   OFFICE   OF   THE   ATTORNEY   GENERAL STATEOFTEX,.S
   JOHN      CORNYN




                                              February 26, 1999



The Honorable Judith Zaffirini                                Opinion No. X-0005
Chair, Human Services Committee
Texas State Senate                                            Re: Purchase of      vehicles by Laredo
P.O. Box 12068                                                Police Department    with forfeiture funds
Austin, Texas 78711                                           received pursuant   to article 59.06(c) of
                                                              the Code      of    Criminal     Procedure
                                                              (RQ-1160)



Dear Senator Zaffbini:

        You have asked this office to consider the question ofthe purchase ofvehicles by the Laredo
Police Department from forfeiture mnds distributed to it pursuant to article 59.06 of the Code of
Criminal Procedure. As we understand it from a briefprepared by the Laredo City Attorney’s office
which you submitted with your request, two related questions are at issue here. First, may the
Laredo City Council require the police department to purchase vehicles from such forfeiture funds?
Second, and more fundamentally, may such funds be used to purchase vehicles at all?

        Following Attorney General Opinion DM-72, we answer the first question in the negative.
The purposes for which such funds are to be spent are generally to be determined by the law
enforcement agency to which they are distributed, not by the governing body of the city. As to the
second question, based on the relevant legislative history, we conclude that the police department
may, if it so chooses, use forfeiture funds to purchase vehicles. In short, the police department may
expend the funds for this purpose, but the city council cannot compel it to do so.

         As we understand it, the Laredo City Council has for at least the last five years declined to
purchase vehicles from the city’s general revenue fund, but has instead directed the police chief to
purchase them from funds and property forfeited as contraband-generally,         we assume, funds and
property seized in narcotics investigations. The first question, therefore, with respect to article 59.06
forfeiture funds is whether the governing body of the city may direct or restrict the use of such funds.

        Essentially the same question was posed to and answered by this office in Attorney General
Opinion DM-72. In that case, the question was whether the Dallas City Council had “authority to
determine the purposes for which funds distributed to the Dallas Police Department pursuant to the
asset forfeiture law, chapter 59 of the Code of Criminal Procedure, [were] to be spent.” Tex. Att’y
Gen. Op. No. DM-72 (1991) at 1.
The Honorable   Judith Zafftrini   - Page 2        (JC-0005)




         The opinion concluded that with the single exception of funds earmarked by article 59,06(h)
for the city to spend on certain drug abuse prevention, treatment, and rehabilitation programs, asset
forfeiture funds distributed under article 59.06 generally were under the control of the law
enforcement agency to which they had been awarded. That being the case, the disposition of such
funds was a matter for the police department, and not for the city council: “[IIt is our opinion that
it is the law enforcement agency to which funds are distributed under article 59.06, and not the
governing body of the city, that has the authority to determine the law enforcement purposes for
which such funds are to be spent.” Id at 4.

         Following Attorney General Opinion DM-72, then, we conclude that the Laredo City Council
may not compel the Laredo Police Department to purchase vehicles from asset forfeiture funds
distributed to it pursuant to article 59.06 of the Code of Criminal Procedure.

         While we agree, therefore, with the view taken by the Laredo City Attorney’s office of the
first question presented, we do not agree with its contention that the police department, even if it
wishes to, may not expend these funds to purchase vehicles. The argument in the brief you have
submitted to us rests upon a reading of article 59.06(c)(2). While that reading is to some degree
persuasive in the abstract, in our view it is confuted by the legislative history of article 59.06(c)(2).

         Article 59,06(c)(2) mandates that in the event that there is a local agreement for distribution
of forfeiture funds to a municipal law enforcement authority, such funds are

            to be used solely for law enforcement purposes, such as salaries and overtime
            pay for offricers, officer training, specialized investigative equipment and
            supplies, and items used by officers in direct law enforcement duties.

TEX.CODE GRIM.PROC.ANN. art. 59.06(c)(2) (Vernon Supp. 1999).

        The city attorney’s brief notes correctly that the enumerating clause modifying “law
enforcement purposes” appears only in the subsection dealing with municipal law enforcement
agencies and is not to be found in subsection (c)(3) covering county agencies, or in subsection (c)(4)
concerning state agencies.     Employing the rule of ejusdem generis, the brief argues that the
enumerated purposes are not of such a kind that the purchase of vehicles may be included among
them.

         This argument has some merit in the abstract. We would agree that vehicles are not
substantially similar to salaries, training, or specialized equipment. However, this argument is belied
by the legislative history of article 59.06.

        Article 59.06(c) was amended by the Seventy-second Legislature in 1991. The amendments
were contained in House Bill 1185. As passed by the House of Representatives, the restrictive
language at issue here was yet more straitened and specifically forbade vehicle purchases, adding to
the present statutory language the words “but not for the purchase of facilities, vehicles, offtce
The Honorable   Judith Zaffrrini   - Page 3       m-0005)




supplies, or office equipment.” This language was struck in the Senate. A colloquy at a public
hearing of the Senate Committee on Criminal Justice on May 14, 1991, establishes the context.

         Senator Eddie Lucia proposed the striking of this language, saying, “Police chiefs will sign
off on this bill if we did that.” Testifying on the matter was Mr. James McCarley, the Vice President
of the Texas Police Chiefs Association.        Mr. McCarley said, “We do support the bill with the
amendment Senator Lucia’s [proposed] to make sure there’s no exclusion about the use ofthe other
funds.” He was thereupon questioned by Senator Lyon, the chairman, as follows:

           Chair: What you’re worried about is “but for.        _”

           McCarley:     Which would exclude use of.

            Chair: Facilities, vehicles, et cetera. Okay

            McCarley:    And that’s a common     use, as you well know, in narcotics and
            undercover   operations.

            Chair: All right.

Hearings on Tex. H.B. I185 Before the Senate Comm on Criminal Justice, 72d Leg., R.S. (May 14,
1991) (audio tape available from Senate Staff Services Office).

         The evidence of this colloquy and the consequent excision of the clause in question indicate
the legislature’s intent that forfeiture funds may be used for the purchase of vehicles. While it might
appear, based on this exchange, that the vehicles the legislature had in mind were of the sort used
in undercover narcotics operations rather than the traditional police cruiser or squad car, we do not
believe that the purchase of a squad car is barred as a matter of law given the discretion vested in the
law enforcement agency under chapter 59. Any such purchase is, as we have said, a decision for the
police department, and not the city council, to make.
The Honorable   Judith Zaffirini   - Page 4     (JC-0005)




                                        SUMMARY

               The Laredo City Council has no authority to require the Laredo Police
           Department to purchase vehicles with forfeiture funds distributed to it
           pursuant to article 59.06 of the Code of Criminal Procedure. The Laredo
           Police Department may, however, purchase vehicles from such funds should
           it wish to do so.




                                              Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by James Tourtelott
Assistant Attorney General
