Untitled Texas Attorney General Opinion ( 1958 )

Hon. Jesse James Opinion No, W&O7 State Treasurer Capitol Station Fb: Under the provisions of Article Austin, Texas 3183c, Vernon’s Texas Civil Stat- utes,.is it necessary for claim- ant requesting the refund of moneys t.0institute suit and obtain a oourt.order before the State Tress- urer oan make payment of the money, Dear Mr. James: and related questions. You have requested the opinion of this office in answer to certain questionswith reference to funds deposited with the State Treasurer under the prwisions of Article 3183c, Vernon’s Civil Statutes, Your first question is as follows1 ‘*Isit necessary for claimant requesting the refund of any such monies institute suit and obtain a court order before the State Treasurer can make payment of the money? If a court order is not necessary please advise what proof of ownership the ktate Treasurer should have before making payment.” The pertinent part of Chapter 251 Acts 52nd Lagis- lature 1951 p. 393 (codifiedas Article 31830, Vernon’s Civil StatutAs) is'as follows: %ec, 3. Whenever any person confined in any State institution subject to the jurisdic- tion of the Board for Texas State Hospitals and Special Schools dies, escapes or is discharged or paroled from such institution,and any per- sonal funds or property of such person remains in the hands of the superintendentthereof, and no demand is made ypon said superintendentby the owner of the funds or property or his legally appointed representative,the superintendentshall hold and dispose of such funds or property as fol- lows : (a) Funds : The superintendentshall hold the funds in the patients! personal deposit fund. for a period of three (3) years., If, at the end of three (3) years, no demand has been made for Hon. Jesse Jancs,;page 2 (W-407) the funds, the superintendentshall turn the said funds over to the State Treasurer. The State Treasurer shall hold the funds for a pericd of five (5) years and if, at the end of that five (5) year period, the~,fundshave not been demanded by the owner or a legal repre- sentative, then the funds shall escheat to the State and.shall become a part~of the General Fund. . . .n The statute in question does not require that the claimant of a patient's personal deposit funa institute court proceedings to obtain money'on deposit with the State Treas- urer which is legally the property of the owner and hence any requirement that the claimant obtain an order of a court of competent jurisdictiondirected to the State Treasurer for delivery of the claimant's or owner's funds would be without legal authority. Since the State TreasurerAs made the legal custod- ian of such funds, his possession may be defined to be that of a statutory trustee and, as such, he is charged as a matter of law with requiring satisfactoryproof of the claimant's right to the funds in question before he would be authorized to deliver them to the owner or his authorized representative, You have advised us that there are approximately 4,725 deposits of individual patient's funds held by you in ac- cordance with Section 3 Article 3183c, V.C.S., and that, with few exceptions, the idvidual amounts of such funds average less than $5.00 per patient fund. It would be manifestly un- just and, in fact, it would be prohibitive,to require the claimant or a legal representativeof the claimant to make such proof as would be required by the court in a legal proceeding, since the expense of obtaining such proof would be many times greater than the amount involved. It is our opinion that the State Treasurer could re- quire the owner or a legal representativeto make proof by affidavit of the claimant or a legal representative,together with such corroboratingaffidavits from disinterestedthird parties as the State Treasurer may deem necessary, thatthe claimant of such funds is the owner or a legal representative of the owner, to the satisfactionof the State Treasurer. If the amount is a large.one the State Treasurer could properly request that the claimant or the legal representativefurnish a personal bona to indemnify the State Treasurer in his official capacity for any loss covered by the payment of the funds to a Hon. Jesse James, page 3 Mw-407’) person not legally entitled thereto, The furnishing of roof by affidavit would not entail an unnecessary or prohibitip ve expense on the part of the claimant-owneror a representative of the owner in obtaining the funds ta which the owner thereof may be entitled under the provisions of the statute. ,Your second question'is as follows: Way funds so deposited that have been held by the Treasurer for more than the required five years period be deposited direot to the General Fund without escheat proceedings,or is it neces- sary that a court order,be obtained to complete the escheat of these'funds?" Section 3, Article 3183`` V,C.S., provides that af- ter the State Treasurer has held the funds for a p@iod of five years and no demand has been made by'thc owner or a legal representative,"then the funds shall escheat to the State and shall become a part of the General Fund." It is settled law,in Texas that a judicial proceed- to effect an escheat, s v. statig 1 @iv.App: 1947, error ref.)* ‘87 S.W.2d 297 (Civ.App. 1935, error dism,j, It is our opinion that court proceedingsare neces- sary in order to complete the escheat of these funds to the State for deposit in the General Fund, and that you may not ae- posit them in the General Fund except by order of a court of competent jurisdiction. It is not necessary for the owner of a pa- tients' deposit fund deposited with the State Treasurer under the prwisions of Article 3183c, V.C.S,, to present a court order to the State Treasurer in order to receive the fund, but the claimant must furnish satisfactoryproof to the State Treasurer as to ownership. Hon. Jesse James, page 4 (W-407) Patients' funds deposited with the State Treasurer under the provisions of Section 3, Article 3183c, V.C.S., and unclaimed after five years can only be escheated to the State through judicial proceedings. Yours very truly, WILL WILSON Attorney General of Texas c. K. Richards Assistant CKR:wb APPROVED: OPINION COMMITTEE Geo. P. Blackburn, Chairman Cecil Rotsch J. Mark McLaughlin Milton Richardson John H. Anton, Jr. REVIEWED FCR THE ATTORNEY GENERAL BY: W. V. Geppert