Were Kentucky prosecutors required to deposit asset forfeiture money in a state depository?
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This page answers the general question as of 1996. Ask about yours and see what current Kentucky law means for your facts, with citations you can check.
Plain-English summary
In 1996, Kentucky's Attorney General concluded that asset forfeiture proceeds paid to Commonwealth's and county attorneys remained state money. The prosecutors' receipt of the money did not change its status. They therefore had to place it in a state depository and follow the statutes and regulations governing expenditure of state funds.
The opinion separated two destinations that could be confused. KRS 218A.435(12) kept certain forfeiture proceeds out of the Asset Forfeiture Trust Fund and sent a share directly to participating prosecutors. The AG said that exception concerned the trust fund only; it did not excuse prosecutors from the separate state depository requirement in KRS 41.070(1).
Currency note
This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Historical summary
Commonwealth's and county attorneys receiving proceeds
The AG identified two statutory distribution calculations. Eighteen percent of money received by the trust fund in a fiscal year was allocated to the unified prosecutorial system for participating prosecutors. For the first $50,000 covered by a single forfeiture order under KRS 218A.435(12), ten percent went to the participating Commonwealth's or county attorney. Those were distinct routes under the 1996 provisions quoted in the opinion.
Prosecutorial fiscal staff
The opinion treated the unified prosecutorial system as a state budget unit under KRS 41.070(1). Its agents could not hold covered state receipts in a personal or special bank account; the money had to be deposited in a state depository. The AG applied state expenditure rules to these supplemental forfeiture funds as well.
Law enforcement agencies
The quoted 1996 provision directed ninety percent of the first $50,000 under a single order to the seizing agency or agencies for direct law enforcement purposes. It also directed forty-five percent of proceeds above $50,000 to those agencies outside the trust fund. The opinion's deposit and spending answers specifically addressed money received by prosecutors.
Common questions
Did forfeiture money become a prosecutor's private or local money when received?
No. The AG said title to forfeited property vested in the Commonwealth and the money retained its state character when paid to prosecutors for their state duties.
Did "not paid into the fund" mean prosecutors could use a separate bank account?
No. The AG read that language as an exception to payment into the Asset Forfeiture Trust Fund, not as an exemption from KRS 41.070(1)'s state depository rule.
Did the 1996 law allocate the same percentage to prosecutors in every forfeiture?
The opinion described two calculations: an eighteen percent allocation from trust fund receipts and a ten percent share of the first $50,000 of proceeds covered by KRS 218A.435(12). It did not collapse them into a single universal percentage.
Could prosecutors spend the proceeds outside state spending rules?
The AG said no. It treated the proceeds as supplemental state money governed by the same state expenditure laws and regulations as the appropriations they supplemented.
Background and statutory framework
The Prosecutors Advisory Council asked about distribution, ownership, deposit, and expenditure of forfeiture money under KRS Chapter 218A. The AG read KRS 218A.435 alongside KRS 41.070(1). It concluded that bypassing the trust fund did not remove a receipt from state fiscal controls.
Citations and references
- KRS 218A.435(7)(a) and KRS 218A.435(12): forfeiture distribution provisions quoted by the AG.
- KRS 218A.410(2): vesting of forfeited property in the Commonwealth, as cited in the opinion's analysis.
- KRS 41.070(1): the state depository rule quoted and applied to prosecutors' receipts.
Source
Original opinion text
OAG 96-44
December 3, 1996
Subject: “Asset forfeiture moneys” (KRS Chapter 218A)
Written by: Gerard R. Gerhard
Requested by: David H. MacKnight, Assistant Deputy Attorney General, Director, Prosecutors Advisory Council
Syllabus: “Asset forfeiture moneys” received by Commonwealth's and County Attorneys are state moneys that must be deposited into a state depository and are subject to state statutes and regulations regarding disbursement of state moneys.
OAGs cited: None
Statutes Construed: KRS 15.700; 15.725; 41.010(1); 41.070(1); 43.010(2); 48.010(8); 218A.410(12); 218A.435(1); 218A.435(7)(a); and 218A.435(12).
Opinion of the Attorney General
The following questions, in substance, have been presented:
- Under KRS Chapter 218A, the Kentucky Controlled Substances Act, what calculations determine the amount of forfeiture money paid to Commonwealth's and County Attorneys?
Two provisions of KRS Chapter 218A establish calculations to determine asset forfeiture moneys to be paid to Commonwealth's or County Attorneys.
KRS 218A.435(1) creates a trust and revolving fund in the executive branch of state government known as the “Asset Forfeiture Trust Fund.”
KRS 218A.435(7)(a) directs, regarding distributions from the Asset Forfeiture Trust Fund to Commonwealth's and County Attorneys that:
Eighteen percent (18%) of the funds received in any fiscal year shall be allocated to the unified prosecutorial system to be disbursed by the Attorney General to those Commonwealth's attorneys or county attorneys who have participated in the forfeiture case[.]
KRS 218A.435(12) provides:
Other provisions of law notwithstanding, the first fifty thousand dollars ($50,000) of forfeited coin or currency or of the proceeds from sale of any property forfeited pursuant to this chapter which was seized or forfeited by a single order of forfeiture, shall not be paid into the fund but ninety percent (90%) shall be paid to the law enforcement agency or agencies which seized the property to be used for direct law enforcement purposes and ten percent (10%) to the office of the Commonwealth's attorney or county attorney who has participated in the forfeiture proceeding. The moneys are intended to supplement any funds appropriated to the recipient and shall not supplant other funding of any recipient. In addition, forty-five percent (45%) of all proceeds above fifty thousand dollars ($50,000) shall not be paid into the fund but shall be retained by the law enforcement agency or agencies which seized the property to be used for direct law enforcement purposes.
- Is forfeiture money paid to Commonwealth's and County Attorneys “state money” when in the possession of the Commonwealth's and County Attorneys?
In our view the answer is yes. “Asset forfeiture moneys” flow from forfeitures in which title to property, and all interests therein, vests in the Commonwealth. See KRS 218A.410(2). It follows that asset forfeiture moneys, which emanate from forfeitures, are moneys of the Commonwealth, or, stated another way, are “state money.” There is no loss of such status or identity when such moneys are paid to Commonwealth's or County Attorneys in connection with their state prosecutorial duties (KRS 15.725). Moneys of the Commonwealth, which in our view includes “asset forfeiture moneys” received by Commonwealth's and County Attorneys, are clearly “state money.”
- Are Commonwealth's and County Attorneys required to deposit forfeiture money in the State Treasury or a designated state depository?
In our view the answer is yes. KRS 41.070(1) provides, in part pertinent here:
Unless otherwise expressly provided by law, no receipts from any source of state money or money for which the state is responsible shall be held, used, or deposited in any personal or special bank account, temporarily or otherwise, by any agent or employee of any budget unit, to meet expenditures or for any other purpose. All receipts of any character of any budget unit, all revenue collected for the state, and all public money and dues to the state shall be deposited in state depositories in the most prompt and cost efficient manner available.
Commonwealth's and County Attorneys and their employees obviously are agents of the Unified Prosecutorial System (See KRS 15.700, and the following sections). That system falls within the definition (KRS 41.010(1), 43.010(2), 48.010(8)) of a “budget unit” as used in KRS 41.070(1), such that its agents and employees are governed by KRS 41.070(1), requiring the deposit of state moneys in a state depository. We are not aware of provisions of the statutes which “otherwise expressly provide” (KRS 41.070(1), above) that Commonwealth's and County Attorneys are exempt from such requirement.
We have carefully reviewed the language of KRS 218A.435(12) which might be taken, by its use of the phrase “Other provisions of law notwithstanding,” to mean that Commonwealth's and County Attorneys are exempted from the use of a state depository with regard to asset forfeiture moneys received under KRS 218A.435(12). We believe the phrase “Other provisions of law notwithstanding” modifies the phrase “shall not be paid into the fund,” meaning the Asset Forfeiture Trust Fund. In our view, the phrase “other provisions of law notwithstanding,” as used in KRS 218A.435(12), does not serve to “otherwise expressly provide” an exemption from KRS 41.070(1).
- Are Commonwealth's and County Attorneys' expenditures of forfeiture money required to comply with statutes and regulations applicable to expenditures of “state money”?
In our view it is axiomatic that state moneys must be expended in accordance with state statutes and regulations. “Asset forfeiture moneys” are statutorily specified as being “supplemental” to any appropriation to the recipient (KRS 218A.435(12)). As a “supplement” to appropriations which obviously are governed by state laws and regulations, such moneys are, in our view, governed by the same laws and regulations (i.e., state laws and regulations) as are applicable to the moneys being supplemented.
Albert B. Chandler III
Attorney General
Gerard R. Gerhard
Assistant Attorney General
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