Untitled Texas Attorney General Opinion ( 1976 )


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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