Untitled Texas Attorney General Opinion ( 1951 )

i Eaaotmentof Artiolo 332a, Cede of
,/ ~$rimind R.o.duro 1~ 1953 by 53rd
Lagirl~turm, lh o ngi##See
ed LB.
888. 53rd Lwg., 1953 for new law ,A:
i providing Per the aal. of abandonad
.,
____ --___-- ----------
Enactment of Article 332a,~Cod
-"-TXAS of Criminal Procedure in 1953
by 53rd Legislature, changed 1
PRICE DANIEL
AUs~mP1``EXAs See H. B. 886, 53rd Leg., 1953
A¶-r"nlWsY
OESE~..x. for new law providing for the
sale of abandoned property.
July 31, 1951
Hon. Ken Jennings Opinion Iio.V-1223
County Attorneg-
Mitchell County Re: Authority of the county
Colorado City, Texas to sell automobiles the
county has stored for
more than one year af-
ter finding them aban-
Dear Sir: doned on county roads.
We refer’to your request which reads in part as
follows:
"May a county sell automobiles which
have been abandoned on county property, and
Ff so, what is the proper procedure ,for such
sale?
"Several automobiles have been aban-
doned along the roads of this county. The
owners are either unknown or can not be
located. Said automobiles were removed
from their place of abandOnme& and have
been taken to county property where they
have remained for a year or two. Ro one
has claimed said automobiles. The auto-
mobiles have not been stolen."
Although you did not state in your request that
the county officials were the first to take possessioni
we shall assume for the purpose of this opinion that they
were.
In Pearson v. Black, 120 S.W.2d 1075,~1079 (Tex.
Civ.App. 19581, it is stated:
"'In Its general signification "abandon-
ment" means the relinquishment of the posses-
sion of a thing by the owner with the intention
of terminating his ownership, but without vest-
ing it in any one elss.' Shahan et al v. Rorth-
ern Texas Traction CC., Tex.Civ.App., 266 S.W.
850, 852; 1 R.C.L. 2; 1 C.J. 5. If the casing
had been in fact abandoned there was neither
pleading nor evidence to show that appellants
. .
Hon. Ken Jennings, Page 2 (V-1223)
.: were not the first persons to take actual pos-
. session of same, or that the plaintiffs were.
.., Regardless of any prior right or title, if the
casing was abandoned and the appellants were
the first to take actual possession of same
they thereby had a better title thereto than
appellees were shown to have had; We know of
no rule or principle of law to the effect that
abandoned personal property becomes the prop-
erty of him upon whose land it happens to be
left."
In Gregg v. Caldwell-Guadalupe Pick-up Stations,
286 S.W. 1083, 1QLN (Tex.Oomm.App. 19261, it is stated:
” . . . The principles applicable to
abandoned property are fairly well under-
stood and need not be elaborated here. It
is sufficient merely to say that title to
such~property vests in the first person law-
fully reducing the same to possession. Aban-
doned personalty is no man's property until
reduced to possession with intent to acquire
title. . . ."
In ldm. Jur. 2-3, Abandonment, Sec. 3, we find
the following:
"The characteristic element of abandon-
ment is the voluntary relinquishment of owner-
ship whereby the thing so dealt with ceases to
be the property of any person and becomes the
subject of appropriation by the first taker.
Abandonment divests the former owner of title
,to the property,.so that it becomes to him as
.~:ifhe had never had,~anyright or interest in
..it. It has been said that property abandoned
has returned to the common mass of things in
a state of nature.
"Every sovereign state has jurisdiction
to take charge of apparently abandoned or un-
claimed property, but in the absence of such
,intervention, title can be assumed by the
first occupant or by the first finder who
reduces it to possession. Such person
thereupon acquires an absolute property
therein by virtue of an actual taking ;ith
the intent to reduce it to possession.
Hon. Ken Jenulngs, page 3 (V-1223)
In view of the foregoing, it Is our opinion
that title to the property in question has been divest-
ed from the owner by virtue of his abandonment.
This office, following the decisions of the
Texas courts, has repeatedly held that the commissioners'
COUrt is a court of limited jurisdiction and has only
such powers as are conferred upon it, either by express
terms or by necessary implication by the statutes and
Constitution of this State. Childress County v. State,
127 Tex. 343, 92 S.W.2d lOll‘(1936); Von Rosenberg v.
Lovett,~173 S.W. 508 (Tex.Civ.App. 1915, error ref.);
Roper v. Rail, 280 S.W. 289 (Tex.Civ.App. 1926); 11 Tex.
Jur. 632, Counties, Sec. 95; 20 C.J.S. 1006, Counties,
Sec. 174.
Under Article 2351, V.C.S., we believe the com-
missioners' court has implied authority to remove aban-
doned automobiles from county roads. However, such stat-
ute does not authorize a county to acquire title to such
automobiles, and there is no other statute which permits
the same. Therefore; it is our opinion that a county can-
not sell automobiles which have been abandoned on county
property.
In this connection however it was held in At-
torney General's Opinion O-6613 (19451 that a county could
store with a garage keeper or some other person motor ve-
hicles found on county property where the owner was unknown.
It was further held in that opinion that the garage keener
or person in whose custody the motor vehicles were placed
. could foreclose the lien created by Article 5502, V.C.S.
Likewise, it is our opinion that the county officials have
authority to store the abandoned automobiles in question
with a garage keeper or other person in order to protect
and preserve the same, and that the storage lien may be
foreclosed under the provisions of Articles 5502, 5504,
and 5505, V.C.S.
We are enclosing a copy of Attorney General's
Opinion 0-5813 (1945) .
SUMMARY
A county is not authorized to sell au-
tomobiles abandoned on county property. How-
ever, county officials may store such automo-
biles with a garage keeper or other person,
,
.
Hon. Ken Jennings, page 4 (V-1223)
and the person with whom they are stored
may foreclose the storage lien created
under Article 5502, V.C.S. Att'y Gen. Op.
o-6813 (1945).
APPROVED: Yours very truly
J. C. Davis, Jr. PRICE DANIEL
County Affairs Division Attorney General
Everett Hdchinson
Executive Assistant
Charles D. Mathews,
First Assistant Assistant
BA:lllW