Who owns the money a county crime victims' office raises through donations and fundraisers?

Plain-English summary

The 52nd Judicial District Attorney for Coryell County brought the Attorney General an awkward situation. The county's crime victims' office had raised money through fundraisers, silent auctions, and donations, hoping to buy new furniture for a bigger office. The crime victim coordinator deposited the money with the county auditor rather than opening a separate account, and the auditor put it in the county's general fund. When the planned move fell through, the coordinator auctioned some items online and sold the furniture bought with the raised money. The district attorney asked two questions: does property raised by the crime victims' office become county property, and did selling it online amount to a crime?

On the first question, the opinion said a court could conclude the property belongs to the county. The reasoning ran through the rules on who may accept gifts for a prosecutor's office. A crime victims' office is a subdivision of the district attorney's office. Texas law does not let a prosecuting attorney accept gifts or grants on behalf of the office unless a statute expressly allows it; instead, the county commissioners court is the body authorized to accept gifts and grants to support prosecution. An earlier opinion (LO-94-083) had reached the same result for a contribution accepted by a district attorney: because only the commissioners court could accept gifts, the contribution belonged to the county. Finding no statute that lets a county crime victims' office accept gifts on its own, the opinion concluded the donated property here belonged to Coryell County rather than to the crime victims' office.

The opinion added an important qualifier. Owning the property does not give the county unfettered discretion to spend it however it likes. Under the common law of gifts, a gift made on a condition can be revoked by the donor if the recipient violates or refuses to honor the condition. The district attorney had not said whether the donations were given on the condition that they be used only for crime-victim assistance. To the extent such conditions existed, the opinion warned that the commissioners court would risk revocation of the donations if it used them for an inconsistent purpose.

On the second question, whether selling the items online was a crime, the opinion declined to answer. Whether a person has committed a crime in a particular situation is a question of fact, and the opinion process does not resolve fact questions. The opinion also noted that a district attorney's decision whether to initiate criminal proceedings is within the prosecutor's substantial discretion.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The county and its commissioners court (as the opinion described it): The opinion concluded a court could find the donated property belongs to the county, because only the commissioners court (not the prosecutor's office) may accept gifts. But it cautioned that gifts given on a condition could be revoked if used for an inconsistent purpose.

District attorneys and crime victims' offices (as the opinion described it): The opinion treated the crime victims' office as part of the district attorney's office, which cannot accept gifts or donations absent express statutory authority. It found no statute giving the office that authority.

On whether a crime occurred (as the opinion described it): The opinion declined to decide. It said whether someone committed a crime is a fact question outside the opinion process, and noted the prosecutor's substantial discretion over charging decisions.

Common questions

If a county crime victims' office raises money, who owns it?
A court could conclude the county owns it, the opinion said. The office is part of the district attorney's office, which cannot accept gifts without express statutory authority; that power belongs to the commissioners court, so the donations become county property.

Can the county then spend the money on anything?
Not necessarily. The opinion warned that if a gift was made on a condition (for example, to be used only for crime-victim assistance), spending it on something else could let the donor revoke the gift under the common law of gifts.

Was it a crime to sell the donated items online?
The opinion did not say. Whether a person committed a crime in a specific situation is a fact question that an AG opinion cannot resolve, and charging decisions are within the prosecutor's discretion.

Why can't the prosecutor's office just keep donations it raises?
Because Texas law does not let a prosecuting attorney accept gifts or grants for the office unless a statute expressly authorizes it. The opinion pointed to the commissioners court as the body the Legislature authorized to accept such gifts.

Background and statutory framework

Chapter 41 of the Government Code governs prosecuting attorneys; section 41.101 defines the term to include district attorneys, and sections 41.001-.310 govern them generally. Section 41.108 authorizes the commissioners court to accept gifts and grants to finance adequate and effective prosecution programs. Local Government Code section 81.032 likewise lets a commissioners court accept donations. Section 44.115(f) is an example of a statute giving a specific county (Bexar) commissioners court authority to accept gifts for crime-victim assistance, illustrating that such authority is granted expressly rather than assumed. Code of Criminal Procedure article 56.04 provides that the prosecutor designates a victim assistance coordinator, making the crime victims' office part of the prosecutor's office.

The opinion relied on its prior opinions LO-94-083 (a contribution a district attorney accepted belonged to the county) and GA-0562 (2007) (prosecuting attorneys lack authority to accept gifts except as expressly provided, and the common law of gifts limits spending of conditioned donations), and on McClure v. McClure for the rule that a conditional gift may be revoked if the condition is not honored. For declining the criminal question, it cited JC-0256 (2000) and a line of opinions (GA-0326, JC-0020, DM-98, H-56), along with GA-0765 (2010) on prosecutorial discretion.

Citations

Cases:

• McClure v. McClure, 870 S.W.2d 358, 361 (Tex. App.—Fort Worth 1994, no writ)

Statutes:

• Tex. Gov't Code Ann. § 41.101 (West 2004)
• Tex. Gov't Code Ann. §§ 41.001-.310 (West 2004 & Supp. 2011)
• Tex. Gov't Code Ann. § 41.108 (West 2004)
• Tex. Gov't Code Ann. § 44.115(f) (West 2004)
• Tex. Loc. Gov't Code Ann. § 81.032
• Tex. Code Crim. Proc. Ann. art. 56.04 (West Supp. 2011)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. H-56 (1973), DM-98 (1992), LO-94-083 (1994), JC-0020 (1999), JC-0256 (2000), GA-0326 (2005), GA-0562 (2007), GA-0765 (2010)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0956
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0956.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

July 25, 2012

The Honorable David A. Castillo Opinion No. GA-0956
52nd Judicial District Attorney
Coryell County Re: Status of unused funds of a county's crime
Post Office Box 919 victims' office (RQ-1049-GA)
Gatesville, Texas 76528-0919

Dear Mr. Castillo:

You ask whether "property acquired by a Crime Victim's Office through fundraisers and donations become[s] county property."[1] You also ask whether a crime has been committed "[i]f the Crime Victim's Coordinator then disposes of the property through an [I]nternet website." Request Letter at 1. As background to your questions, you inform us that the "Coryell County Crime Victim's Office was attempting to raise money for the purchase of new furniture in the expectation of moving into a bigger office." Id. You tell us the crime victim coordinator deposited money, raised through fundraisers, silent auctions, and donations, with the county auditor instead of opening a new checking account. See id. You also tell us the county auditor placed the funds into Coryell County's (the "County") general fund. See id. You tell us further that upon learning the crime victims' office would not be moving into the bigger office, the coordinator proceeded to auction some items on an Internet auction site and sold the furniture that had been purchased with the raised funds. See id. You do not seek our opinion on the statutory propriety of the various activities undertaken in the crime victims' office's fundraising efforts. We do not address such issues and limit this opinion accordingly.

No statute or court decision of which we are aware directly addresses your first question. However, Opinion LO-94-083 addressed a similar question. In Opinion LO-94-083, a district attorney inquired about his acceptance of a contribution from a nonprofit corporation for the purpose of enhancing his office's ability to prosecute a specific type of theft. Tex. Att'y Gen. LO-94-083, at 1. The contribution had been accepted by the district attorney several years prior to the opinion request. See id. In Opinion LO-94-083, this office examined chapter 41 of the Government Code, which governs prosecuting attorneys. See id.; see also TEX. GOV'T CODE ANN. §§ 41.101 (West 2004) (defining "prosecuting attorney" to include district attorneys), 41.001-.310 (West 2004 & Supp. 2011) (governing prosecuting attorneys). The Opinion noted that chapter 41 did not expressly authorize a prosecuting attorney to accept contributions on behalf of his or her office. See Tex. Att'y Gen. LO-94-083, at 1 (noting also that chapter 41 prohibited a district attorney from accepting a gift to prosecute a case that the law required a district attorney to prosecute); see also Tex. Att'y Gen. Op. No. GA-0562 (2007) at 2 (concluding "that prosecuting attorneys do not have the authority to accept gifts or grants except as expressly provided by statute"). The Opinion also considered that the chapter did expressly authorize the county commissioners court to accept gifts and grants for the purpose of financing adequate and effective prosecutorial programs. See Tex. Att'y Gen. LO-94-083, at 1 (citing Government Code section 41.108); Tex. Att'y Gen. Op. No. GA-0562 (2007) at 2 (concluding based on section 81.032 of the Local Government Code that commissioners court may accept donations of funds to compensate district attorney employees). Based on this authority, Opinion LO-94-083 concluded that because only the commissioners court had authority to accept gifts, the contribution, received years prior and accepted by the district attorney, belonged to the county. See Tex. Att'y Gen. LO-94-083, at 2.

A court could find that the same conclusion holds in the situation about which you inquire. The County's crime victims' office is a subdivision of the district attorney's office. See generally TEX. CODE CRIM. PROC. ANN. art. 56.04 (West Supp. 2011) (providing that the "district attorney ... who prosecutes criminal cases shall designate a person to serve as victim assistance coordinator in that jurisdiction"). And because the County's district attorney's office lacks authority to accept gifts and donations, by extension so does its crime victims' component. Moreover, we find no statutory provision generally authorizing the County's crime victims' office to accept gifts or donations. But see TEX. GOV'T CODE ANN. § 44.115(f) (West 2004) (authorizing Bexar County Commissioners Court to accept gifts "for the purpose of financing or assisting effective ... crime victim's assistance" in the county); Tex. Att'y Gen. Op. No. GA-0562 (2007) at 2 (noting that particular statutes giving individual county prosecutors authority to accept gifts and grants would be "unnecessary if prosecutors as a class possessed such authority"). Given the crime victims' office's lack of authority to accept gifts and the fact that the commissioners court is the body authorized to accept gifts, we conclude, as this office did in Opinion LO-94-083, that the donated property here belongs to the County rather than to the crime victims' office. See Tex. Att'y Gen. LO-94-083, at 2; see also TEX. GOV'T CODE ANN. § 41.108 (West 2004) ("The commissioners court of the county ... may accept gifts and grants from any foundation or association for the purpose of financing adequate and effective prosecution programs in the county ....").

Our conclusion that the property belongs to the County does not mean that the County has unfettered discretion to spend funds or utilize property donated to the crime victims' office. In Attorney General Opinion GA-0562, we noted that the common law of gifts "limits a commissioners court's authority to expend funds that are donated subject to a specific condition on their use." Tex. Att'y Gen. Op. No. GA-0562 (2007) at 4; see McClure v. McClure, 870 S.W.2d 358, 361 (Tex. App.—Fort Worth 1994, no writ) ("If a gift is made upon a condition, then failure of, violation of, or refusal to perform the condition by the donee constitutes a good ground for revocation of the gift by the donor."). You do not tell us whether the funds and property were provided subject to a condition that they be utilized only for crime victims' assistance. To the extent such conditions exist, the commissioners court risks revocation of the donations if it uses the gifts for an inconsistent purpose. See id.

We cannot answer your second question because the question of "[w]hether a person has committed a crime in any particular circumstance is a question of fact that cannot be resolved in an attorney general opinion." Tex. Att'y Gen. Op. No. JC-0256 (2000) at 3; see also Tex. Att'y Gen. Op. Nos. GA-0326 (2005) at 6, JC-0020 (1999) at 2, DM-98 (1992) at 3, H-56 (1973) at 3; see also Tex. Att'y Gen. Op. No. GA-0765 (2010) at 3 (concluding that "[a] district attorney's determination regarding the initiation of criminal proceedings is within the prosecutor's substantial discretion").

SUMMARY

Given the crime victims' office's lack of authority to accept gifts and donations and the fact that the county commissioners court is the body authorized to accept gifts, a court could conclude that the property donated to the crime victims' office here can belong only to Coryell County.

The question of whether a person has committed a crime in any particular circumstance is a question of fact that cannot be resolved in an attorney general opinion.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable David A. Castillo, 52nd Judicial Dist. Att'y, Coryell Cnty., to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (rec'd Mar. 29, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").