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.1 With the limited exception of certain funds which may be transferred to the 

control of the city council under a new provision of the asset forfeiture law, we do 

not believe the council has authority to determine the purposes for which forfeiture 

funds are to be spent. 

Article 59.06 of the Code of Criminal Procedure provides in pertinent 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~he queJtit~~1 presented in your request literally asked “whether or not the City Council can 

force the use of cordiicated funds into the Dcpqrtment’regular s 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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Honorable Ted B. Lyon - Page 2 (DM-7 2 ) 

agreement* entered into between the attorney representing the 

state and law enforcement 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 of the following funds: 

. . . . 

(2) a special fund in the municipal treasury if distributed 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 of the proceeds has been submitted 

to the . . . governing body of the municipality. . . . A. . . goveming body of a municipality may not use the existence of an 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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Honorable Ted B. Lyon - Page 3 (DM-72) 

who is budgeted by the . . . governing body unless the . . . goveming body 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 59 to include “an agency of the 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 is limited to that 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, 5 2, 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 of this 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 city is to be 

administered by police department). 

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Honorable Ted B. Lyon - Page 4 (DM-72) 

We note, however, by way of exception to our conclusion, the 1991 addition 

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 of a political subdivision,” the attorney or head of the agency “shall 

comply with the request of the governing body 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 of the 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 

such funds are to be 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 of the city, that has the authority to determine 

the law enforcement purposes for which such forfeiture funds 

are to be spent. 

Very truly yours, 

DAN MORALES 

Attorney General of Texas 

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WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Kay Guajardo and William Walker 

Assistant Attorneys General 

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