Can a Texas district attorney use asset forfeiture funds to buy a building and lease or sell it to the county?

Plain-English summary

John Hubert, the District Attorney for Kleberg and Kenedy Counties, asked the Attorney General how far he could stretch his asset forfeiture money. His office had a chance to buy a property next to the courthouse, a main building, a vehicle storage building, and a paved parking lot. The plan was to buy it with asset forfeiture funds and then put it to use through other government entities: Kleberg County would rent or lease the parking lot for juries, witnesses, and the public visiting the courthouse, the county might buy the building and land, and the Department of Public Safety might lease part of it for its Kingsville Highway Patrol office. The District Attorney wanted to know whether any of these arrangements would still count as using the funds "solely for the official purposes" of his office, as article 59.06 of the Code of Criminal Procedure requires.

The AG started with a caveat it repeats often in these situations: whether a specific expenditure of forfeiture money is authorized turns on facts the opinion process cannot resolve. With that limit in mind, it explained the rule. Money in the special fund kept for the prosecutor must be spent only on the official purposes of the office, which the statute ties to activities relating to the preservation, enforcement, or administration of state laws. A 2013 amendment added a list of nine example categories, including "facility costs, including building purchase." The District Attorney read that as authorizing the building purchase, but the AG read the list as illustrative rather than expansive. The word "including" is a term of enlargement, not a grant of authority for every facility cost; a building purchase still has to connect to an activity of the prosecutor's own office.

Applying that, the AG concluded a court would find it difficult to treat buying property and then selling or leasing it to a different entity, the county or DPS, as a use solely for the official purposes of the district attorney's office. The AG also addressed an earlier opinion, GA-0613, which had said a district attorney could not use forfeiture funds to help a county build a juvenile detention facility. The 2013 amendment did not undo that result. Drawing on the bill's own analysis, the AG treated the amendment as clarifying existing law rather than expanding what forfeiture funds may buy, so GA-0613 remained valid.

Currency note

This opinion was issued in 2014. 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 Kleberg and Kenedy Counties District Attorney (as the opinion described it): The opinion answered that a court would be unlikely to conclude the District Attorney could use asset forfeiture funds to purchase land and a building for subsequent sale or lease to other entities, because that use would likely not be an official purpose of the office under article 59.06. It also noted that whether any particular expenditure qualifies depends on fact questions outside the opinion process.

District attorneys generally (as the opinion described it): The opinion described forfeiture funds in the prosecutor's special fund as spendable solely for the official purposes of the office, meaning activities relating to the preservation, enforcement, or administration of state laws, and described the amendment's example categories (including building purchase) as illustrative rather than self-justifying.

Counties and the Department of Public Safety (as the opinion described it): The opinion described the prospect of the prosecutor buying property and transferring it, by sale or lease, to the county or DPS as unlikely to satisfy the "solely for official purposes" standard, because the use would not be an activity of the district attorney's own office.

Common questions

Can a Texas district attorney buy a building with asset forfeiture money and lease it to the county?
Likely not, under this opinion. The AG concluded a court would be unlikely to treat buying property to sell or lease to another entity as a use solely for the official purposes of the district attorney's office.

Doesn't the statute list "building purchase" as an allowed use?
The 2013 amendment lists "facility costs, including building purchase" as an example. The AG explained that the list is illustrative, so a building purchase still must connect to an activity of the prosecutor's office that relates to enforcing or administering state laws.

What does "official purposes of the office" mean for forfeiture funds?
The AG described it as spending tied to an activity of the attorney or office that relates to the preservation, enforcement, or administration of state laws, not spending that benefits a different governmental entity.

Did the 2013 amendment overrule the earlier opinion GA-0613?
No. The AG explained that the amendment clarified existing law rather than expanding permissible expenditures, so GA-0613, which barred using forfeiture funds to help build a county juvenile detention facility, remained valid.

Could the district attorney just decide this on his own?
The AG noted that whether a specific expenditure is authorized requires resolving fact questions beyond the opinion process, so the office would have to evaluate the actual, ultimate use of the property against the statute.

Background and statutory framework

Article 59.06 of the Code of Criminal Procedure governs the disposition of forfeited property and lets the attorney representing the state administer it under a local agreement (Tex. Code Crim. Proc. Ann. art. 59.06 (West Supp. 2013); id. art. 59.06(a); id. art. 59.01(1); Tex. Gov't Code Ann. § 43.182(b) (West Supp. 2013)). Proceeds go into special funds (id. art. 59.06(c)), and the prosecutor's fund under article 59.06(c)(1) must be used "solely by the attorney for the official purposes of his office" (id. art. 59.06(c)(1)).

A 2013 amendment specified that an expenditure is for an official purpose if it relates to the preservation, enforcement, or administration of state laws, "including an expenditure made for" nine listed purposes, one of which is "facility costs, including building purchase" (Act of May 9, 2013, 83rd Leg., R.S., ch. 157, § 1, 2013 Tex. Gen. Laws 595, 597 (codified at Tex. Code Crim. Proc. Ann. art. 59.06(d-4)); id. art. 59.06(d-4)(7)). The AG read the list as illustrative, citing the rule that "include" and "including" are terms of enlargement (Tex. Gov't Code Ann. § 311.005(13) (West 2013); Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25-26 (Tex. App.-Tyler 2000, pet. denied)), so not every facility cost qualifies. The AG concluded its analysis did not affect GA-0613, treating the amendment as clarifying rather than changing the law based on the bill's analysis (Tex. S.B. 878, 83rd Leg., R.S. (2013); Comm'n on State Emergency Commc'ns v. Tracfone Wireless, Inc., 343 S.W.3d 233, 243 (Tex. App.-Austin 2011), rev'd on other grounds, 397 S.W.3d 173 (Tex. 2013)), and noting that whether any particular use is authorized involves fact questions outside the opinion process (Tex. Att'y Gen. Op. No. GA-0122 (2003) at 5).

Citations

Statutory provisions:

• Tex. Code Crim. Proc. Ann. art. 59.06 (West Supp. 2013) (disposition of forfeited property)
• Tex. Code Crim. Proc. Ann. art. 59.06(a) (administration under local agreement)
• Tex. Code Crim. Proc. Ann. art. 59.06(c) (special funds for forfeiture proceeds)
• Tex. Code Crim. Proc. Ann. art. 59.06(c)(1) (West Supp. 2013) (prosecutor's fund; official-purposes limit)
• Tex. Code Crim. Proc. Ann. art. 59.06(d-4) (definition of "official purpose")
• Tex. Code Crim. Proc. Ann. art. 59.06(d-4)(7) (West Supp. 2013) (facility costs, including building purchase)
• Tex. Code Crim. Proc. Ann. art. 59.01(1) (West Supp. 2013) (definition of "attorney representing the state")
• Tex. Gov't Code Ann. § 43.182(b) (West Supp. 2013) (Kleberg and Kenedy district attorney's representation)
• Tex. Gov't Code Ann. § 311.005(13) (West 2013) ("include"/"including" as terms of enlargement)

Session law and legislative history:

• Act of May 9, 2013, 83rd Leg., R.S., ch. 157, § 1, 2013 Tex. Gen. Laws 595, 597 (codified at art. 59.06(d-4))
• Tex. S.B. 878, 83rd Leg., R.S. (2013) (Senate Committee on Criminal Justice, Bill Analysis)

Cases:

• Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25-26 (Tex. App.-Tyler 2000, pet. denied)
• Comm'n on State Emergency Commc'ns v. Tracfone Wireless, Inc., 343 S.W.3d 233, 243 (Tex. App.-Austin 2011), rev'd on other grounds, 397 S.W.3d 173 (Tex. 2013)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0122 (2003)
• Tex. Att'y Gen. Op. No. GA-0613 (2008)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1059
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1059.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

May 20, 2014

The Honorable John T. Hubert Opinion No. GA-1059
Kleberg and Kenedy Counties District Attorney
Kleberg County Courthouse Re: Whether Code of Criminal Procedure
Post Office Box 1471 article 59.06 authorizes a district attorney
Kingsville, Texas 78364 to use asset forfeiture funds in specific
circumstances (RQ-1166-GA)

Dear Mr. Hubert:

You ask whether your office may use asset forfeiture funds under article 59.06 of the Code of Criminal Procedure to "purchase a building and land in [your] county, and subsequently rent and/or lease the building and land back to the county or other law enforcement agency"[1] and comply with article 59.06(c)(1)'s requirement that the funds "be used solely for the official purposes of [your] office." TEX. CODE CRIM. PROC. ANN. art. 59.06(c)(1) (West Supp. 2013). You tell us that the property for sale is adjacent to the courthouse and consists of a main building, a vehicle storage building, and an asphalt paved parking lot. See Request Letter at 2. You explain that Kleberg County would rent or lease the parking lot for use by "juries, grand juries, witnesses and the general public" when accessing the courthouse. Id. You also indicate that the Texas Department of Public Safety ("DPS") would potentially "lease part of the land and/or building" to house its Kingsville Highway Patrol office. Id. at 2-3.

Article 59.06 of the Code of Criminal Procedure governs the disposition of property used in the commission of certain criminal offenses and forfeited to a law enforcement agency. See TEX. CODE CRIM. PROC. ANN. art. 59.06 (West Supp. 2013). Article 59.06 authorizes the attorney representing the state[2] to administer all forfeited property in accordance with any local agreement entered into with law enforcement agencies. See id. art. 59.06(a). Under a local agreement, "all money . . . or proceeds from the sale" of forfeited property shall be deposited into one or more of four "special" funds. Id. art. 59.06(c). You ask about the special fund set forth in article 59.06(c)(1), which is "for the benefit of the office of the attorney representing the state, to be used solely by the attorney for the official purposes of his office." Id. art. 59.06(c)(1). The Legislature recently amended article 59.06 to specify that an expenditure of asset forfeiture funds "is considered to be for an official purpose of an attorney's office if the expenditure is made for an activity of an attorney or office of an attorney representing the state that relates to the preservation, enforcement, or administration" of state laws, "including an expenditure made for" one of nine listed purposes. Act of May 9, 2013, 83rd Leg., R.S., ch. 157, § 1, 2013 Tex. Gen. Laws 595, 597 (codified at TEX. CODE CRIM. PROC. ANN. art. 59.06(d-4)). Your inquiry concerns the purpose described as "facility costs, including building purchase." Request Letter at 1 (quoting TEX. CODE CRIM. PROC. ANN. art. 59.06(d-4)(7) (West Supp. 2013)). You ask us to consider four hypothetical variations on the basic transaction that is the subject of your inquiry in light of these recent legislative amendments. See id. at 2. Because your first, third and fourth questions are related, we address them together.

You ask whether your office may "purchase land and a building with asset forfeiture funds" and subsequently do one of three things: (1) "lease the asphalt paved parking lot" to Kleberg County; (2) "sell the building and land" to Kleberg County; or (3) "lease part of the land and/or building" to DPS for its Kingsville highway patrol office. Id. at 2-3. At the outset, we note that whether article 59.06 authorizes a particular use of asset forfeiture funds requires investigating and resolving fact questions beyond the scope of the opinion process. Tex. Att'y Gen. Op. No. GA-0122 (2003) at 5. We can, however, provide some guidance concerning article 59.06.

The plain language of article 59.06(c)(1) requires that asset forfeiture funds earmarked "for the benefit of the attorney representing the state" be used "solely for the official purposes of his office." TEX. CODE CRIM. PROC. ANN. art. 59.06(c)(1) (West Supp. 2013) (emphasis added). To satisfy article 59.06(c)(1), an expenditure must be made "for an activity" of the attorney or his office, and the activity must "relate[] to the preservation, enforcement, or administration of" state laws. Id. art. 59.06(d-4). Article 59.06(d-4) provides a list in subparts (1)-(9) meant to illustrate the kinds of purposes for which an expenditure can be made. Id.; see Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25-26 (Tex. App.-Tyler 2000, pet. denied) (applying the definition of the term "includes" from the Code Construction Act to conclude that a list following that term is "for purposes of illustration"); TEX. GOV'T CODE ANN. § 311.005(13) (West 2013) (defining the terms "include" and "including" as "terms of enlargement and not of limitation or exclusive enumeration"). While article 59.06(d-4)(7) authorizes an expenditure for "facility costs, including building purchase," not all facility costs and building purchases are for an official purpose of the prosecuting attorney's office. Only those that "relate to the preservation, enforcement or administration" of state laws through some activity of the prosecuting attorney's office are permitted. TEX. CODE CRIM. PROC. ANN. art. 59.06(d-4)(7) (West Supp. 2013). Because article 59.06(c)(1) permits expenditures of asset forfeiture funds "solely" for such qualifying purposes, the funds may not be used for purposes that do not relate to the preservation, enforcement or administration of state laws through an activity of the district attorney's office. Whether article 59.06 of the Code of Criminal Procedure authorizes a district attorney to use asset forfeiture funds to purchase land and a building for subsequent sale or lease to other entities will depend, therefore, on whether the property's ultimate use is solely for an activity of the district attorney's office that relates to the preservation, enforcement, or administration of state laws. Based on the facts provided here, it would be difficult for a court to conclude that the purchase and transfer of property to an entity other than the district attorney's office would result in a use that is solely for the official purposes of the district attorney's office.

Our analysis, made in light of recent legislative amendments, does not affect the validity of GA-0613, as you have suggested. See Request Letter at 3; see also Tex. Att'y Gen. Op. No. GA-0613 (2008) at 8 (concluding that a district attorney may not use asset forfeiture funds to help purchase a juvenile detention facility for a county because "no provision expressly authoriz[es] the Harris County District Attorney to provide for a juvenile detention building"). The fact that the amended statute includes building purchase costs as an example of a permissible expenditure category does not change the requirement that the expenditure have a connection to an official purpose of the district attorney's office. See TEX. CODE CRIM. PROC. ANN. arts. 59.06(c)(1), (d-4)(7) (West Supp. 2013). In our view, the recent statutory amendment to article 59.06 clarified existing law but did not expand the scope of permissible expenditures. See Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 878, 83rd Leg., R.S. (2013) (stating that the bill "will help provide clarity" regarding forfeited property and "provide[] ... a clear directive as to what is and is not an authorized use of asset forfeiture dollars."); see also Comm'n on State Emergency Commc'ns v. Tracfone Wireless, Inc., 343 S.W.3d 233, 243 (Tex. App.-Austin 2011) (providing that a "showing, either by legislative history or otherwise, that the intent of the legislature in adopting the amendment in question was to clarify rather than change the statute in question" can override the general presumption that legislative amendments are designed to change rather than clarify an existing statute), rev'd on other grounds, 397 S.W.3d 173 (Tex. 2013). Thus, GA-0613 remains valid.

SUMMARY

A court would be unlikely to conclude that a district attorney may use asset forfeiture funds to purchase land and a building for subsequent sale or lease to other entities as such use of the property would likely not be considered an official purpose of the district attorney's office under article 59.06 of the Code of Criminal Procedure.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable John T. Hubert, Kleberg & Kenedy Cntys. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Nov. 22, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] See TEX. CODE CRIM. PROC. ANN. art. 59.01(1) (West Supp. 2013) (defining "attorney representing the state" as "the prosecutor with felony jurisdiction in the county in which a forfeiture proceeding is held"); TEX. GOV'T CODE ANN. § 43.182(b) (West Supp. 2013) (providing that the district attorney for Kleberg and Kenedy counties "shall represent the state in criminal cases" pending in the district courts of those counties).