                                          GREG
                                                0
                              ATTORNEY GENERAL OF TEXAS
                                                      ABBOTT


                                                May 20,2014



The Honorable John T. Hubert                                  Opinion No. GA-l 059
Kleberg and Kenedy Counties District Attorney
Kleberg County Courthouse                                     Re: Whether Code of Criminal Procedure
Post Office Box 14 71                                         article 59.06 authorizes a district attorney
Kingsville, Texas 78364                                       to use asset forfeiture funds in specific
                                                              circumstances (RQ-1166-GA)

Dear Mr. Hubert:

        You ask whether your office may use asset forfeiture funds under article 59.06 of the
Code of Criminal Procedure to "purchase a building and land in [your] county, and subsequently
rent and/or lease the building and land back to the county or other law enforcement agency" 1 and
comply with article 59 .06(c)(I)'s requirement that the funds "be used solely for the official
purposes of [your] office." TEX. CODE CRIM. PROC. ANN. art. 59.06(c)(l) (West Supp. 2013).
You tell us that the property for sale is adjacent to the courthouse and consists of a main
building, a vehicle storage building, and an asphalt paved parking lot. See Request Letter at 2.
You explain that Kleberg County would rent or lease the parking lot for use by "juries, grand
juries, witnesses and the general public" when accessing the courthouse. /d. You also indicate
that the Texas Department of Public Safety ("DPS") would potentially "lease part of the land
and/or building" to house its Kingsville Highway Patrol office. /d. at 2-3.

        Article 59.06 of the Code of Criminal Procedure governs the disposition of property used
in the commission of certain criminal offenses and forfeited to a law enforcement agency. See
TEX. CODE CRIM. PROC. ANN. art. 59.06 (West Supp. 2013). Article 59.06 authorizes the
attorney representing the state2 to administer all forfeited property in accordance with any local
agreement entered into with law enforcement agencies. See id. art. 59.06(a). Under a local
agreement, "all money . . . or proceeds from the sale" of forfeited property shall be deposited

        1
          Letter from Honorable John T. Hubert, Kleberg & Kenedy Cntys. Dist. Att'y, to Honorable Greg Abbott,
Tex. Att'y Gen. at 1 (Nov. 22, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

        2
          See TEX. CODE CRIM. PROC. ANN. art. 59.01(1) (West Supp. 2013) (defining "attorney representing the
state" as "the prosecutor with felony jurisdiction in the county in which a forfeiture proceeding is held"); TEX.
GOV'T CODE ANN. § 43.182(b) (West Supp. 2013) (providing that the district attorney for Kleberg and Kenedy
counties "shall represent the state in criminal cases" pending in the district courts of those counties).
The Honorable John T. Hubert - Page 2         (GA-1059)



into one or more of four "special" funds. /d. art. 59.06(c). You ask about the special fund set
forth in article 59.06(c)(1), which is "for the benefit of the office of the attorney representing the
state, to be used solely by the attorney for the official purposes of his office." /d. art.
59.06(c)(l). The Legislature recently amended article 59.06 to specify that an expenditure of
asset forfeiture funds "is considered to be for an official purpose of an attorney's office if the
expenditure is made for an activity of an attorney or office of an attorney representing the state
that relates to the preservation, enforcement, or administration" of state laws, "including an
expenditure made for" one of nine listed purposes. Act of May 9, 2013, 83rd Leg., R.S., ch. 157,
§ 1, 2013 Tex. Gen. Laws 595, 597 (codified at TEX. CODE CRIM. PROC. ANN. art. 59.06(d-4)).
Your inquiry concerns the purpose described as "facility costs, including building purchase."
Request Letter at 1 (quoting TEX. CODE CRIM. PROC. ANN. art. 59.06(d-4)(7) (West Supp. 2013)).
You ask us to consider four hypothetical variations on the basic transaction that is the subject of
your inquiry in light of these recent legislative amendments. See id. at 2. Because your first,
third and fourth questions are related, we address them together.

        You ask whether your office may "purchase land and a building with asset forfeiture
funds" and subsequently do one of three things: (1) "lease the asphalt paved parking lot" to
Kleberg County; (2) "sell the building and land" to Kleberg County; or (3) "lease part of the land
and/or building" to DPS for its Kingsville highway patrol office. /d. at 2-3. At the outset, we
note that whether article 59.06 authorizes a particular use of asset forfeiture funds requires
investigating and resolving fact questions beyond the scope of the opinion process. Tex. Att'y
Gen. Op. No. GA-0122 (2003) at 5. We can, however, provide some guidance concerning article
59.06.

         The plain language of article 59.06(c)(l) requires that asset forfeiture funds earmarked
"for the benefit of the attorney representing the state" be used "solely for the official purposes of
his office." TEX. CODE CRIM. PROC. ANN. art. 59.06(c)(1) (West Supp. 2013) (emphasis added).
To satisfy article 59.06(c)(l), an expenditure must be made "for an activity" of the attorney or
his office, and the activity must "relate[] to the preservation, enforcement, or administration of'
state laws. /d. art. 59.06(d-4). Article 59.06(d-4) provides a list in subparts (1)-(9) meant to
illustrate the kinds of purposes for which an expenditure can be made. /d.,· see Jackson Law
Office, P.C. v. Chappell, 37 S.W.3d 15, 25-26 (Tex. App.-Tyler 2000, pet. denied) (applying
the definition of the term "includes" from the Code Construction Act to conclude that a list
following that term is "for purposes of illustration"); TEX. Gov'T CODE ANN. § 311.005(13)
(West 2013) (defining the terms "include" and "including" as "terms of enlargement and not of
limitation or exclusive enumeration"). While article 59.06(d-4)(7) authorizes an expenditure for
"facility costs, including building purchase," not all facility costs and building purchases are for
an official purpose of the prosecuting attorney's office. Only those that "relate to the
preservation, enforcement or administration" of state laws through some activity of the
prosecuting attorney's office are permitted. TEX. CODE CRIM. PROC. ANN. art. 59.06(d-4)(7)
(West Supp. 2013). Because article 59.06(c)(l) permits expenditures of asset forfeiture funds
"solely" for such qualifying purposes, the funds may not be used for purposes that do not relate
to the preservation, enforcement or administration of state laws through an activity of the district
attorney's office. Whether article 59.06 of the Code of Criminal Procedure authorizes a district
attorney to use asset forfeiture funds to purchase land and a building for subsequent sale or lease
to other entities will depend, therefore, on whether the property's ultimate use is solely for an
The Honorable John T. Hubert - Page 3          (GA-1059)



activity of the district attorney's office that relates to the preservation, enforcement, or
administration of state laws. Based on the facts provided here, it would be difficult for a court to
conclude that the purchase and transfer of property to an entity other than the district attorney's
office would result in a use that is solely for the official purposes of the district attorney's office.

         Our analysis, made in light of recent legislative amendments, does not affect the validity
of GA-0613, as you have suggested. See Request Letter at 3; see also Tex. Att'y Gen. Op. No.
GA-0613 (2008) at 8 (concluding that a district attorney may not use asset forfeiture funds to
help purchase a juvenile detention facility for a county because "no provision expressly
authoriz[es] the Harris County District Attorney to provide for a juvenile detention building").
The fact that the amended statute includes building purchase costs as an example of a
permissible expenditure category does not change the requirement that the expenditure have a
connection to an official purpose of the district attorney's office. See TEX. CODE CRIM. PROC.
ANN. arts. 59.06(c)(1), (d-4)(7) (West Supp. 2013). In our view, the recent statutory amendment
to article 59.06 clarified existing law but did not expand the scope of permissible expenditures.
See Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 878, 83rd Leg., R.S. (2013)
(stating that the bill "will help provide clarity" regarding forfeited property and "provide[] ... a
clear directive as to what is and is not an authorized use of asset forfeiture dollars."); see also
Comm'n on State Emergency Commc'ns v. Tracfone Wireless, Inc., 343 S.W.3d 233,243 (Tex.
App.-Austin 2011) (providing that a "showing, either by legislative history or otherwise, that
the intent of the legislature in adopting the amendment in question was to clarify rather than
change the statute in question" can override the general presumption that legislative amendments
are designed to change rather than clarify an existing statute), rev 'd on other grounds, 397
S.W.3d 173 (Tex. 2013). Thus, GA-0613 remains valid.
The Honorable John T. Hubert - Page 4       (GA-1059)



                                      SUMMARY

                      A court would be unlikely to conclude that a district
              attorney may use asset forfeiture funds to purchase land and a
              building for subsequent sale or lease to other entities as such use of
              the property would likely not be considered an official purpose of
              the district attorney's office under article 59.06 of the Code of
              Criminal Procedure.




                                             Attorney General of Texas


DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee
