              THE      ATTORNEY         GESERAL
                          OF TEXAS

                          October 20, 1987




Honorable  Rene Guerra                  Opinion   No.   JR-812
Criminal  District Attorney
Hidalgo County Courthouse               Re: Disposition   of confis-
Edinburg,  Texas   78539                cated property   by criminal
                                        district   attorney     under
                                        article 4476-15

Dear   Mr.   Guerra:

      A number   of   questions     are asked relative            to   the
disposition   of confiscated    property under article           4476-15,
V.T.C.S.,   as follows:

             1.   Is   the    Hidalgo    County    District
         Attorney    authorized    by statute   to  receive
         confiscated    property?

             2.   Is   the    Hidalgo     County     District
         Attorney     authorized      to   supplement      the
         salaries of     his assistants,      clerical,    and
         investigative     staff   and   to pay    for   other
         office    related    expenses    of   the   District
         Attorney    with confiscated    funds and proceeds
         from the sale of other confiscated         property?

             3.   Is the    District Attorney     authorized
         by   statute    to   hold   confiscated    personal
         property   for  an indefinite    period?

                 At what time is   a Sheriff's  Sale    on
         perzonal property   to  take place    when   the
         state statute and judgement   order is    silent
         as to   the date  and time   of the   Sheriff's
         Sale?

      Section 508(f)     of  article     4476,   V.T.C.S.,     infra,
provides   for  the expenditure      of funds    forfeited    to  "an
office of a political     subdivision    of the state     authorized
to employ peace     officers."     Under section     41.102 of    the
Government   Code,   a prosecuting      attorney   mav    emolov    an
investiaator.      Section    41.101    of   the  Government     Code



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Honorable   Rene   Guerra   - Page   2   (JR-812)




includes within the definition      of @'prosecuting attorney"      a
county attorney,    district   attorney,   or criminal    district
attorney.   Under article 2.12(5),       Texas Code of     Criminal
Procedure,    investigators    of   the   district     attorneys',
criminal district attorneys'      and county attorneys'     offices
are peace   officers.     A  district    court may    by   judgment
entered pursuant     to   the provisions     of  article    4476-15
forfeit property to the Hidalgo County District          Attorney.
Art. 4476-15,   5508(f), j.~&&.

      With respect to    the expenditure    of forfeited    funds
for the purposes   outlined  in the second question,     section
5.08(f) of article 4476-15 provides      in pertinent  part:

        Except   as    otherwise    provided      by    this
        subsection,    expenditures     from   this     fund
        shall be used    solelv for the      investiaation
        of anv   alleaed violations      of th     criminal
        laws of this state.      (Emphasis adied.)

      Whether a particular     expenditure  of funds obtained as
the result of     a forfeiture    under article    4476-15 is   an
expenditure   made solely for     the investigation   of  alleged
violations   of the criminal laws of this state is dependent
upon the resolution    of a factual issue, a function that is
inappropriate   to the opinion process.

      The third and fourth questions         inquire as to .the time
a sheriff's   sale    of forfeited property         is to take     place
and how long a district attorney may hold the property.                 A
copy of a judgment     furnished     us from a district       court    of
Hidalgo County in which items of jewelry were forfeited                to
the district    attorney provides       that the forfeiture       is to
the    "Hidalgo      County      Criminal       District       Attorney
(Investigation    Fund),    as   provided     by   article     4476-15,
Texas Revised     Civil    Statutes."      State   v.    Five   Hundred
Dollars and     No Cents,    No. C-792-87-A,        Dist. of    Hidalgo
County, 92d Judicial      Dist. of Texas, April 22, 1987.            The
judgment   of the court did not order retention,           delivery    or
destruction   of   the    property    under     section    5.08(a)     of
article 4476-15.      Thus, section 5.08(b),        (c), (d), (e) and
(f) are     applicable     and     provide    the    manner    of     its
disposition,    as follows:

            (b) All  other   property   that   has   been
        forfeited,  except the money derived from the
        sale, manufacture,    distribution,    dispensa-
        tion, delivery,   or  other commercial     under-
        taking violative   of this Act, and except      as



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Honorable   Rene   Guerra   - Page   3   (JM-812)




        provided below, shall    be sold   at a public
        auction under   the direction    of the    county
        sheriff after   notice of   public auction      as
        provided by law    for other sheriff's     sales.
        The proceeds of the sale shall be      delivered
        to the district clerk and shall be      disposed
        of as follows:

            (1) to any bona fide lienholder,  secured
        party, or other party holding an interest in               '
        the property   in the  nature of   a security
        interest, to the extent of his interest;   and

            (2) the balance,   if any, after    deduction
        of all    storage and   court costs,    shall   be
        forwarded    to  the   state   comptroller     and
        deposited   with and used as general funds      of
        the state except     as provided by    Subsection
        (f) of this section.

            (c) The state or an         agency of the      state
        or a political        subdivision      of   the    state
        authorized    by law     to employ peace       officers
        may maintain,     repair,      use, and operate      for
        official purposes      all property that has been
        forfeited    to   it    if    it is   free    from   any
        interest of a bona fide lienholder,             secured
        party, or other party who holds an             interest
        in the property      in the nature of a security
        interest.     The department       or agency    receiv-
        ing the forfeited        vehicle may purchase        the
        interest of a bona fide lienholder,             secured
        party, or other party who holds an             interest
        so that the property can be released            for use
        by the    department     or    agency receiving      the
        forfeited vehicle.         The department    or agency
        receiving       the     forfeited      vehicle       may
        maintain,     repair,      use,   and   operate      the
        property    with     money     appropriated     to   the
        department    or agency for current operations.
        If the property      is a motor vehicle        suscept-
        ible of registration        under the motor vehicle
        registration      laws      of   this     state,     the
        department    or agency receiving       the forfeited
        vehicle is deemed        to be    the purchaser      and
        the certificate      of title shall be issued         to
        it as    required by       Subsection    (e) of     this
        section.




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Honorable   Rene   Guerra   - Page   4   (~~-812)




            (d) Storage    charges                    property
        accrued while the property"?s          i%red    at   the
        request of a seizing officer          of the   depart-
        ment    or  agency    receiving       the    forfeited
        vehicle pending the      outcome      of the    forfei-
        ture   proceedings     shall    be     paid   by     the
        department   or agency     out of     its   appropria-
        tions if such     property   after     final   hearing
        is   not   forfeited    to   the      department      or
        agency.

            (e) The State Department   of Highways    and
        Public Transportation    shall issue    a   cert-
        ificate of title to any person who purchases
        property   under   the   provisions    of    this
        section   when   a certificate    of   title    is
        required under the laws of this state.

            (f) All money,       securities,       certificates
        of deposit, negotiable        instruments,       stocks,
        bonds, businesses        or business       investments,
        contractual    rights,     real    estate,      personal
        property   and other things of value, and              the
        proceeds   from the sale of an item            described
        in this subsection       that are forfeited        to the
        seizing agencies of the         state or an        agency
        or office of a nolitical        subdivision      of    the
        >                                                     eace
        officers   shall     be   deposited     in   a   special
        fund   to   be    administered       by    the   seizing
        agencies or office        to which      they are      for-
        feited.    Except     as   otherwise       provided     by
        this subsection,      expenditures      from this fund
        shall be used      solely for the        investigation
        of any    alleged violations         of the     criminal
        laws of    this    state.     The    director      of   an
        agency of the state may use.not more than lo
        percent of the amount         credited to the         fund
        for the    prevention     of   drug abuse       and    for
        treatment     of     persons    with       drug-related
        problems.    The     director     of    an   agency     or
        office of a political         subdivision      that    has
        received    funds     under    this     section     shall
        comply with      the    request of      the    governing
        body of the political        subdivision     to deposit
        not more    than     10 percent       of    the    amount
        credited to the       fund into      the treasury       of
        the subdivision.        The governing      body of     the
        subdivision    shall use the funds received            for



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                               ,   1   i




Honorable   Rene   Guerra   - Page         5   (JR-812)




        the prevention  of drug abuse and for       treat-
        ment of persons with drug-related       problems.
        Nothing   in   this    subsection      shall     be
        construed  to  decrease the     total   salaries,
        expenses,  and allowances   which an agency      or
        office is receiving   from other sources at or
        from the time this subsection     takes    effect.
        (Emphasis added.)

      You state that you presently    have two gold    bracelets
and several rings    that have been     forfeited  to you    under
judgment   of the  court.   You express    the desire to     delay
turning these items     over to the   sheriff for public      sale
until    "we  have  accumulated   a sufficient      quantity     to
justify public notice expenses."

      As noted in     the 4th    question and     reflected   by   the
copy furnished    us, the judgment      is silent as to the       time
when the    sheriff    will    sell the    forfeited    property     at
public auction.      Nor do we find any statute which provides
a specific     time the    district    attorney shall     hold    such
property before it is turned over to the sheriff for sale.
However,   it is our opinion that a party owning an interest
in the    forfeited property      may compel     a partition     under
chapter 23 of the Texas        Property Code, providing      for   the
partition   of the    interests    of  joint owners     to real    and
personal   property.

      Section 5.08(b) of article         4476-15 provides    for    the
sale of    forfeited property       by the    county sheriff     after
notice of    public auction       as nrovided    bv law    for   other
sheriff's   sales.    Rule   650 of     the Texas    Rules of    Civil
Procedure   provides   for notice of the time and place of the
sale of any personal       property    levied on under     execution.
It is our    opinion that the       legislature    was referring     to
the notice requirements      of Rule 650 when it made reference
to notice    being    given    as   provided    by   law   for   other
sheriff's   sales: Rule 650       requires the posting of       notice
for ten days successively       immediately    prior to the day      of
sale at the     courthouse   door    and at the     place where     the
sale is to be made.

                             SUMMARY

           A district    court of     Hidalgo County    may
        forfeit   property    to   the    Hidalgo    County
        District Attorney     under the     provisions    of
        article 4476-15, V.T.C.S.       Expenditures   from
        forfeited   funds   may    be   expended    by  the



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Honorable   Rene   Guerra   - Page    6   (JN-812)




        Hidalgo County District Attorney          solely     for
        the investigation      of any alleged      violations
        of the criminal laws        of this state.        While
        we find    no   statute which      provides      for   a
        specific time the district attorney may hold
        forfeited   property before turning it over to
        the sheriff     for    sale, a party       owning     an
        interest     in the     forfeited     property       may
        compel a partition      under    chapter 23 of       the
        Texas    Property      Code.      After     forfeited
        property   is turned over      to the sheriff        for
        sale, notice      must   be   given    for    10   days
        successively    immediately    prior to the day of
        sale at the courthouse       door and at the place
        where the sale is to be made pursuant to the
        requirements    of Rule 650 of the Texas          Rules
        of Civil Procedure.




                                           JIM     MATTOX            -
                                           Attorney General   of Texas

MARY KELLER
Executive  Assistant     Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney         General

RICK GILPIN
Chairman,  Opinion     Committee

Prepared by Tom G. Davis
Assistant Attorney General




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