                          July 9, 1990



Honorable Joe Lucas                 Opinion No.    JM-1184
El Paso County Attorney
City-County Bldg., Room 201         Re: Disposal of property for-
El Paso, Texas 79901                feited to a municipality pur-
                                    suant to the Texas Controlled
                                    Substances Act (RQ-1730)

Dear Mr. Lucas:

     You have     submitted   the    following    question   for   our
opinion:

          Must a political subdivision   authorized   by
          law to employ peace officers, specifically   a
          home-rule municipality, sell a vehicle    that
          has been forfeited to it, at a public auction
          under the direction of the county sheriff as
          set out in Section 5.08(b), Article   4476-15,
          V.A.C.S., of the Texas Controlled   Substances
          Act, either when the city acquires         the
          vehicle by forfeiture but has no use for the
          particular vehicle or after the vehicle is no
          longer useful to the city for law enforcement
          purposes?  If not, by what method may      the
          city sell the vehicle?

     In 1989, the legislature enacted the Health and Safety
Code as a nonsubstantive revision of existing law. See Acts
1989, 71st Leg., ch. 678, 5 14, at 3165. The provisions     of
article 4476-15, V.T.C.S.,   the Texas Controlled   Substances
Act, were transferred     to the new code      (which   became
effective September 1, 1989) and are now found in chapter
481, thereof.  Provisions   regarding forfeiture are located
in subchapter E. Those formerly contained in subsection (b)
of section  5.08 of article 4476-15 were transferred        to
section 481.158 of the new code, as were those formerly
found in subsections (c), (d), (e), and (f) of section    5.08
of the former statute.1 Section 481.158 was repealed in the



     1.    Additions and corrections to several enacted codes,
                                          (Footnote Continued)



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second called session of the 71st Legislature.   Acts 1989,
71st Leg., 2d C-S., ch. 12, 8 5(c), at 21. Therefore,  this
opinion is applicable   only to forfeitures   that occurred
before October 18, 1989. Id. 5 7, at 21.

     Section  481.157(d)   of the Health   and Safety Code
provides that if the adjudication    court determines   that
property seized under the Texas Controlled Substances Act is
subject to forfeiture, the judge, on motion, is to forfeit
the property "to the state or an agency of the state or to a
political subdivision   of the state authorized by law to
employ peace officers."

     Before article 4476-15, V.T.C.S., was incorporated into
the Health and Safety Code, section 5.08 thereof read in
pertinent part:

            (b) All other property [i.e., other than
        controlled   substances,  raw materials,    and
        drug paraphernalia] that has been forfeited,
        except the money derived      from the sale,
        manufacture,    distribution,    dispensation,
        delivery,   or other commercial    unde;;;cA-ni
        violative of this Act, and extent as 1)
        below, shall be sold at a public auction
        under the direction    of the county sheriff
        after notice of public auction as provided by
        law for other sheriff's sales. The proceeds
        of the sale shall be delivered        to    the
        district clerk and shall be disposed of as
        follows:

        (1) to any bona fide lienholder,      secured
        party, or other party holding an interest  in
        the property  in the nature of    a security
        interest, to the extent of his interest; and

        (2)   the balance, if any, azz;:sded;;uzin   ;z
        all   storage and    court        I

(Footnote Continued)
including the Health and Safety Code, were made by the 71st
Legislature.   See Acts 1989, 71st Leg., ch. 1100, at 4522.
Moreover, section 5.08 of article 4476-15 was amended by the
same legislature that repealed it in the process of enacting
the Health and Safety Code.    See Acts 1989, 71st Leg., ch.
1011, at 4106. The amendment    is saved and given effect as
part of the code notwithstanding the repeal. &g Gov't Code
r, 311.031(c).  Neither of these two enactments affect the
answer to your question, however.


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    Honorable Joe Lucas - Page 3 (JM-1184)




           forwarded to the     state comptroller   and
           deposited with and used as general funds of
           the state 3xce t as
           If) of this section.

              (c) The state or an agency of the state
           or a political     subdivision of the state
           authorized by law to employ peace officers
           may maintain,  repair, use, and operate   for
           official purposes all property that has been
           forfeited to it if it is free from any
           interest of a bona fide lienholder,   secured
           party, or other party who holds an interest
           in the property, in the nature of a security
           interest . . . .

                .   .   .   .

                (f) U   money,   securities,   certificates
            of deposit, negotiable instruments,     stocks,
            bonds, businesses   or business    investments,
            contractual  rights, real estate, personal
            property and other things of value, and the
            proceeds from th e sale of an item described
            in this subsection that are forfeited to the
            seizing agencies of the state or an agency or
            office of a political     subdivision   of the
            state authorized by law to employ peace
            officers shall be de posited in a soecial fund
            to be administered by the seizing agencies or
            office to which they are forfeited.      Except
            as otherwise provided by this subsection,
            expenditures from this fund shall be used
            solely for the investigation of any alleged
            violations  of the criminal      laws of this
            state . . . . (Emphasis added.)

    In 1988, this office, in Attorney General Opinion JM-899,
    addressed the same question, essentially, that you pose.
    Among other things, we were asked:

               When a motor vehicle forfeited for use by
            the sheriff's department is no longer useful
            to the department, how is it to be disposed
            of? Should the property be sold at a public
            auction under the direction of the sheriff as
            described in section 5.08(b) of the Act or at
            the direction   of the Commissioner's   Court
            pursuant to the Local Government Code?

               What is the proper disposition     of the
            funds garnered from the disposal of the motor

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Honorable Joe Lucas - Page 4 (JM-1184)




        vehicle?  Should they be deposited   in the
        'special fund' described in section  5.08(f)
        of the Act or deposited in the general  fund
        of the county?

     With respect to the proper disposition of the proceeds
realized  from subsequently   selling property     originally
forfeited for use by a political      subdivision,   Attorney
General Opinion JM-899 advised:

           Attorney General Opinions JM-678     (1987)
        and JM-550 (1986) provide a concise answer to
        your final question, which concerns        the
        disposition of proceeds from the sale of the
        vehicle.  Section 5.08(f) of the Controlled
        Substances Act provides in relevant part:

           Eos;~y,       securities,   certificates   of
                     negotiable  instruments     stocks,
           bonds, businesses or business in;estments
           contractual rights, real estate, personal
           proDerty and other things of value, and
           the Droceeds    from the sale of        items
           described   in this subsection that are
           forfeited to the seizing agencies of the
           state or an agency        or office of      a
           political    subdivision    of   the    state
           authorized by law to employ peace officers
           shall be deDosited in a soecial fund to be
           administered bv the seizina acrencies or
           office to which      thev    r    forfeited.
           Except as otherwise procized       by    this
           section, expenditures from this fund shall
           be used solely for the investigation       of
           any alleged violations     of the criminal
           laws of this state . . . .          (Emphasis
           added.)

        V.T.C.S. art. 4476-15, !j5.08(f).

           The proceeds    from the   sale of   the
        forfeited vehicles used by the sheriff's
        department must be deposited in the special
        fund described  in section 5.08(f) of the
        Controlled Substances Act. Attorney General
        Opinion JM-678 (1987).

     We think the foregoing   answer was correct and   remains
correct today.

     We think, however, that the "public auction"   question
addressed in Attorney   General Opinion JM-899    should be


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reconsidered.    That opinion interpreted   the "except as
provided below I'language contained in the initial sentence
of subsection   (b) of section 5.08 to exclude      forfeited
property retained for use by a political subdivision     from
the "sale at public auction" provision    of that sentence.
The opinion concluded that property retained for use under
section 5.08(c) was subject to "the Local Government   Code's
general provisions    for the disposal   of surplus public
property."

     Upon reconsideration, we conclude that the "as provided
below" phrase contained in former section 5.08(b) merely
recognized that forfeited property to be used by '*the state
or an agency of the state or a political subdivision of the
state" pursuant to subsection (c) was not to be immediately
sold. Inasmuch as subsection (c) concerns property to be
used by "the state or an agency of the state," as well as a
political subdivision of the state, it could not have been
the legislative intent that tocal Government Code provisions
govern the sale of all property so used. Sales by the state
and its agencies are not covered by "the Local Government
Code's general provisions for the disposal of surplus public
property."  Nor do "general provisions"   thereof cover all
sales by all political   subdivisions. Cf. Local Gov't Code
55 253.001 et seq., 263.151 et seq., 281.055.

      Insofar as it is now applicable,       we believe   the
legislative   intent of    section 5.08, article     4476-15,
V.T.C.S. (later section 481.158 of the Health and Safety
Code), is    that u    forfeited property  is to be sold at
public auction under the direction of the sheriff, but that
the sale of property which an agency or subdivision    elects
to use for public purposes is delayed until the agency or
subdivision to which it is forfeited no longer wishes to
make use of it for official purposes.   This reading makes it
unnecessary to find authority elsewhere for the disposal   of
forfeited property.    &g 41 Tex. Jur. 3d Forfeitures     and
Penalties 55 5, 15 at 185, 195; 67 Tex. Jur. 3d Statutes
30 164,  165 at 806, 807.

     We therefore advise, in answer to your question,   that
if a political   subdivision, including a home-rule    city,
acquired a vehicle by forfeiture before October 18, 1989,
pursuant to the Texas Controlled Substances Act but has no
use for the vehicle,    or after the vehicle is no longer
useful to the political   subdivision for official purposes,
it is to be sold at public auction under the direction    of
the county sheriff. See Attorney General Opinions    JM-813,
JM-812, JM-678 (1987): JM-550 (1986). To the extent of its
conflict with this opinion, Attorney General Opinion JM-899
(1988) is modified.



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Honorable Joe Lucas - Page 6     (JM-1184)




    We do not reach your other questions.

                       SUMMARY

          If a political subdivision,   including a
       home-rule city, acquired a vehicle by for-
       feiture prior to October 18, 1989, pursuant
       to the Texas Controlled   Substances Act but
       has no use for the vehicle, or after the
       vehicle is no longer useful to the political
       subdivision, it is to be sold at public
       auction under the direction of the county
       sheriff.




                                      JIM     MATTOX
                                      Attorney General of Texas

MARYKELLER
First Assistant Attorney General

LOU MCCRFARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Bruce Youngblood
Assistant Attorney General




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