:
"Sec. 6. If it shall appear that the
owner of the . . .vehicle. . . has filed
a verified answer denying the use of such
. . .vehicle. . . in violation of this
Act, then the burden shall rest upon the
State, represented by the District Attorney
to prove as in other penal cases, the
violation of the provisions of this Act.
Provided, however, that in the,event no
answer has been filed by the owner of
said . . .vehicle. . ., the notice of
seizure may be introduced into evidence
and shall be prima facie evidence of said
violation.
"At the hearing, any claimant of any
right, title or interest in the . . .
vehicle . . . may prove his lien,
mortgage or conditional sales contract,
to be bona fide and created without
knowledge that the . . .vehicle
-I . . .
was to be used in violation of this Act.
"Sec. 7. roof at the hearing
shall disclos at the interest of any
bona fide lienholder, mortgagee or
conditional vendor is greater than the
oresent value of the . . .vehicle. . .,
khe court shall order such . . . vehicle
. . . released to him. If such interest
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Honorable Henry Wade, Page 5, (M-456)
is less than the present value, and upon
proof of violation of this Act, the court
shall order the . . .vehicle . . . for-
feited to the State." (All emphasis added.)
In view of the foregoing provisions, and particularly
in light of the duties imposed upon enforcement personnel
and district attorneys by the provisions of Article 725b,
Section 22, it is the opinion of this office that once
a motor vehicle has been seized by an officer for
violation of Article 725d, it is the mandatory duty of
the district attorney to file and prosecute the forfeiture
suit in full accordance with the provisions of that Act.
However, once such a suit has been filed, the district
attorney, in representing the State as lead counsel, has
control over the suit and, under proper motion and hearing
thereon, may discontinue the same upon order of the court.
State ex rel Dishman v. Gary, 163 Tex. 565, 359 S.W.2d
456 (1962).
Your second question presents an alternative to
court proceedings and is "based on a determination in
advance by the district attorney as to whether the parti-
cular facts clearly show a bona fide lienholder whose
interest is greater than the present value of the seized
automobile," which in substance is proposed as follows:
"1. When the seizing officer has
notified this office of the facts con-
cerning the seizure of an automobile,
the lienholder will be notified.
"2. If and when the lienholder, by
affidavit and other proof, discloses to
this office facts demonstrating himself
to be a bona fide lienholder, that
his lien is in an amount exceeding
the present value of the seized
automobile, that the record owner
is in default on his obligation
and the lienholder intends to fore-
close his obligation, and that the
lienholder's contract authorizes
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Honorable Henry Wade, Page 6, (M-456)
him to repossess such automobile and
he requests delivery to him for such
purpose, then, as a matter of~law;
under the facts, even court pro-
ceedings.could result only in such
car being released to the lienholder.
Under such uncontroverted facts, it
is proposed that this office decline
to file court proceedings, and so
notify the seizing officer and the
lienholder of such action and the,
grounds therefor.
“3 * If and when the lienholder
prepares and submits to the seizing
officer a sworn statement summarizing
his authority and his desire to re-
possess such seized automobile; and
that if it is released to him for such
purpose; then the lienholder will'hold
the cityand the seizing~officer harm-
less from any suit or liability arising
out of such'delivery to him, then such
seized automobile will be released to
such lienholder.""
In State v. Cherry, 387 S.W.2d 149, 153 (Tex.Civ.App.
1965, no writ), the court said:
"The right of the State to forfeit
a vehicle'used in this vicious illegal
traffic'comes into~existence instanter
upon the commission of the~proscribed
act, and it remains only for the State
to perfect its title by'~seizing the
vehicle and obtaining the decree of
forfeiture. 7 FifthXof'Old Grand-Dad
Whiskey v. United States, lO.Cir;;
158 F.2d 34, cert. den. 33O‘U;S; 828;"~
67 S.Ct. 870, 91 L.Ed.-1277. The law-
specifies those innocent persons whose
rights may transcend that of the State';
and appellees simply'fafled to'~carry
the burden of showing their inclusion
within that favored group."
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Honorable Henry Wade, Page 7, (M-456)
Article 725d places a duty upon the district attorney
to institute forfeiture proceedings concerning a seized
vehicle, and prove in the first instance, that the vehicle
was being used in violation of this Act. The hearing pro-
vides an owner thereof the opportunity to bring himself
within forfeiture exceptions and provides a lienholder
the opportunity to prove his bona fide lien at the
and prove that his interest is greater than the
s value of the vehicle. We therefore find, upon
the facts presented, that the district attorney has no
authority to release a seized vehicle to a lienholder
in the absence of forfeiture proceedings and a proper
court order.
Moreover, a forfeiture occurs where a person loses
some property, right, privilege, or benefit in consequence
of having done or omitted to do a certain act. The extra-
judicial release of a seized vehicle by a district attorney
to a lienholder would deprive the owner of a right'in the
vehicle when such issues could only be determined in an
action for forfeiture and to which the owner -
and the
lienholder are made parties.
Therefore, the procedure proposed by you as an
alternative to court action is prohibited.
SUMMARY
When a motor vehicle has been seized
by an officer pursuant to Article 725d,
Vernon's Penal Code, it is the mandatory
duty of a District Attorney to institute
forfeiture proceedings; and, under the
facts submitted, a procedure for re-
leasing a seized vehicle to a lien-
holder by a District Attorney in
absence of a proper court order would
be prohibited.
Very'truly yours,
General of Texas
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Honorable Henry Wade, Page 8, (M-456)
Prepared by Monroe Clayton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Lonny F. Zwiener
2. T. Fortescue
Linward Shivers
Malcolm Quick
Hawthorne Phillips
Executive Assistant
W. V. Geppert
Staff Legal Assistant
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