THE ATTORSEY GESERAL 

OF TEXAS 

April 15; 1987 

Eonorablc Benjamin Euresri. Jr. Opinion No. JR-678 

Cameron County Attorney 

974 E. Barrison Street Re: Administration of "special 

Brownsville, Texas 78520 funds" by a county under the Texas 

Controlled Substances Act, article 

4476-U. V.T.C.S. 

Dear Hr. Euresti: 

You ask for a constructlou of certain forfeiture provisions 

included in article 4476-15, V.T.C.S.. the Texas Controlled Substances 

Act: Sections 5.03 through 5.081 of article 4476-U. V.T.C.S., 

provide for the forfeiture of property used ia connection with 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 officer who seizes the property must cause a 

notice of seizure and 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 5.08 provides for the disposition of forfeited 

property. See generally Attorney General Opinion JM-550 (1986). 

Section 5.07 of article 4476-15. V.T.C.S.. states In part: 

(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 

p. 3116 
Bouorable Benjarin Euresti. Jr. - Page 2 (JM-678) 

controlled subscaoce. raw maCeria1, or drug 

parapherualia. if proof at the hearing dfscloses 

that the interest of any bona fide lieuholder. 

secured party, or other person holding 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 the present value of the property 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. 

(Emphasis added). 

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 

things of value, and the proceeds from the sale of 

au item described in this subsection that are 

forfeited to the seizinn anencies of the state or 

an agency or office of a political subdivision of 

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 

to which 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. state may use not more than 10 percent of the 

amount credited to the fund for the prevention 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 not more 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 

p. 3117 
Bonorable Benjamin Euresti. Jr. - Page 3 (JM-678) 

received for the prevention of drug abuse and for 

treatment of persons with drug-related problems. 

Nothing in this subsection shall be construed to 

decrease the coca1 salaries. expenses. and 

allowances which M agency or office is receiving 

from other sources ac or from the time this 

subsection takes effect. (Emphasis added). 

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 supervision by the county auditor 

and administration by the coormissioners court rhrough the budget 

process. 

In our opinion, section 5.08(f) contemplates char money, 

securities, and other enumerated items of property vi11 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 chat property may be forfeited to the state. an agency 

of the state or “to a political subdivision of the state authorized by 

law to employ peace officers,” section 5.08 provides that some of the 

forfeited property will be distributed CO a specific officer, 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 have been forfeited, the district court shall 

by its order direct a law enforcement agency to: 

(1) retain rhe’ property for its official 

purposes; 

(2) deliver the property to a government agency 

or department for official purposes; 

(3) deliver the property to a person authorized 

by rhe court to receive it; or 

(4) destroy the property that is not ochervise 

disposed in the manner prescribed by Section 5.081 

of this Act. 

(b) All ocher property that has been forfeited. 

except the money derived from the sale. manufacture, distribution. dispensation. delivery, or 

other commercial undertaking violative of this Acr, 

and except as provfded below, shall be sold at a 

p. 3118 
honorable Benjamin Euresti, Jr. - Page 4 (JM-678) 

, 

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 shall be disposed of as follows: 

(1) co any bona fide lieuholder, secured party. 

or other parry holding an interest In the property 

in the nature of a aecuricy Interest. to the extent 

of his Interest; and 

(2) the balance. 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 employ peace officers may maintain. repair, 

use. and operate for official purposes all property 

that has been forfeited CO it if it is free from 

any interest of a bona fide lienholder. secured 

party. or ocher party who 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 the sale of an item described 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 shall be deposited in 

a special fund. . . . (Emphasis added). 

The porciona of section 5.08 which require dlacribution of forfeited 

property to an off ice. 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 of money on the political 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 

p. 3119 
Eouorable Benjamin Euresti. Jr. - Page 5 (a-678) 

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 

Reference Llbrarp. A description of the cosmictee's proposed section 

5.08(f) reads as follova: 

Amends Section 5.08 of the Texas Controlled 

Substances Act to permit proceeds of a forfeiture 

action to he returned to the control of the law 

enforcement agency responsible for the seizure and 

to be used to finance lav enforcement activity. 

Ia.. Bill Aualyais for Draft Act 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 

Bill Ro. 450 provided in part: 

The director of au agency or office of a policies1 

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 

persons with drug-related problems. 

(Codified as V.T.C.S. art. 4476-15. 15.08(f)). 

The title of House Bill No. 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 state under 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 

amendment as follows: 

p. 3120 
Honorable Benjamin Eureati, Jr. - Page 8 (Jn-678) 

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 uot mandate 

coxpllauce with this act without chr request of 

the local governing body. 

Bill Analysis to 8. B. No. 450. prepared for Eouse Committee on 

Criminal Jurisprudence, filed in Bill File to 8. B. No. 450. Legislative Reference Library. Both the title of House Bill No. 450 and the 

quotation from the bill analysis show that forfeited money is to go 

initially to an office or agency of a political subdivision and not to 

Its governing body. The governing body must request the agency or 

office In charge of 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 a percentage of money in 

the special fund is placed in the political‘subdivislon'a treasury 

only upon the request of the governing 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 and administered by the 

police department, Co be used to investigate any alleged violations of 

the criminal laws. If the governing body requests the transfer of 10% 

of the special fund to provide preveucion sad treatment of drug abuse, 

that amount la placed 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 

subdivisions which have been used CO pay for salaries, expenses, and 

allowances of the lav enforcement agency holding the special fund. 

Section 5.08(f) expressly provides that 

[nlothing in this subsection shall be construed 

co decrease the tocal salaries, expenses, and 

allowances which an agency or office Is receiving 

from other sources at or from the rime this 

subsection takes 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 1981 effective 

dare of secclon 5.08(f). Moreover. the purpose of section 5.08(f) is 

co increase funding available for investigaclng violations of the 

p. 3121 
Honorable Benjamin Euresci, Jr. - Page 7 (JM-678) 

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 expenditures on 

salaries, expenses. or allowances received by the 

law enforcement office or agency. 

MATTOX 

Attorney General of Texas 

JACK HIGBTOUER 

First Assistant Attorney General 

MARY KELLER 

Execuclve Assistant Attorney General 

JUDGE ZOLLIE STRAFLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman. Opinion Committee 

Prepared by Susan Garrison 

Assistant Attorney General 

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