April 25, 1990 

Honorable Frank W. Canard, II Opinion NO. JM-1166 

District Attorney 

P. 0. BOX 1038 Re: Use of controlled subSweetwater, 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 forfeited controlled substance to a suspect in order to induce 

the suspect to make a large purchase of a controlled substance. 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 enforcement 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, 1 in ludin investia - 

tion of offenses under this chapter . . . . 

(Emphasis reflects addition by amendment.) 

Subsection (c), added by amendment, provides for strict regulations 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 condition. Further indication that any substance must not be 

placed back in circulation is evidenced by the reguirement 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. 

Very truly you i, Ll GM l’l* 

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