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JOBS :xA.’ “IL”. AZ;WTIB-.Ty- 76711 A-WESUY l*nc x I c w.%x. November 29, 1976 The Honorable Wilson E. Speir Opinion No. H-965 Director Texas.Department of Public Safety Ret Porfeiture of motor 5805 N. Lamar Boulevard vehicles under article Austin, Texas 70773 6687-1, section 49, V.T.C.S. Dear Colonel Speir: You have inquired about .the forfeiture of vehicles under article 6687-1,section 49. V.T.C.S. Your first question asks whether a specific court order placed valid legal title to the vehicle described therein in the Texas Department of Public Safety. Since we cannot sit as a court of appeals to review judgments of the trial courts of this State, we decline to answer your first question. - See Attorney General Opinion G-1847 (1940). You also ask whether article 6687-1, section 49, provides a constitutional procedure for forfeiting vehicles to the State. This,section.states in pertinent part: (a) Any person who shall alter any certificate of title issued by the Depart- ment, or forge or counterfeit any certificate of title purporting to have been issued by the Department under the provisions of this Act, or who shall alter or falsify or forge any assignment thereof, shall be guilty of forgery and upon conviction thereof shall be punished as provided by law. (b) It shall be unlawful for any person to alter, change, erase, or mutilate, for the purpose of changing the identity, any motor number, serial number, manufacturer's permanent vehicle identification number or derivative number thereof placed on the vehicle, or any part thereof by the manu- facturer, or any motor number or serial . . . i The Honorable Wilson E. Speir - page 2 (S-905) number assigned by the State Xighway Depart- ment and placed or caused to be placed on a vehicle as provided by law for the purpose ‘of identification. It shall also be unlawful for any person other than a vehicle manufacturer to stamp or place any motor number 01 manu- facturer's vehicle identification number other than a number assigned by the State Highway Department as provided by law, on any vehicle ot any part thereof. Any pereon violating the provisions of this section comaits a mis- demeanorpunisbablebya fine notto exceed Sl.000, by confinement in jail for not more than 2 years or by both. (cl(11 A person who possesses, sells or offers for sale a mote* vehicle or any part of a motor vehicle that has had the serial number, the motor‘ number, or the manufacturer's permanent identification number removed, changed, or obliterated when he-knows the numberhas been removed, changed or obliterated comits a mis- demeanor punishable by a fine not tt.exceed $1,000, by confinement in jail for not more than 2 years, or by both. (2) It is q defense to prosecution under this subsection, which shall not be sub- mitted to the jury unless evidence is admitted supporting it but which, if raised, must be negated beyond a reasonable doubt, that'the p+rson~is the rightful or true owner of the motor vehicle or part of a motor vqhicle.that is the subject of the prosecution. . . . . (a)(l) If a person is arrested for possession of a motor vehicld or part of a motor vehicle in violation of this section, the arresting officer will take the motor vehicle or part of a motor vehicle into his possession. . . . . The Honorable Wilson E. Speir.--page.3-(H-B115). (4).If there:is-no prosecutiouzm:&nvic- tiou for.an.offense involving the.mwtor vehicle or, part of a.mtor vehicle seixed,.the.mugistrate to.whom.the seiztie was.r.eported..shallnotify . in wr$ting the rightful owner, if.known, -thathe &s..entitled.to.theanotor.vehicleor part-of a wctorv~#4cleuponreguestto the iawimforce- m.en$agency holding it,. fob a iS)it&on conviction of fany-..pe.rgon violationnf this section, the court*Bhall o&r' that.any'motor vithicleor part of.a motor vehicle +eized-and.hpounded in connectiob~with the pffense be.delivered to the rightful owner.ot trpe ptmer,*if known.:. . :(6) If.the aghfful owner of a vehicle.ok part o#..a,mo$or:veh$cle~seizedundemthits section'&b unknow+aqdsannot.be:determined the~qourCshall, qf$er fi.na&dispcsition~f+m.chaqes~ or&x it forfeited tp the -side... (7) Anypersoninterested inany.&orvehiele or.p+rt of a lpotorvehicle.seiseastrndet:thls.gectfon may,.at .anytime, petition the magistrate to.whom .th``~fzure.waS reporteb-to deliver:possession -Qf.i$ tQ-him., The magistrate, after:notice to the law.enfQrcemen~.agency. in-pcrssessionof-it, shall conduct a hearing to determine the petitioner's right,..topossession of the motor-vehicle or part of ..amotor vehicle. .If.the petitioner.prwes by a preponderance of the..evidencethat+,hehas a right to possession,.the magistrate shall order it. delivered to him.- A'penalty-may.consti.tutionallybe enforced by forfkue df the.offeudiug article.;.Calero-Toledo v; Pearson Yacht Leasing Co., 416 U.S..663 (1974). However, the forfeiture may only``ff.e#zed.by due process of law. State L Richards, 301 .STWi2d 597 ,(Te.x._..Sup...1957).. .The owners ofoperty subject to forfeiture must have.notice-and anopportunity to be'heard:, Robinson s;Haurahani 409.U.S. 39 (1972). The Honorable Wilson E. Speir - page 4 (H-905) I Section 49 contemplates forfeitureof a vehicle only when the rightful owner is unknown and cannot be determined. The vehicle is returned to its rightful owner, if known, whatever the outcome of the arrest -- conviction, no conviction, or no'prosecution. Sections 49 (d)(I), (5). If the defendant is the rightful owner he has an opportunity during his trial to prove itI in fact, ownership is a defense to charges under subsection (c)(1.). Even after conviction under subsection (a) or (b), the car is returned to the true owner, who might be the defendant. Thus, this statute provides an adequate opportunity for a defendant to protect his ownership in a m&or vehicle. The rightful owner must receive written notification of his right to the vehicle when there is no prosecution or conviction: when someone is convicted, the owner receives .the vehicle itself. Sections 49(d) (0, (5). Section 49(d)(6) doell not provide for service of process on~a known owner, because it does not seek to forfeit his interest. It fails to provide a procedure, such as notification by publication, by which an unknown owner can be given notice, but it does requirea showing thattheowneris unknown and cannot be determined. We believe that the State must make this showing by'proving efforts to identify and inform the owner that comply with the due process clause. U.S. Cons& amend. 14, s 1. Otherwise, an owner who could be located might be deprived of hisproperty through lack of knowledge, contrary to the legislative intent expressedin section 49 and to the reguirementscf the due process clause. A statute will be interpreted so that it is constitutional and valid, if it can be sustained by any reasonable construc- tion. 53 Tex. ,Jur.Zd,Statutes 6 158 and authorities cited therein. The notification provided by the State must be reasonably calculated to inform the owner of the impending forfeiture proceeding. Robinson v- Sanrahan,
409 U.S. 38, 40 (1972). If the name and address of the registered owner is available through the Department of Public Safety, personal notice should be given. Id.; I4enkarellv. Bureau of Narcotics, 463 F.2d 00, 95 (3d Cit. m72). In othercases, nzice reasonable under the circumstances must be given, which may be notice by publication for unknown owners. Mullane v. Central Banover --- Sank a Trust co.,
339 U.S. 306=1!80). D. 3799 . The Ronorable Wilson E. Speir - page 5 (E-905) A forfeiture proceeding is a civil action, to which the Texas Rules of Civil Procedure apply. See State v. Gra 175 S.W.Zd 224 (Tax. Sup. 1943); Bretz -?&:2d 97 (Tex. Grim, App..1974); Tex.R.Civ.P.3. Thus, the civil.,' rules on notice w0uia apply to any forfeiture under section 49. -See a Tex.R.Civ.P, Zlai-21br lQ.09, .109a. Subsection (d)(7) further protects the owner's property interest in the vehicle, by permitting him to petition the magistrate for,possession at any time. .We believe the procedures outlined in section 49(d) adaguately protect property rights 'andprovide a constitutional mode'of.for-" felting vehicles to the State, giving it valid title, subject to the subsection (d)(7) redemption right. Finally, you ask whether the State must.plead and prove final disposition of charges in order'to receive valid legal title to a vehicle forfeited under the statute. Subsection .(d)(6)permits fqrfeiture to the State only when the vehicle' has been.seised under section 49, the charges have been finally disposed of, and the rightful owner is unknown and cannot be determined. Statuf~Ca;~ising a forfeiture must be followed strictly. . . ., Forfeitures S 4(b): Cne,essential element of the forfeiture case is that.charges brought under-section 49 have been finally disposed of.'.'.The foxfeiture proceeding would necessarily follow the criminal proceeding, if any, as a separate civil.action. We ahswer your final.guest*on in the.affirmative. : SUMMARY . Section 49 of article 6687-1, V.TlC.S.. provides a constitutional procedure for forfeiting vehicles to the State.when the '. vehi.cles,havealtered identification numbers and the owners of the vehicles are unknown and cannot be located. The State must plead and prove final disposition of the charg'esin order to receive valid legal title to a vehicle forfeited under the statute. The Honorable Wilson E. Speir - page 6 (R-go51 APPROVED: 3 DAVID M. KENDALL, First ASSlS ant
Document Info
Docket Number: H-905
Judges: John Hill
Filed Date: 7/2/1976
Precedential Status: Precedential
Modified Date: 2/18/2017