TEIEA'ITORSEY GENERAL
Ma.rch 5, 1962
Honorable Jesse James Opinion No. W-1264
State Treasurer
State Treasurer’s Office Re: Whether Section 4 of Article
Austin, Texas 3272a, V.C.S., and the certl-
flcatlon of the State Treas-
urer to the Attorney Genera.1
would prohibit a holder of
property subject to the pro-
visions of said Article,
from making restoration of
such property to its reported
owner at any time subsequent
to the 120 day interval from
the date the report was re-
ceived by the State Treasurer
and the date the suit referred
to in Section 4 is finally
Dear Mr. James: adjudicated.
Your question is whether Section 4 of Article 3272a.,
Vernon’s Civil Statutes, prohibits a holder of property subject
to the provisions of that statute from restoring such property
to its reported owner between the expiration of 120 days from
the date the report was received by the State Treasurer and the
date the suit referred to in Section 4 is finally adjudicated.
Apropos of your in ulry we quote the relevant parts
of subsections (a), (b) and 9 g) of Section 4 of Article 32723.:
“(a.) All personal property reported under the
provisions of this Article remaining unclaimed at
the expiration of one hundred and twenty (120) Gys
from the date upon which the report by the holder
of such property was received by the State Treasurer,
shall be deemed to be abandoned, and shall escheat
to, and the title thereto vest in, the State of Texas,
and the State Treasurer shall so certify to the At-
torney General.
“(b) The Attorney General shall immediately
institute an action in a District Court of the
county in which the holder resided or is domiciled
to judicially determine that such property has es-
cheated to the State. The suit shall be brought
Honorable Jesse James, page 2 (WW-1264)
as a class action, and may include the pro,perty
reported by more than one holder from the same or
other counties, and the sworn petition shall state
that the action is brought by the State of Texas
upon the relation of the State Treasurer by the
Attorney General for the pur,pose of escheatlng and
vesting the title in the State of Texas of the
property therein described, stating the descrip-
tion of the property which has escheated to the
State, the name of the person or holder possessed
thereof and the names of the person or persons
claiming, or last known to have claimed, such
property, if any such names are known, all of
which information shall be separately listed in
parallel columns, and t,he facts and circumstances
in consequence of which such property is claimed
to have escheated, praying that such property be
eschea.ted, and the title thereto vested in the
State of Texas. The petition shall not be subject
to objections as to the misjoinder of parties or
misjoinder of causes of action.
“(g) If it appears to the Court that the prop-
erty described in the petition has be& actually
abandoned, and that there is no person entltled~ to
it, judgment shall be rendered declaring such prop-
ertv escheated and vestlne: the title thereto in the
Stake of Texas. Tine Judgment shall also direct the
holder of the property so described, which has been
actually abandoned and escheated and the title thereto
vested in the State, to deliver such property lmme-
diately to the State Treasurer. If no person or
claimant to any property described in the petition
shall appear and answer within the time provided for
entering such appearance and answer ‘oy the Texas
Rules of Civil Procedure, the Court shall render
judgment by default as to such property in favor of
the State of Texas. If the Court should find that
such property has not been actually abandoned a.nd
therefore should not be escheated and the title
thereto vested in the State of Texas, and that the
title to such property should vest in the person or
persons claiming the title to or an interest in such
property, the Court shall direct such property to be
delivered to the person or persons lawfully entitled
to possession thereof.” (Emphasis supplied)
From the foregoing, it is seen that at the expiration
of the 120 day period the property is automatically deemed to be
abandoned. While the statute says that it “shall escheat to,
Honorable Jesse James, page 3 (WA1264)
and the title thereto vest in, the State of Texas", it is ob-
vious that the property does not actually become the property
of the State uniess and until a final adjudication to that
effect is made by t'ne Courts. This evident from Section L!(g)
quoted above.
It is equally clear that the judment of the Ccurt
would reiate back to the expiration of the 120 da.y period when
ti; property was first deemed abandoned and escheated. There-
fore, after the expiration of the 120 day period the holder who
released the property to anyone without the concurrence of the
proper authorities runs the risk of being held accountable to
tha State for the value of such pro~perty by virtue of a subse-
quent judgment declaring the property to have been the property
of the State at the time the holder released the property.
It follows that after the expiration of the 120 day
period, the holder serves in the capacity of custodian of the
property pending a determination as to the ownership of the
property by the proper authorities. Tha.t is to say, the holder
does not have it within his power to decide whether the reported
owner, or anyone else, is the rightful ownc of the property.
T'nls determination must be made by the Stata Treasurer, on whose
relation the suit is brought, and the Attorney General, whose
duty it is to prosecute a. suit to escheat the property, unless
he is convinced that the rightful owner has appeared to claim
the property, and, the Court, if the Attorney General proceeds
to place the matter before the Court.
Thus, by necessary implication, the holder is prohi:?-
ited from turning the property over to the "reported owner" ;1nisst
it is pursuant to the advice and consent of the State Treasui-er
and the Attorney General, whose duty it wlli be to ask the con-
sent of the Court where such consent is necessary. Your questio;;
is answered accordingly.
SUMMARY
Under Article 3272a, Vernon's Civil Statutes, the
holder is prohibited from releasing property to its
reported owner after the ex~plratlon OF 120,days from
the date the report was received by the State Treasurer,
unless such relea.se is made pursuant to the advice and
consent of the State Treasurer and th? Attorney Genera3
of Texas.
Very truiy yours,
WILL WILSON
Attorney General of Texas
Byrd;: L22z- :'
Assistant
-. ,
Honorable Jesse James, page 4 (W-1264)
APPROVED:
OPINION COMMITTEE
Howard W. Mays, Chairman
Milton Richardson
Iola B. Wilcox
James Broadhurst
REVIEWEDFOR THE ATTORNEYGENERAL
BY: Houghton Brownlee, Jr.