May 26, 1967
Hon. Joe Resweber Opinion No. M- 79
County Attorney
Harris county Re: Sale of unclaimed and abandoned
Houston, Texas property under Article 18.30,
Vernon's Code of Criminal Pro-
cedure.
Dear Mr. Resweber:
You have requested our opinion concerning the following questions:
1. Can Harris County legally enter into a contract with an
auctioneer for the sale of unclaimed and abandoned personal
property under Article 18.30, V.C.C.P.?
2. Can Harris County legally pay the expense of,keeping unclaimed
-j and abandoned property, and the costs of sale of such prop-
erty?
3. Can the officer handling unclaimed or abandoned property
under Article 18.30, V.C.C.P., require an owner, claim-
ing such property after expenses have been duly incurred,
to pay such expenses as a condition precedent to returning
the property to the owner?
4. Is the officer handling unclaimed and abandoned property
under Article 18.30, V.C.C.P., entitled to a fee for his
services?
Article 18.30 of Vernon's Code of Criminal Procedure provides as
follows:
"Sec. 1. All unclaitiedor abandoned personal property except
whiskey, wine and beer, of every kind,seized by a peace officer,
which is not held as evidence to be used in any pending case and
has not been ordered destroyed or returned to the person entitled
to possession of the same by a magistrate, which shall remain un-
claimed for a period of thirty (30) days shall be delivered to the
purchasing agent of the county for sale. If the county has no
purchasing agent then such property shall be sold by the sheriff
of the county.
"Sec. 2. The purchasing agent or sheriff of the county, as
the case may be, shall mail a notice to the last known address
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Hon. Joe Resweber, Page 2 (M-79)
of the owner of such property by certified mail. Such notice
shall describe the property being held, give the name and address
of the officer holding such property, and shall state that if the
owner does not claim such property within six (6) months from the
date of the notice such property will be sold and the proceeds
of such sale, after deducting the reasonable expenses of keeping
such property and the costs of sale, placed in the county treas-
"rY.
"If the owner of such property is unknown, orif the address
of the owner is unknown then the purchasing'agent or sheriff, as
the case may be, shall cause to be published once in a paper
of general circulation in the county a notice containing a des-
cription of the property held, the name of the owner if known,
the name and address of the officer holding such property, and
a statement that if the owner does not claim such property within
six months from the date of the publication such property will
. be sold and the proceeds of such sale,after deducting the reason-
able expense of keeping such property and the costs of sale, placed
.- in the county treasury.
"Sec. 3. The sale of any property hereunder shall be preceded
by a notice published once at least three weeks prior to the date
. of such sale in a newspaper of general circulation in the county
. .._. -, .where the sale is to take-place, stating the description of the
-.
prop=rty , the names of the owners if known and the date and place
that such sale will occur. If the purchasing agent or sheriff,
as the case may be, shall consider any bid as insufficient he need
not sell such property but may decline such bid and reoffer such
property for sale.
"Sec. 4. The real owner of any property sold shall have the
right to file a claim to the proceeds of such sale with the com-
missioners court of the county in which the sale took place. If
the claim is allowed by the commissioners court the county treas-
urer shall pay the owner such funds as were paid into the treas-
ury of the county as the proceeds of the sale. If the claim is
denied by the commissioners court or if said court fails to act
upon such claim within ninety (90) days, the claimant may sue
'the county treasurer in a court of competent jurisdiction in the
county, and upon sufficient proof of ownership, recover judgment
against such county for the recovery of the proceeds of the sale."
Acts 59th Leg. 1965, vol. 2, p. 317, ch. 722.
Section 1 of Article 18.30, V.C.C.P., specifically provides that
unclaimed or abandoned personal property ".... shall be delivered to the
purchasing agent of the county for sale. If the county has no purchasing
agent then such property shall be sold by the sheriff of the county."
The purchasing agent or sheriff of the county has the responsibility for
conducting the sale, but we perceive no valid reason why such officer may
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. ,
Hon. Joe Resweber, Page 3 (M-79)
not delegate his function to a professional in the field. It is our view
that the commissioners court may not make this delegation, since the statute
provides for the sale to be conducted under the control of a particular
county officer. However, the purchasing agent or sheriff may hire a person
to serve as auctioneer, under the direction and control of such designated:
officers, for abandoned or unclaimed property, with the customary compen-
sation for such person to be paid from the proceeds of the sale.
With regard to your question as to whether the county may legally
pay the expense of keeping unclaimed and abandoned property, and the costs
of sale of such property, the statute itself requires the expenditure of.
county funds prior to the time any money can be realized from a sale.
Further, storage, advertising and sales costs are continuing charges that
must be paid when due. It is our opinion that the county may properly
pay these costs, recovering them from the proceeds of the sale when it is
conducted.
In answer to your third question, Article 18.30 V.C.C.P., does
not provide for the collecting of the cost of storage, handling and pub-
lication from the owner of such property in situations where the property
is claimed by its owner before sale. Article 47.09 V.C.C.P., provides
for the collecting of such costs from the claimant of property seized by
an officer and alleged to have been stolen, but if the property does not
fit within that category, or unless such charges are authorized by other
provisions of law, the purchasing agent or sheriff, as the case may be,
must release the property without such charges until the Legislature
authorizes such charges.
Article 18.30, V.C.C.P., does not provide for a fee to be paid
to the purchasing agent or sheriff for his services pursuant to such Article.
Therefore, the officers cannot lawfully charge a fee therefor.
SUMMARY
-------
1. Harris County is not authorized to contract
for the service~s:ofa public auctioneer to sell
items of unclaimed and abandoned property pur-
suant to Article 18.30, V.C.C.P.. but the county
officer authorized to make such sales may hire
a parson to conduct the auction in his behalf,
and under his direction and control.
2. Harris County can legally pay the expense of
keeping unclaimed and abandoned property and
the costs of the sale of such property.
3. In answer to your third question, Article 18.30
V.C.C.P., does not provide for the collecting
of the cost of storage, handling and publication
from the owner of such property in situations where
the property is claimed by its owner,before sale.
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. . . . .)
Y -1
Hon. Joe Resweber, Page 4 (M-79)
4. An officer handling unclaimed and abandoned
property under Article 18.30, V.C.C.P., is not
entitled to a fee for such services.
ey General of Texas
Prepared by
Thomas W. Hack
APPROVED:
OPINION COKHITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Harold Kennedy
._ -- Monroe Clayton
Malcolm Quick
Robert Owen
A. J. CARURBI, JR.
Staff Legal Assistant
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Untitled Texas Attorney General Opinion
Combined Opinion