CHAPTER 71. ESCHEAT OF PROPERTY
PROPERTY CODE
TITLE 6. UNCLAIMED PROPERTY
CHAPTER 71. ESCHEAT OF PROPERTY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 71.001. ESCHEAT. (a) If an individual dies intestate and
without heirs, the real and personal property of that individual
is subject to escheat.
(b) "Escheat" means the vesting of title to property in the
state in an escheat proceeding under Subchapter B.
Acts 1983, 68th Leg., p. 3585, ch. 576, Sec. 1, eff. Jan. 1,
1984. Amended by Acts 1985, 69th Leg., ch. 230, Sec. 2, eff.
Sept. 1, 1985.
Sec. 71.002. PRESUMPTION OF DEATH. An individual is presumed
dead for the purpose of determining if the individual's real or
personal property is subject to escheat if the individual:
(1) is absent from the individual's place of residence for seven
years or longer; and
(2) is not known to exist.
Acts 1983, 68th Leg., p. 3585, ch. 576, Sec. 1, eff. Jan. 1,
1984. Amended by Acts 1985, 69th Leg., ch. 230, Sec. 3, eff.
Sept. 1, 1985.
Sec. 71.003. PRESUMPTION OF INTESTACY. An individual is
presumed to have died intestate if, on or before the seventh
anniversary of the date of the individual's death, the
individual's will has not been recorded or probated in the county
where the individual's property is located.
Acts 1983, 68th Leg., p. 3585, ch. 576, Sec. 1, eff. Jan. 1,
1984.
Sec. 71.004. PRESUMPTION OF DEATH WITHOUT HEIRS. An individual
is presumed to have died leaving no heirs if for the seven-year
period preceding the court's determination:
(1) a lawful claim to the individual's property has not been
asserted; and
(2) a lawful act of ownership of the individual's property has
not been exercised.
Acts 1983, 68th Leg., p. 3585, ch. 576, Sec. 1, eff. Jan. 1,
1984.
Sec. 71.005. ACT OF OWNERSHIP. For the purposes of this
chapter, an individual exercises a lawful act of ownership in
property by, personally or through an agent, paying taxes to this
state on the property.
Acts 1983, 68th Leg., p. 3585, ch. 576, Sec. 1, eff. Jan. 1,
1984.
Sec. 71.006. REVIEW OF PROBATE DECREE. (a) If the state claims
that an estate that has been administered in probate court in
this state is subject to escheat, the state may have the judgment
of the probate court reviewed by filing a petition in district
court alleging that the administration of the estate was obtained
by fraud or mistake of fact.
(b) The case shall be tried in accordance with the law for the
revision and correction of a decree of the probate court.
Acts 1983, 68th Leg., p. 3585, ch. 576, Sec. 1, eff. Jan. 1,
1984.
Sec. 71.007. IDENTIFICATION OF REAL PROPERTY SUBJECT TO ESCHEAT.
The tax assessor-collector of each county shall:
(1) take all steps necessary to identify real property that may
be subject to escheat; and
(2) notify the commissioner of the General Land Office and the
attorney general so that they may take appropriate action.
Added by Acts 2003, 78th Leg., ch. 1276, Sec. 13.002(d), eff.
Sept. 1, 2003.
SUBCHAPTER B. ESCHEAT PROCEEDINGS
Sec. 71.101. PETITION FOR ESCHEAT. (a) If any person,
including the attorney general, the comptroller, or a district
attorney, criminal district attorney, county attorney, county
clerk, district clerk, or attorney ad litem is informed or has
reason to believe that real or personal property is subject to
escheat under this chapter, the person may file a sworn petition
requesting the escheat of the property and requesting a writ of
possession for the property.
(b) The petition must contain:
(1) a description of the property;
(2) the name of the deceased owner of the property;
(3) the name of the tenants or persons claiming the estate, if
known; and
(4) the facts supporting the escheat of the estate.
(c) If the petition is filed by a person other than the attorney
general, the person shall send to the attorney general written
notice of the filing and a copy of the petition to permit the
attorney general to elect to participate on behalf of the state.
(d) An action brought under this section is governed by the
procedure relating to class actions provided by the Texas Rules
of Civil Procedure.
(e) A petition filed under this section is not subject to an
objection relating to misjoinder of parties or causes of action.
Acts 1983, 68th Leg., p. 3586, ch. 576, Sec. 1, eff. Jan. 1,
1984. Amended by Acts 1985, 69th Leg., ch. 230, Sec. 4, eff.
Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 153, Sec. 1, eff. Sept.
1, 1991; Acts 1997, 75th Leg., ch. 1037, Sec. 4, eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 1423, Sec. 16.01, eff. Sept. 1,
1997.
Sec. 71.102. CITATION. (a) If a petition is filed under this
subchapter, the district clerk shall issue citation as in other
civil suits to:
(1) each defendant alleged by the petition to possess or claim
the property that is the subject of the petition;
(2) any person required by this chapter to be cited; and
(3) persons interested in the estate, including lienholders of
record.
(b) The citation required by Subdivision (3) of Subsection (a)
must be published as required for other civil suits and must:
(1) briefly state the contents of the petition; and
(2) request all persons interested in the estate to appear and
answer at the next term of the court.
Acts 1983, 68th Leg., p. 3587, ch. 576, Sec. 1, eff. Jan. 1,
1984. Amended by Acts 1985, 69th Leg., ch. 923, Sec. 21, eff.
Aug. 26, 1985.
Sec. 71.103. PARTY TO PROCEEDING. (a) A person who exercises a
lawful act of ownership in property that is the subject of an
escheat proceeding must be made a party to the proceeding by:
(1) personal service of citation if the person is a resident of
this state and the person's address can be obtained by reasonable
diligence; or
(2) service of citation on a person's agent if the person is a
nonresident or a resident who cannot be found and the agent can
be found by the use of reasonable diligence.
(b) For the purposes of this section, reasonable diligence
includes an inquiry and investigation of the records of the
office of the tax assessor-collector of the county in which the
property sought to be escheated is located.
(c) The comptroller is an indispensable party to any judicial or
administrative proceeding concerning the disposition and handling
of property that is the subject of an escheat proceeding and must
be made a party to the proceeding by personal service of
citation.
Acts 1983, 68th Leg., p. 3587, ch. 576, Sec. 1, eff. Jan. 1,
1984. Amended by Acts 1991, 72nd Leg., ch. 153, Sec. 2, eff.
Sept. 1, 1991; Acts 1997, 75th Leg., ch. 1037, Sec. 5, eff. Sept.
1, 1997; Acts 1997, 75th Leg., ch. 1423, Sec. 16.02, eff. Sept.
1, 1997.
Sec. 71.104. APPEARANCE OF CLAIMANTS. Any person, whether named
in the escheat petition or not, who claims an interest in
property that is the subject of an escheat proceeding may appear,
enter a pleading, and oppose the facts stated in the petition.
Acts 1983, 68th Leg., p. 3588, ch. 576, Sec. 1, eff. Jan. 1,
1984.
Sec. 71.105. TRIAL. (a) If a person appears and denies the
state's right to the property or opposes a material fact of the
petition, the court shall try the issue as any other issue of
fact.
(b) The court may order a survey as in other cases in which the
title or the boundary of the land is in question.
Acts 1983, 68th Leg., p. 3588, ch. 576, Sec. 1, eff. Jan. 1,
1984.
Sec. 71.106. DEFAULT JUDGMENT. If citation is issued in
accordance with Section 71.102 and no person answers within the
period provided by the Texas Rules of Civil Procedure, the court
shall render a default judgment in favor of the state.
Acts 1983, 68th Leg., p. 3588, ch. 576, Sec. 1, eff. Jan. 1,
1984.
Sec. 71.107. JUDGMENT FOR STATE. (a) If the court renders a
judgment for the state finding that an intestate died without
heirs, the property escheats to the state and title to the
property is considered to pass to the state on the date of death
of the owner as established by the escheat proceeding. The court
may award court costs to the state.
(b) If the judgment involves real property, the state may sell
the property under the general laws governing the sale of
Permanent School Fund lands, and, after the second anniversary of
the date of the final judgment, the court shall issue a writ of
possession for the property.
(c) If the judgment involves personal property, the court shall
issue a writ of possession that contains an adequate description
of the property as in other cases for recovery of personal
property.
(d) When the record of an escheat proceeding reflects that a
lienholder or his predecessor received actual or constructive
notice of the escheat proceeding, the entry of the judgment in
the escheat proceeding will either satisfy or extinguish any lien
which the lienholder or his predecessor claimed or could have
claimed on the escheated property at the escheat proceeding.
(e) The sheriff, constable, court clerk, or other officer
appointed by the judge in an escheat proceeding shall execute a
writ of possession by filing the writ with the deed or map
records of the county when the escheated property relates to
realty and by serving the writ on any holder, tenant, or occupant
of any escheated property. Additionally, the person who executes
a writ of possession shall either:
(1) post the writ for at least three consecutive weeks on the
door or posting board of the county courthouse in the county
where the proceeding was conducted or in the county where the
property is located; or
(2) in the case of real property, post the writ for at least two
consecutive weeks at a reasonably conspicuous place on the
realty; or
(3) publicize the writ in any other fashion ordered by the
court.
(f) After validly executing a writ of possession, the sheriff,
constable, court clerk, or other appointed officer shall note the
method of the execution of the writ on the writ return and shall
return the writ to the clerk to be filed in the court records of
the escheat proceeding.
Acts 1983, 68th Leg., p. 3588, ch. 576, Sec. 1, eff. Jan. 1,
1984. Amended by Acts 1985, 69th Leg., ch. 230, Sec. 5, eff.
Sept. 1, 1985; Acts 1985, 69th Leg., ch. 923, Sec. 22, eff. Aug.
26, 1985.
Sec. 71.108. COSTS PAID BY STATE. If the property does not
escheat, the state shall pay court costs. The clerk of the court
shall certify the amount of the costs, and when the certificate
is filed in the office of the comptroller of public accounts, the
comptroller shall issue a warrant for the amount of the costs.
Acts 1983, 68th Leg., p. 3588, ch. 576, Sec. 1, eff. Jan. 1,
1984.
Sec. 71.109. APPEAL; WRIT OF ERROR. A party who appeared at an
escheat proceeding may appeal the judgment rendered or may file
an application for a writ of error on the judgment. The attorney
general or the other person acting on behalf of the state in the
escheat proceeding may make an appeal or file the writ.
Acts 1983, 68th Leg., p. 3589, ch. 576, Sec. 1, eff. Jan. 1,
1984.
SUBCHAPTER C. DISPOSITION OF ESCHEATED PROPERTY
Sec. 71.201. SEIZURE AND SALE OF PERSONAL PROPERTY. (a) If
personal property escheated to the state, the court shall issue
to the sheriff a writ that commands the sheriff to seize the
escheated property.
(b) The sheriff shall:
(1) dispose of the personal property at public auction in
accordance with the law regarding the sale of personal property
under execution; and
(2) deposit into the State Treasury the proceeds of the sale,
less court costs.
Acts 1983, 68th Leg., p. 3589, ch. 576, Sec. 1, eff. Jan. 1,
1984.
Sec. 71.202. DISPOSITION OF REAL PROPERTY. (a) Real property
that escheats to the state under this title before January 1,
1985, becomes a part of the permanent school fund. Real property
that escheats to the state on or after January 1, 1985, is held
in trust by the Commissioner of the General Land Office for the
use and benefit of the foundation school fund. The revenue from
all leases, sales, and use of land held for the foundation school
fund shall be deposited to the credit of the foundation school
fund.
(b) Before the 91st day after the day on which a judgment that
provides for the recovery of real property is rendered, the clerk
of the district court rendering the judgment shall send to the
Commissioner of the General Land Office:
(1) a certified copy of the judgment; and
(2) notice of any appeal of that judgment.
(c) The commissioner shall list real property as escheated
foundation school fund land or permanent school land as
appropriate when the commissioner receives:
(1) a certified copy of a judgment under which the property
escheats to the state and from which appeal is not taken; or
(2) a certified copy of notice of the affirmance on appeal of a
judgment under which the property escheats to the state.
Acts 1983, 68th Leg., p. 3589, ch. 576, Sec. 1, eff. Jan. 1,
1984. Amended by Acts 1984, 68th Leg., 2nd C.S., ch. 28, art. II,
part B, Sec. 13, eff. Sept. 1, 1984.
Sec. 71.203. ACCOUNT OF ESCHEATED PROPERTY. The comptroller
shall keep an account of the money paid to and real property
vested in this state under this chapter.
Acts 1983, 68th Leg., p. 3590, ch. 576, Sec. 1, eff. Jan. 1,
1984.
SUBCHAPTER D. RECOVERY OF ESCHEATED PROPERTY
Sec. 71.301. SUIT FOR ESCHEATED PERSONAL PROPERTY. (a) If
personal property of a deceased owner escheats to the state under
this chapter and is delivered to the state, a person who claims
the property as an heir, devisee, or legatee of the deceased may
file suit against the state in a district court of Travis County,
Texas. The suit must be filed on or before the fourth anniversary
of the date of the final judgment of the escheat proceeding.
(b) The petition must state the nature of the claim and request
that the money be paid to the claimant.
(c) A copy of the petition shall be served on the comptroller,
who shall represent the interests of the state. As the
comptroller elects and with the approval of the attorney general,
the attorney general, the county attorney or criminal district
attorney for the county, or the district attorney for the
district shall represent the comptroller.
Acts 1983, 68th Leg., p. 3590, ch. 576, Sec. 1, eff. Jan. 1,
1984. Amended by Acts 1991, 72nd Leg., ch. 153, Sec. 3, eff.
Sept. 1, 1991; Acts 1997, 75th Leg., ch. 1037, Sec. 6, eff. Sept.
1, 1997; Acts 1997, 75th Leg., ch. 1423, Sec. 16.03, eff. Sept.
1, 1997.
Sec. 71.302. RECOVERY OF PERSONAL PROPERTY. (a) If in a suit
filed under Section 71.301 the court finds that a claimant is
entitled to recover personal property, the court shall order the
comptroller to issue a warrant for payment of the claim without
interest or costs.
(b) A copy of the order under seal of the court is sufficient
voucher for issuing the warrant.
Acts 1983, 68th Leg., p. 3590, ch. 576, Sec. 1, eff. Jan. 1,
1984.
Sec. 71.303. SUIT FOR ESCHEATED REAL PROPERTY. (a) If real
property escheats to the state under this chapter, a person who
was not personally served with citation in the escheat
proceedings may file suit in the district court of Travis County
for all or a part of the property. The suit must be filed not
later than the second anniversary of the date of the final
judgment in the escheat proceedings.
(b) A copy of the petition must be served on the attorney
general, who shall represent the interests of the state.
(c) To the extent the claimant is adjudged to be the owner of
all or a part of the property, the state is divested of the
property.
Acts 1983, 68th Leg., p. 3590, ch. 576, Sec. 1, eff. Jan. 1,
1984. Amended by Acts 1991, 72nd Leg., ch. 153, Sec. 4, eff.
Sept. 1, 1991.
Sec. 71.304. STATE AS PARTY IN SUIT FOR ASSETS. (a) A suit
brought for the collection of personal property delivered to the
comptroller under this chapter must be brought in the name of
this state.
(b) A suit brought for the possession of real property held in
trust by the Commissioner of the General Land Office under this
chapter must be brought in the name of this state.
Acts 1983, 68th Leg., p. 3591, ch. 576, Sec. 1, eff. Jan. 1,
1984. Amended by Acts 1991, 72nd Leg., ch. 153, Sec. 4, eff.
Sept. 1, 1991; Acts 1997, 75th Leg., ch. 1037, Sec. 7, eff. Sept.
1, 1997; Acts 1997, 75th Leg., ch. 1423, Sec. 16.04, eff. Sept.
1, 1997.