           THE      ATTORSEY           GESERAL
                       OF TEXAS

                        April 15; 1987




Eonorablc Benjamin Euresri. Jr.       Opinion No.   JR-678
Cameron County Attorney
974 E. Barrison Street                Re:   Administration of "special
Brownsville, Texas    78520           funds" by a county under the Texas
                                      Controlled Substances Act, article
                                      4476-U. V.T.C.S.

Dear Hr. Euresti:

     You ask for a constructlou of certain forfeiture provisions
included in article 4476-15, V.T.C.S.. the Texas Controlled Substances
Act:   Sections 5.03 through 5.081 of article 4476-U.        V.T.C.S.,
provide for the forfeiture of property used ia connection with vlola-
rions of the act, including controlled substances, conveyances, drug
parapheroalia, and money, negotiable lnscrumonts,     securiries. and
various other canglble and intangible "things of value." V.T.C.S.
art. 4476-13. $5.03. The officer who seizes the property must cause a
notice of seizure and intended forfeiture to be filed in the name of
the state. Id. 15.05. Section 5.07 of article 4476-15. V.T.C.S.,
sets out the-ocedures     to be followed by a court in ordering a
forfeiture and section 5.08 provides for the disposition of forfeited
property. See generally Attorney General Opinion JM-550 (1986).

     Section 5.07 of article 4476-15. V.T.C.S.. states In part:

              (a) . . . [if owner of property does not file
          au answer] the court shall hear evidence char the
          property is subject to forfeirure and may upon
          motion   forfeit the property to the state or an
          agency of the state or co a political subdivision
          of the ecace authorized by law to employ peace
          offlcers. . . .

             . . . .

             (d) .If  it  is found chat the property is
          subject co forfeiture, then the judge shall upon
          motion forfeit the property to the stat,= or an
          agency of the state or co a polirical subdivision
          of  the state authorized by law to employ peace
          officers.   However, for property other than a




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Bouorable Benjarin Euresti.   Jr. - Page 2   (JM-678)




          controlled subscaoce. raw maCeria1, or drug
          parapherualia. if proof at the hearing dfscloses
          that the interest   of any bona fide lieuholder.
          secured party, or other person holding an interest
          in the property in the nature of a security
          interest is greater than or equal co the present
          value of the property. the court shall order the
          property released CO him.    If such interest   is
          less thau the present value of the property and if
          the proof shows chat the property is subject to
          forfeiture, the court shall order the property
          forfeited to the state or an agency of the state
          or to   a politlcal subdivision of      the state
          authorized by law to employ peace officers.
          (Emphasis added).

Sectious 5.07(a) and (d) authorize forfeiture of property "to a
political subdivfaiou of the state authorized by law to employ peace
officers." Your question arises from the discrepancy between the
emphasized language of section 5.07 and the following language in
section 5.08(f) of article 4476-U. V.T.C.S.:

             (f) All money, securities.     certificates of
          deposit. negotiable instruments.   stocks, bonds,
          businesses or business iuvescments. contractual
          rights, real estate, personal property and ocher
          things of value, and the proceeds from the sale of
          au item described in this subsection that are
          forfeited to the seizinn anencies of the state or
          an agency or office of a political subdivision of
          the state authorized by law to employ peace
          officers shall be deposited in a special fund to
          be administered by the seizing agencies or office
          to which they are forfeited. -ExEept as othervise
          provided by this subsection. expenditures from
          this fund shall be used solely for the inveatiga-
          cfou of auy alleged violations of the criminal
          lavs of chls state. The director of ao agency of
          the.state may use not more than 10 percent of the
          amount credited to the fund for the prevention of
          drug abuse and for treatment of persons with
          drug-related problems. The director of an agency
          or office of a political subdivision char has
          received funds under this section shall comply
          vlth the request of the governing body of the
          political subdivision to deposit not more than 10
          percent of the amount credited to the fund into
          the treasury of the subdivision. The governing
          body of the subdivision shall use the funds




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Bonorable Benjamin Euresti. Jr. - Page 3        (JM-678)




              received for the prevention of drug abuse and for
              treatment of persons with drug-related problems.
              Nothing in this subsection shall be construed to
              decrease the    coca1 salaries. expenses. and
              allowances which M agency or office is receiving
              from other sources ac or from the time this
              subsection takes effect. (Emphasis added).

     You ask whether the “special funds” are to be administered by
the county attorney and county sheriff. or whether they are to be
deposited in the treasury subject to supervision by the county auditor
and administration by the coormissioners court rhrough the budget
process.

      In  our opinion, section 5.08(f) contemplates char money,
securities,  and other enumerated items of property vi11 be forfeited
co “the seizing agencies” on the state    level and to “an agency or
office . . . authorized by law to employ peace officers” at rhe
political subdivision level.     Although section 5.07 provides In
general terms chat property may be forfeited to the state. an agency
of the state or “to a political subdivision of the state authorized by
law to employ peace officers,” section 5.08 provides that some of the
forfeited property will be distributed CO a specific officer, agency,
or department of a political subdivision. Section 5.08 provides in
part:

                 Sec.   5.08. (a) Regarding      all   controlled
              substances, raw materials. and drug paraphernalia
              vhich have been forfeited, the district court shall
              by its order direct a law enforcement agency to:

                 (1) retain     rhe’ property   for   its   official
              purposes;

                   (2) deliver the property to a government agency
              or   department for official purposes;

                 (3) deliver the property to a person authorized
              by rhe court to receive it; or

                 (4) destroy the property that is not ochervise
              disposed in the manner prescribed by Section 5.081
              of this Act.

                 (b) All ocher property that has been forfeited.
              except the money derived from the sale. manu-
              facture, distribution. dispensation. delivery, or
              other commercial undertaking violative of this Acr,
              and except as provfded below, shall be sold at a




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honorable Benjamin Euresti, Jr. - Page 4   (JM-678)
                                                                         ,




          public auction under the direction of the county
          sheriff after notice of public auction as provided
          by law for ocher sheriff’s sales. The proceeds of
          the sale shall be delivered to the district clerk
          and shall be disposed of as follows:

             (1) co any bona fide lieuholder, secured party.
          or other parry holding an interest In the property
          in the nature of a aecuricy Interest. to the extent
          of his Interest; and

             (2) the balance. if any. after deduction of all
          storage and court costs. shall be forwarded to the
          state comptroller and deposited with and used as
          general funds of the state except as provided by
          Subsection (f) of this section.

             (c) The state or an agency of the state or a
          political subdivisioa 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 CO it if it is free from
          any interest of a bona fide lienholder. secured
          party. or ocher party who holds an interest in the
          property    in   the   nature    of   a    security
          interest. . . .

               .   .   .   .

             (f) Al.1 w*ey.       securities . . .   personal
          property and ocher things of value, and the
          uroceeda from the 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 co employ peace officers shall be deposited in
          a special fund. . . . (Emphasis added).

The porciona of section 5.08 which require dlacribution of forfeited
property to an off ice. individual or law enforcement agency provide
further definition of the court orders of forfeiture authorized by
section 5.07.

     Horeover , circumstances surrounding the enactment and amendment
of section 5.08(f)     of article 4476-15. V.T.C.S.. Indicate chat
forfeitures of money on the political subdivision level go directly to
the lav enforcement agency of the political subdivision.       Section
5.08(f) was adopted by the sixty-seventh Legislature in 1981. See
Acts 1981. 67th Leg.. ch. 268, at 706. A similar provision G




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Eouorable Benjamin Euresti. Jr. - Page 5   (a-678)




included in legislative proposals by a committee appo+ced by the
governor to combat drug abuse in Texas.      Texans ' War on Drugs,
Legislative Proposals Submitted to the 67th Legislature, Legislative
Reference Llbrarp. A description of the cosmictee's proposed section
5.08(f) reads as follova:

              Amends Section 5.08 of the Texas Controlled
           Substances Act to permit proceeds of a forfeiture
           action to he returned to the control of the law
           enforcement agency responsible for the seizure and
           to be used to finance lav enforcement activity.

Ia.. Bill Aualyais for Draft Act at 3.

     Section 5.08(f) as origioally enacted contained wane of the
present language authorizing the deposit of money from the special
fund in the treasury of the political subdivision for the prevention
and treatment of drug abuse. This provision was added in 1983 as
Eouse Bill No. 450. Acts 1983. 68th Leg.. ch. 766, at 4578. Eouse
Bill Ro. 450 provided in part:

           The director of au agency or office of a policies1
           subdivision that has received funds under this
           section shall comply with the request of the
           governing  body of the political subdivision' to
           deposit not more than 10 percent of the amount
           credited to the fund into the treasury of the
           subdivlsion.   The governing body of the aub-
           division shall use the funds received for the
           prevention of drug abuse and for treatment of
           persons with drug-related problems.

(Codified as V.T.C.S. art. 4476-15. 15.08(f)).

     The title   of House Bill No. 450 reads as follows:

                             AN ACT

           relating co the disposition of money, securities,
           negotiable instruments, stocks, or bonds forfeited
           CO an agency of the state or an agency or office
           of a political subdivision of the state under the
           Texas   Controlled  Substances   Act.    (Emphasis
           added).

The Bill Analysis Co House Bill No. 450 stated that the committee
adopted an amendment to the bill as introduced and described the
amendment as follows:




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Honorable Benjamin Eureati, Jr. - Page 8   (Jn-678)




         The axeodmeaca limited the scope of the bill co
         state agencies, or agencies or offices of other
         political aubdivlalona if the governing body of
         the subdivision so requests. It does uot mandate
         coxpllauce with this act without chr request of
         the local governing body.

Bill Analysis to 8. B. No. 450. prepared for Eouse Committee on
Criminal Jurisprudence, filed in Bill File to 8. B. No. 450. Legisla-
tive Reference Library. Both the title of House Bill No. 450 and the
quotation from the bill analysis show that forfeited money is to go
initially to an office or agency of a political subdivision and not to
Its governing body. The governing body must request the agency or
office In charge of the special fund co deposit no more than 10% of
the fund into the treasury of the political subdivision. Thus. the
special fund is held oucaide the treasury and a percentage of money in
the special fund is placed in the political‘subdivislon'a treasury
only upon the request of the governing body.

     Therefore, In aaaver Co your firac question, the "special funds"
referred co in section 5.08(f) are to be administered by the law
enforcement officer or agency of the county. They are not to be
deposited in the county treasury except for a percentage of the
special fund, not to exceed 10%. vhich is deposited in the county
treasury upon request of the commlsslonera'courr.      Where money is
forfeited co a city. the special fund is held and administered by the
police department, Co be used to investigate any alleged violations of
the criminal laws. If the governing body requests the transfer of 10%
of the special fund to provide preveucion sad treatment of drug abuse,
that amount la placed in the city treasury.

     You next ask whether the special funds described in section
5.08(f) may be tapped to reimburse the general funds of political
subdivisions which have been used CO pay for salaries, expenses, and
allowances of the lav enforcement agency holding the special fund.

     Section 5.08(f) expressly provides that

          [nlothing in this subsection shall be construed
          co decrease the tocal salaries, expenses, and
          allowances which an agency or office Is receiving
          from other sources at or from the rime this
          subsection takes effect.

This language expressly forbids the use of special funds to reimburse
a political subdivision for the salaries, expenses, and allowances it
provided the law enforcement agency es of and afcrr the 1981 effective
dare of secclon 5.08(f). Moreover. the purpose of section 5.08(f) is
co increase funding available for investigaclng violations of the




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Honorable Benjamin Euresci, Jr. - Page 7   (JM-678)




criminal laws. The use of the special fund to reimburse the general
fund for past expenditures on law enforcement would be contrary to
this objective. The special fund may not be used to reimburse the
general fund for such expenditures.

                              SUMMARY

                  "special fund" established by section
          s.oi&     of    article   4476-15. V.T.C.S.;   the
          Controlled Substances Act.      and consisting of
          money,  various     intangibles and proceeds of
          property forfeited under the act. Is CO be
          administered by the law enforcement office or
          agency of a political subdivision and not by its
          governing body. The special fund may not be used
          to reimburse the general fund for expenditures on
          salaries, expenses. or allowances received by the
          law enforcement office or agency.




                                                MATTOX
                                        Attorney General of Texas

JACK HIGBTOUER
First Assistant Attorney General

MARY KELLER
Execuclve Assistant Attorney General

JUDGE ZOLLIE STRAFLEY
Special Assistant Attorney General

RICK GILPIN
Chairman. Opinion Committee

Prepared by Susan Garrison
Assistant Attorney General




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