Can a Texas court clerk turn unclaimed court funds over to the state without a judge's order?

Plain-English summary

A Tarrant County prosecutor asked the Attorney General whether section 117.002 of the Local Government Code was valid and constitutional. That statute tells a county or district clerk to hand over to the state treasurer any money on deposit in a court case that has become "abandoned," and to do so without any further court order. The prosecutor raised several doubts: whether sending the money to the state without a court order invades the courts' authority (a separation-of-powers problem), whether the deadlines for treating money as abandoned are too uncertain, what kinds of deposits the statute covers, and whether it clashes with another statute that requires the county auditor to countersign clerk disbursements.

The office concluded the statute is both valid and constitutional and answered each concern. On separation of powers, it explained that section 117.002 does not touch the core powers of a court, because money is treated as abandoned only after no one has claimed it for the dormancy period set by the Property Code. The clock does not even start until the later of a final judgment or order of dismissal, the eighteenth birthday of a minor the money was deposited for, or a reasonable date the state treasury sets by rule. As long as someone still has an unadjudicated claim of right to the funds, they are not abandoned. So an appeal, for example, would be a claim of right that keeps the money from being abandoned, and an incapacitated beneficiary who is identified and has a claim is not stripped of the funds either.

On what is covered, the office pointed to its earlier opinion JM-1162 (1990), which listed examples such as civil and probate court deposits, child support paid through the clerk's office, interpleader funds, supersedeas deposits, money paid to satisfy judgments, cash posted in lieu of bonds, minors' trust funds, and eminent domain deposits. On the deadlines, it said the dormancy period is not uncertain at all; it depends on the kind of property and is fixed by the Property Code (for example, three years for ordinary personal property, five years for accounts, and longer for some categories).

Finally, on the clash with section 117.058, which requires the county auditor in larger counties to countersign clerk disbursements only on written evidence of a judge's order, the office agreed there was a conflict but said section 117.002 wins. It is the more specific statute (it deals only with abandoned funds) and the later-enacted one (added in 1991, while section 117.058 dated to 1933), and under the statutory-construction rules the office cited both of those tiebreakers point the same way.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The unclaimed-property functions that the 1995 statutes assigned to the "state treasurer" were later moved to the Texas Comptroller of Public Accounts after the treasury was abolished, and the Property Code dormancy periods and the Local Government Code provisions discussed here have been amended over the years. Read this page for how the office reasoned in 1995, and check current Texas law before relying on any specific deadline or procedure mentioned here.

What the opinion meant for those who asked

For District Attorney Curry (the requestor): The office answered his core question directly: section 117.002 is valid and constitutional, and a clerk may deliver abandoned court-deposited funds to the state treasurer without a further court order. It also worked through each of his specific objections (separation of powers, uncertain deadlines, scope, and the conflict with section 117.058) and rejected them.

For county and district clerks: Under the opinion, a clerk holding court-deposited funds that have become abandoned under the Property Code was to report and deliver them to the state treasurer without needing a judge's order, even though the usual rule (section 117.053) requires a court order to pay out registry funds. The opinion treated section 117.002 as a deliberate exception to that usual rule.

For county auditors: The opinion acknowledged that section 117.058's requirement, that the auditor in a county of 190,000 or more countersign clerk disbursements only on written evidence of a judge's order, conflicts with section 117.002. It resolved the conflict in favor of section 117.002 for abandoned funds, as the more specific and later statute.

For people (and heirs) with money on deposit in a court case: The opinion stressed that funds are not abandoned while any live claim of right exists. The dormancy period does not begin until a final judgment or dismissal, a minor beneficiary's eighteenth birthday, or a reasonable date set by rule, and an appeal or an identified incapacitated beneficiary's claim keeps the money from being treated as abandoned.

Common questions

What happens to money left unclaimed in a Texas court registry?
Under this opinion, once it is "abandoned" under the Property Code, the county or district clerk reports and delivers it to the state treasurer. The state then holds it as unclaimed property, and an owner can later claim it.

Does a clerk need a judge's order to send abandoned funds to the state?
No. The office read section 117.002 as an exception to the usual rule (section 117.053) that registry funds are paid out only on a court order. Abandoned funds go to the treasurer "without further action by any court."

Doesn't sending the money to the state without a court order violate separation of powers?
The office said no. Section 117.002 does not touch a court's core powers because nothing is treated as abandoned while a claim of right is still unresolved. The dormancy clock starts only after a final judgment or dismissal, a minor's eighteenth birthday, or a reasonable date set by the treasury.

How long before deposited court money is considered abandoned?
It depends on the type of property under the Property Code. The opinion noted periods such as three years for ordinary personal property and mineral proceeds, five years for money orders, accounts, and safety deposit boxes, and longer for travelers' checks, measured from when the dormancy period begins.

What if there is an appeal, or the person is incapacitated?
An appeal is itself an assertion of a claim of right, so the money would not be "abandoned." Likewise, an identified incapacitated beneficiary who has a claim of right to the funds is not treated as having abandoned them.

What kinds of deposits does section 117.002 cover?
Per the office's earlier opinion JM-1162, examples include civil and probate court deposits, child support paid through the clerk's office, interpleader funds, supersedeas deposits, money paid to satisfy judgments, cash deposited in lieu of bonds, minors' trust funds, and eminent domain deposits.

Background and statutory framework

Chapter 117 of the Local Government Code governs the placement, in a depository bank, of money deposited in court while a case is pending. Section 117.053 generally requires a court order before such funds are paid out. Section 117.002, added in 1991, creates an exception: funds deposited under chapter 117 that are presumed abandoned under chapters 72, 73, or 75 of the Property Code must be reported and delivered to the state treasurer without further court action. The dormancy period begins on the later of the date of a final judgment or order of dismissal, the eighteenth birthday of a minor the funds were deposited for, or a reasonable date set by treasury rule.

The Property Code supplies the abandonment rules. Section 72.101 defines abandoned personal property in terms of an owner whose existence and location are unknown to the holder and to whose property no claim has been asserted and no act of ownership exercised; related sections cover travelers' checks and money orders (72.102), accounts and safety deposit boxes (73.101), and mineral proceeds (75.101), each with its own waiting period.

The requestor analogized delivery to the treasurer to garnishment, which generally cannot reach funds held in the registry of a court because they are in custodia legis. The office, citing Houston Drywall, Inc. v. Construction Sys., Inc. and Hardy v. Construction Sys., Inc., noted that even that rule has an exception once the court has lost jurisdiction over the funds and nothing remains for the clerk to do but pay or deliver them to the person entitled. On separation of powers, the office quoted the Texas Court of Criminal Appeals in Armadillo Bail Bonds v. State (and cited the Texas Supreme Court's Eichelberger v. Eichelberger) for the core elements of judicial power, and concluded that section 117.002 does not intrude on them. Finally, applying the statutory-construction rules in Government Code sections 311.025 and 311.026, the office held that the more specific and later-enacted section 117.002 prevails over section 117.058's auditor-countersignature requirement to the extent the two conflict.

Citations

Statutory provisions discussed:

• Local Government Code § 117.002 (delivery of abandoned court-deposited funds to the state treasurer without further court action; dormancy period)
• Local Government Code § 117.052 (placement of money deposited in court in a depository bank)
• Local Government Code § 117.053 (payment from registry funds on court order)
• Local Government Code § 117.058 (county-auditor countersignature of clerk disbursements in larger counties)
• Property Code §§ 72.101, 72.102, 73.101, 75.101 (presumptions of abandonment and dormancy periods)
• Government Code §§ 311.025, .026 (resolving conflicts between statutes; later and more specific statute controls)

Cases discussed:

• Houston Drywall, Inc. v. Construction Sys., Inc., 541 S.W.2d 220 (Tex. Civ. App.—Houston [1st Dist.] 1976, no writ); Hardy v. Construction Sys., Inc., 556 S.W.2d 843 (Tex. Civ. App.—Houston [14th Dist.] 1977, writ ref'd n.r.e.) (registry funds, custodia legis, and the garnishment exception)
• Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990); Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979) (core elements of judicial power)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0348
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0348.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

May 16, 1995

Honorable Tim Curry
Tarrant County Criminal District Attorney
401 West Belknap
Fort Worth, Texas 76196-0201

Opinion No. DM-348

Re: Validity and constitutionality of section 117.002 of the Local Government Code, which concerns the turn-over of abandoned funds held by the county or district clerk to the State of Texas (RQ-673)

Dear Mr. Curry:

You have asked this office a series of questions as to the validity and constitutionality of section 117.002 of the Local Government Code, which concerns the turn-over of abandoned funds held by the county or district clerk to the State of Texas. In our view, section 117.002 is both valid and constitutional.

Section 117.002 states:

Any funds deposited under this chapter that are presumed abandoned under Chapter 72, 73, or 75, Property Code, shall be reported and delivered by the county or district clerk to the state treasurer without further action by any court. The dormancy period for funds deposited under this chapter begins on the later of:

(1) the date of entry of final judgment or order of dismissal in the action in which the funds were deposited;

(2) the 18th birthday of the minor for whom the funds were deposited; or

(3) a reasonable date established by rule by the state treasury to promote the public interest in disposing of unclaimed funds.

Chapter 117 of the Local Government Code concerns the placement in a depository bank of "money deposited in court pending the result of a legal proceeding." Local Gov't Code § 117.052. Section 117.053 of the code provides that payment from such funds must be made on court order, but section 117.002, the later enacted statute, creates an exception to the usual rule. See Act of April 28, 1959, 56th Leg., R.S., ch. 270, 1959 Tex. Gen. Laws 586 (adopting former V.T.C.S. art. 2558a, § 4, predecessor of Local Gov't Code § 117.053); Act of May 9, 1991, 72d Leg., R.S., ch. 153, § 26, 1991 Tex. Sess. Law Serv. 744, 750 (adopting Local Gov't Code § 117.002).

The relevant explanations of the presumption of abandonment in the Property Code are sections 72.101 (abandoned personal property), 72.102 (abandoned travelers' checks and money orders), 73.101 (abandoned accounts and safety deposit boxes), and 75.101 (abandoned mineral proceeds). While the statutory periods before the property is presumed abandoned (three years for personal property and mineral proceeds; five years for money orders, accounts, and safety deposit boxes; fifteen years for travelers' checks) the general definition of what is "abandoned" is that provided by section 72.101:

(1) the existence and location of the owner of the property is unknown to the holder of the property; and

(2) according to the knowledge and records of the holder of the property, a claim to the property has not been asserted or an act of ownership of the property has not been exercised.

That being the case, we see no constitutional impediment to the requirement that such property held under a chapter 117 proceeding and deemed abandoned be reported and delivered to the treasurer "without further action by any court." Local Gov't Code § 117.002. In your brief, you analogize such delivery to garnishment and note that "[a] fund deposited in the registry of a court is generally deemed to be in custodia legis and is not subject to garnishment." Houston Drywall, Inc. v. Construction Sys., Inc., 541 S.W.2d 220, 221 (Tex. Civ. App.—Houston [1st Dist.] 1976, no writ). Assuming for the sake of argument that report and delivery to the treasurer is analogous to garnishment, "[i]t has been held that an exception to [the] rule [against garnishment] exists . . . where under the [facts] of the case there remains nothing for the clerk to do other than effect delivery of, or payment to, the person entitled." Id. Where the court has rendered judgment and the time for modifying the judgment has expired, the court has lost subject matter jurisdiction over the funds, and the justification for the rule against garnishment ceases to exist. Hardy v. Construction Sys., Inc., 556 S.W.2d 843, 844 (Tex. Civ. App.—Houston [14th Dist.] 1977, writ ref'd n.r.e.). When property is deemed abandoned, which is to say a claim to the property by a person who could be located has not been made and there have been no such claims for the statutory period, there is nothing for the clerk to do other than effect delivery of such property to the treasurer.

You suggest that for the legislature to direct that abandoned property be delivered to the treasurer without further court action is an invasion of the jurisdiction of the courts and therefore a violation of separation of powers. The court of criminal appeals has written:

The core of . . . judicial power embraces the power (1) to hear evidence; (2) to decide the issues of fact raised by the pleadings; (3) to decide the relevant questions of law; (4) to enter a final judgment on the facts and the law; and (5) to execute the final judgment or sentence.

Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239-40 (Tex. Crim. App. 1990). See also Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979).

Section 117.002 does not implicate these core judicial powers, since, as we have noted, so long as there is any unadjudicated claim of right to the funds held by the county or district clerk, such funds are not presumed abandoned. The statutory period does not begin to run until the later of the date of entry of final judgment or order of dismissal, the 18th birthday of a minor for whom such funds are deposited, or "a reasonable date" which the treasurer may establish by rule.

You have suggested that there is some ambiguity in these dates, since an appeal might be taken from the district court's judgment. But an appeal would be an assertion of a claim of right to the fund. Accordingly, the fund would not be property for which "a claim . . . has not been asserted." Prop. Code § 72.101. Nor is it a problem, as your brief asserts, that section 117.002 "fails to address an incapacitated beneficiary whose money might be subject to court order for an indefinite period of time." Such a beneficiary is an identified person with a claim of right to the funds; the fund, therefore, is not abandoned by the terms of the Property Code.

You next ask what funds are covered by section 117.002. By its terms, the statute refers to "any funds deposited" under chapter 117. As this office informed you in Attorney General Opinion JM-1162 (1990), such funds "include, inter alia, civil court deposits, probate court deposits, child support payments paid through the clerk's office, interpleader funds, supersedeas deposits, funds paid in satisfaction of judgments, other cash deposits made in lieu of bonds, minor's trust funds, and eminent domain deposits."

You suggest that the dormancy period for these funds is somehow uncertain. We disagree. The relevant period depends on the nature of the property, and is governed by the appropriate Property Code sections already cited.

Finally, you ask whether section 117.002 conflicts with section 117.058 of the Local Government Code. As you point out, section 117.058 requires that, in a county with a population of 190,000 or more, checks disbursed by county or district clerks from their trust funds must be countersigned by the county auditor, and the auditor may only countersign them "on written evidence of the order of the judge of the court in which the funds have been deposited that authorizes the disbursement of the funds." Local Gov't Code § 117.058(d). This requirement does conflict with the directive of section 117.002 that abandoned funds be delivered to the treasurer without further order of any court.

Section 117.002 deals only with those funds in the custody of the district or county clerk which are presumed abandoned. It is therefore more specific than section 117.058. Moreover, section 117.002, which was added by the Seventy-second Legislature and became effective on September 1, 1991, is later in time than section 117.058, which was adopted by the Forty-third Legislature and became effective in 1933. See Act approved April 29, 1933, 43d Leg., R.S., ch. 98, 1933 Tex. Gen. Laws 217 (adopting former V.T.C.S. art. 1656b, recodified as Local Gov't Code § 117.058). Since section 117.002 is the more specific statute, as well as the later adopted statute, to the extent of conflict between it and section 117.058, section 117.002 prevails. Gov't Code §§ 311.025, .026.

SUMMARY

Section 117.002 of the Local Government Code is both valid and constitutional. Funds subject to section 117.002 are those funds covered by chapter 117, as defined by Attorney General Opinion JM-1162 (1990). To the extent of conflict between section 117.002 and section 117.058 of the Local Government Code, section 117.002 prevails, as it is more specific and later adopted.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James Tourtelott
Assistant Attorney General