Texas Attorney General Opinion: GA-0309 Page: 1 of 5
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ATTORNEY GENERAL OF TEXAS
March 8, 2005
The Honorable Carole Keeton Strayhorn Opinion No. GA-0309
Comptroller of Public Accounts
Post Office Box 13528 Re: Whether 15 U.S.C. 77e, regulating the
Austin, Texas 78711-3528 sale of unregistered securities, preempts section
74.401 (a) of the Texas Property Code to the extent
section 74.401(a) requires the comptroller to sell
at public sale an unclaimed security that is not a
registered, marketable security (RQ-0273-GA)
Dear Comptroller Strayhorn:
You ask whether 15 U.S.C. 77e, regulating the sale of unregistered securities, preempts
section 74.40 1(a) of the Texas Property Code to the extent section 74.401 (a) requires the comptroller
to sell at public sale an unclaimed security that is not a registered, marketable security.'
The comptroller receives abandoned or unclaimed property under section 74.301(a) of the
Property Code. See TEX. PROP. CODE ANN. 74.301(a) (Vernon Supp. 2004-05); see also Tex. Att'y
Gen. Op. No. JC-0463 (2002) at 4, modified on other grounds, Tex. Att'y Gen. Op. No. GA-0061
(2003) at 8. Personal property generally is presumed abandoned if, for longer than three years: (1)
the holder does not know the property owner's existence and location; and (2) according to the
holder's knowledge and records, no person has asserted a claim to the property or has exercised
an act of ownership. See TEX. PROP. CODE ANN. 72.101 (a) (Vernon Supp. 2004-05); see also id.
72.101(b) (setting out the three-year period leading to a presumption of abandonment of stock or
other intangible ownership interest in a business association); id. 73.101(a) (stating that a financial
institution may presume an account or a safe deposit box abandoned if the account or box has been
inactive for five years or more and the owner's location is unknown). "Once property is presumed
abandoned, the Comptroller ... assumes responsibility for it and, in effect, steps into the absent
owner's shoes." Tex. Att'y Gen. Op. No. JC-0463 (2002) at 4, modified on other grounds, Tex.
Att'y Gen. Op. No. GA-0061 (2003) at 8; see TEX. PROP. CODE ANN. 74.304(a) (Vernon Supp.
2004-05) (requiring the state to assume custody of property that has been delivered to the comptroller
and to be responsible for the property's safekeeping).
'See Letter from Timothy Mashburn, General Counsel, Comptroller of Public Accounts, to Honorable Greg
Abbott, Texas Attorney General (Sept. 8, 2004) (on file with Opinion Committee, also available at http://www.oag
.state.tx.us) [hereinafter Request Letter].
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0309, text, 2005; (texashistory.unt.edu/ark:/67531/metapth275205/m1/1/: accessed July 16, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.