   OPP,CEOFTHE Arron~~vGENERAL.STATEOF TEXAS
   JOHN CORNYN




                                             July 6, 1999



The Honorable B. J. Shepherd                     Opinion No. JC-0075
District Attorney
220th Judicial District                          Re: Permissible methods of disposing of property
P.O. Box 368                                     forfeited to the state under chapter 59 ofthe Code of
Meridian, Texas 76665                            Criminal Procedure       (RQ4027)


Dear Mr. Shepherd:

         You have asked this office whether certain methods of disposing of property forfeited to the
state pursuant to chapter 59 of the Code of Criminal Procedure are permissible.      Specifically, you
ask whether you are required to sell a “tract of almost 50 acres of land” and a 1992 Ford Mustang
by sheriffs auction, or whether you may choose another method you believe likelier to yield the
greatest net proceeds. In light ofthe fact that the requirement of sale by sheriffs auction exists “[i]f
a local agreement has not been executed,“T~~. CODECRIM. PROC. ANN. art. 59.06(a) (Vernon Supp.
1999), and that as you inform us you, the Sheriff of Bosque County, and the Department of Public
Safety have entered into such an agreement, it is our view that you are not required to dispose of the
property by sheriffs auction. Rather, we believe that so long as you administer the property in
accordance with accepted accounting practices and with the provisions of your local agreement, you
have the discretion to decide how to dispose of it most advantageously.

        Article 59.06(a) of the Code of Criminal Procedure provides in relevant part:

                [A]11 forfeited property shall be administered         by the attorney
                representing the state, acting as the agent of the state, in accordance
                with accepted accounting practices and with the provisions of any
                local agreement entered into between the attorney representing the
                state and law enforcement agencies. If a local agreement has not been
                executed, the property shall be sold on the 75th day after the date of
                the final judgment of forfeiture at public auction under the direction
                of the county sheriff, after notice ofpublic auction as provided by law
                for other sheriffs sales.

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

        This office considered article 59.06(a) in Letter Opinion 97-091. In that opinion, we
concluded that “[t]he intent of subsection (a) is clearly to provide that the disposition of forfeited
The Honorable   B. J. Shepherd    - Page 2         UC-0075)




property will be governed by the terms of an existing local agreement in the first instance.” Tex.
Att’y Gen. LO-97-091, at 2. The opinion further described the sheriffs auction as a “fallback
method.” Id.

         In the instant case, you have informed us that your office has entered into a local
agreement with the Bosque County Sheriff and the Department of Public Safety. Letter from
Honorable B. J. Shepherd, District Attorney, 220th Judicial District to James Tourtelott, Assistant
Attorney General, Opinion Committee (Mar. 9,1999) (on file with Opinion Committee). That being
the case, article 59.06(a) does not require you to sell the forfeited property by sheriffs auction, but
rather gives you the discretion to administer the property “in accordance with accepted accounting
practices and with the provisions of any local arrangement.”         TEX.CODE GRIM.PROC.ANN. art.
59.06(a) (Vernon Supp. 1999).

         You also express concern with the suggestion in State v. One Thousand Dollars in U.S.
Currency, 865 S.W.2d 164, 166 (Tex. App.-Corpus Christi 1993, writ denied), that you have
“seventy-five days in which to dispense with the forfeited property pursuant to the local agreement.”
Id. at 166. In your view, “such a deadline [does not] exist[] where the sale is to be made in
accordance with a local agreement.” Letter from Honorable B. J. Shepherd, District Attorney, 220th
Judicial District, to the Opinion Committee, Office of the Attorney General 2 (Feb. 24, 1999) (on
tile with Opinion Committee). We concur. The issue in State v. One Thousand Dollars, as well as
in its companion case, State v. Twenty Thousand Four Hundred Eighty in U.S. Currency, 865
S.W.2d 175 (Tex. App.-Corpus Christi 1993, writ denied), was whether a local agreement needed
to be in place before a trial court forfeited contraband to the district attorney. In both cases, the court
of appeals concluded that such an agreement did not need to be in place before property could be so
forfeited. Id. Accordingly, the statement which concerns you is merely dicta. The seventy-day
provision in article 59.06(a) refers specifically to a situation in which a local agreement has not been
executed, and is therefore irrelevant here.

         Further, we agree with your conclusion that property forfeited pursuant to article 59.06
is, generally, forfeited to the state, see TEX.CODE CFUM.PROC.ANN. art. 59.06(f) (Vernon
Supp. 1999) and that consequently chapter 263 of the Local Government Code, concerning the
disposition of county surplus property, does not apply here. See Tex. Att’y Gen. LO-97-091,
at 3 (“A final judgment of forfeiture under this chapter perfects the title of the state to
the property.       .“) (emphasis added). We note that Letter Opinion 97-091 raises, but does not
answer, the question ofwhether those automobiles transferred to the sheriff for official use pursuant
to article 59.06(b) may be subject to chapter 263. Id. However, given that it does not appear from
your letter that such is the case with the 1992 Ford Mustang at issue here, we need not resolve that
issue at this time.

         We note finally that you ask us to describe any special procedures or record-keeping
necessary here. We know of no special procedures required by statute. The question of what
constitutes accepted accounting practices in a particular case is better addressed, in the first instance,
by the relevant county auditor.
The Honorable   B. J. Shepherd    - Page 3        (X-0075)




                                         SUMMARY

                         Given that the District Attorney for the 220th Judicial District
                has executed a local agreement with the Bosque County Sheriff and
                the Department of Public Safety, article 59.06(a) of the Code of
                Criminal Procedure does not require the sale ofthe property forfeited
                pursuant to chapter 59 of that code to be conducted by sheriffs
                auction.




                                                JO&      CokNYN
                                                Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by James E. Tourtelott
Assistant Attorney General
