                              ATTORNEYGENERAL                     OF    TEXAS
                                           GREG        ABBOTT




                                               January 252005



The Honorable Robert E. Talton                           Opinion No. GA-0298
Chair, Urban Affairs Committee
Texas House of Representatives                           Re: Whether a Texas inmate violates the Texas
Post Office Box 2910                                     forfeiture statute by selling his artwork on an
Austin, Texas 78768-2910                                 Internet website (RQ-0252-GA)


Dear Representative     Talton:

        You ask whether an inmate who sells artwork on an Internet website thereby violates articles
59,01(7)(B) and 59.06(k)(2) ofthe Code of Criminal Procedure concerning the forfeiture of certain
proceeds.’ See TEX. CODE GRIM. PROC. ANN. arts. 59.01(7)(B), 59.06(k)(2) (Vernon Supp. 2004-
05). Your question was prompted by the situation of James V. Allridge III, who was convicted and
sentenced to death for killing a clerk in a 1985 convenience store robbery. See Request Letter, supra
note 1, at attachment.* During his incarceration, Allridge sold his original artwork on an Internet
website for prices ranging from $10 for a box of greeting cards to $465 for a large print. See
Horswell, supra note 2.

         Chapter 59 ofthe Code of Criminal Procedure governs forfeiture of confiscated contraband.
See TEX. CODE GRIM. PROC. ANN. arts. 59.01-.14 (Vernon Supp. 2004-05).                  Property that is
contraband under the chapter is subject to seizure. See id. arts. 59.02(a), 59.03(a). If a district court
determines after a hearing that property is contraband, the court may order property forfeited to the
state. See id. art. 59.05(e). Forfeiture under the chapter is a civil proceeding, and to prevail the state
must prove by a preponderance of the evidence that the property in question is contraband subject
to forfeiture. See id. art. 59.05(a)-(b). Contraband subject to forfeiture includes property of any
nature that is “the proceeds gained from the commission” of certain felonies or a crime of violence
or is acquired with such proceeds. Id. art. 59,01(2)(A)-(D). The Code defines “proceeds” to include
certain post-crime income:


          ‘SeeLetterfromHonorableRobert E. T&on, Chair,UrbanAffairsComminee,TexasHouse ofRepresentatives,
to Honorable Greg Abbott, Texas Attorney General (July 29,2004) (on file with opinion Committee, also available nt
http:ll~.oag.state.tx.us) @ereinafierRequest Letter].

        ‘Allridge remained on death IOWfor 17 years, until he was executed on August 26,2004. Michael Graczyk,
Artist inmate executed in clerk’s death /Last-day appealfor a stay is denieddespite supportfrom celebrities, HOUSTON
CHRONICLE,    Aug. 27, 2004, available at 2004 WL 83662655; Cindy Horswell, Victims advocate sws a test case in
inmate’s artwork/He soy3 a law confiscatingprofits   of ‘murderabilia’shouid be enforced, HOUSTONCHRONICLE,     Aug.
2,2004, available at 2004 WL 83654837 [hereinafter Horswell].
The Honorable Robert E. Talton           - Page 2            (GA-0298)




                (7) “Proceeds” includes income a person accused or convicted of a
                crime or the person’s representative or assignee receives from:

                            (A) a movie, book, magazine article, tape recording,
                            phonographic record, radio or televisionpresentation,
                            telephone service, electronic media format, including
                            an Internet website, or live entertainment in which the
                            crime was reenacted; or

                            (B) the sale of tangible property the value ofwhich is
                            increased by the notoriety gained from the conviction
                            of an offense by the person accused or convicted of
                            the crime.

Id. art. 59,01(7)(A)-(B).

         Your question focuses on article 59.01(7)(B), which provides for forfeiture of income from
the sale of property having a certain notoriety value. In 2001, the legislature added article
59.01(7)(B) to the Code when it enacted Senate Bill 795. See Act ofMay 1,2001,77th Leg., RX,
ch. 124, 5 I,2001 Tex. Gen. Laws 277, 277. Senate Bill 795 also added article 59.06(k)(2) to the
Code, which provides specially for the proceeds’ disposition. See id. 5 2,200l Tex. Gen. Laws at
277 (adding TEX. CODE GRIM.PROC.ANN. art. 59.06(k)(2)). Under article 59.06(k)(2), the attorney
representing the state who administers forfeited property must transfer to the attorney general an
amount that, in essence, represents the property’s increase in value due to notoriety gained from the
conviction of the person accused or convicted. See TEX.CODE GRIM.PROC.ANN. art.            59.06(k)(2)
(Vernon Supp. 2004-05)’ The attorney representing the state must transfer “to the owner of the
property” an amount representing the fair market value of similar property that does not have added
notoriety value. Id.




        ‘Article 59.06(k)(2) provides:

                The attorney for the state shall transfer to the attorney general all income from the
                sale of tangible property the value of which is increased by the notoriety gained
                from the conviction of an offense by the person accused or convicted of the crime,
                minus the deduction authorizedby this subdivision. The attorneyfor the state shall
                determine the fair market value of property that is substantially similar to the
                property that was sold but that has not been increased in value by notoriety and
                deduct that amount from the proceeds of the sale. After transferring income to the
                attorney general, the attorney for the state shall transfer the remainder of the
                proceeds of the sale to the owner of the property. The attorney for the state, the
                attorney general, or a person who may be entitled to claim money from the escrow
                account described by Subdivision (3) in satisfaction of a claim may at any time
                bring an action to enjoin the waste of income described by this subdivision.

TEX.CODEGRIM.PROC.ANN.art. 59.06(k)(2) (Verrmn Supp. 2004-05).
The Honorable Robert E. Talton      - Page 3          (GA-0298)




        The attorney general deposits such transferred income into an escrow account where the
funds are held for crime victims who obtain a judgment against the perpetrator for damages caused
by the crime. See id. art. 59.06(k)(3). After five years, the attorney general transfers any amounts
that have not been ordered paid to a specific victim to the “compensation to victims of crime fund.”
Id.

         You ask whether Alhidge’s Internet sales “violate” Senate Bill 795. Request Letter, supra
note 1, at 1. However, the term “violate” is not entirely appropriate in the context of chapter 59
forfeiture. A forfeiture proceeding under the Code is a civil, in rem action against property. See
Hardy v. State, 102 S.W.3d 123,126-27 (Tex. 2003). Forfeiture under the chapter is intended to be
remedial.    See TEX. CODE GRIM. PROC. ANN. art. 59.02(e) (Vernon Supp. 2004-05).               Strictly
speaking, article 59,01(7)(B) does not proscribe conduct as a violation of law and does not prohibit
Internet sales of an inmate’s artwork. Rather, the article establishes a post-sale remedy, which is that
sales proceeds may be forfeited as contraband under the Code. Consequently, the more pertinent
question is whether income from Internet sales of an inmate’s artwork could be proceeds subject to
forfeiture under article 59.01(7)(B).

          No court has construed article 59,01(7)(B), but its plain language suggests questions of fact
or mixed questions of fact and law. The article authorizes forfeiture of certain proceeds that are
“income a person accused or convicted of a crime or the person’s representative or assignee receives
from       the sale of tangible property the value of which is increased by the notoriety gained from
the conviction of an offense by the person accused or convicted of the crime.” Id. art. 59.01(7)(B).
From the information you have provided, it seems likely that a tinder of fact could conclude that a
sale of tangible property has occurred and that Alhidge attained a measure of notoriety. Article
59.01(7)(B) requires the state to establish that the value of property sold “is increased by the
notoriety gained from the conviction of an offense by the person accused or convicted of the crime.”
Id. art. 59.01(7)(B). Thevalue ofpropertyisinherentlya      fact question. See Polk Countyv. Tenneco,
Inc., 554 S.W.2d 918, 923 (Tex. 1977) (market value is a question of fact). Consequently, a
forfeiture proceeding under article 59,01(7)(B) would require evidence that the value ofthe property
was increased by notoriety gained from Alhidge’s conviction, among other things. See TEX. CODE
GRIM. PROC. ANN. art. 59.01(7)(B) (Vernon Supp. 2004-05). Additionally, the attorney for the state
would be required to transfer “to the owner of the property” the amount of proceeds representing
the fair market value of similar property whose value has not increased due to notoriety. Id. art.
59.06(k)(2).

         Fact questions cannot be resolved in an attorney general opinion. See Tex. Att’y Gcn. Op.
No. GA-0003 (2002) at 1 (stating that the opinion process does not determine facts). Consequently,
the opinion process cannot resolve whether income from the sale ofMr. Alhidge’s artwork over the
Internet is contraband pursuant to article 59.01(7)(B) of the Code and thus subject to forfeiture.
The Honorable Robert E. Talton     - Page 4        (GA-0298)




                                       SUMMARY

                        Article 59.01(7)(B) of the Code of Criminal Procedure
               provides for forfeiture of certain income from “the sale of tangible
               property the value of which is increased by the notoriety gained from
               the conviction of an offense by the person accused or convicted of
               the crime.” TEX. CODE GRIM. PROC. ANN. art. 59.01(7)(B) (Vernon
               Supp. 2004-05). Whether such income constitutes proceeds subject
               to forfeiture depends upon the resolution of fact questions.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
