                             QBffice of the !Zlttornep @enera
                                            Mate      of Qexae
DAN MORALES                                 December 31,199l
 ATTORNEY
      GENERAL



     Honorable Ted B. Lyon                              Opinion No. DM-72
     chairman
     Criminal Justice Committee                         Re: Whether the Dallas City Council
     Texas State Senate                                 may control the use of funds confiscated
     P. 0. Box 12068                                    pursuant to the asset forfeiture law
     Austin Texas 78711                                 (RQ-114)

     Dear Senator Lyon:

            You ask tvbether the Dallas City Council has 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, are to be
     spent.1 With the limited exception of certain funds which may be transferred to the
     control of the city council under a new provision of the asset forfeiture law, we do
     not believe the council has authority to determine the purposes for which forfeiture
     funds are to be spent.

             Article 59.06 of the Code of Criminal Procedure provides in pertinent part:

                      (a) All forfeited property shall be administered by the
                 attorney representing the state.. . in accordance with accepted
                 accounting practices and with the provisions of any local


               l~he queJtit~~1presentedin yourrequestliterallyasked “whether or not the City Council can
     force the use of cordiicatedfundsinto the Dcpqrtment’regular  s     operating budget.” We understand
     your ccmcc~, however, to be with the locus of the legal authority to determioc the porpose~ for which
     forfeiture funds are to be spent, rather than with the rubric under which such funds may be classed for
     the internal admiaistrative purposes of the City of Dallas and the Dallas Police Department, and
     accordingly, treat that question here.




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Honorable Ted B. Lyon - Page 2             (DM-72 )




           agreement* entered into between the attorney representing the
           state and law enforcement agencies. . . .

                . . . .


                (c) If a local agreement exists between the attorney repre-
           senting 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, shall be
           deposited according to the terms of the agreement into one or
           more of the following funds:

                . . . .


                (2) a special fund in the municipal treasury if distributed to
           a municipal law enforcement agency, to be used solely for law
           enforcement purposes, such as salaries and overtime pay for
           officers, officer training, specialized investiga-tive equipment
           and supplies, and items used by officers in direct law
           enforcement duties.

                . . . .


                (d) Proceeds awarded under this chapter to a law
           enforcement agency.. . may be. spent by the agency.. . after a
           budget for the expenditure of the proceeds has been submitted
           to the . . . governing body of the municipality. . . . A. . . govem-
           ing body of a municipality may not use the existence of an award
           to offset or decrease total salaries, expenses, and allowances that
           the agency. . . receives from the . . . governing body at or after
           the time the proceeds are awarded. The head of the
           agency... may not use the existence of an award to increase a
           salary, expense, or allowance for an employee of the.. . agency



        b‘rac applicable portioo of the local agreement entered into by the Dallas County Criminal
Diseict Atloraey, the Cii of Dallas, and the Dallas Police Department merely states: “In accordance
with Adele 59.06(c)(2), C.C.P., all money and prccceds from the sale of contraband received by the
CITY/DPDshallbe~~tedinaspceialfundintheCityT~~tobcusedbytheDallaJPoliec
Department solely for law enforcement purposes.’




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Honorable Ted B. Lyon - Page 3                (DM-72)




           who is budgeted by the . . . governing body unless the . . . govem-
           ing body first approves the expenditure.

Code Crim. Proc. art. 59.06; Acts 1991, 72d Leg., ch. 312, # 2, at 1348 (amending
Code Crim. Proc. art. 59.06(c)) (footnote added).

         In our opinion, the above-quoted provisions, taken together, contemplate
that it is the law enforcement agency -- in this case the Dallas Police Department --
and not the governing body -- here, the Dallas City Council -- that is to determine
the law enforcement purposes to which forfeiture funds are to be put. See Code
Crim. Proc. art. 59.01(4) (defining “p]aw enforcement agency” for purposes of
chapter 59 to include “an agency of the state or an agency of a political subdivision
of the state authorized by law to employ peace officers”). The provisions clearly
indicate that forfeiture funds are considered as being “awarded to” or “distributed
to” and “spent by” the law enforcement agency, not the governing body. Although
subsection (d) requires that the law enforcement agency submit a budget for
forfeiture fund expenditures to the governing body, and that certain items thereof --
increases of “salary, expense, or allowance” for agency employees “budgeted by
the . . . goveming body” --be “approved” by the governing body, these provisions do
not give the governing body the authority to determine the purposes for which
forfeiture funds are to be spent. To the contrary, by specifying the role the
governing body is to play in receiving the agency’s forfeiture fund budget and
approving certain items thereof, the provisions indicate that the governing body’s
authority is limited to that specified.3


         3We note that the language in subsection (c), subpart (2), of article 59.06 beginning “such as
salaries and overtime pay for officers” and continuing to the end of subpart (2) was added in 1991 by
section 2 of House Bill 1185. Acts 1991, 72d Leg., ch. 312, 5 2, at 1348. Section 3 of House Bill 1185
states: “The change in law made by Section 2. . . applies only to funds deposited in the municipal
treasury on or after the effective date of this Act. Funds deposited before the effective date of this Act
are covered by the law in effect when the foods were deposited, and the former law is continued in
effect for tbis purpose.” Section 5 provides that House Bii 1185 takes effect September 1, 1991. We
understand from the Dallas Police Association that some of the foods at issue were deposited before
the September I effective date. However, whatever the scope of the “change in law” made by section 2,
we do not believe it changed the locus of authority to determine the law enforcement purposes to
which forfeiture funds wcrc to be applied. In oar opinion, both prior and subsequent to the
amendment of subsection (c)(2) by House Bill 1185, article 59.06 has contemplated that it is the law
enforcement agency, not the governing body, that is to determine the law enforcement purposes to
which forfeiture funds arc to be put. See also Attorney General Opinion JM-678 (1987) (under
predecessor provision, section 5.08(f) of article 4476-15, V.T.C.S., money forfeited to city is to be
administered by police department).




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Honorable Ted B. Lyon - Page 4       (DM-72)




        We note, however, by way of exception to our conclusion, the 1991 addition
to article 59.06 of a new subsection (h), providing that “on agreement between the
attorney representing the state or the head of a law enforcement agency and the
governing body of a political subdivision,” the attorney or head of the agency “shall
comply with the request of the governing body to deposit not more than a total of 10
percent of the gross amount credited to the attorney’s or agency’s fund into the
treasury of the political subdivision” to be spent by the governing body on specified
kinds of drug abuse prevention, treatment, or rehabilitation programs. Acts 1991,
72d Leg., ch. 312, 8 1, at 1347. While we do not understand your request to be
concerned with such transfers of funds under these new provisions, we feel
compelled to qualify the conclusion we reach here by noting that it is clear that a
law enforcement agency would lose control over any funds initially distributed to it
and then transferred to the city governing body under new subsection (h). In such
cases, the city governing body would acquire authority to determine, within the
parameters of subsection (h), the uses to which such funds might be put. With the
exception of funds transferred to the city governing body under subsection (h) of
article 59.06, however, it 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.

                                  SUMMARY

              Except for funds transferred to the city governing body
         under subsection (h), it is the law enforcement agency to which
         forfeiture 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 forfeiture funds
         are to be spent.

                                                   Very truly yours,




                                                   DAN      MORALES
                                                   Attorney General of Texas




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Honorable Ted B. Lyon - Page 5       (~~-72)




WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kay Guajardo and William Walker
Assistant Attorneys General




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