                      April 25, 1990



Honorable Frank W. Canard, II     Opinion NO.   JM-1166
District Attorney
P. 0. BOX 1038                    Re: Use of controlled sub-
Sweetwater, Texas   79556         stances as "bait* in
                                  sting operation  (~~-1928:
Dear Mr. Conard:
     your questions are prompted by a scenario where a law
enforcement officer delivers a sample of a previously for-
feited controlled substance to a suspect in order to induce
the suspect to make a large purchase of a controlled sub-
stance. You state that officers "may need to let a sample
go to the traffickers in order that approval can be obtained
by them from some higher authority to make the larger
purchase."
     you ask whether this type of reverse sting is legal.
Section 5.08 of article 4476-15, V.T.C.S., now section
481.159 of the Health and Safety Code, lists the various
orders a district court may enter in directing a law en-
forcement agency to use or dispose of a forfeited controlled
substance. Subsection (a) of section 481.159, as amended by
the 71st Legislature, H. B. 989, Acts 1989, 71st Leg., ch.
678, 5 1, at 2948, provides the court may order a law
enforcement agency to:
           (1) retain property for its       official
        purposes, 1in ludin                investia -
        tion of offenses under this chapter . . . .
        (Emphasis reflects addition by amendment.)
Subsection (c), added by amendment, provides for strict re-
gulations over controlled substances used for investigation
of offenses under this chapter. A qualified person must be
employed to conduct analysis of the substances before and
after its use in an investigation. Storage is required in
an area accessible only to the law enforcement agency head
and the person responsible for analyzing, preserving, and
maintaining security over the substances. A log must be
maintained that reflects the date, return, type, amount, and
concentration of the substance in the investigation.      It




                                p. 6159
Honorable Frank W. Conard, II - Page 2   (JM-1166)




must reflect the signature and printed or typed name of the
officer to whom the substance is issued as well as that of
the individual issuing same.
     Section 481.159 not only provides for the return of the
forfeited substance used for investigation of offenses, but
also requires that the substance be analyzed before and
after its return.    We believe that the legislature has
evidenced its intent that any forfeited substance released
for investigation must be returned in an unaltered condi-
tion. Further indication that any substance must not be
placed back in circulation is evidenced by the reguire-
ment that a person is designated to be responsible for
"preserving and maintaining security over the substances."
Under the scenario you      have related, the     controlled
substance is released to the suspect without any assurance
that it will be recovered.     We do not believe that the
release of a forfeited controlled substance to be placed
back into circulation is permissible under section 418.159.
                       SUMMARY
           The release of a forfeited controlled
        substance to a law enforcement officer for
        the purpose of delivering a sample to a
        suspect to induce the suspect to make a
        larger purchase is not permissible under
        section 481.159 of the Health and Safety
        Code.



                                   Ll l’l*
                                     Very truly you i,

                                         GM
                                     JIM     MATTOX
                                     Attorney General of Texas
MARY KELLER
First Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RKNEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General


                              p. 6160
