                     Gffice of ttp Bttornep 43eneral
                                 &date of Cexas
                                 September 8,1992


Ms. Phyllis Massey                        Opinion No. DM-162
DewittCounty Auditor
307 N. Gotualcs St.                       Re: Whether the provisions of article
Cuero, Texas 77954                        59.06(c) of the Code of Criminal
                                          Procedure, directing that certain forfeited
                                          property be deposited in “special funds in
                                          the county treasury,” require that such
                                          funds be deposited with the county
                                          treasurer for placement in the county
                                          depository (RQ-352)

Dear Ms. Massey:

        Chapter 59 of the Code of Criminal Procedure provides for state seizure and
forfeiture of property used in-or proceeds gamed from, the commission of certain
crimes. The prosecutor with felony jurisdiction iu the county in which the forfeiture
proceeding is held, referred to in chapter 59 as the “attorney representing the state,
administers forfeited property and may by local agreement” disuiiute such
property to various law enforcement agencies or to his own office for use for official
purposes. Code Crim. Proc. arts. 59.01.59.06. Article 59.06(c) provides with respect
to the disposition of certain forfeited property as follows, in pertinent part:

                    If a local agreement exists between the attorney
          representing the state and law enforcement agencies, all money,
          securities, negotiable instruments, stocks or bonds, or things of
          value. or proceeds from the sale of those items, shag be
          deposited according to the terms of the agreement into one or
          more of the fohving fun&

                    (1) a special /wrd in the caulty mmwy for the benefit
               of the office of tbe attorney representing the state, to be
               used by the attorney solely for the official purposes of his
               office;




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Ms.PhyUisMassey    - Page 2            KX+162)




                  (3) aqecialfundinrhecovatyecrwryifdisuibutedto
              a county law enforcement agency, to be used solely for law
              enforcement purpo~      lEmphases added.]

        We tmderstand you to ask whether the provisions of article 59.06(c). that
forfeiture funds be depoaited iu a ‘special fhxl in the county weasury: subject suck
funds to the general requiremen regarding tbe deposit of county funds in the
county depository. While we catmot anticipate all issues that may arise with respect
to the handling of these forfeiture fun& it is our opinion that the plain language of
the above-quoted provisions of chapter 59 of the Code of Ctimi~I Procedure,
contemplates that the funds will be deposited io tbe county depository in accordance
with the statutory provisions generally governing the handling of comty funds. See
a&o cg., Attorney General Opinion DM-72 (1991) (law enforcement agency to
which funds are distriiuted has authority to determine puqoses to which forfeiture
funds are applied).

         Section 113.021 of the Local Govemment Code provides that the “funds and
other money belo@.ug to a county shall be deposited with the county treasurer by
the officer who collects the money” and that the ‘county rxeasurer shall deposit the
money in the county depository in a special fund to the credit of the officer wbo
collected the money? See Letter Opinion No. 92-7 (1992). Even if the forfeiture
funds in question here have the chamcter of state funds1 and not -money belonging
to the county,” as provided for in section ll3.021, we believe that the plain language
of article 59.06(c)(l) and (3), specific to the deposit of forfeiture funds, indicates
that they are to be deposited in the manner in which ‘money belonging to the
count is deposited. See gowu& S&#e v. SSO,600.~ 800 S.W2d 872 (Tea. App.-
 San Antonio 1990, writ denied) (county treasurer authorized to receive and deposit
 forfeiture fuuds under former forfeiture laws).

        Nor do we believe that a distinction in the manner of depositing the
forfeiture funds in question may be made depending on whether the funds deposited
in the ‘Ispecial fund in the county treasmy” under article 59.06(c) are for the use of a




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Ms. Phyllis Massey - Page 3            W-162)




county or non-county agency. While the requirement that forfeiture funds
“distributed to a county law enforcement agemy” under subpart (3) of article
59.06(c), be deposited in “a special fund in the county treasury,” might more
obviously be taken to refer to the Local Government Code provisions for the
handling of county funds, we believe that the use of the identical language in
subpart (1) of artide 59.06(c) providing for the deposit of fuuds ‘for the benefit of
the office of the attorney representing the m’ who will generally be a district or
aiminal district attorney, indicates that the article contemplates that deposits under
subpans (1) and (3) will be effected in essentially the same manner.

        We note ton that other provisions of state law requiring the deposit of funds
in the county depository are not limited in their reach to spec&ally “county funds
or county officers. Chapter 116 of the Local Government Code provides for the
selection of a county depository and the taZng of bonds or other security from the
depository institution for the protection of the funds to he kept there. Section
116.002 of chapter 116 directs that ‘money collected or held by a disuic& county, or
precinct officer in a county . ..shall be deposited under this chapter . . . mbe
money shall be considered in fixing, and is protected by, a county depository’s bond.”
See a&o Local Gov’t Code 0 140.003 (requiring %pecialiaed local entities,” defined
to include district and crimmal district attorneys, to deposit “funds the entity
receives” “in the county treast#).       Compuw Code Crhn Proc. art. 103.004
(requiring various county and district officers who collect gobligations recovered in
the name of the state’ to deposit such money with the county treasurer for deposit in
a special fund in the county treasury).

        We aLso note that the legislature, in the chapter 59 forfeiture provisions, has
made different provisions for the handling of funds which have been seized but’for
which no judgment concerning forfeiture has yet been rendered. See Code Grim.
Proc art. 59.08 (providing that such money may be deposited “m an interest-bearing
bank account in the jurisdiction of the attorney representing the state”). If the
legislature had intended that already forfeited funds under article 59.06 were to be
handled in a manner different from that in which funds to be deposited in the
county treasury are generally ha&led, we think it would have speci6cally provided
for such rather than simply direct that they are to ‘deposited.. . in a special fuud in
thec&mtytreasury~       Also,inviewofthesuchlanguage,wewouldbechasyof
construing the provisions of article 59.M so as to permit the deposit of forfeiture
funds without the protection of the bonds or other security which Local Government
Code chapter 116 directs the county to obtain from the depository institution for the
safeguarding of funds placed in the couuty depository.


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Ms. Phyllis Massey - Page 4            M-162)




       Accordingly, it is our opinion that the provisions of artide 59.06(c) of the
Cucle of tXminal Procedure providing for the deposit in ‘special ftmd(s] in the
county treasury” of forfeiture funds disuiiuted to the office of “the attorney
representiug the state” and kounty law enforcement agencies,* contemplate that
those funds will be deposited with the cmmty treasurer for placement in the county
depusitory in the manner in which county fuuds are generally handled




               The provisions of article 59.06(c), of the Code of Criminal
           hxedure,    providing for the deposit in ‘special funds in the
           county treasury” of forfeiture funds dism%uted to the office of
           *the attorney representing the state” and kamty             law
           enforcement agenci-g contemplate that those funds will be
           deposited with the aamty treasurer for placement in the county
           depository in the manner in which couty fimds are generally
           handled




                                                 DAN      MORALES
                                                 Attorney General of Texas

WILL PRYOR
Fit   Assistant   Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENEAHICKS
Spedal Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opiion Committee

Prepared by William Walker
Assistant Attorney General



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