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C THE ATTORNEY GENERAL OF TEXAS
i+sy10,1988

Honorable Jerry Cobb Criminal District Attorney P.0. Box 2344 Denton, Texas 76201-2899 Opinion No. JR-899

Re: Disposition ofmotor vehicles under article 4476-15, V.T.C.S., the Controlled Substance Act (RQ-1239)

Dear Mr. Cobb:

You ask our opinion on the following concerning certain provisions of the Controlled Act, article 4476-15, V.T.C.S.: questions Substances

(1)When amotor vehicle is forfeited for use by the Sheriff as permitted under section 5.08 of the Act, should the certificate of title to the vehicle be issued in the name of the sheriff's department orthe county?
(2)When amotor vehicle forfeited for use by the sheriff's department isno longer useful to the department, how is itto be disposed of? Should the property be sold at apublic auction under the direction of the sheriff asdescribed insection 5.08(b) of the Act orat the direction ofthe Commissioner's Court pursuant to the Local Government Code?
(3)What isthe proper disposition of the funds garnered from the disposal of the motor vehicle? Should they bedeposited in the "special fund" described in section 5.08(f) of the Act or deposited in the general fund ofthe county?
Sections 5.03-5.081 ofthe Controlled Substances Act, article 4476-15, V.T.C.S., provide for the forfeiture of property, including motor vehicles, used in connection

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with certain violations ofthe Act. Section 5.07 of the Act sets out the procedures to be followed by acourt in ordering aforfeiture and section 5.08 provides for the disposition of forfeited property. See aenerallv Attorney General Opinions JM-678 (1987) and JW-550 (1986). -

Section 5.07 ofthe Controlled Substances Act states inpart:
(a) [Ifthe owner of the property do&s

not file ananswer] the court shall hear evidence that the property is subject to forfeiture andmay upon motion forfeit the property to the state oran agency of the state or toa nolitical subdivision of the state authorized bv law to emulov Deace officers. . . .

. . . . (d)If it is found that the property is subject to forfeiture, then the judge shall upon motion forfeit the property to the state or anagency ofthe state or to a political subdivision of the state authorized bv law to emolov oeace officers: However. for orooertv other than a controlled substance; rawmaterial, or f-w paraphernalia, if proof at the hearing discloses that the interest of any bona fide lienholder, secured party, orother person holding an interest in the property in the nature of a security interest is greater than orequal tothe present value of the property, the court shall order the property released tohim. If such interest is less than the present value ofthe property and ifthe proof shows that the property is subject to forfeiture, the court shall order the property tobe forfeited to the state or an agency ofthe state or toa oolitical subdivision ofthe state authorized bv law to emolov oeace officers. (Emphasis added.)

A county is a political subdivision of the state, Childress Countv v. State, 92S.W.2d 1011 (Tex. 1936), and it isauthorized to employ peace officers. See Code Crim. ? Proc. art. 2.12(l).

p. 4432Honorable 

### JerryCobb -Page 3 UX-899)

Section 5.08(c) of the Controlled Substances Act provides for the use ofcertain forfeited property for the official business of law enforcement agencies and departments of political subdivisions. It provides in relevant part:

The state or anagency ofthe state or a political subdivision of the state authorized by law to employ peace officers may maintain, repair, use, and operate for official purposes allproperty that has been forfeited to it. . . . The deoartment or aaencv receivina ral forfeited vehicle may maintain, repair, use, and operate the property with money appropriated to the deoartment oxaaencv for current operations. If the orooertv is a motor vehicle suscewtible of reaistration under the motor vehicle reaistration laws ofthisatate. the deDartment oraaencv receivina the forfeited vehicle isdeemed tobe the ourchaser and the certificate oftitle shall be .issued to itas recuired . . . . (Emphasis added.)

V.T.C.S. art. 4476-15, 55.08(c).

Ithas been suggest,ed that section 5.08(c) is thus inconsistent. In one part of the subsection political subdivisions are authorized tomaintain, use, repair, and operate for official purposes property that has been forfeited to them. Another part of the same subsection specifically directs that a certificate of title for a forfeited motor vehicle be issued to the department or aaency of apolitical subdivision receiving the forfeited property for official use, if such a certificate is required by the Certificate ofTitle Act, article 6687-1, V.T.C.S.1

We donot find that the commands of section 5.08(C) concerning forfeited motor vehicles tobe inconsistent. In asomewhat different, but nevertheless relevant, context inAttorney. General Opinion JW-678, we noted that a

1. We express noopinion onthe application in fact of the Certificate of Title Act or any of the statutes dealing with motor vehicle registration to vehicles forfeited for official use in lawenforcement.

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careful review of the legislative intent undergirding sections 5.07 and 5.08 ofthe Controlled Substances Act demonstrates that

[allthough Section 5.07 provides in general terms that property may be forfeited to [a political subdivision] section 5.08 provides that some ofthe forfeited property will be distributed to a specific officer, agency, ordepartment ofapolitical subdivision.

. . . The oortions of section 5.08 which recuire distribution of forfeited orooertv to an office. individual or law enforcement aaencv provide further definition of the court orders of forfeiture authorized bv section 5.07. (Emphasis supplied.)
Attorney General Opinion SM-678 (1987). We note further that the legislative history of-a relevant amendment to section 5.08(c) underscores our finding that the statute isnot inconsistent with regard to this point. In 1977, section 5.08(c) was specifically amended tohave the same general meaning which was retained inthe 1979 amendment to the statute.. The analysis accompanying the 1987 legislation noted that the amendment

allow[s] courts toaward forfeited vehicles tothe Department of Public Safety or to anv other agency or unit of government employs the officer who conducted seizure. which the

Bill Analysis to S.B. No. 1033, prepared Committee onTransportation, 65th Leg. (1977 1977, 65th Leg., ch. 492, p. 1270. See a General Opinion JM-678. for Senate 

### 1. See Acts 1~0 Attorney i

Section 5.08(c) designates the department or agency of .a political subdivision receiving a forfeited motor vehicle as the proper entity-to obtain acertificate of title, ifnecessary, forvehicles received for official use, but the department is "deemed tobe the purchaser" of the vehicle solelv for the ourooses of the Certificate Of Title Act. Nothing inthe Controlled Substances Act vests a department or agency of a political subdivision receiving aforfeited vehicle with any ofthe muniments of ownership merely because itobtains acertificate of title

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to the vehicle. Acertificate of title to amotor vehicle isnot conclusive proof of the actual ownership of the

P

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- vehicle. Pioneer Mutual Comoensation Co.v. Diaz, 177

S.W.Zd 202 (Tex. 1944). The bare lanauaae of section 5.08 ofthe Controlled Substances Act, which refers to the Certificate of Title Act, thus cannot be construed to grant toasubordinate department or agency ofapolitical subdiv.ision general authority tohold property as anowner separate and apart from the political subdivision itself.

Your second question is about the proper method for the disposal of a forfeited motor vehicle once it is no longer useful tothe lawenforcement department or agency operating it. Section 5.08 provides for the disposal of different categories of forfeited property in several different.ways. First, controlled substances, the raw materials used to manufacture controlled substances, and drug paraphernalia are tobe disposed of asprovided for insection 5.08(a). Second, all

other property that has been forfeited, except for money derived from the sale, manufacture, distribution, dispensation, delivery, or other commercial undertaking violative ofthis Act, Andy exceot as nrovided [insection 5.08(c)], shall be sold at apublic auction under the direction of the county sheriff . . . . (Emphasis added.)

V.T.C.S. art. 4476-15, 95.08(b). Finally, section 5.08(c) provides that law enforcement agencies ordepartments of political subdivisions may retain the forfeited property tobeused for official purposes. V.T.C.S. art. 4476-15, 55.08(c).
Section 5.08(b) provides forpublic auction of all forfeited property exceot "controlled substances, raw materials, and drug paraphernalia," which are covered by section 5.08(a), and property retained for use under section 5.08(c) by law enforcement agencies ordepartments ofpolitical subdivisions. Since section 5.08(b) specifically excepts property retained for official use under 5.08(c) from the requirement of sale atpublic auction, it follows that property retained foruse by law enforcement agencies ordepartments under 5.08(c) must be subject to the Local Government Code’s general provisions ,for the disposal of surplus public property.

Attorney General Opinions JM-678 (1987) and JM-550 (1986) provide a concise answer to your final question,

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which concerns the disposition ofproceeds from the sale of the vehicle. Section 5.08(f) of the Controlled Substances Act provides inrelevant part:

m money, securities, certificates of deposit, negotiable instruments, stocks, bonds, businesses orbusiness investments, contractual rights, real estate, personal prooertv and other things ofvalue, and the proceeds from the sale of items described in this subsection that are forfeited to the seizing agencies ofthe state oran agency oroffice ofapolitical subdivision of the state authorized by law to employ peace officers shall be dewosited in a soecial. fund to be administered bv the seizinq agencies oroffice towhich thev are forfeited. Except as otherwise provided by this section, expenditures from this fund shall beused solely for the investigation of any alleged violations ofthe criminal laws ofthis state. . . : (Emphasis added.)

V.T.C.S. art. 4476-15, 95.08(f). ?
The proceeds from the sale ofthe forfeited vehicles used by the sheriff's department must be deposited in the special fund described in section 5.08(f) of the Controlled Substances Act. Attorney General Opinion JM-678 (1987).

SUMMARY

Section 5.08 of the Controlled Substances Act, article 4476-15, V.T.C.S., provides that when motor vehicles are forfeited pursuant to that act, t0.a political subdivision authorized by law to employ peace officers, and are received for official use by adepartment oragency ofthat political subdivision, are received for official use by adepartment oragency which has the use ofthe vehicles. Vehicles forfeited for use by a department or agency of a political subdivision are tobedisposed of inaccordance with the Local Government Code governing the disposition of surplus public property. The proceeds from the sale of property forfeited for official use by a

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department or agency ofapolitical subdivision are tobeplaced inthe special fund described in section 5.08(f) of the Controlled Substances Act.

JIM MATTOX Attorney General ofTexas

MARY KELLER First Assistant Attorney General

LOUMCCRBARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY Special Assistant Attorney General

RICE GILPIN Chairman, Opinion Committee Prepared by Don Bustion Assistant Attorney General

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