Honorable Homer Garrison Jr., Director
Texas Department of Publjc Safety
Box 4087 North Austin Station
Austin, sexas
Opinion No. S-211
Re: Whether the State Department of
Public Safety may have title to,
operate aa ~aispose~of Vessels
vehicles and aircraft forfeite d
to it under Article 72.5a, V.P~.C.,
there being no bona fide lien
holders or other uersonsclaim-
ing any right, t&e or interest
therein.
Dear.Col~onel Garrison:
You have requested our opinion on the following
que'stion:,
9. If a vehicle upon which no lien is
claimed is forfeited to the Department ,of
.Publ~ic Safety through the procedure estab-
lishea by House Bill 308 and an order is is-
.sued directing then certificate of title tombe
transferred to the Department of Public Safety
and the Department, pursuant to~th.at order
makes due application and receives the cer 4 I-
ficate of title, can the Department then con-
sider this vehicle as lawful State property
for the,purpose of the expenditure of States
funds for its operation ana maintenance?"
The provision of Article 725d, Vernon's Penal
Code, 'providing for the disposal of forfeited automobiles,
vehicles, ana aircraft is as follows:
“Sec. 8. Sale. All forfeited vessels,
vehicles or aircraft shall be sold at a public.
auction under~the direction of the County Shes-
iff after notice ~of sale as provided bye law for
Honorable Homer Garrison, Jr., page 2 (S-211)
other sheriff’s sales. The proceeds of such
sale shall be delivered to the District Clerk
and shall be disposed of as follows:
,“(l> To the bona fide lien holder, mort-
gagee or conditional vendor to the extent of
his interest;
“(2) The balance if any, after deduc-
tion of all storage ancl court costs, shall be
forwarded by the District Clerk to the State
Treasury for deposit in the general revenue
fund.”
The question involved is whether this section of
Article 725d means that there is to be a sale of the for-
feited vehicle, vessel or aircraft in every case, or
whether the ~section is merely descriptive of the procedure
to be followed where there ‘are lienholders and a sale is
had under the statute. In reaching a construction of the
section involved, it should be pointed out that the word
‘Ishall” , as used in statutes end contracts is generally’
mandatory end imperative. Black’s Law DicCionary (4th Ed.
1 9!m lThe section ‘above quoted concerning sale of for-
feited vehicles is the only section in the statute involv-
ing a sale or other disposition of the property, and
states unequivocally that the forfeited vehicle “shall be
s0ialJ. It then proceeds to prescribe the method of sale,
and the conclusion is inescapable that the statute com-
mands a sale in any event, and any other use of the vehicle
is not authorized by the statute. Thus the Department of
Public Safety would not be authorized to retain the for-
feited vehicle, vessel or aircraft for its own use, nor
could it be considered lawful State property for the pur-
pose of expenditures of State funds for its operation and
maintenance.
This construction of the statutory provision is
further substantiated by the legislative history of Article
72% as House Bill 308, 54th Legislature, 1955. The bill,
as originally introduced, reads as follows:
“Sec. 14a.
18. . .
“(2) . . . If upon the trial of such suit
it is found that such vehicle was used for the
transportation of narcotic drugs in violation
Honorable Homer Garrison, Jr., .page 3 (S-211)
of this act then the court trying-said cause
shall render judgment forfeiting said prop-
erty to the State of Texas end ordering the
same disposed of as provided,for by subseo-
tion (4) of this section, or if in the opin-
ion of the Director of the Department of
Public Safety, such property is needed for the
use of the department then the same shall be
retained and so used until such time as such
property is sold by the Department as provided
herein."
In the committee report on this bill it was recom-
mended that the bill do pass, but that it be .not printed,
and that a~substituted bill presented by the committee be
printed. The'substitutea bill was eventually passed~~and
is now Article 725d,~ from which the above provision-was
taken. The intention of the Leg~islature as indicated by
the above action is clearly shown. It was pre~sented a bill
allowing the Department of Public Safety to keep the for-
feited vehicle for its own use but instead the Legislature
substituted a bill which prov1Ae.e that the vehicle be sold.
Thus the intent of the Legislature wasthat the Department
of Public Safety.not be allowed by the present Article to
retain a forfeited vehicle, vessel, or aircraft for its own
use.
Therefore, under this article. all property for-
feited to the State must be sold in the manner indicated,
and retention of the vehicle by the Departmentof Public
Safety or expenditure of State funds in its care and main-
tenance is without statutory authority.
As to the portion of the question ,presented which
deals with the certificate of title to the forfeited vehi-
cle, vessel or aircraft, Section 9 of particle 725dprovides:
8fSec. 9. The State Highway Department is
hereby directed to issue a certificate of~title,-'l
to any oerson, purchw a vessel, vehicle, or
aircraft under the provisions of this act, when.
said certific,ate of title is required under the
laws of this State." (Emphasis added.)
Section 35.of the Certificate of Title, Act, Arti-
cle 1436-1, V.P.C., provides:
Honorable Homer Garrisonj Jr:: page 4 (S-211)
Whenever the ownership of a motor vehicle
registered or licensed within this State is
transferred by operation of law, as upon . . .
judicial sale, or any other involuntary dives-
titure of ownership, the Department shall issue
a new certificate of title upon being provided
with certified copy of . . . bill of sale from
the officer maklng the judicial,sa3.e. . . .'I
There is no provision for a transfer of title of
the forfeited vehicle in either the article here under
construction or the Certificate of Title Act except to the
purchaser at the'sale prescribed in Section 8 of Article
72%. Therefore, there is no statutory authorization for
a transfer of the title to the forfeited vehicle, vessel,
or aircraft to the Department of Public Safety pending the
sale of the vehicle prescribed in Section 8 of Article
72,sd either in the other provisions of this article, or in
the 6ertificate of Title Act.
SUMMARY
Article 725cI, V.P.C., does not allow the
Department of Public Safety to keep and use or
to expend State funds for the maintenance o1 ,
vehicles, vessels or aircraft forfeited under
that article, but provides~ that such forfeited
vehicle, vessel, or aircraft shall be sold ac-
cording to the statute. Further, Article 725d
does not authorize transfer.of the title to such
vehicle, vessel, or aircraft to ~the Department
of Public Safety .pending the sale of such vehi-
cle, vessel, or aircraft under Section 9 of such
article.
.APPROVED: Very truly yours,
J. Fred Jones JOEINBRNSRRPPWD
State Affairs Division Attorney General
W. V. Geppert
Reviewer
J. C. Davis, Jr.
Reviewer
Davis Grant
First Assistant
John Ben Shepperd
Attorney General