April 25, 1990

Honorable Frank W. Canard, II Opinion NO. JM-1166 DistrictAttorney P. 0. BOX 1038 Re: Use of controlled subSweetwater,Texas 79556 stances as "bait* in sting operation (~~-1928:
DearMr. Conard:
your questions are promptedby a scenariowhere a law enforcement officerdelivers a sample of a previously forfeited controlled substance to a suspect in order to induce the suspect to make a largepurchase of a controlled substance. You state that officers "mayneed 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 courtmay enter in directing a law enforcement agency to use or dispose of a forfeitedcontrolled 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 courtmay order a law enforcementagency to:

(1) retain property for its official purposes, in ludin

1 investia - tion of offenses under this chapter

. . . . (Emphasisreflects additionby amendment.) Subsection (c),added by amendment,provides for strict regulations over controlled substancesused for investigation of offensesunder this chapter. A qualifiedperson must be employed to conduct analysis of the substancesbefore and after its use in an investigation. Storage is required in an area accessible only to the law enforcementagency head and the person responsible for analyzing,preserving, and maintaining security over the substances. A logmust be maintained that reflects the date, return, type, amount, and concentrationof the substance in the investigation. It

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

must reflect the signatureand 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 substanceused for investigationof 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 investigationmust be returned in an unaltered condition. Further indicationthat any substance must not be placed back in circulation is evidencedby the reguirement that a person is designated to be responsible for "preservingandmaintaining security over the substances." Under the scenario you have related, the controlled substance is released to the suspectwithout any assurance that it will be recovered. We do not believe that the release of a forfeitedcontrolled substance to be placed back into circulation ispermissibleunder 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. Very truly you i, 

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GM JIM MATTOX Attorney General of Texas
MARY KELLER FirstAssistantAttorney General
JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General
RKNEA HICKS SpecialAssistant Attorney General
RICK GILPIN Chairman, Opinion Committee Preparedby Tom G. Davis AssistantAttorney General

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