Can a Texas school take and keep a student's pager if it's only leased, not owned?

Plain-English summary

In the mid-1990s, before cell phones were everywhere, Texas worried that students carrying pagers at school were disruptive and, in some cases, tied to drug dealing. So Education Code section 21.309 banned students from possessing a paging device on school property or at school activities, and required that a device found on a student be confiscated and forfeited to the school district. Representative Paul Sadler, who chaired the House public education committee, asked the Attorney General two practical questions about how that forfeiture worked: what happens when the pager is only leased by the student, so a "innocent" business actually owns it, and what a district is allowed to do with the pagers it confiscates.

On the leased-device question, the office said section 21.309 has no exception for leased pagers, and that forfeiting them even though an innocent business owns them is not unconstitutional on its face. It built that conclusion on forfeiture law. In State v. Richards, the Texas Supreme Court upheld forfeiture of a car whose owner had innocently lent it to a customer who turned out to be carrying narcotics, reasoning that where a forfeiture statute lists specific exceptions, it is meant to apply in all the cases it does not except. The office read federal law the same way: under Calero-Toledo v. Pearson Yacht Leasing Co., where the state has a strong enough interest in deterring the unlawful conduct, the owner's innocence is, by itself, no defense to forfeiture, even for a lessor whose property was used by someone else. The office cautioned that this is not absolute. Calero-Toledo itself suggested an owner might have a stronger claim where the property was used without the owner's "privity or consent" or where the owner had done everything reasonable to prevent the misuse.

The office's key qualifier was due process. Section 21.309 did not spell out a notice-and-hearing procedure, but the office said that did not doom the statute. Courts read notice and hearing into forfeiture statutes by implication to keep them constitutional (as the Texas Supreme Court did in House of Tobacco v. Calvert for cigarette-permit forfeitures), and subsection (b) of section 21.309 let districts build notice and a hearing into their student conduct rules. Where a lessor was involved, the office said the lessor should get notice and a chance to be heard too. It also acknowledged that, on particular facts, a court could still find a specific forfeiture unconstitutional, for example where a lease contract expressly forbade the student from bringing the device to school, especially alongside other exonerating factors, and it flagged that the U.S. Supreme Court in Austin v. United States had applied the Eighth Amendment's bar on excessive punishment to civil forfeitures.

On disposal, the office said a forfeited device becomes district property, and the district has implied authority to manage and dispose of its property (Education Code section 23.26). It rejected Sadler's suggestion that Education Code section 23.30 controlled, reading that provision as limited to real property (school houses, buildings, and lands), not pagers. The real constraint was the anti-gift clause, article III, section 52 of the Texas Constitution, which bars a political subdivision like a school district from giving away anything of value. So the district could not just hand the pagers over for free or treat them as garbage if they had value. Selling them to the highest bidder would satisfy the anti-gift clause by getting a reasonable price (a "quid pro quo"), and other sale methods that brought an adequate price would also work. If a device truly could not be sold, the board could decide how else to dispose of it, as with other surplus property.

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.

This opinion is firmly a product of its time. The Education Code was comprehensively recodified and renumbered, so the "section 21.309" pager rule discussed here no longer carries that number, and Texas later loosened the flat ban on student telecommunication devices as cell phones became standard. The forfeiture and due-process cases cited remain part of the legal background, but civil-forfeiture doctrine has continued to develop in both state and federal courts. Read this page for the office's 1995 reasoning, and verify current Texas school law before relying on any specific rule here.

What the opinion meant at the time

For school districts and administrators: The opinion told districts they could forfeit pagers under section 21.309 even when a student only leased the device, and that doing so was not facially unconstitutional, provided the district gave notice and a hearing to the affected parties, including the leasing company. It also told districts they could not simply give forfeited pagers away or trash usable ones; the anti-gift clause required selling them for a reasonable return, with bidding the safest route.

For Representative Sadler (the requestor): The opinion answered both of his questions, while being explicit that an AG opinion cannot anticipate every fact pattern or decide the constitutionality of every possible application, which is a job for a court hearing evidence.

For paging and electronics leasing companies: The opinion was a warning that owning the device did not guarantee getting it back. An "innocent" lessor's pager could still be forfeited. But the office also pointed to factors that could help a lessor in a particular case, such as a lease that expressly forbade bringing the device to school, and confirmed the lessor was entitled to notice and a hearing.

Common questions

Could a Texas school confiscate a pager the student only rented?
Yes. Under this 1995 opinion, section 21.309 had no exception for leased devices, so a leased pager carried by a student at school could be confiscated and forfeited to the district.

Did it matter that an "innocent" company owned the pager?
Not by itself. Following State v. Richards and Calero-Toledo v. Pearson Yacht Leasing Co., the office said an owner's innocence is generally not a defense to forfeiture where the state has a strong enough interest, though particular facts could change the result.

Was the forfeiture statute constitutional even though it did not mention a hearing?
The office said yes on its face. Courts read notice-and-hearing requirements into forfeiture statutes to keep them constitutional, and section 21.309(b) let districts include those procedures in their student conduct rules. The office said the device owner should get notice and a hearing too.

Could a school just give away or throw out confiscated pagers?
No. Once forfeited, a pager became district property, but article III, section 52 of the Texas Constitution barred the district from giving away anything of value. The office advised selling the devices, by bidding or another method that obtained a reasonable price.

Did section 23.30 of the Education Code control how the devices were sold?
No. The office read section 23.30 as limited to real property (school houses, buildings, and lands), not personal property like pagers, so it did not govern the disposition of confiscated devices.

Background and statutory framework

Education Code section 21.309 prohibited a public school student from possessing a paging device on school property or at a school-sponsored or school-related activity, with exceptions for certain firefighting and emergency medical personnel. It defined a "paging device" broadly as a telecommunications device that emits an audible signal, vibrates, displays a message, or otherwise summons or delivers a communication to the possessor. Subsection (b) required districts to put the prohibition in their written student conduct standards and to discipline violators by district policy. Subsection (c) required that a violation be reported to the appropriate school administrator, who was to order a peace officer or school employee to confiscate the device, which was then forfeited to the district.

The office framed the leased-device question as one of forfeiture law and constitutional due process, and noted the limits of the opinion process: it could not anticipate every implementation scenario (citing Attorney General Opinion JM-1225 (1990) on whether a car telephone is a paging device under section 21.309) and generally could not adjudicate the constitutionality of a facially valid statute across all its applications, which requires a court weighing evidence (citing Attorney General Opinion DM-261 (1993)). On the merits, it relied on State v. Richards, 301 S.W.2d 597 (Tex. 1957), which upheld forfeiture under former V.T.C.S. article 725d of a vehicle an owner had innocently lent to someone later found with narcotics, and on Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), where the U.S. Supreme Court upheld forfeiture of an innocent lessor's yacht while suggesting limits where the owner lacked privity or consent or had done all that could reasonably be expected to prevent the misuse. It cited State v. Young's Market Co., 369 S.W.2d 659 (Tex. Civ. App.—Eastland 1963, writ ref'd n.r.e.) as a counterexample where forfeiture under the Liquor Control Act fell outside the statute's contemplation, and House of Tobacco v. Calvert, 394 S.W.2d 654 (Tex. 1965) for reading notice and hearing into a forfeiture statute rather than striking it down. It noted that Austin v. United States, 113 S. Ct. 2801 (1993) applied the Eighth Amendment's excessive-punishment protection to civil forfeiture.

On disposition, the office held that a forfeited device becomes district property and that the district has implied authority to manage and dispose of its property under Education Code section 23.26. It declined to apply Education Code section 23.30 (successor to former V.T.C.S. article 2773), reading that provision, which speaks of deeds, "school houses, buildings or lands," as limited to real property. The governing limit was the anti-gift clause, article III, section 52 of the Texas Constitution, which bars a political subdivision from granting anything of value to any individual, association, or corporation. The office concluded the district had to obtain a reasonable quid pro quo, with sale by bidding an appropriate method, citing Attorney General Opinions MW-36 (1979), MW-373 (1981), and MW-93 (1979).

Citations

Statutory and constitutional provisions discussed:

• Education Code § 21.309 (prohibition on student possession of paging devices; confiscation and forfeiture to the district)
• Education Code § 23.26 (board of trustees' authority to manage the district)
• Education Code § 23.30 (disposition of school property; read as limited to real property)
• Texas Constitution art. III, § 52 (anti-gift clause; no grant of anything of value)
• V.T.C.S. art. 725d (former narcotics-vehicle forfeiture statute at issue in Richards)
• V.T.C.S. art. 2773 (former predecessor of Education Code § 23.30)

Cases discussed:

• State v. Richards, 301 S.W.2d 597 (Tex. 1957) (forfeiture of innocent owner's lent vehicle; exceptions show intent to apply in unexcepted cases)
• Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) (innocent lessor's property may be forfeited; suggested limits)
• State v. Young's Market Co., 369 S.W.2d 659 (Tex. Civ. App.—Eastland 1963, writ ref'd n.r.e.) (forfeiture outside contemplation of the Liquor Control Act)
• House of Tobacco v. Calvert, 394 S.W.2d 654 (Tex. 1965) (reading notice and hearing into a forfeiture statute)
• Austin v. United States, 113 S. Ct. 2801 (1993) (Eighth Amendment excessive-punishment protection applies to civil forfeiture)

Prior Attorney General opinions cited:

• JM-1225 (1990); DM-261 (1993); MW-36 (1979); MW-373 (1981); MW-93 (1979)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0352
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0352.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

June 13, 1995

Honorable Paul Sadler
Chair
Committee on Public Education
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-352

Re: Application to leased paging devices of Education Code section 21.309, requiring forfeiture of paging devices possessed by a student on school property or at school activities, and related questions (RQ-702)

Dear Representative Sadler:

You are concerned with the implementation of section 21.309, Education Code, which provides:

(a) A student in a public school may not possess a paging device while on school property or while attending a school-sponsored or school-related activity on or off school property, [with exceptions for certain firefighting and medical emergency service personnel].

(b) [School district's written standards of student conduct must include subsection (a) prohibition. Student violating prohibition subject to discipline as provided by district policy].

(c) A person who discovers a student in possession of a paging device in violation of this section shall report the violation to the appropriate school administrator, as determined by school policy, who shall order a peace officer or appropriate school employee to confiscate the device, which is forfeited to the school district.

(d) In this section, "paging device" means a telecommunications device that emits an audible signal, vibrates, displays a message, or otherwise summons or delivers a communication to the possessor. [Emphasis added.]

You ask:

Are there any unanswered legal questions surrounding a district's confiscation of a paging device only leased by, and not actually owned by any given student? Is the business company owning the device entitled at all to its recovery given its innocence in the whole matter? [Emphasis in original.]

We note at the outset that we cannot in an attorney general opinion attempt to anticipate all situations that may arise in the implementation of section 21.309 with regard to leased paging devices. See generally Attorney General Opinion JM-1225 (1990) (whether a car telephone is a paging device subject to section 21.309). Moreover, as we have noted before, where a statute is not unconstitutional on its face, we are generally unable in an attorney general opinion to weigh or balance the competing interests involved so as to determine its constitutionality, especially for purposes of all possible applications. Such determinations would be made by a court after affording the parties opportunity to introduce evidence relevant thereto, a procedure we are unable to perform in the opinion process. See, e.g., Attorney General Opinion DM-261 (1993) (constitutionality of provisions for impoundment of vehicle where proof of financial responsibility not shown). We offer the following for your guidance.

State v. Richards, 301 S.W.2d 597 (Tex. 1957) dealt with a forfeiture of a vehicle under former V.T.C.S. article 725d. Richards, the owner, had lent the vehicle to another person, a customer at his place of business, on the latter's representation that he needed it "for thirty or forty minutes" to drive to his brother's apartment to change clothes. The borrower of the vehicle was subsequently arrested with narcotics, that is, "two dolophine pills," in his pocket and it was shown that he had had them on his person while driving the vehicle. The statute in question made it unlawful to transport or possess contraband narcotics in a vehicle, and further provided for the seizure and forfeiture to the Department of Public Safety of any vehicle thus used. The supreme court noted that the statute specifically excepted from its operation vehicles used by a common carrier unless the complicity of the owner or person in charge could be shown, vehicles illegally retained or acquired from the proper owner, and also by specific provisions protected the rights of bona fide mortgagees (lien holders). Applying the rule of statutory construction that "[a]n exception . . . makes plain the intent that the statute should apply in all cases not excepted," the court concluded that forfeiture of Richards's vehicle was within the intent of the statute.

With respect to the constitutionality of the forfeiture there, the Richards court noted the strong state interest in suppressing traffic in narcotics, including deterring owners of vehicles from, even unwittingly, abetting it. It found that procedural due process requirements were satisfied in the case at hand since the statute specifically required that the owner of the vehicle be given notice and an opportunity for hearing prior to actual forfeiture. Finally, in holding the vehicle forfeit, the court noted that the innocent owner there might retain a cause of action against the borrower of the car for his loss.

United States Supreme Court decisions appear to be in accord with the proposition of Richards, that given a sufficient state interest in the punishment and deterrence of the unlawful activity which was the object of the forfeiture statute, the innocence of the property owner, absent specific statutory provision otherwise, is by itself no defense to forfeiture. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974); Annot., 76 L. Ed.2d 852, 854-55 (citing Calero-Toledo and other cases). The Calero-Toledo opinion, which incidentally upheld the forfeiture of a yacht of an "innocent" lessor, strongly suggested, however, that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken by the person who used it for unlawful purposes without the owner's "privity or consent," or where the owner was not only unaware of the unlawful use but had "done all that reasonably could be expected to prevent the proscribed use of his property." 416 U.S. at 689; see also State v. Young's Market Co., 369 S.W.2d 659 (Tex. Civ. App.—Eastland 1963, writ ref'd n.r.e.) (although common carrier's failure to show proper documentation for cargo of whisky to patrolman technically made liquor "illicit" and subjected cargo and vehicle to forfeiture under Liquor Control Act, where buyer's and seller's transaction was otherwise legal and they were later able to produce proper documentation, and only unlawful act involved was unexplained dereliction of driver in failing to produce documentation which seller had furnished him, forfeiture was not within contemplation of act).

In response to your question, we note first that we find no exception to forfeiture under section 21.309 where the paging device is leased. Especially as the statute does make other exceptions to its application (the ones in subsection (a) for fire and emergency medical personnel) we conclude, following the Richards analysis, that forfeiture of even leased paging devices is within the intent of the statute. Further, we do not believe, based on the authorities cited above, that application of section 21.309 to the paging devices of "innocent" lessors would be per se unconstitutional. Although there may be a variety of constitutional theories under which the statute could be attacked, from due process and equal protection to cruel and unusual punishment, we find no fundamental rights or suspect classifications facially implicated by the provision such as to render it unconstitutional on its face. Notably, the bill analysis to section 21.309 asserted significant state interests in the matter: that the presence of paging devices in the educational setting was both generally disruptive and in particular facilitated trafficking in illegal drugs. Subsection (b) of the section, in providing for the implementation of the prohibition on paging devices through the school district's written standards of student conduct, allows for the inclusion in such standards of procedures for giving notice and the opportunity for hearing to the student from whom a paging device is confiscated. Where a lessor is also involved, notice and opportunity for hearing should, we believe, also be provided, sufficient to afford procedural due process. See, e.g., Richards, 301 S.W.2d 597; see also Annot., 76 L. Ed.2d at 855-57 (citing cases). Although the statute does not specifically provide for such notice and hearing, we do not believe that deficiency is such as to render it unconstitutional on its face. Rather, such due process requirements should be read into statutes by implication so as to sustain their constitutionality so long as the statutes do not specifically and affirmatively provide for procedures violative of due process. See, e.g., House of Tobacco v. Calvert, 394 S.W.2d 654 (Tex. 1965) (notice and hearing requirements necessary to comport with due process should be read into statute providing for forfeiture of cigarette permits rather than striking down statute where it lacks express provisions to such effect).

We acknowledge, however, that fact situations may arise where a court, after hearing the evidence and arguments of the parties, could find that particular forfeitures exceeded constitutional limits. For example, a lease contract's specifically forbidding the lessee's possessing or permitting possession of the leased device on property or at activities within the section 21.309 prohibition might weigh in favor of the lessor's opposition to forfeiture, particularly where there were other exonerating factors. See Calero-Toledo, 416 U.S. 663; see also, e.g., Austin v. United States, 113 S. Ct. 2801 (1993) (application of Eighth Amendment protection against excessive punishment to civil forfeiture).

You also ask:

What precisely is a public school district allowed/required/advised to do with any or all paging devices confiscated under Section 21.309 . . . ? The section itself makes no provision and Article 3, Section 52 of the State Constitution and, perhaps, Section 23.30 of the [Education] [C]ode clearly complicate any district action subsequent to the confiscation. Would it be legally acceptable for the district to: (a) after issuing an appropriate and standard public notice, sell the devices to the highest bidder; or (b) dispose of them as if the devices were ordinary garbage; or (c) simply do nothing and keep them locked away forever?

We note first that we think it clear under the terms of section 21.309 that the devices, once forfeited to the district, become the property of the district. We do not believe that section 23.30 of the Education Code, referenced in your question, is relevant to the disposition of confiscated paging devices. Although subsection (a) facially provides for the disposition by school districts of "any property, other than minerals, held in trust for free school purposes," reading the section as a whole, we think its scope is limited to real property. Subsection (b) provides with respect to sales under the section that "the president of the board of trustees shall execute his deed to the purchaser[s]." Subsection (d) provides that sales of "school houses, buildings or lands" made in substantial compliance with the section and authorized by the board of trustees shall not be invalid for any lack of authority to make them. Moreover, former V.T.C.S. article 2773, the predecessor provision of section 23.30, which was codified in the 1969 adoption of the Education Code, specified that the school district sales addressed by those provisions were ones of "houses or lands." See V.T.C.S. art. 2773, § 1 (repealed by Act of May 31, 1969, 61st Leg., R.S., ch. 889, § 2, 1969 Tex. Gen. Laws 2735, 3024; see also id. § 23.30, at 2955). We find nothing in the legislative history of the 1969 codification indicating an intent to extend the ambit of those provisions to include personal property.[2] We believe, however, that the school district has the implied authority to use and dispose of the property as it sees fit. See Educ. Code § 23.26 (board's authority to manage district).

Of course, the school district's authority to use and dispose of the devices is subject to the article III, section 52 restrictions. Article III, section 52 prohibits political subdivisions, such as school districts, from "granting" "anything of value" "to any individual, association or corporation whatsoever." See, e.g., Attorney General Opinion MW-36 (1979). Of the alternatives for disposition of forfeited paging devices you suggest, selling such devices to the highest bidder would appear to be an effective means for the district to obtain a reasonable quid pro quo for such devices and thus not run afoul of article III, section 52. See, e.g., Attorney General Opinion MW-373 (1981). Other methods of sale, so long as they were reasonably calculated to obtain an adequate quid pro quo, might also suffice.[3] If the district is unable to sell the paging devices, we believe the board of trustees should determine other appropriate ways of disposing of them as it does with other school property no longer wanted or needed by the district. See also, e.g., Attorney General Opinion MW-93 (1979) (board's discretion to determine whether to seek reimbursement for payments made for certain travel expenses, based on costs of collection and other factors) (citing authorities).

SUMMARY

Application to leased paging devices of the provisions of Education Code section 21.309, requiring the forfeiture to a school district of paging devices possessed by a student on school property or at school activities, would not be per se unconstitutional where notice and opportunity for hearing are given to affected parties. Where the district desires to dispose of forfeited devices, it is advised that, in order to comply with the restrictions of article III, section 52 of the state constitution, it must first attempt to sell them through bidding or other means calculated to obtain a reasonable quid pro quo.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General

[2] The bill analysis to House Bill 534, the bill making the 1969 codification of which section 23.30 was a part, states that the intent of the bill was "to make it clear what existing law is, not to make any new law." House Comm. on Public Education, Bill Analysis, H.B. 534, 61st Leg. (1969).

[3] While we find no requirement that school districts sell such property through bidding, we think that bidding may be used as a means of sale, and would be appropriate in this instance in view of the article III, section 52 restrictions. Again, however, it is the obtaining of an adequate quid pro quo that is required for article III, section 52 purposes, and there might be other sale methods which could achieve that end.