DAN MORALES

ATTORNEY GENERAL 

### QBffice of the !Zlttornep @enera Mate of Qexae December 31,199l

Honorable Ted B.Lyon chairman Criminal Justice Committee Texas State Senate P.0. Box 12068 Austin Texas 78711 Opinion No. DM-72 Re: Whether the Dallas City Council may control the use of funds confiscated pursuant to the asset forfeiture law (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.1With the limited exception ofcertain funds which may be transferred to the control ofthe city council under a newprovision ofthe asset forfeiture law,we do not believe the council has authority to determine the purposes for which forfeiture funds are tobe spent. Article 59.06ofthe Code ofCriminal Procedure provides inpertinent 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~hequeJtit~~1

presented inyourrequest

literally asked “whether or not the City Council can force theuseofcordiicated

funds intotheDcpqrtment’s regular 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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agreement* entered into between the attorney representing the state and lawenforcement agencies.
. ..

. . . . (c) If a local agreement exists between the attorney representing 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 ofthe followingfunds:

. . . . (2) a special fund in the municipal treasury ifdistributed 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 ofthe proceeds has been submitted to the
. ..governingbody ofthe municipality.
. ..A.
. .govemingbody ofa municipality may not use the existence ofan 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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whoisbudgeted by the
. ..governingbody unless the
. ..govemingbody 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 59to include “anagency ofthe 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 islimited tothat 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, 52, 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 ofthis 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 cityisto be administered by police department).

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We note, however, by way ofexception to our conclusion, the 1991addition 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 ofapolitical subdivision,”the attorney or head ofthe agency “shall complywith the request ofthe governingbody 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 ofthe 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 suchfunds are tobe 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 ofthe city, that has the authority to determine the law enforcement purposes for which such forfeiture funds are tobe spent. Very truly yours,

DAN MORALES Attorney General ofTexas

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WILLPRYOR First Assistant Attorney General MARY KELLER Deputy Assistant Attorney General JUDGE ZOLLIE STEAKLEY (Ret.) SpecialAssistant Attorney General RENEA HICKS Special Assistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by KayGuajardo and WilliamWalker Assistant Attorneys General

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