### THE ATTORSEY GESERAL OF TEXAS
April 15; 1987

EonorablcBenjaminEuresri.Jr. Opinion No. JR-678 CameronCountyAttorney 974 E. Barrison Street Re: Administration of "special Brownsville,Texas 78520 funds"by a countyunder theTexas Controlled SubstancesAct, article 4476-U. V.T.C.S.
DearHr. Euresti:
You ask for a constructlou of certain forfeiture provisions included in article 4476-15,V.T.C.S.. theTexas Controlled Substances Act: Sections 5.03 through 5.081 of article 4476-U. V.T.C.S., provide for the forfeitureofproperty used ia connectionwith vlolarions of the act, including controlled substances, conveyances, drug parapheroalia, and money, negotiable **lnscrumonts,** securiries. and various other canglble and intangible "things of value." V.T.C.S. art. 4476-13. $5.03. The officerwho seizes thepropertymust cause a notice of seizureand intended forfeiture to be filed in the name of the state. Id. 15.05. Section 5.07 **of** article 4476-15. V.T.C.S., sets out the-ocedures to be followed by a court in ordering a forfeiture and section 5.08provides for the disposition of forfeited property. See generallyAttorney General OpinionJM-550 (1986). Section 5.07 of article 4476-15.V.T.C.S.. states Inpart:

(a)

. . . [if owner of property does not file au answer] the court shall hear evidence char the property is subject to forfeirure and may upon motion forfeit the property to the state or an agency of the state or co a political subdivision of the ecace authorized by law to employ peace offlcers.
. . .

. . . . (d) **.If** it is found chat the property is subject co forfeiture, then the judge shall upon motion forfeit the property to the stat,=or an agency of the state or co a polirical subdivision of the state authorized by law to employ peace officers. However, for property other than a

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controlled subscaoce. raw maCeria1, or drug parapherualia. if proof at the hearing dfscloses that the interest of any bona fide lieuholder. securedparty, or other personholding an interest in the property in the nature of a security interest is greater than or equal co the present value of the property. the court shall order the property released CO him. If such interest is less thau thepresentvalue of theproperty and if the proof shows chat the property is subject to forfeiture, the court shall order the property forfeited to the state or **an** agency of the state or to a politlcal subdivision **of** the state authorized by law to employ peace officers. (Emphasisadded). Sectious 5.07(a) and (d) authorize forfeiture of property "to a political subdivfaiou of the state authorized by law to employ peace officers." Your question arises from the discrepancy between the emphasized language of section 5.07 and the following language in section 5.08(f)of article 4476-U. V.T.C.S.:

(f) All money, securities. certificates of deposit. negotiable instruments. stocks, bonds, businesses **or** business iuvescments. contractual rights, real estate, personal property and ocher thingsofvalue, and theproceeds from the sale of au 

### item described in this subsection that are forfeited to the seizinnanencies of the state or an agency or office of a political subdivisionof the state authorized by law to employ peace officers shall be deposited in a special fund to be administered by the seizing agencies or office towhich they are forfeited. -ExEept as othervise provided by this subsection. expenditures from this fund shall be used solely for the inveatigacfou of auy alleged violations **of** the criminal lavs of chls state. The director of ao agency of the.statemay use not more than 10 **percent** of the amount credited to the fund for theprevention of drug abuse and for treatment of persons with drug-related problems. The director of an agency or office of a political subdivision char has received funds under this section shall comply vlth the request of the governing body of the political subdivision to deposit notmore than 10 percent of the amount credited to the fund into the treasury of the subdivision. The governing body of the subdivision shall use the funds

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received for the prevention of drug abuseand for treatment of persons with drug-related problems. Nothing in this subsection shall be construed to decrease the coca1 salaries. expenses. and allowanceswhich M agency or office is receiving from other sources ac or from the time this subsectiontakes effect. (Emphasisadded).
You ask whether the “special funds” are to be administered by the county attorney and county sheriff. or whether they are to be deposited in the treasury subject to supervisionby the county auditor and administration by the coormissionerscourt rhrough the budget process.
In our opinion, section 5.08(f) contemplates char money, securities, and other enumerated items of propertyvi11 be forfeited co “the seizing agencies” on the state level and to “an agency or office
. . . authorized by law to employ peace officers” at rhe political subdivision level. Although section 5.07 provides In general terms chatproperty may be forfeited to the state. an agency of the state or “toapolitical subdivisionof thestate authorizedby law to employpeace officers,” section 5.08 provides that some of the forfeitedpropertywill be distributed CO a specificofficer, agency, or department of a political subdivision. Section 5.08 provides in part:
Sec. 5.08. (a) Regarding all controlled

substances, raw materials. and drug paraphernalia vhich havebeen forfeited, thedistrictcourt shall by itsorderdirect a law enforcementagencyto: (1) retain rhe’ property for its official purposes; (2) deliver theproperty to a governmentagency **or** department for officialpurposes; (3) deliver theproperty toaperson authorized by rhecourt to receive it; or (4) destroy the property that is not ochervise disposed in the manner prescribed by Section 5.081 of thisAct. (b) All ocher property thathasbeen forfeited. except the money derived from the sale. manufacture, distribution. dispensation. delivery, or other commercialundertakingviolativeof thisAcr, and except as provfded below, shall be sold at a

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,

public auction under the direction of the county sheriff after notice of public auction as provided by law for ocher sheriff’s sales. The proceeds of the sale shall be delivered to the district clerk and shallbe disposedof as follows: (1) coanybona fide lieuholder, securedparty. **or** other parry holding an interest In theproperty in thenature **of** a aecuricy Interest. to the extent ofhis Interest;and (2) thebalance. if any. after deduction of all storage and court costs. shall be forwarded to the state comptroller and deposited with and used as general funds of the state except as provided by Subsection (f)of this section. (c) The state or an agency of the state or a political subdivisioa of the state authorized by law to employpeace officers may maintain. repair, use. and operate for officialpurposes allproperty that has been forfeited CO it if it is free from any interest of a bona fide lienholder. secured party. or ocherpartywho holds an interest in the property in the nature of a security interest.
. . .

. . . . 

### (f) Al.1 w*ey. securities
. . . personal property and ocher things of value, and the uroceeda from thesale of an itemdescribed in this subsection that are forfeited to the seizing agencies of the state or an agency or office of a political subdivision of the state authorized by law co employ peace officers shallbe deposited in a special fund.
. . . (Emphasisadded). The porciona of section 5.08which require dlacribution of forfeited property to an office. individual or law enforcement agency provide further definition of the court orders **of** forfeiture authorized by section 5.07.
Horeover, circumstances surrounding the enactment and amendment of section 5.08(f) of article 4476-15. V.T.C.S.. Indicate chat forfeitures ofmoney on thepolitical subdivision level go directly to the lav enforcement agency of the political subdivision. Section 5.08(f) was adopted by the sixty-seventh Legislature in 1981. See Acts 1981. 67th Leg.. ch. 268, at 706. A similar provision G

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included in legislative proposals by a committee appo+ced by the governor to combat drug abuse in Texas. Texans' War on Drugs, Legislative Proposals Submitted to the 67th Legislature, Legislative ReferenceLlbrarp. A description of the cosmictee'sproposed section 5.08(f)readsas follova:

Amends Section 5.08 of the Texas Controlled SubstancesAct topermit proceeds of a forfeiture action to he returned to the control of the law enforcementagency responsible for the seizureand tobe used to finance lavenforcementactivity.
Ia.. BillAualyais forDraftAct at 3. Section 5.08(f) as origioally enacted contained wane of the present language authorizing the deposit of money from the special fund in the treasury of the political subdivision for the prevention and treatment of drug abuse. This provision was added in 1983 as Eouse Bill No. 450. Acts 1983. 68th Leg.. ch. 766, at 4578. Eouse BillRo. 450provided inpart:

The directorof au agency or office of apolicies1 subdivision that has received funds under this section shall comply with the request of the **governing** body **of** the political subdivision'to deposit not more than 10 percent of the amount credited to the fund into the treasury of the subdivlsion. The governing body of the aubdivision shall use the funds received for the prevention of drug abuse and for treatment of personswith drug-relatedproblems. (CodifiedasV.T.C.S. art. 4476-15. 15.08(f)). The title ofHouse BillNo. 450 reads as follows:
AN ACT relating co the disposition of money, securities, negotiable instruments,stocks,or bonds forfeited CO an agency of the state or an agency or office of a political subdivision of the stateunder the Texas Controlled Substances Act. (Emphasis added). The Bill Analysis Co House Bill No. 450 stated that the committee adopted an amendment to the bill as introduced and described the amendmentas follows:

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The axeodmeaca limited the scope of the bill co state agencies, or agencies or offices of other political aubdivlalona if the governing body of the subdivision so requests. It does uotmandate coxpllauce with this act without chr request of the localgoverningbody. Bill Analysis to 8. B. No. 450. prepared for Eouse Committee on Criminal Jurisprudence,filed in Bill File to 8. B.No. 450.LegislativeReferenceLibrary. Both the title of House Bill No. 450 and the quotation from the bill analysis show that forfeitedmoney is to go initiallytoanoffice or agency of a political subdivisionand not to Its governing body. The governing body must request the agency or office In chargeof the special fund co deposit no more than 10% of the fund into the treasury of the political subdivision. Thus. the special fund is held oucaide the treasury and apercentageofmoney in the special fund is placed in the political‘subdivislon'a treasury onlyupon the requestof thegoverning body. Therefore, In aaaver Co **your** firac question, the "special funds" referred co in section 5.08(f) are to be administered by the law enforcement officer or agency of the county. They are not to be deposited in the county treasury except **for** a percentage of the special fund, not to exceed 10%. vhich is deposited in the county treasury upon request of the commlsslonera'courr. Where money is forfeited co a city. the special fund is held andadministeredby the policedepartment, Cobe used to investigate any allegedviolations of the criminal laws. If the governingbody requeststhe transferof 10% of the specialfund toprovide preveucion sad treatmentofdrug abuse, that amount laplaced in the city treasury.
You next ask whether the special funds described in section 5.08(f) may be tapped to reimburse the general funds of political subdivisionswhich have been used CO pay for salaries, expenses, and allowancesof the lav enforcement agency holding the special fund. Section 5.08(f)expresslyprovides that [nlothing in this subsection shall be construed codecrease the tocal salaries, expenses, and allowanceswhich an agency or office Is receiving from other sources at or from the rime this subsectiontakes effect. This language expressly forbids the use of special funds to reimburse a political subdivision for the salaries, expenses, and allowances it provided the law enforcement agency es of and afcrr the 1981effective dare of secclon 5.08(f). Moreover. thepurpose of section 5.08(f) is co increase funding available for investigaclng violations of the

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criminal laws. The use of the special fund to reimburse the general fund for past expenditures on law enforcement would be contrary to this objective. The special fund may not be used to reimburse the general fund for such expenditures.
SUMMARY "special fund" s.oi& of established by section

article 4476-15. V.T.C.S.; the Controlled Substances Act. and consisting of money, various intangibles and proceeds of property forfeited under the act. Is CO be administered by the law enforcement office or agency of a political subdivision and not by its governing body. The special fund may not be used to reimburse the general fund for expenditureson salaries, expenses. or allowances received by the law enforcementoffice or agency.

MATTOX Attorney General of Texas
JACK HIGBTOUER FirstAssistantAttorney General
MARY KELLER ExecuclveAssistantAttorneyGeneral
JUDGE ZOLLIE STRAFLEY SpecialAssistantAttorneyGeneral
RICK GILPIN Chairman.Opinion Committee Preparedby SusanGarrison AssistantAttorney General

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