## OF TE=XAS AUSTIN. **TNXAS** 

### 78711

January 16, 1974
The Honorable Wilson E. Speir, Director Opinion No. H- 210 Texas Department ofPublic Safety Box 4087 Re: Whether “evidence” money Austin, Texas 78773 may be used in an “Imprest Fund” for use in undercover Dear Colonel Speir: **work?** Your request for an opinion states:

“Undercover **work** today occasionally requires the utilization ofa ‘flash roll’ in obtaining delivery of large quantities ofnarcotics and dangerous drugs. It is sometimes necessary for agents to borrow upto Five Thousand Dollars ($5,000) for purchase of evidence. When they do this, they must pay interest for aperiod offour (4) to six (6) weeks at their personal expense with noprovisions for reimbursement of the interest cost. Often agents do not have the capabilities to borrow a sufficient amount of money to effectively conduct undercover investigations of this type. This is curtailing and restricting the effectiveness ofthe Narcotics Service. “We are therefore interested in obtaining vour opinion as towhether part of the ‘evidence’ money provided by the appropriation bill
. . . could be set upas an ‘Imprest Fund’, with appropriate accounting safeguards, so that it could be drawn with proper authorization and used in undercover work.

“The money for this fund would be drawn onwarrant and placed in an approved bank to be used when and as needed for this purpose. The account, of course, would be a revolving one as in many cases the money would be recovered, used

p. 986.

The Honorable Wilson E. Speir, page 2 (H-210)

as evidence and then returned to the account to be used the next time the occasion arose. The money for the undercover work would be drawn and accounted for as required inadvance. The difference from the present system is that the agent would be using State money from this fund instead ofborrowed money entailing the occasion for interest expense. ” The current Appropriation Act (H. B. 139, Acts 1973, 63rd Leg., p. 111-134) states:

“From the amounts appropriated out ofthe

Operator’s and Chauffeur’s License Fund for the support and maintenance ofthe Department ofPublic Safety, an amount not to exceed Two Hundred and Forty Thousand Dollars ($240,000) for each year of the biennium beginning September I, 1973, is hereby designated for the purchase ofevidence and/or information and surveillance expenses deemed necessary by the Department ofPublic Safety; and accountability for expenditures as set forth above shall be governed by such rules and regulations as the Director ofthe Department ofPublic Safety may recommend.
. . .” (emphasis added) There is ample pre-existing law, in our opinion, to support such provisions. See Articles 4413(4a), 4413(6), 4413(11), 4413(1~,44,13(16),.V..T. C.S. We believe this falls within the “miscellaneous operating expense” category of Article 4413(4a), V.T. C.S. The money is used to combat crime, aproper public purpose. The cost of “purchasing” evidence under the circumstances you describe is an expense ofthe agency and nol an individual expense ofthe employee acting for it. The Department should bear the financial burden and risk - not the employee. See Att,orney Gcncral Op:~nion H-74(1973). So long as adequate safeguards arc observed and there is str&t adherence to appropriate departmenl~al rules and regulations, we thj,nka rev&ing “Imprest

p. 98’7The Honorable Wilson E. Speir, page 3 (H-210)

Fond” such as you contemplate might be lawfully funded from the above noted appropriation item. The use ofrevolving accounts is widely recognized and approved as an accounting procedure, and the Director has been given broad rule-making and regulatory powers to control the Department. Article 4413(b)(2), V. T. C.S. See Attorney General Opinions O-2215 (1940), S-103 (1953), WW-1207 (1961). H-74 (1973). We therefore answer your question in the affirmative. SUMMARY The Department ofPublic Safety, under appropriate departmental rules and regulations, may establish a revolving “Imprest Fund” from which money may be furnished agents to “purchase” narcotics evidence.

DAVID M. KENDALL, Chairman Opinion Committee

p. 988