Untitled Texas Attorney General Opinion ( 1965 )

Honorable Jesse James Opinion No. C-475
State Treasurer of Texas
Drawer X, Capitol Station Re: Whether personal property
Austin, Texas 78711 held in Texas by foreign
corporationsfor persons
whose last known address
Is outslde Texas or is
unknown are required to
be reported to the State
Treasurer under Article
3272a; and whether unclaimed
wages must be reported
Dear Mr. James: pursuant to such statute?
Your recent letter requesting the opinion of thls office
reads as follows:
"As you know, the United States Supreme Court
has held in the case of the State of Texas vs. State
of New Jersey, Et Al, 379 U.3. 674 (1965) that the
debts owed by a corporation are subject t; escheat
only by the State of the last known address of the
creditor as shown by the debtor's books and records,
or if there is no address at all, or If the last
known address Is In a state which does not provide
for escheat of the property owed them, then the debts
owed by the corporation are subject to escheat by the
State of corporate domicile subject to the right of -
the State of last known address to recover, if and
when Its laws make provision for the escheat of such
property.
"Also, the Supreme Court of Texas, In the case
of Southern Pacific Transport Company, Et Al v. State,
380 S.W.2d 123 (Tex.Clv.App.1964 error refused),
has held that the holder of unclaimed wages may
plead that the two and four year statutes of
limitation have barred the actions of the persons
to whom the wages are owed and thereby defeat an
action by the State to escheat such wages.
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Hon. Jesse James, page 2 (c-475)
"In view of these two recent decisions, It will
be appreciated If you will advise this office by
official opinion upon the following questions:
1. Whether It Is necessary for a
corporation chartered In a state
other than Texas to report to the
State Treasurer pursuant to Article
3272a, Vernon's Civil Statutes, personal
property held In Texas for persons whose
last known address, according to the
books and records of the corporation,
Is outside the State of Texas or whose
address Is unknown?
2. Whether It Is necessary for unclaimed
wages to be reported to the State
Treasurer pursuant to Article 3272a,
Vernon's Civil Statutes?"
You are hereby advised that in our opinion both of your
questions must be answered In the affirmative.
Article 3272a of Vernon's Civil Statutes requires that
certain personal property specified therein be reported to
the State Treasurer of Texas. ~Sectlonl(b) of such Article
defines the term "personal property" and reads as follows:
"The term 'personalproperty' Includes, but
Is not limited to, money, stocks, bonds and
other securities, bills of exchange claims for
money or Indebtedness and other written evidences
of Indebtedness,dividends, deposits, accrued
Interest, purchase payments,~sumspayable on
certified checks, certificates of membership In
a corporation or association, amounts due and
payable under the terms of any insurance policy
security deposits, unclaimed refunds and deposi&
for utility or other services, funds to redeem
stocks and bonds, undistributed profits, dividends,
or other Interests, production and proceeds from
011, gas and other mineral estates, and all other
oersonal orooertv and Increments thereto. whether
tangible br intangible and whether held'wlthln
this State, or wlthout'the State for a person
or beneficiarywhose last known residence was
In this State:," (Emphasis added)
Hon. Jesse James, page 3 (C-475)
The above emphasized language of the statutes has been
before us for Interpretationon a previous occasion. We then
held that such language required that reports of property
subject to escheat include all personal property held In Texas,
regardless of the last known address of the person for whom
such property Is held. Attorney General's Opinion ~~-1180 (1961).
This would, of course, Include those situations where the name
or address of the person entitled to such property Is unknown.
Attorney General's Opinion w-1189 (1961).
We have also previously held that Article 3272a requires
the reporting of personal property In the form of an Indebtedness
against which the statutes of llmltatlon may have run. Attorney
General's Opinion ~~-1232 (1962). Unclaimed wages necessarily
fall within the scope of this previous holding.
We perceive no reason to abandon our prior holdings In this
regard, or the reasoning In support thereof, unless we are In
some way so compelled by the decisions in Texas v. New Jersey,
379 U.S. 674, 85 S. Ct. 626, 13 L. Ed. 2d 596 (1965) and Southern
Pacific Transport Co. v. State, 380 S.W.2d 123 (Tex.Clv.App.1964,
error refused).
In Texas v. New Jersey supra, the question for determination
was not whether the escheat'laws of the various states Involved
encompassed the property In question, but rather which of the
states having escheat statutes which applied to the property In
question were entitled to escheat. The solution to the contro-
versy was not determined by the validity or Invalidity of any
procedural or substantive requirement of the escheat statutes
of the various states involved. The Court made this clear when
it stated at 85 S. Ct. 631:
"We realize that this case could have been
resolved otherwise, for the Issue here Is not
controlled by statutory or constitutional provisions
or by past decisions, nor is It entirely one of logic.
It Is fundamentallya question of ease of admlnlstra-
tlon and of equity. We believe that the rule we adopt
is the fairest, Is easy to apply and In the long run
will be the most generally acceptable to all the
States."
The rule laid down by the Court merely establisheda ranking
or priority of right to escheat under the facts presented by the
record.
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:
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Hon. Jesse James, page 4 (C-475)
In the Southern Pacific Transport Co. case the Court held
that In a suit to escheat unclaimed wages, a plea by the holder
that the claims of the wage earners were barred by the two and
four year statutes of llmltatlon,would preclude the escheat of [
such wages in the absence of a showing by the State that facts i
existed which avoided the plea of limitations.
After a study of all of the provlslons of Article 3272a we 1
cannot conceive that anyone could contend that the reporting of
property required by the statute Is tantamount to taking such
property under the statute. If a holder of property reported I
1
under Article 3272a should feel that the state Is not entitled j
to take such property, then he may refuse to deliver such pro- i
perty to the State Treasurer and await the Institution of a
suit under Section 4(d) of Article 3272a to compel delivery of j
such property. In such proceeding the holder may raise such i
defenses as he may think are available to him and the state
will have the opportunityto introduce any evidence which Is
available to avoid such defensive pleas.
The Legislature has met twice since Attorney General's
Opinions ~~-1180, W-1189 and WW-1232 were rendered. The 59th
Legislature was In session on January 27, 1965, when the Supreme
Court of Texas entered Its order refusing a Writ of Error In
Southern Pacific Transport Co. v. State and on February 1, 1965,
when the Unlted States Supreme Court rendered its opinion in
Texas v. New Jersey. They are presumed to have known of these
court decisions and the constructionaccorded the reporting
provisions of Article 3272a by the opinions of this office. 39
Tex.Jur. 248-250, Statutes, B 132, and cases there cited. The
59th Legislature In fact amended Article 3272a on May 26, 1965,
without changing the language interpreted by this office In
~~-3.180,W-1189 and WW-1232, and without Indicating that our
interpretationwas In error. In view of these circumstances,
It must be presumed that the Legislature has acquiesced in such
Interpretationand for us to now hold that the reporting of
the personal property Inquired about in your letter Is unneces-
sary would be an unconstitutionalusurpation of the legislative
prerogative. Section I of Article II of the Texas Constitution.
SUMMARY
Personal property held in Texas by foreign
corporations for persons whose last known address,
according to the books and records of the corpora-
tions, Is outside Texas or whose address Is unknown
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Hon. Jesse James, page 5 (C-475)
must be reported to the State Treasurer under Article
3272a; unclaimed wages must be reported to the State
,
such personal property.
Very truly yours,
WAGGONER CARR
Attorney General
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Gordon Cass
Ben Harrison
Pat Bailey
Gordon Zuber
APPROVED FOR THE ATTORNEY GENERAL
By: Hawthorne Phillips
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