DAN MORALES 

.ATTORNET CESERAL 

QBffice of tfp !Zlttornep @enerat 

6tate of llLexas 

December 141992 

Honorable Marcus D. Taylor 

Criminal District Anomey 

Wood County 

P. 0. Box 689 

Quitman, Texas 75783 

Opinion No. DM-187 

Re: Whether property seized by the 

state pursuant to the Code of Criminal 

Procedure, chapter 59, is exempt from 

property taxes (RQ-233) 

Dear Mr. Taylor: 

You ask whether property seized by the state pursuant to chapter 59 of the 

Code of Criminal Procedure is exempt from ud vulorem property taxes. If it is taxexempt, you ask at what time the tax exemption takes effect and how long it applies. 

We conclude that such property is exempted from taxation by section 11.11 of the 

Tax Code. The tax exemption becomes effective on the date title vests in the state 

under the terms of chapter 59 and applies for as long as title rests with the state and 

the property is used for public purposes. ’ 

Chapter 59 of the Code of Criminal Procedure, enacted in 1989, provides for 

the forfeiture of contraband seized by peace officers employed by law enforcement 

agencies of the state and its political subdivisions. The chapter generally provides 

that property classified as contraband is subject to seizure and forfeiture under the 

chapter. Code Crim. Proc. art. 59.02(a). “Contraband” is defined as property of any 

nature (including real, personal, tangible, or intangible property) that is used or 

intended for use in the commission of certain enumerated felonies. Id. art. 

59.01(2).1 A peace officer may seize property subject to forfeiture either with or 

‘Property is contraband if it is used in the co mmission of first or wood degree felonies under 

the Penal Codq felonies under chapters 29, 30, 31, or 32 of the Penal Code; or felonies under the 

Texas Securities Act, V.T.C.S. art. 581-l et seq. Property that is used or is intended to be used in the 

commission of felonies under the Texas Controlled Substances Act, Health and Safety Code chapter 

481; chapter 483 of the Health and Safety Code; or V.T.C.S. article 350 is also chssifkd as contraband. 

code Crh. Proc. art. 59.01(2). 

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Honorable Marcus D. Taylor - Page 2 (m-18 7) 

without a warrant in accordance with the chapter and must notify the attorney 

representing the state of such a seizure within 72 hours of the event. Id. art. 59.03. 

The attorney representing the state2 must commence forfeiture proceedings 

by Eling a notice of the seizure and intended forfeiture with the clerk of the district 

court not later than the 30th day after the date of the seizure. Id. art. 59.04(a), (b). 

Notice is given to owners and interest holders of property seized pursuant to chapter 

59 in accordance with the rules governing service of process in civil cases. Id. art. 

59.04(b). If the seized property is real property, the attorney representing the state 

must 6le with the county clerk in each county where the property is located a lir 

pendens notice describing the property. Id. art. 59.04(g). Tbis notice must be filed 

not later than the third day after the date forfeiture proceedings are commenced. 

Id. 

Forfeiture proceedings under chapter 59 are conducted in accordance with 

rules and principles governing civil cases. See id, art. 59.05(a), (b). If the court finds 

that the state has proven by a preponderance of the evidence that all or part of the 

seized property is subject to forfeiture, the judge shall forfeit the property to the 

state. Id. art. 59.05(b), (e). A final judgment of forfeiture under chapter 59 perfects 

the state’s title to the forfeited property. Id art. 59.06(f). The attorney representing 

the state acts as the state’s agent in receiving and disposing of forfeited property. Id. 

art. 59.05(e). On final judgment of forfeiture, the attorney representing the state 

shall dispose of the property as provided by article 59.06. Id.3 

In the absence of an agreement with local law enforcement agencies 

regarding the disposition of the property, forfeited property must be sold at public 

auction on the 75th day after the date of final judgment of forfeiture. Id. art. 

59.06(a). The sale is conducted under the direction of the county sheriff after notice 

is provided in accordance with laws governing sheriffs sales. Id. Proceeds of the 

sale are distributed in accordance with article 59.06. 

2”Attomey representing the state” is defmed as the prosecutor with felony jurisdiction in the 

county in which a forfeiture proceeding is held. Code Gin. Proc. art. 59.01(l). 

hpter 59 allows owners and interest holders of seized property to replevy the property 

pcrding the forfeihue hearing. Code Grim. Proc. art. 59.02(b). The chapter also allows holders of 

nonforfeitable interests in seized property to protect their interests in the property prior to tinal 

judgment of forfeiture. Id arts. 59.02(c) (describiig nonforfeitable interests), 59.05(e). 

p. 980 
Honorable Marcus D. Taylor - Page 3 &-187) 

You expiain that on October 23, 1989, the Wood County Sheriffs 

Department seized 723.796 acres in Wood County pursuant to a valid search 

warrant. Following notice of the seizure to taxing tits and the holder of a Deed of 

Trust to 564.796 acres of the property, the taxing units filed suit for taxes due in 

1989. The interest holder subsequently sought to foreclose on the entire 723.796 

acre tract, but ultimately agreed to foreclose on only the 564.796 acres. 

You state that forfeiture could not be obtained on the remaining 159 acres 

until October 26, 1990. We assume this to ~mean that final judgment of forfeiture 

was obtained on that date. You also state that the property was posted for sale in 

accordance with chapter 59. At the sale the tax assessor-collector of a taxing unit 

announced that over $8000 in delinquent property taxes were owed.on the property. 

You indicate that the announcement resulted in the cancellation of the sale. The 

property remains unsold. 

You Srst ask whether property forfeited to the state pursuant to chapter 59 is 

exempt from property taxes. Article VIII, section 1 of the Texas Constitution 

provides in part that “[a]11 real and tangible personal property in the State.. . shah 

be taxed in proportion to its value, which shah be ascertained as provided by law.” 

Article VLU, section 2(a) provides in pertinent part that the “legislature may, by 

general laws, exempt from taxation public property used for public purposes.‘“4 

Pursuant to this provision, the legislature has enacted section 11.11 of the Tax Code, 

which provides the following in part: 

(a) Except as provided by Subsections (b) and (c) of this 

section, property owned by this state or a political subdivision of 

this state is exempt from taxation if the property is used for 

public purposes. 

Subsections (b) and (c) provide for the taxation for county purposes of land owned 

by the Permanent University Fund and for the taxation of certain land owned by 

counties for the benefit of the public schools. Subsections (d) through (g) supply 

additional qualXcations to the general tax exemption provided in subsection (a). 

They are not relevant to this opinion. 

‘ArtieIe XI., section 9 of the Texas Constitution ia pertinent part exempts fxom taxation 

“property of coo&s, cities and towns, owned and held only for public poqwses, . . . aod all other 

property &voted excbkvely to the use and benefit of the public.. . .” This provision is self-executing 

but has not been interpreted to apply to property owned by the state. See Attorney General Opinion 

M-1049 (1989) at 2 n.1. 

p. 981 
Honorable Marcus D. Taylor - Page 4 (m-187 1 

The critical inquiry under these provisions is whether the public property in 

question is used for a public purpose. The courts instruct that the test for public 

purpose is whether the public property is used primarily for the health, comfort, and 

welfare of the public. A & M Conso.l Indep. Sck Dirt. v. Ci@ of Btym. 184 S.W2d 

914 (Tex. 1945); State v. Houston Lighting & Power Co., 609 S.W.2d 263 (Tex. Civ. 

App.-Corpus Christi 1980, tit refd n.r.e.). Consequently, public property that is 

acquired and held with the intention that it not be used primarily for the health, 

comfort, and welfare of the public is not entitled to a tax exemption under these 

provisions. See Gmnd Rabie Hosp. Auth. v. Dallas Cowtty Appmid Dirt., 730 

S.W2d 849 (Tex. App.-Dallas 1987, w-rit refd ar.e.). 

As you note in your brief, no authority appears to address your tit question 

directly. You argue, however, that property forfeited to the state should be considered tax-exempt, drawing an analogy to cases involving property acquired by 

political subdivisions through tax foreclosures or tax sales. See Cify of Au.& v. 

Sheppurd, 190 S.W.2d 486 (Tex. 1945). These cases uniformly hold that the 

acquisition of property by a political subdivision under these circumstances and the 

holding of such property for resale constitutes a public purpose under the 

constitutional and statutory tests. Property so acquired and held is therefore taxexempt. See &o State v. Cz$ of San Antonio, 209 S.W.2d 756 (T’ex. 1948); State v. 

Moak, 207 S.W.2d 894 (Tex. 1948); Eason v. David, 232 S.W.2d 427 (Tex. Civ. App.-- 

Beaumont 1950, writ refd n.r.e.); Lubbock Indep. Sch. D&. v. Owem, 217 S.W.2d 

186 (Tex. Civ. App.-Amarillo 1948, writ refd). 

We believe these cases plainly demonstrate that, where the state or its 

political subdivisions are authorized to acquire and dispose of property pursuant to 

express statutory authorization, the acquisition and use of the property pending its 

disposal is prima facie a public purpose. Taxing units are authorized to acquire and 

dispose of real property in satisfaction of taxes due on the property. Tax Code 

#$34.01(c); 34.05. Thus, the legislature has anticipated and authorized public 

ownership and sale of property for purposes of collecting property taxes. 

Similarly, Attorney General Opinion JM-1049 (1989) concluded that lands 

set aside by article VII, section 2 of the Texas Constitution for the benefit of the 

public free schools are exempt from ad valorem taxation even where such property 

is leased for compensation to private individuals to be used for purposes not related 

to the performance of the duties and functions of the School Land Board. The 

opinion concluded that the manifest public purpose of article VII, section 2 was not 

that land set aside for educational purposes under the provision actually be used for 

p. 982 
Honorable Marcus D. Taylor - Page 5 (~~-187) 

educational purposes, but that income from such property be used for such 

purposes. See uko Attorney General Opinion JM-1085 (1989) (real property 

comprising the Veterans’ Land Fund, including land forfeited to the state on default 

of a purchaser, is exempted from ad valorem taxation to the state). 

In our opinion, the public ownership of property forfeited to the state 

pursuant to chapter 59 of the Code of Criminal Procedure undoubtedly serves a 

public purpose within the meaning of the constitutional and statutory provisions 

described above. Under chapter 59, forfeited property may be used by law 

enforcement agencies for official purposes. Code Grim. Proc. art. 59.06(b). In the 

alternative, the property may be sold, with the proceeds of the sale deposited in the 

general revenue fund of the state treasury or distributed to law enforcement 

agencies and the attorney representing the state for law enforcement purposes or 

drug and alcohol abuse treatment and prevention programs. Id. art. 59.06(c), (h). 

In either case, forfeited property (or its proceeds) clearly is used to promote the 

health, comfort, and welfare of the public. Accordingly, we conclude that property 

forfeited to the state pursuant to chapter 59 of the Code of Criminal Procedure is 

exempt from ad valorem taxation so long as the property is used for public, as 

opposed to private, purposes. 

Your second question concerns the time at which the exemption takes effect. 

It is clearly established that public property is tax-exempt during the time title is 

vested in the political subdivision, provided, of course, that the property is used for 

public purposes during that period. See Ciry of San Antonio, 209 S.W.2d 756; Moak, 

207 S.W.2d 894; Lubbock Independent School District, 217 S.W.2d 186. Article 

59.06(f) of the Code of Criminal Procedure provides the following: 

(i) A tinal judgment of forfeiture under this chapter 

perfects the title of the state to the property as of the date that 

the contraband was seized or the date the forfeiture action was 

filed, whichever occurred first, except that if the property forfeited 

ir real properry, the title is perfected as of the date a notice of li.s 

pendens &fled on thepropeq. [Emphasis added.] 

The notice of lir pendens must be bled not later than the third day after the date 

forfeiture proceedings are commenced. Code Crin~ Proc. art. 59.04(g). Consequently, in accordance with article 59.06, forfeited real property becomes taxexempt from the time title vests in the state following a Snal judgment of forfeiture 

under chapter 59, ie., the date notice of li~pendens is filed describing the property. 

p. 983 
Honorable Marcus D. Taylor - Page 6 (~~-187) 

The tax exemption applies for as long as title rests with the state and the property is 

used for public purposes. 

SUMMARY 

Real property forfeited to the state pursuan t to chapter 59, 

Code of Criminal Procedure, is exempt from cld valorem 

taxation. The exemption is effective as of the date title to the 

property vests in the state following a final judgment of 

forfeiture under chapter 59, ie., the date notice of lir pendenr is 

filed describing the property. Code Crim. Proc. art. 59.06(f). 

The tax exemption applies for as long as title rests with the state 

and the property is used for public purposes. 

Very truly yours, / 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Anomey General 

RENEAHIcKs 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Steve Arag6n 

Assistant Attorney General 

p. 984