Can a Texas district attorney's office keep forfeited property, like seized vehicles or cash, for its own use?

TX AG Opinion GA-0259: DA Office Forfeiture Transfers

Plain-English summary

The Harris County District Attorney asked whether Code of Criminal Procedure chapter 59, which governs forfeiture of property seized as contraband, let his office keep forfeited vehicles, cash, and equipment for its own official use under a local forfeiture agreement. His office had a standing agreement with local law enforcement agencies that, among other things, sent three out of every ten forfeited vehicles to the district attorney for official use.

The opinion answered two related questions. First, article 59.06 lets the attorney representing the state, once a court orders property forfeited, either transfer it to a law enforcement agency for official use or deposit sale proceeds into special funds, but the statute is otherwise silent about who else might receive property, and administrative officials generally have only the powers the legislature expressly gives them. Second, the opinion concluded that a district attorney's office itself qualifies as a "law enforcement agency" under article 59.01(5), because the statute defines that term as an agency authorized to employ peace officers, and district attorneys are authorized by the Government Code to employ investigators who count as peace officers under the Code of Criminal Procedure. Putting the two conclusions together, a district attorney's office can receive forfeited property, but only because it independently qualifies as a law enforcement agency under the statute's own definition, and only pursuant to a local agreement, not as some separate transfer option outside the statute's terms.

Currency note

This opinion was issued in 2004. 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.

Who this opinion affected (as of 2004)

The Harris County District Attorney's Office: The opinion concluded the office could keep receiving forfeited property under its existing local agreement with area law enforcement agencies, because the office itself is a "law enforcement agency" under article 59.01(5), not because article 59.06 grants a district attorney a freestanding third option to self-transfer property.

Texas district attorneys and other attorneys representing the state under chapter 59: The opinion clarified that an attorney representing the state administers forfeited property only within the powers article 59.06 expressly grants, meaning any transfer to the attorney's own office had to be justified as a transfer to a "law enforcement agency," not as an independent, unwritten authority to route property to the prosecutor's office.

Local law enforcement agencies negotiating chapter 59 forfeiture agreements: The opinion confirmed that a local agreement cannot expand an attorney representing the state's authority beyond what article 59.06 allows: property may go only to a qualifying law enforcement agency, and proceeds only into the special funds the statute describes.

Common questions

Does Texas law let a district attorney's office keep forfeited cars, cash, or equipment for itself?
Yes, according to this 2004 opinion, but only because the office qualifies as a "law enforcement agency" under Code of Criminal Procedure article 59.01(5), and only where a local forfeiture agreement between the attorney representing the state and area law enforcement agencies provides for it.

Why does it matter whether a district attorney's office is a "law enforcement agency" under chapter 59?
Because article 59.06 only lets the attorney representing the state transfer forfeited property to a law enforcement agency or deposit proceeds into specific funds; the opinion found no separate statutory authority letting the attorney's office receive property except by qualifying as a law enforcement agency itself.

What makes a district attorney's office a "law enforcement agency" under this statute?
The opinion reasoned that article 59.01(5) defines a law enforcement agency as one authorized to employ peace officers, and because district attorneys are authorized to employ investigators who qualify as peace officers under article 2.12(5) of the Code of Criminal Procedure, a district attorney's office meets that definition.

Background and statutory framework

Chapter 59 of the Code of Criminal Procedure lets a peace officer seize property as contraband subject to forfeiture, and after a court determines the property is forfeitable, the court forfeits it to the state, with the "attorney representing the state" (a term covering felony prosecutors, certain city attorneys, and the attorney general) acting as the state's agent to dispose of it under article 59.06. Article 59.06(a) requires the attorney representing the state to administer forfeited property in accordance with accepted accounting practices and any local agreement with law enforcement agencies; without such an agreement, the property generally must be sold at public auction with proceeds going to the state treasury.

Where a local agreement exists, the attorney representing the state has two options the statute expressly authorizes: transfer the property to a law enforcement agency for official use, or deposit sale proceeds and similar items of value into special funds benefiting the attorney's office and the law enforcement agency. Harris County's district attorney asked whether a third, unwritten option existed, letting the attorney transfer property directly to the attorney's own office, since the local agreement provided for exactly that with certain seized vehicles. The opinion rejected reading a third option into the statute, reasoning that the constitution lets the legislature define prosecutors' powers, that district attorneys have only the powers the legislature has delegated, and that article 59.06's duties are administrative, meaning the office may exercise only the powers the statute expressly confers or that are reasonably necessary to carry them out.

The opinion then turned to whether the district attorney's office itself is a "law enforcement agency" eligible to receive property under the transfer option the statute does authorize. Article 59.01(5) defines a law enforcement agency as an agency of the state or a political subdivision authorized by law to employ peace officers. Because prosecuting attorneys are authorized under the Government Code to employ investigators, and those investigators are peace officers under article 2.12(5) of the Code of Criminal Procedure, the opinion concluded a district attorney's office meets that definition. The opinion also traced the history back to the predecessor Controlled Substances Act forfeiture provisions and a 1987 opinion, JM-812, which had already recognized that district attorneys, as employers of peace officers, could receive forfeited property under similar language, and found that the legislature's 1989 enactment of chapter 59 did not intend to change that established practice, based on the fiscal note accompanying House Bill 65.

Citations

Statutes:

• TEX. CODE CRIM. PROC. ANN. art. 59.01(2) (Vernon Supp. 2004-05)
• TEX. CODE CRIM. PROC. ANN. art. 59.01(5)
• TEX. CODE CRIM. PROC. ANN. art. 59.03
• TEX. CODE CRIM. PROC. ANN. art. 59.05(e)
• TEX. CODE CRIM. PROC. ANN. art. 59.06(a)
• TEX. CODE CRIM. PROC. ANN. art. 59.06(a)(2)
• TEX. CODE CRIM. PROC. ANN. art. 59.06(b)
• TEX. CODE CRIM. PROC. ANN. art. 59.06(c)(1)-(4)
• TEX. CODE CRIM. PROC. ANN. art. 59.06(g)(1)
• TEX. CODE CRIM. PROC. ANN. art. 2.12(5)
• TEX. GOV'T CODE ANN. § 311.016(1) (Vernon 1998)
• TEX. GOV'T CODE ANN. § 311.011(b) (Vernon 1998)
• TEX. GOV'T CODE ANN. § 311.023 (Vernon 1998)
• TEX. GOV'T CODE ANN. § 41.102(a) (Vernon 2004)
• TEX. CONST. art. V, § 21

Cases:

• State v. Twenty Thousand Four Hundred Eighty ($20,480) Dollars in U.S. Currency, 865 S.W.2d 175 (Tex. App.-Corpus Christi 1993, writ denied)
• Helena Chem. Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001)
• Garcia v. Laughlin, 285 S.W.2d 191 (Tex. 1955)
• In re Entergy Corp., 142 S.W.3d 316 (Tex. 2004)
• Subaru of Am., Inc. v. David McDavid Nissan, 84 S.W.3d 212 (Tex. 2002)
• Slater v. Ellis County Levee Improvement Dist. No. 9, 36 S.W.2d 1014 (Tex. 1931)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0259
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2004/ga0259.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

October 13, 2004

The Honorable Charles A. Rosenthal Jr.
Harris County District Attorney
1201 Franklin Street, Suite 600
Houston, Texas 77002

Opinion No. GA-0259

Re: Whether the attorney representing the state under chapter 59 of the Code of Criminal Procedure may transfer forfeited property to the attorney's own office (RQ-0211-GA)

Dear Mr. Rosenthal:

You ask two questions concerning forfeiture proceedings: first, whether chapter 59 of the Code of Criminal Procedure authorizes the attorney representing the state to transfer forfeited property to the attorney's own office if the transfer accords with accepted accounting practices and the terms of a local agreement with the seizing law enforcement agencies; and second, whether a district attorney's office is a "law enforcement agency" that, under chapter 59 of the Code of Criminal Procedure, may receive a transfer of forfeited property.[1]

You state that law enforcement officers in Harris County, including peace officers of the district attorney's office, seize property such as vehicles, furniture, jewelry, and computer equipment, which a court then may order forfeited as contraband under Chapter 59 of the Code of Criminal Procedure. See Request Letter, supra note 1, at 1; Brief, supra note 1, at 3. The district attorney's office has a local agreement with certain law enforcement agencies that, among other things, provides that "[t]hree out of every ten motor vehicles shall be forfeited to the District Attorney for official use and operation, unless expressly waived by the District Attorney's Office." Brief, supra note 1, at 5.

Under chapter 59 of the Code of Criminal Procedure, a peace officer may seize certain property as contraband subject to forfeiture. See TEX. CODE CRIM. PROC. ANN. arts. 59.01(2), 59.03 (Vernon Supp. 2004-05). If a district court determines after a hearing that property is contraband subject to forfeiture, the court must "forfeit the property to the state, with the attorney representing the state acting as the agent of the state." Id. art. 59.05(e). The "attorney representing the state" in chapter 59 is defined as "the prosecutor with felony jurisdiction in the county in which a forfeiture proceeding is held," certain city attorneys, and the attorney general. Id. art. 59.01(a). The attorney representing the state has the duty, "[o]n final judgment of forfeiture, [to] dispose of the property in the manner required by Article 59.06 of this code." Id. art. 59.05(e).

The focus of your inquiry is article 59.06, which governs the disposition of forfeited property. Article 59.06(a) requires the attorney representing the state to administer "all forfeited property . . . , acting as the agent of the state, in accordance with accepted accounting practices and with the provisions of any local agreement entered into between the attorney representing the state and law enforcement agencies." Id. art. 59.06(a). The existence of a local agreement with a law enforcement agency primarily determines how the attorney representing the state may proceed with disposition of the property. See State v. Twenty Thousand Four Hundred Eighty ($20,480) Dollars in U.S. Currency, 865 S.W.2d 175, 176 (Tex. App.-Corpus Christi 1993, writ denied). Without a local agreement, article 59.06(a) generally requires the property to be sold at public auction, and after deducting certain payments and costs, the proceeds are to be deposited in the general revenue fund of the state treasury. TEX. CODE CRIM. PROC. ANN. art. 59.06(a)(2) (Vernon Supp. 2004-05).

When an attorney representing the state has executed a local agreement with a law enforcement agency, the attorney has two principal options, as this office recently explained:

The attorney may convey forfeited property to the law enforcement agency, which may "maintain, repair, use, and operate the property for official purposes." Id. art. 59.06(b). Alternatively, pursuant to the local agreement, the attorney shall, after deducting certain costs, deposit "all money, securities, negotiable instruments, stocks or bonds, or things of value, or proceeds from the sale of those items" into special funds to benefit the attorney's office and the appropriate law enforcement agency, to be used solely for official purposes. Id, art. 59.06(c)(1)-(4).

Tex. Att'y Gen. Op. No. GA-0122 (2003) at 3.

You ask whether the attorney representing the state has a third principal option, namely, whether chapter 59 authorizes the attorney representing the state to transfer property to the attorney's own office if the local agreement between the attorney and a law enforcement agency so provides. See Request Letter, supra note 1, at 1; Brief, supra note 1, at 1. You suggest that article 59.06 may be construed to that effect for several reasons. First, the statute does not expressly prohibit the attorney representing the state to transfer property to the attorney's office. See Brief, supra note 1, at 1. Second, you contend that because subsection (b) states that the attorney "may" transfer property to a law enforcement agency, the use of the word "may" indicates that the attorney has other options, which could include transferring property to the attorney's office. See Brief, supra note 1, at 3-4; TEX. CODE CRIM. PROC. ANN. art. 59.06(b) (Vernon Supp. 2004-05). Finally, you suggest that subsection (g)(1) seems to recognize that an attorney will receive property because the statute provides that "[a]ll law enforcement agencies and attorneys representing the state who receive proceeds or property . . . shall account for the seizure, forfeiture, receipt, and specific expenditure of all such proceeds and property in an audit[.]" TEX. CODE CRIM. PROC. ANN. art. 59.06(g)(1) (Vernon Supp. 2004-05); Brief, supra note 1, at 4.

In construing article 59.06, we consider the statute as a whole. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). Article 59.06 expressly authorizes an attorney representing the state to (1) transfer property to a law enforcement agency, and (2) to deposit proceeds into accounts maintained for the benefit of the attorney representing the state and for law enforcement agencies. See TEX. CODE CRIM. PROC. ANN. art. 59.06(b)-(c) (Vernon Supp. 2004-05). The statute is otherwise silent with respect to the authority of an attorney representing the state to transfer property. See id. Such silence is significant because, under the constitution, the legislature regulates and prescribes the respective duties of county and district attorneys. See TEX. CONST. art. V, § 21; Garcia v. Laughlin, 285 S.W.2d 191, 194 (Tex. 1955). Accordingly, this office has concluded that a district attorney has only those powers that have been delegated by the legislature. See Tex. Att'y Gen. Op. No. JC-0395 (2001) at 2-3. Moreover, under article 59.06, the duties of the attorney representing the state are expressly administrative. See TEX. CODE CRIM. PROC. ANN. art. 59.06 (Vernon Supp. 2004-05). Generally, administrative agencies "may exercise only those powers the law confers upon them in clear and express statutory language and those reasonably necessary to fulfill a function or perform a duty that the Legislature has expressly placed with the agency." In re Entergy Corp., 142 S.W.3d 316, 322 (Tex. 2004); see also Subaru of Am., Inc. v. David McDavid Nissan, 84 S.W.3d 212, 220 (Tex. 2002). We believe that a court would apply similar principles when construing article 59.06, so that an attorney representing the state will be determined to possess only those powers expressly stated therein or necessarily implied.

Under article 59.06, the existence of a local agreement is the controlling factor that determines the authority of an attorney representing the state in administering forfeited property. See TEX. CODE CRIM. PROC. ANN. art. 59.06 (Vernon Supp. 2004-05). This office has emphasized that subsection (a) intends that "'the disposition of forfeited property will be governed by the terms of an existing local agreement in the first instance.'" Tex. Att'y Gen. Op. No. GA-0005 (2002) at 2 (quoting LO-97-091, at 2); see also Tex. Att'y Gen. Op. Nos. GA-0122 (2003) at 1 n.4; JC-0075 (1999) at 1-2. However, a local agreement cannot expand the authority of the attorney representing the state beyond the powers authorized in article 59.06. The statute is quite specific that an attorney representing the state may transfer property to a law enforcement agency pursuant to a local agreement and does not authorize transfers to any other entity. See TEX. CODE CRIM. PROC. ANN. art. 59.06(b)-(c) (Vernon Supp. 2004-05).

Article 59.06(b), which provides that an attorney representing the state "may" transfer property to a law enforcement agency, does not vest unlimited discretion in the attorney representing the state. You suggest that the use of "may" is permissive so that the attorney representing the state has discretion not to transfer property to a law enforcement agency and may instead transfer property as the local agreement provides. The word "may" in a statute generally "creates discretionary authority or grants permission or a power." TEX. GOV'T CODE ANN. § 311.016(1) (Vernon 1998). In context, article 59.06(b) grants a district attorney the authority pursuant to a local agreement to transfer property to a law enforcement agency only. The attorney representing the state has discretion concerning the method of disposing or liquidating property, as this office recognized when it advised an attorney that "as long as you administer the property in accordance with accepted accounting practices and the provisions of your local agreement, you have the discretion to decide how to dispose of it most advantageously." Tex. Att'y Gen. Op. No. JC-0075 (1999) at 1. However, under article 59.06 as written and as construed in JC-0075, an attorney representing the state does not have discretion to decide in the first instance who is eligible to receive forfeited property.

You interpret subsection (g)(1) as implicitly recognizing the right of an attorney representing the state to receive property because it states:

All law enforcement agencies and attorneys representing the state who receive proceeds or property under this chapter shall account for the seizure, forfeiture, receipt, and specific expenditure of all such proceeds and property in an audit[.]

TEX. CODE CRIM. PROC. ANN. art. 59.06(g)(1) (Vernon Supp. 2004-05); see also id. art. 59.06(l) (stating reporting requirements for a law enforcement agency or attorney representing the state who does not receive "proceeds or property" during a certain time). However, by referencing to these reporting requirements collectively, the statute does not necessarily imply that the attorney representing the state is authorized to receive forfeited property or to transfer property to the attorney's own office. The answer to that question depends on whether the office of an attorney representing the state is a "law enforcement agency" entitled to receive forfeited property under article 59.06(b).

Article 59.01(5) of the Code of Criminal Procedure defines a "law enforcement agency" as "an agency of the state or an agency of a political subdivision of the state authorized by law to employ peace officers." TEX. CODE CRIM. PROC. ANN. art. 59.01(5) (Vernon Supp. 2004-05). Prosecuting attorneys are authorized to employ investigators. See TEX. GOV'T CODE ANN. § 41.102(a) (Vernon 2004). Under the Code of Criminal Procedure, a district attorney's investigators are included in the definition of a peace officer. See TEX. CODE CRIM. PROC. ANN. art. 2.12(5) (Vernon Supp. 2004-05). Accordingly, a district attorney is authorized to employ peace officers.

Statutorily-defined words and phrases must be construed according to their statutory definition. See TEX. GOV'T CODE ANN. § 311.011(b) (Vernon 1998). Consequently, under article 59.06(b), the attorney representing the state may transfer forfeited property to a "law enforcement agency" which, as defined in 59.01(5), includes the office of the district attorney. TEX. CODE CRIM. PROC. ANN. arts. 59.01(5), 59.06(b) (Vernon Supp. 2004-05).

Furthermore, in construing a statute, we may consider former statutory provisions on the same or similar subject, administrative interpretation, circumstances under which a statute was enacted, and the statute's legislative history, among other matters. See TEX. GOV'T CODE ANN. § 311.023 (Vernon 1998). Prior to the enactment of chapter 59, the Controlled Substances Act provided that a court could forfeit property to the state or an agency of the state or to a political subdivision of the state authorized by law to employ peace officers, and authorized an office of a political subdivision of the state authorized to employ peace officers to use such property for official purposes. See Act of May 18, 1989, 71st Leg., R.S., ch. 678, 1989 Tex. Gen. Laws 2230 (enacting Health and Safety Code), amended by Act of July 19, 1989, 71st Leg., 1st C.S., ch. 12, §§ 5-6, 1989 Tex. Gen. Laws 14, 20-21. In Attorney General Opinion JM-812, this office determined that because district attorneys are authorized to employ peace officers, the court could render a judgment under the Controlled Substances Act forfeiting the property to the district attorney. See Tex. Att'y Gen. Op. No. JM-812 (1987) at 1-2.

House Bill 65 from the Seventy-first Legislature, First Called Session, enacted chapter 59 of the Code of Criminal Procedure. See Act of July 19, 1989, 71st Leg., 1st C.S., ch. 12, 1989 Tex. Gen. Laws 14. House Bill 65 created two important innovations to the forfeiture laws. First, it established the administrative function of the attorney representing the state, who must administer forfeited property as an agent for the state. Second, it authorizes the attorney representing the state and law enforcement agencies to execute a local agreement concerning disposition of property and proceeds. According to the fiscal note, in some respects the disposition of forfeited property would remain the same under House Bill 65:

If there is a local agreement, disposition of forfeited property will be handled, as it is currently, with state and local agencies dividing the forfeited property among their agencies for use in enforcement and prosecution activities.

FISCAL NOTE, Tex. H.B. 65, 71th Leg., 1st C.S. (1989) (emphasis added). As opinion JM-812 suggests, the practice at the time House Bill 65 was enacted included forfeiture of property for use by the district attorney for official purposes.

We must assume that the legislature understood in 1989 that when it defined a "law enforcement agency" in article 59.01 as an agency of the state or a political subdivision authorized to employ peace officers, it included the office of a district attorney, who may also be the "attorney representing the state." We must also assume that the legislature was aware of this office's construction of similar language in the Controlled Substances Act as permitting forfeiture of confiscated property to a district attorney's office. See Slater v. Ellis County Levee Improvement Dist. No. 9, 36 S.W.2d 1014, 1017 (Tex. 1931) (it is presumed when a statute is enacted with terms similar to former law that has been construed, the terms in the new statute will receive the same construction). That aspect of forfeiture was not intended to change, as recognized in the fiscal note. Consequently, we conclude that under article 59.06 of the Code of Criminal Procedure, the attorney representing the state, if the local agreement so provides, may transfer forfeited property to the attorney's office to maintain and use for official purposes.

SUMMARY

Article 59.06 of the Code of Criminal Procedure authorizes an attorney representing the state to transfer forfeited property to "law enforcement agencies" as defined in article 59.01(5). In article 59.06(b), the office of an attorney representing the state is a "law enforcement agency" that may receive forfeited property from the attorney representing the state.

Very truly yours,

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Charles A. Rosenthal Jr., Harris County District Attorney, to Honorable Greg Abbott, Texas Attorney General (Apr. 12, 2004) (on file with Opinion Committee, also available at www.oag.state.tx.us) [hereinafter Request Letter]; Brief attached to Request Letter, at 1 [hereinafter Brief].