                                      OF      TE=XAS
                                  AUSTIN.     TNXAS         78711




                                            January    16, 1974



The Honorable  Wilson E. Speir,    Director                         Opinion   No.   H-   210
Texas Department   of Public Safety
Box 4087                                                            Re:   Whether  “evidence” money
Austin, Texas 78773                                                       may be used in an “Imprest
                                                                          Fund” for use in undercover
Dear   Colonel     Speir:                                                 work?


       Your      request    for    an opinion    states:

                          “Undercover      work today occasionally           requires     the
                 utilization    of a ‘flash roll’ in obtaining         delivery     of large
                 quantities     of narcotics    and dangerous       drugs.      It is some-
                 times necessary        for agents to borrow          up to Five Thousand
                 Dollars     ($5,000)   for purchase       of evidence.       When they do
                 this, they must pay interest           for a period of four (4) to six
                  (6) weeks at their personal          expense    with no provisions
                 for reimbursement          of the interest     cost.     Often agents do
                 not have the capabilities         to borrow     a sufficient     amount of
                 money to effectively         conduct undercover         investigations      of
                 this type.      This is curtailing      and restricting      the effective-
                 ness of the Narcotics         Service.

                 “We are therefore      interested   in obtaining  vour opinion as
                 to whether part of the ‘evidence’       money provided     by the
                 appropriation    bill . . . could be set up as an ‘Imprest       Fund’,
                 with appropriate     accounting   safeguards,    so that it could be
                 drawn with proper authorization        and used in undercover      work.

                 “The money for this fund would be drawn on warrant and
                 placed in an approved   bank to be used when and as needed
                 for this purpose.   The account,  of course, would be a revolv-
                 ing one as in many cases the money would be recovered,      used




                                                p.    986
.




    The   Honorable   Wilson   E.   Speir,   page    2     (H-210)




                  as evidence   and then returned       to the account to be
                  used the next time the occasion         arose.    The money
                  for the undercover     work would be drawn and accounted
                  for as required    in advance.     The difference     from the
                  present system is that the agent would be using State
                  money from this fund instead         of borrowed    money en-
                  tailing the occasion    for interest     expense. ”

           The current    Appropriation      Act    (H. B.   139, Acts   1973, 63rd   Leg.,    p.
    111-134) states:

                          “From    the amounts         appropriated    out of the
                  Operator’s     and Chauffeur’s       License    Fund for the support
                  and maintenance        of the Department       of Public Safety,    an
                  amount not to exceed Two Hundred and Forty Thousand
                  Dollars    ($240,000)     for each year of the biennium begin-
                  ning September       I, 1973, is hereby      designated    for the
                  purchase     of evidence     and/or information      and surveillance
                  expenses     deemed necessary         by the Department       of Public
                  Safety; and accountability        for expenditures      as set forth
                  above shall be governed         by such rules and regulations          as
                  the Director     of the Department        of Public Safety may recom-
                  mend. . . . ” (emphasis          added)

            There is ample pre-existing      law, in our opinion,    to support such provi-
    sions.    See Articles    4413(4a), 4413(6), 4413(11), 4413(1~,44,13(16), .V..T. C. S. We
    believe   this falls within the “miscellaneous     operating   expense”     category   of
    Article   4413(4a),   V. T. C. S. The money is used to combat crime,            a proper
    public purpose.

           The cost of “purchasing”     evidence   under the circumstances    you describe
    is an expense of the agency and nol an individual       expense of the employee   act-
    ing for it.  The Department     should bear the financial    burden and risk - not the
    employee.    See Att,orney  Gcncral    Op:~nion H-74(1973).

           So long as adequate    safeguards   arc observed          and there is str&t       adherence
    to appropriate  departmenl~al     rules and regulations,         we thj,nk a rev&ing        “Imprest




                                              p.    98’7
The Honorable        Wilson   E. Speir,    page    3    (H-210)




Fond”      such as you contemplate     might be lawfully     funded from the above
noted     appropriation   item.    The use of revolving   accounts     is widely recog-
nized     and approved    as an accounting   procedure,    and the Director      has been
given     broad rule-making     and regulatory   powers    to control    the Department.
Article     4413(b)(2), V. T. C. S. See Attorney     General    Opinions    O-2215 (1940),
S-103     (1953), WW-1207 (1961). H-74 (1973).

          We therefore    answer   your    question     in the affirmative.

                                          SUMMARY

                         The Department    of Public Safety,    under appropriate
                 departmental     rules and regulations,    may establish  a
                 revolving    “Imprest  Fund” from which money may be fur-
                 nished agents to “purchase”      narcotics   evidence.




DAVID M. KENDALL,              Chairman
Opinion Committee




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