I-




                  THE     ATTORNEY            GENERAL
                             OF  TEXAS

                              i+sy 10, 1988




     Honorable  Jerry Cobb                      Opinion   No.   JR-899
     Criminal  District Attorney
     P. 0. Box 2344                             Re:   Disposition   of motor
     Denton, Texas    76201-2899                vehicles    under     article
                                                4476-15,    V.T.C.S.,      the
                                                Controlled   Substance     Act
                                                (RQ-1239)

     Dear   Mr.   Cobb:

           You  ask   our opinion   on  the          following      questions
     concerning  certain provisions  of the         Controlled     Substances
     Act, article 4476-15, V.T.C.S.:

                  (1) When a motor vehicle is forfeited            for
              use   by   the   Sheriff     as    permitted      under
              section    5.08     of   the     Act,    should     the
              certificate     of   title    to    the   vehicle     be
              issued   in     the    name     of   the     sheriff's
              department   or the county?

                  (2) 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    Commis-
              sioner's Court pursuant to the Local Govern-
              ment Code?

                  (3) What is the proper disposition     of the
              funds garnered      from  the   disposal  of   the
              motor 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?
,-


           Sections   5.03-5.081   of the Controlled   Substances   Act,
     article 4476-15, V.T.C.S.,      provide    for the forfeiture    of
C
     property,   including    motor   vehicles,   used  in   connection




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Honorable   Jerry        Cobb   - Page    2     (JM-899)




with certain violations     of the Act.     Section 5.07 of     the
Act sets out the procedures       to  be followed by a court     in
ordering   a forfeiture    and section 5.08     provides  for   the
disposition   of forfeited    property.   See aenerallv   Attorney                -
General Opinions JM-678      (1987) and JW-550    (1986).

     Section        5.07     of the Controlled        Substances   Act   states
in part:

            (a) [If the    owner of      the property      do&s
        not file    an answer]     the court      shall    hear
        evidence that     the    property    is   subject     to
        forfeiture   and may     upon motion forfeit         the
        property   to the   state or an       agency of      the
        state or to a nolitical         subdivision    of    the
        state authorized      bv    law   to    emulov    Deace
        officers.   . . .

            .   .    .   .

            (d) If it is      found that the property            is
        subject to forfeiture,        then the judge         shall
        upon motion      forfeit     the    property     to     the
        state or    an agency       of the     state or      to   a
        political       subdivision         of    the        state
        authorized   bv law to emolov oeace            officers:
        However.      for     orooertv       other      than      a
        controlled    substance;     raw material,      or    f-w
        paraphernalia,       if proof       at   the     hearing
        discloses   that the interest of any bona fide
        lienholder,     secured party,       or other      person
        holding an interest in the property               in    the
        nature of     a   security    interest      is   greater
        than or equal       to the present       value of       the
        property,   the court shall order the property
        released to him.        If   such interest      is    less
        than the present value          of the property         and
        if the    proof     shows that      the    property      is
        subject to forfeiture,        the court shall order
        the property     to be forfeited       to the state or
        an agency     of the     state or      to a oolitical
        subdivision     of the     state authorized      bv     law
        to emolov oeace officers.          (Emphasis added.)

A  county   is   a political   subdivision   of    the   state,
Childress  Countv v. State, 92 S.W.2d 1011 (Tex. 1936), and
                                                                                  ?
it is authorized   to employ peace officers.    See  Code Crim.
Proc. art. 2.12(l).




                                    p.   4432
Honorable      Jerry Cobb      - Page   3    UX-899)




      Section 5.08(c)     of  the   Controlled            Substances     Act
provides   for the use of certain forfeited              property    for the
official    business     of  law    enforcement             agencies     and
departments   of   political   subdivisions.             It   provides    in
relevant part:

           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. . . . The           deoartment      or
           aaencv receivina      ral     forfeited vehicle        may
           maintain,    repair,       use,     and   operate      the
           property    with    money      appropriated       to    the
           deoartment   ox aaencv for current operations.
           If   the    orooertv        is    a     motor     vehicle
           suscewtible    of reaistration        under the      motor
           vehicle reaistration        laws of thisatate.         the
           deDartment   or aaencv receivina          the forfeited
           vehicle   is deemed       to be     the ourchaser       and
           the certificate     of title shall be .issued to
           it as recuired     . . . .       (Emphasis added.)

V.T.C.S.     art.   4476-15,     55.08(c).

      It has been    suggest,ed that section       5.08(c) is     thus
inconsistent.   In   one   part of     the   subsection    political
subdivisions   are authorized    to maintain,     use, repair,     and
operate for    official    purposes     property    that   has    been
forfeited   to  them. Another     part of     the same    subsection
specifically   directs    that a    certificate    of   title for     a
forfeited motor     vehicle be    issued to      the department     or
aaency of a political     subdivision    receiving    the   forfeited
property   for  official    use,    if   such    a certificate       is
required by the Certificate      of Title Act, article        6687-1,
V.T.C.S.1

      We do not find that    the commands of section     5.08(C)
concerning   forfeited motor vehicles   to be inconsistent.    In
a somewhat different,    but nevertheless   relevant,   context
in Attorney.   General  Opinion   JW-678,   we   noted  that     a



    1. We express no opinion on the application       in fact of
the Certificate   of   Title   Act   or any    of the   statutes
dealing   with  motor   vehicle    registration    to   vehicles
forfeited  for official use in law enforcement.




                                   p. 4433
Honorable   Jerry   Cobb   - Page   4   (JM-899)




careful review     of  the     legislative    intent    undergirding
sections   5.07 and   5.08    of the   Controlled   Substances     Act
demonstrates   that

        [allthough   Section 5.07 provides     in  general
        terms that property may      be forfeited   to   [a
        political   subdivision]   section 5.08 provides
        that some of the forfeited      property  will   be
        distributed   to a   specific officer,     agency,
        or department    of a political   subdivision.

            . . .

        The oortions    of section 5.08 which      recuire
        distribution    of forfeited    orooertv    to   an
        office. individual   or law enforcement     aaencv
        provide    further  definition    of   the   court
        orders of forfeiture     authorized   bv   section
        5.07.    (Emphasis supplied.)

Attorney  General Opinion SM-678     (1987).    We note    further
that the legislative    history of-a     relevant  amendment      to
section 5.08(c) underscores    our   finding that the      statute
is not inconsistent   with regard    to this point.     In   1977,
section 5.08(c) was specifically     amended to have the       same
general meaning which was     retained   in the 1979    amendment
to   the   statute..  The   analysis   accompanying     the    1987
legislation   noted that the amendment

        allow[s]  courts to award forfeited       vehicles
        to the Department    of Public Safety or to anv
        other agency    or   unit of   government     which
        employs  the    officer    who   conducted      the
        seizure.

Bill Analysis    to  S.B.   No.   1033,    prepared     for   Senate
Committee  on Transportation,   65th    Leg. (1977 1 . See       Acts
1977, 65th    Leg., ch.   492, p.    1270.   See    ai1~0   Attorney
General Opinion JM-678.

      Section 5.08(c) designates        the department     or   agency
of .a political    subdivision     receiving   a   forfeited     motor
vehicle as the     proper entity-to      obtain a certificate        of
title, if necessary,       for vehicles    received    for    official
use, but the department      is "deemed to be the purchaser"         of
the vehicle   solelv for the ourooses      of the Certificate        Of
Title Act.    Nothing in the Controlled       Substances    Act vests
a department      or   agency     of   a political       subdivision
receiving   a forfeited   vehicle with any of the muniments          of
ownership   merely because it obtains a certificate           of title




                                p. 4434
      Honorable    Jerry   Cobb   - Page   5   (JM-899)




      to the vehicle.     A certificate     of title to a motor vehicle
      is not conclusive      proof of    the actual    ownership    of  the
      vehicle.    Pioneer   Mutual Comoensation       Co. v.    Diaz,   177
      S.W.Zd 202 (Tex. 1944).       The bare lanauaae of section 5.08
      of the   Controlled    Substances    Act,   which refers     to   the
      Certificate   of   Title Act,     thus   cannot be    construed    to
      grant to a subordinate      department   or agency of a political
      subdiv.ision general authority      to hold property     as an owner
      separate and apart from the political         subdivision   itself.

            Your second question     is   about the proper method        for
      the disposal    of a   forfeited motor vehicle       once it is     no
      longer useful to the law enforcement        department    or   agency
      operating   it.   Section 5.08     provides  for the disposal       of
      different   categories     of  forfeited    property     in   several
      different.ways.       First,   controlled   substances,      the   raw
      materials   used to    manufacture   controlled   substances,      and
      drug paraphernalia     are to be    disposed of as provided        for
      in section 5.08(a).      Second, all

                other   property     that    has   been    forfeited,
                except for     money    derived    from    the    sale,
                manufacture,       distribution,       dispensation,
P               delivery,   or   other    commercial     undertaking
                violative   of this     Act, Andy exceot as        nro-
                vided [in section 5.08(c)],        shall be sold at
                a public auction under the direction           of   the
                county sheriff     . . . .     (Emphasis added.)

      V.T.C.S.  art. 4476-15,  95.08(b).    Finally,   section 5.08(c)
      provides  that law enforcement     agencies or departments      of
      political  subdivisions  may   retain the forfeited     property
      to be used for official purposes.       V.T.C.S.  art.   4476-15,
      55.08(c).

               Section 5.08(b) provides         for public      auction of     all
      forfeited       property     exceot    "controlled      substances,      raw
      materials,      and drug paraphernalia,"          which are covered       by
      section 5.08(a),         and   property     retained      for   use   under
      section 5.08(c) by law enforcement             agencies or departments
      of political      subdivisions.       Since section 5.08(b)         specif-
      ically     excepts property       retained    for    official use     under
      5.08(c) from the requirement           of sale at public auction,         it
      follows that property         retained    for use by law       enforcement
      agencies      or departments     under    5.08(c) must be subject         to
      the Local       Government    Code’s    general provisions        ,for the
rc-   disposal      of surplus public property.

-              Attorney    General Opinions      JM-678   (1987) and  JM-550
      (1986)    provide    a   concise answer    to   your final   question,




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Honorable     Jerry     Cobb   - Page   6    (JR-899)




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:

           m     money,      securities,      certificates         of
           deposit,    negotiable       instruments,        stocks,
           bonds, businesses        or business       investments,
           contractual     rights,     real   estate,      personal
           prooertv   and other things of value, and              the
           proceeds   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    dewosited    in   a   soecial.
           fund   to    be   administered       bv    the   seizinq
           agencies   or office       to which     thev are      for-
           feited.    Except     as    otherwise      provided     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,   95.08(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).


                                 SUMMARY

               Section 5.08 of the Controlled         Substances
           Act,    article    4476-15,     V.T.C.S.,     provides
           that when motor vehicles        are forfeited       pur-
           suant to that act,        t0.a political      subdivi-
           sion    authorized     by   law    to   employ    peace
           officers,    and are received      for official      use
           by a department     or agency of that        political
           subdivision,     are received      for official      use
           by a department     or agency which has the          use
           of the vehicles.       Vehicles    forfeited    for use
           by a department       or   agency of     a political
           subdivision     are to be disposed      of in accord-
           ance with the Local Government          Code    govern-
           ing   the    disposition       of   surplus      public
           property.     The   proceeds      from the     sale    of
           property    forfeited     for   official use      by    a




                                    p. 4436
Honorable   Jerry    Cobb    - Page     7     UM-899)




        department or agency     of a political    subdi-
        vision are to be placed in the special       fund
        described  in    section     5.08(f)    of    the
        Controlled Substances   Act.




                                                JIM      MATTOX
                                                Attorney  General   of Texas

MARY KELLER
First Assistant     Attorney     General

LOUMCCRBARY
Executive   Assistant       Attorney        General

JUDGE ZOLLIE STEAELEY
Special Assistant  Attorney            General

RICE GILPIN
Chairman,  Opinion      Committee

Prepared by Don Bustion
Assistant Attorney General




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