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C 

THE ATTORNEY GENERAL 

OF TEXAS 

i+sy 10, 1988 

Honorable Jerry Cobb 

Criminal District Attorney 

P. 0. Box 2344 

Denton, Texas 76201-2899 

Opinion No. JR-899 

Re: Disposition of motor 

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 a motor 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 or the county? 

(2) When a motor vehicle forfeited for 

use by the sheriff's department is no longer 

useful to the department, how is it to be 

disposed of? Should the property be sold at 

a public auction under the direction of the 

sheriff as described in section 5.08(b) of 

the Act or at the direction of the Commissioner's Court pursuant to the Local Government Code? 

(3) What is the proper disposition of the 

funds garnered from the disposal of the 

motor vehicle? Should they be deposited in 

the "special fund" described in section 

5.08(f) of the Act or deposited in the 

general fund of the county? 

Sections 5.03-5.081 of the Controlled Substances Act, 

article 4476-15, V.T.C.S., provide for the forfeiture of 

property, including motor vehicles, used in connection 

p. 4431 
Honorable Jerry Cobb - Page 2 (JM-899) 

with certain violations of the Act. Section 5.07 of the 

Act sets out the procedures to be followed by a court in 

ordering a forfeiture and section 5.08 provides for the 

disposition of forfeited property. See aenerallv Attorney 

General Opinions JM-678 (1987) and JW-550 (1986). 

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Section 5.07 of the Controlled Substances Act states 

in part: 

(a) [If the owner of the property do&s 

not file an answer] the court shall hear 

evidence that the property is subject to 

forfeiture and may upon motion forfeit the 

property to the state or an agency of the 

state or to a 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 an agency of the state or to a 

political subdivision of the state 

authorized bv law to emolov oeace officers: 

However. for orooertv other than a 

controlled substance; raw material, or f-w 

paraphernalia, if proof at the hearing 

discloses that the interest of any bona fide 

lienholder, secured party, or other person 

holding an interest in the property in the 

nature of a security interest is greater 

than or equal to the present value of the 

property, the court shall order the property 

released to him. If such interest is less 

than the present value of the property and 

if the proof shows that the property is 

subject to forfeiture, the court shall order 

the property to be forfeited to the state or 

an agency of the state or to a oolitical 

subdivision of the state authorized bv law 

to emolov oeace officers. (Emphasis added.) 

A county is a political subdivision of the state, 

Childress Countv v. State, 92 S.W.2d 1011 (Tex. 1936), and 

it is authorized to employ peace officers. See Code Crim. ? 

Proc. art. 2.12(l). 

p. 4432 
Honorable Jerry Cobb - Page 3 UX-899) 

Section 5.08(c) of the Controlled Substances Act 

provides for the use of certain forfeited property for the 

official business of law enforcement agencies and 

departments of political subdivisions. It provides in 

relevant part: 

The state or an agency of the state or a 

political subdivision 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 to it. . . . The deoartment or 

aaencv receivina ral forfeited vehicle may 

maintain, repair, use, and operate the 

property with money appropriated to the 

deoartment ox aaencv for current operations. 

If the orooertv is a motor vehicle 

suscewtible of reaistration under the motor 

vehicle reaistration laws of thisatate. the 

deDartment or aaencv receivina the forfeited 

vehicle is deemed to be the ourchaser and 

the certificate of title shall be .issued to 

it as recuired . . . . (Emphasis added.) 

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

It has been suggest,ed that section 5.08(c) is thus 

inconsistent. In one part of the subsection political 

subdivisions are authorized to maintain, 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 a political subdivision receiving the forfeited 

property for official use, if such a certificate is 

required by the Certificate of Title Act, article 6687-1, 

V.T.C.S.1 

We do not find that the commands of section 5.08(C) 

concerning forfeited motor vehicles to be inconsistent. In 

a somewhat different, but nevertheless relevant, context 

in Attorney. General Opinion JW-678, we noted that a 

1. We express no opinion on the 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 law enforcement. 

p. 4433 
Honorable Jerry Cobb - Page 4 (JM-899) 

careful review of the legislative intent undergirding 

sections 5.07 and 5.08 of the 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 of the forfeited property will be 

distributed to a specific officer, agency, 

or department of a political 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 

is not inconsistent with regard to this point. In 1977, 

section 5.08(c) was specifically amended to have the same 

general meaning which was retained in the 1979 amendment 

to the statute.. The analysis accompanying the 1987 

legislation noted that the amendment 

allow[s] courts to award forfeited vehicles 

to the 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 on Transportation, 65th Leg. (1977 

1977, 65th Leg., ch. 492, p. 1270. See a 

General Opinion JM-678. 

for Senate 

1 . See Acts 

i 1 ~0 Attorney 

Section 5.08(c) designates the department or agency 

of .a political subdivision receiving a forfeited motor 

vehicle as the proper entity-to obtain a certificate of 

title, if necessary, for vehicles received for official 

use, but the department is "deemed to be the purchaser" of 

the vehicle solelv for the ourooses of the Certificate Of 

Title Act. Nothing in the Controlled Substances Act vests 

a department or agency of a political subdivision 

receiving a forfeited vehicle with any of the muniments of 

ownership merely because it obtains a certificate of title 

p. 4434 
Honorable Jerry Cobb - Page 5 (JM-899) 

to the vehicle. A certificate of title to a motor vehicle 

is not 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 

of the Controlled Substances Act, which refers to the 

Certificate of Title Act, thus cannot be construed to 

grant to a subordinate department or agency of a political 

subdiv.ision general authority to hold property as an owner 

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 to the law enforcement 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 to be disposed of as provided for 

in section 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 of this Act, Andy exceot as nrovided [in section 5.08(c)], shall be sold at 

a public 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 or departments of 

political subdivisions may retain the forfeited property 

to be used for official purposes. V.T.C.S. art. 4476-15, 

55.08(c). 

Section 5.08(b) provides for public 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 or departments 

of political subdivisions. Since section 5.08(b) specifically excepts property retained for official use under 

5.08(c) from the requirement of sale at public auction, it 

follows that property retained for use by law enforcement 

agencies or departments 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, 

p. 4435 
Honorable Jerry Cobb - Page 6 (JR-899) 

which concerns the disposition of proceeds from the sale 

of the vehicle. Section 5.08(f) of the Controlled 

Substances Act provides in relevant part: 

m money, securities, certificates of 

deposit, negotiable instruments, stocks, 

bonds, businesses or business investments, 

contractual rights, real estate, personal 

prooertv and other things of value, and the 

proceeds from the sale of items 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 to employ peace 

officers shall be dewosited in a soecial. 

fund to be administered bv the seizinq 

agencies or office to which thev are forfeited. Except as otherwise provided by 

this section, expenditures from this fund 

shall be used solely for the investigation 

of any alleged violations of the criminal 

laws of this state. . . : (Emphasis added.) 

V.T.C.S. art. 4476-15, 95.08(f). ? 

The proceeds from the sale of the 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 a department or agency of that political 

subdivision, are received for official use 

by a department or agency which has the use 

of the vehicles. Vehicles forfeited for use 

by a department or agency of a political 

subdivision are to be disposed of in accordance 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 

p. 4436 
Honorable Jerry Cobb - Page 7 UM-899) 

department or agency of a political subdivision are to be placed in the special fund 

described in section 5.08(f) of the 

Controlled Substances Act. 

JIM MATTOX 

Attorney General of Texas 

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 

p. 4437