Does a Texas DA have to sell forfeited property at a sheriff's auction?

Texas AG Opinion JC-0075: Disposing of Forfeited Property When a Local Agreement Exists

Plain-English summary

When property is seized and forfeited to the state in a criminal case (here, almost 50 acres of land and a 1992 Ford Mustang), someone has to turn it into money for the agencies involved. The district attorney for the 220th Judicial District asked the Attorney General whether he was required to sell that property at a sheriff's auction, or whether he could pick a different sale method that he thought would bring in more money.

The opinion said he was not locked into a sheriff's auction. Article 59.06(a) of the Code of Criminal Procedure says forfeited property "shall be administered by the attorney representing the state" in accordance with accepted accounting practices and any local agreement between the prosecutor and law enforcement agencies. Only "if a local agreement has not been executed" does the statute require the property to be sold at public auction under the county sheriff on the 75th day after the final forfeiture judgment. The Attorney General had already read the statute the same way in an earlier letter opinion, calling the sheriff's auction a "fallback method" that kicks in when there is no local agreement.

Here, the district attorney had signed a local agreement with the Bosque County Sheriff and the Department of Public Safety. So the auction requirement did not apply, and the opinion concluded he had discretion to dispose of the property in the way he judged most advantageous, provided he followed accepted accounting practices and the terms of the agreement. The opinion also addressed two side points. The 75-day deadline mentioned in a court of appeals decision was dicta and applies only when there is no local agreement, so it did not bind the district attorney here. And because forfeited property generally vests in the state under article 59.06(f), chapter 263 of the Local Government Code, which governs disposing of county surplus property, did not apply. As for special record-keeping, the opinion said no special procedures are required by statute, and what counts as accepted accounting practice in a given case is best addressed first by the county auditor.

Currency note

This opinion was issued in 1999. 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.

Common questions

Did a Texas prosecutor have to auction off forfeited property?
According to this opinion, not when a local forfeiture agreement is in place. The sheriff's auction in article 59.06(a) is the fallback that applies only when no local agreement has been executed. With an agreement, the prosecutor administers and disposes of the property under the agreement's terms and accepted accounting practices.

What is a "local agreement" in a forfeiture case?
It is an agreement under article 59.06(a) between the attorney representing the state (here, the district attorney) and law enforcement agencies (here, the county sheriff and the Department of Public Safety) governing how forfeited property is administered. When one exists, it controls the disposition of the property in the first instance.

Was there a 75-day deadline to sell the property?
The opinion said the 75-day provision in article 59.06(a) refers specifically to the situation where no local agreement has been executed. A court of appeals comment suggesting a 75-day deadline applied to sales under a local agreement was dicta, and the opinion concluded it did not control. With a local agreement, that deadline did not apply.

Did the county surplus-property rules apply?
No. Because property forfeited under article 59.06 is generally forfeited to the state, with the final judgment perfecting the state's title, chapter 263 of the Local Government Code on disposing of county surplus property did not apply. The opinion noted an open question about cars transferred to a sheriff for official use under article 59.06(b), but did not need to resolve it for the Mustang at issue.

What record-keeping was required?
The opinion knew of no special procedures required by statute. It said the question of what constitutes accepted accounting practices in a particular case is better addressed in the first instance by the relevant county auditor.

Background and statutory framework

Chapter 59 of the Code of Criminal Procedure governs forfeiture of property connected to crime. Article 59.06(a) provides that all forfeited property "shall be administered by the attorney representing the state, 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." It continues: "If a local agreement has not been executed, the property shall be sold on the 75th day after the date of the final judgment of forfeiture at public auction under the direction of the county sheriff, after notice of public auction as provided by law for other sheriffs sales."

The Attorney General had construed this provision in Letter Opinion 97-091, concluding the intent of subsection (a) is to have the disposition governed by an existing local agreement in the first instance, with the sheriff's auction as a fallback method. The opinion applied that reading to the facts the district attorney provided: a signed local agreement with the Bosque County Sheriff and the Department of Public Safety.

On the deadline question, the opinion addressed State v. One Thousand Dollars in U.S. Currency and its companion case, State v. Twenty Thousand Four Hundred Eighty in U.S. Currency, both Texas Court of Appeals decisions from Corpus Christi. The issue in those cases was whether a local agreement had to be in place before a trial court could forfeit contraband to the district attorney; the court held it did not. The court's statement about a 75-day window to dispose of property under a local agreement was therefore dicta. On the surplus-property question, the opinion relied on article 59.06(f) and Letter Opinion 97-091, which noted that a final judgment of forfeiture perfects the state's title, so the county surplus-property rules in Local Government Code chapter 263 did not apply.

Citations

Statutory provisions:

• Tex. Code Crim. Proc. Ann. art. 59.06(a), (b), (f) (Vernon Supp. 1999)
• Tex. Loc. Gov't Code Ann. ch. 263

Cases:

• State v. One Thousand Dollars in U.S. Currency, 865 S.W.2d 164 (Tex. App.-Corpus Christi 1993, writ denied)
• State v. Twenty Thousand Four Hundred Eighty in U.S. Currency, 865 S.W.2d 175 (Tex. App.-Corpus Christi 1993, writ denied)

Attorney General opinions referenced: LO-97-091.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0075
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0075.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

July 6, 1999

The Honorable B. J. Shepherd
District Attorney
220th Judicial District
P.O. Box 368
Meridian, Texas 76665

Opinion No. JC-0075

Re: Permissible methods of disposing of property forfeited to the state under chapter 59 of the Code of Criminal Procedure (RQ-0027)

Dear Mr. Shepherd:

You have asked this office whether certain methods of disposing of property forfeited to the state pursuant to chapter 59 of the Code of Criminal Procedure are permissible. Specifically, you ask whether you are required to sell a "tract of almost 50 acres of land" and a 1992 Ford Mustang by sheriffs auction, or whether you may choose another method you believe likelier to yield the greatest net proceeds. In light of the fact that the requirement of sale by sheriffs auction exists "[i]f a local agreement has not been executed," TEX. CODE CRIM. PROC. ANN. art. 59.06(a) (Vernon Supp. 1999), and that as you inform us you, the Sheriff of Bosque County, and the Department of Public Safety have entered into such an agreement, it is our view that you are not required to dispose of the property by sheriffs auction. Rather, we believe that so long as you administer the property in accordance with accepted accounting practices and with the provisions of your local agreement, you have the discretion to decide how to dispose of it most advantageously.

Article 59.06(a) of the Code of Criminal Procedure provides in relevant part:

[A]ll forfeited property shall be administered by the attorney representing the state, 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. If a local agreement has not been executed, the property shall be sold on the 75th day after the date of the final judgment of forfeiture at public auction under the direction of the county sheriff, after notice of public auction as provided by law for other sheriffs sales.

TEX. CODE CRIM. PROC. ANN. art. 59.06(a) (Vernon Supp. 1999).

This office considered article 59.06(a) in Letter Opinion 97-091. In that opinion, we concluded that "[t]he intent of subsection (a) is clearly to provide 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. LO-97-091, at 2. The opinion further described the sheriffs auction as a "fallback method." Id.

In the instant case, you have informed us that your office has entered into a local agreement with the Bosque County Sheriff and the Department of Public Safety. Letter from Honorable B. J. Shepherd, District Attorney, 220th Judicial District to James Tourtelott, Assistant Attorney General, Opinion Committee (Mar. 9, 1999) (on file with Opinion Committee). That being the case, article 59.06(a) does not require you to sell the forfeited property by sheriffs auction, but rather gives you the discretion to administer the property "in accordance with accepted accounting practices and with the provisions of any local arrangement." TEX. CODE CRIM. PROC. ANN. art. 59.06(a) (Vernon Supp. 1999).

You also express concern with the suggestion in State v. One Thousand Dollars in U.S. Currency, 865 S.W.2d 164, 166 (Tex. App.-Corpus Christi 1993, writ denied), that you have "seventy-five days in which to dispense with the forfeited property pursuant to the local agreement." Id. at 166. In your view, "such a deadline [does not] exist[] where the sale is to be made in accordance with a local agreement." Letter from Honorable B. J. Shepherd, District Attorney, 220th Judicial District, to the Opinion Committee, Office of the Attorney General 2 (Feb. 24, 1999) (on file with Opinion Committee). We concur. The issue in State v. One Thousand Dollars, as well as in its companion case, State v. Twenty Thousand Four Hundred Eighty in U.S. Currency, 865 S.W.2d 175 (Tex. App.-Corpus Christi 1993, writ denied), was whether a local agreement needed to be in place before a trial court forfeited contraband to the district attorney. In both cases, the court of appeals concluded that such an agreement did not need to be in place before property could be so forfeited. Id. Accordingly, the statement which concerns you is merely dicta. The seventy-five-day provision in article 59.06(a) refers specifically to a situation in which a local agreement has not been executed, and is therefore irrelevant here.

Further, we agree with your conclusion that property forfeited pursuant to article 59.06 is, generally, forfeited to the state, see TEX. CODE CRIM. PROC. ANN. art. 59.06(f) (Vernon Supp. 1999), and that consequently chapter 263 of the Local Government Code, concerning the disposition of county surplus property, does not apply here. See Tex. Att'y Gen. LO-97-091, at 3 ("A final judgment of forfeiture under this chapter perfects the title of the state to the property. . . .") (emphasis added). We note that Letter Opinion 97-091 raises, but does not answer, the question of whether those automobiles transferred to the sheriff for official use pursuant to article 59.06(b) may be subject to chapter 263. Id. However, given that it does not appear from your letter that such is the case with the 1992 Ford Mustang at issue here, we need not resolve that issue at this time.

We note finally that you ask us to describe any special procedures or record-keeping necessary here. We know of no special procedures required by statute. The question of what constitutes accepted accounting practices in a particular case is better addressed, in the first instance, by the relevant county auditor.

SUMMARY

Given that the District Attorney for the 220th Judicial District has executed a local agreement with the Bosque County Sheriff and the Department of Public Safety, article 59.06(a) of the Code of Criminal Procedure does not require the sale of the property forfeited pursuant to chapter 59 of that code to be conducted by sheriffs auction.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by James E. Tourtelott
Assistant Attorney General