Case Information

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The Attorney General of Texas June 30, 1986 JIM MATTOX

Attorney General

Supreme Court Building Honorable William R. Moore Opinion No. JM-510 P. 0. BOX 12548 Tom Green County Attorney Austin. TX. 78711. 2548 County Courthouse Re: Validity of articles 4594 512!47&2501 San Angelo, Texas 76901 and 4595, V.T.C.S.. the Texas Telex 9101874.1367 Hotel/Motel Operators Lien Law Telecopier 512/475-0266 Dear Mr. Moore: 714 Jackson, Suite 700 Dallas, TX. 75202.4506

You question the constitutionality of the Texas Hotel/Motel 214/742-a944 Operator's Lien Law,, articles 4594 and 4595, V.T.C.S. Article 4594 gives proprietors of hotels and similar establishments a lien on the 4824 Alberta Ave.. Suite la0 baggage and other property of guests for all sums due for board, El Paso, TX. 79905-2793 lodging, and "extras" furnished at the request of the guest. The 915/533-3484 statute authorizes proprietors to exercise self-help to seize and

retain the guest's property. Article 4594 also exempts seized property from attachment or execution while the proprietor retains ,A.@’ Texas, Suite 700 ,uston. TX. 77002-3111 possession. Article 4595 authorizes the proprietor to sell the I G/223-5886 property at a pub:lic auction to satisfy the lien. The brief you

submit with your request letter, from West Texas Legal Services, alleges that articles 4594 and 4595 violate the Due Process Clause of 606 Broadway, Suite 312 the Fourteenth Amen&Dent of the United States Constitution. We agree. Lubbock, TX. 79401.3479 aw47-5238

Article 4594 provides, in full: 4309 N. Tenth, Suite B Proprietors of hotels, boarding houses, rooming McAllen. TX. 78501-1885 512,Sa2-4547 houses, inns, tourist courts, and motels shall

have a l::en on the baggage and other property of guests in such hotels, boarding houses, rooming 200 Main Plaza. suite 400 houses, inns, tourist courts, and motels for all San Antonio. TX. 762952797 sums due for board, lodging, extras furnished or 5121225-4191 'money ad\,anced at the request of such guest, and shall have the right to retain possession of such An Equal Opportunity/ baggage or other property until the amount of such Affirmative Action Employer charges is paid. Such baggage and other property

shall be exempt from attachment or execution while in the possession of such proprietor.

Article 4595 provides. in part: The keeper of the inn, boarding house, or hotel shall retain such baggage and other property upon which he has a lien for a period of thirty (30) p. 2342 , *2 ,

Honorable William R. Moore - Page 2 (JM-510) days, at the expir.ation of which time if such lien is not satisfiers, he may sell such baggage or other property at ,public auction, first giving ten days' notice of the time and place of sale by posting at least three (3) notices thereof in public places in t:he county where the inn, hotel, or boarding house is situated and also by mailing a copy of such notice to said guest or boarder at the place of residence shown on the register of such inn or hotel, if shown. After satisfying the lien and any costs that may accrue, the residue shall on demand, within sixty (60) days be paid such guest or boarder.

The Fifth Circuit heltl a similar statute unconstitutional on its face because it worked a deprivation of property without due process of law insofar as it failed to provide notice and a hearing before property was taken from its, possessor. Hall v. Garson, 468 F.2d 845, 847 (5th Cir. 1972). The court in Hall v. Garson struck down the now-repealed Texas Landlord Lien Law, article 5238a. Acts 1969, 61st Leg., ch. 686, at 2008. (After Hall v. Garson, the Texas Legislature replaced the old Landlord Lien Law with article 5236d, Acts 1973, 63rd Leg., ch. 441, at 1226, now recodified in the Property Code as article 54.041 et seq. for resider.tial tenancies and article 54.021 et seq. for other tenancies.) The statute considered in Hall v. Garson was virtually identical to articles 4594 and 4595 in that it authorized proprietors to seize and rc!tain a tenant's property with no provision for any kind of prior hea:ring. In fact, the old Landlord Liens Law also specified that seized property "shall be exempt from attachment or execution to the same extent 8s set out in Article 4594 . . ." and that the sale of such prol'erty "shall be subject to the same duties and shall follow the samr nrocedures as set out . . . in Article 4595. . . ." Thus, the rat:ibnale presented in Hall v. Garson also applies to articles 4594 and 4595. The court in Rall v. Garson relied primarily on the United States --

Supreme Court decision in ;$entes v. Shevin, 407 U.S. 67 (1972). In Fuentes the Court condemned the complete absence in Florida and Pennsylvania statutes of notice and an opportunity to be heard prior to a summary seizure of gcods or chattels under a writ of replevin. 407 U.S. at 69. Both s:atutes authorized the issuance of writs ordering state agents to seize a person's possessions upon the application of any other pterson who simply claimed a right to the property and posted bond. Id. The Court deemed the statutes an abdication of effective strt~ontrol over state power because the statutes authorized private parties, serving their own advantage, to unilaterally invoke state '7ower to replevy goods from another party. 407 U.S. at 93. The Court reiterated the long standing rule that such a violation of due process could be avoided only by providing adequate safeguards at a meaningful time and in a meaningful manner so as to *3 Honorable William R. Moore - Page 3 (lM-510)

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obviate the danger of an unfair or mistaken deprivation of property. 407 U.S. at 80.

Applying this reasoning and conclusion to the old Landlord Lien Law, the Fifth Circuit in H&l v. Garson stated:

Here we have no such protections. [Article] 5238a clothes the apartment operator with clear statutory authority to enter into another's home and seize proper:), contained therein. This makes his actions thoe;e of the state. [Citations omitted]. There is no requirement that the landlord first have the validity or the accuracy of his claim im:~artially determined, or that a need for immediate seizure be present. Those decisions are left to the operator himself to act upon with no pr:.or opportunity for challenge by the possessor of the property.

468 F.2d at 848. Article 5238a denied the fundamental fairness required by the Due Process Clause of the Fourteenth Amendment.

Because Rail v. Garson relied on Fuentes v. Shevin, a caveat about Fuentes is in order. --The United States Supreme Court clarified the scope of its Fuentes v, Shevin holding in Mitchell v. W. T. Grant Company, 416 U.S. 600 (1974), two years after the Fifth Circuit decided Hall. The Court in Mitchell upheld the constitutionality of a court-orzd sequestration of personal property, which was subject to an installment agreement, on the affidavit of the creditor. The debtor challenged the sequestration under the Due Process Clause of the Fourteenth Amendment because the sequestration was ordered z paste, without prior notL:e or an opportunity for a hearing. The Court emphasized that "[,::lhe question is not whether a debtor's property may be seized by his creditors, pendente lite, where they hold no present interest tn the property. . . ." 416 U.S. at 604. The question regarding arl:icles 4594 and 4595 involves seizures by creditors of property in wb,ich they hold no present interest.

Although the writ of sequestration was obtainable without notice to the debtor or an opportunity for a hearing, the Court upheld the procedure. Several factors influenced the Court. First, the statute required that the creditor submit facts supporting his need for the writ to a judge. 416 U.S. e.t 605. Additionally, the statute authorized the debtor to seek immediste dissolution of the writ and to regain possession of. the property by filing a bond. Further, the writ purported only to sequester the property pending the final adjudica- tion of the controversy. A Texas court applied this case in the context of a commercial Ilandlord-tenant case and summarized the requirements of due procesr; as follows: Ic *4 (JM-510)

Honorable William R. Moore -' Page 4 States may enter provi&ons for prejudgment seizures if such writs are: 1) issued by judicial officers; 2) the affidavits and documents in support of said mc~tion set out the facts relied on and are more than conclusions; 3) the debtor has an immediate right to a hearing; and 4) dissolu- tion of the writ will be granted absent proof at the hearing.

Lincoln Ten, Ltd. v. White, 706 S.W.2d 125, 128 (Tex. App. - Houston 114 Dist.] 1986, writ granted). Articles 4594 and 4595 contain none of these protections. In fact, article 4594 purports to remove judicial recourse by exemp,ting seized property from attachment and execution.

We recognize that the amended version of the Landlord Lien Law was upheld in Jacobs v. Hu:&, 447 F. Supp. 478 (N.D. Tex. 1976). The court in Jacobs v. Huie, hm#ever. upheld the amended act only because the statute forbade summary seizure of property unless there existed a conspicuous, written agreement between the landlord and tenant authorizing the seizure. The court distinguished Hall v. Garson on the basis that the statute overturned in Hall v. Garson involved both state authorization for the questioned conduct and the direct statutory delegation to a private party of an action traditionally performed by the state. 4si7 F. Supp. at 481. Although a contractual lien and a contractual waiver of the right to notice and a hearing dare clearly subject to challenge on the basis that they are not entered into knowingly and Intelligently, this is a different question from whether there exists suffLcient "state involvement" to trigger due process concerns. See 447 F. Supp. 478; see generally Fuentes v. Shevin, 407 U.S. 67;Tnzales v. County of Hidalgo. 489 F.2d 1043 (5th -- Cir. 1973); Armenta v. Nussbaum, 519 S.W.2d 673 (Tex. Civ. App. -

Corpus Christ1 1975, writ 1pfld.r.e.).

Unlike the law upheld in Jacobs v. Huie, articles 4594 and 4595 do not involve contractual liens. They contain a direct grant to hotel proprietors of the statutory authority to seize a guest's property without notice ant. an impartial hearing and to sell a guest's property with notice but "11th no hearing whatsoever. Accordingly, we conclude that articles 4534 and 4595 are facially unconstitutional because they work a deprivation of property without due process of law.

SUMMARY Articles 4594 and 4595, V.T.C.S., the Hotel/ Motel Operators' Lien Law. are facially unconsti- tutional under t:he Due Process Clause of the Fourteenth Amendment to the United States Constitution becinlse they fail to provide notice *5 r $

Honorable William R. Moore - Page 5 (JM-510)

and an impartia,l hearing before a proprietor exercises statutcrily-authorized self-help to take property from the proprietor's business guests. Very tru y yours, , 1 ’ W’yt JIM MATTOX Attorney General of Texas JACK HIGHTOWER

First Assistant Attorney General

MARY KELLER

Executive Assistant Attorney General

RICK GILPIN

Chairman, Opinion Committee

Prepared by Jennifer S. Riggs

Assistant Attorney General