Can police give a suspect a sample of a forfeited drug to bait a bigger drug deal?

Texas AG Opinion JM-1166: Can Forfeited Drugs Be Used as Sting-Operation Bait?

Plain-English summary

A district attorney described a reverse sting scenario: a law enforcement officer would deliver a sample of a previously forfeited controlled substance to a suspected drug trafficker, so the trafficker could show it to a higher-up and get approval to make a larger purchase. The question was whether this kind of "reverse sting" was legal under the statute governing what a district court can order done with a forfeited controlled substance.

The Attorney General concluded it was not permitted. The statute lets a court order a law enforcement agency to retain forfeited property for official purposes, including investigating drug offenses, but a 1989 amendment added strict controls: a qualified person must analyze the substance both before and after its use in an investigation, it must be stored securely and accessible only to the agency head and the person responsible for its security, and a log must track its date, amount, concentration, and who issued and received it. The opinion read those analysis-before-and-after and chain-of-custody requirements as showing the legislature intended any forfeited substance released for investigative use to come back unaltered and accounted for, not be handed to a suspect and placed back into circulation with no assurance of recovery. Because the scenario described involved releasing the substance to the suspect with no such assurance, the opinion concluded that kind of reverse sting was not permissible under the statute.

Currency note

This opinion was issued in 1990, shortly after the statute it construed was amended by the 71st Legislature. 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 mentioned here.

Who this opinion affected (as of 1990)

Law enforcement agencies conducting drug investigations: The opinion held that a district court could not authorize releasing a forfeited controlled substance to be handed to a suspect as sting bait, because the statute's before-and-after analysis and chain-of-custody requirements presuppose the substance will be returned, not placed back into circulation.

District attorneys and district courts overseeing forfeiture orders: The opinion gave them the interpretive basis for declining to authorize this specific kind of reverse sting request under section 481.159 of the Health and Safety Code.

Common questions

Could a 1990s Texas police officer legally hand a suspect a sample of seized, forfeited drugs to set up a bigger bust?
No, according to this opinion. The Attorney General concluded the statute governing forfeited-substance use requires the substance to be returned and accounted for, which a hand-off to a suspect with no assurance of recovery does not satisfy.

What specific requirements led to that conclusion?
The opinion pointed to the statute's requirement that a qualified person analyze the substance both before and after its investigative use, plus secure storage and a detailed log of who issued and received it, all of which assume the substance comes back.

Did the 1989 legislative amendment change this analysis?
The 1989 amendment (by the 71st Legislature) added the strict analysis, storage, and logging requirements the opinion relied on; it did not authorize releasing forfeited drugs to a suspect as bait.

Background and statutory framework

Section 481.159 of the Health and Safety Code (formerly section 5.08 of V.T.C.S. article 4476-15) lists the orders a district court may enter for the use or disposal of a forfeited controlled substance. As amended by the 71st Legislature (H.B. 989, Acts 1989, ch. 678, § 1), subsection (a)(1) lets a court order a law enforcement agency to retain forfeited property for official purposes, "including investigation of offenses under this chapter." Subsection (c), added by that same amendment, imposes strict controls on any such investigative use: a qualified person must analyze the substance before and after use, storage must be limited to an area accessible only to the agency head and the person responsible for security, and a log must record the date, return, type, amount, and concentration of the substance, along with the signatures of the officer receiving it and the person issuing it.

The opinion read these requirements together as showing legislative intent that any forfeited substance released for investigative purposes must come back in unaltered condition and remain accounted for throughout, since the requirement to analyze it both before and after use, and to designate someone responsible for "preserving and maintaining security over the substances," only makes sense if the substance is expected to be recovered. Because the scenario described, releasing a sample to a suspect to induce a larger purchase, provided no assurance the substance would be recovered at all, the opinion concluded this kind of release was not permissible under section 481.159.

Citations

Statutes:

• Tex. Health & Safety Code § 481.159 (formerly V.T.C.S. art. 4476-15 § 5.08)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1166
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1166.pdf

Original opinion text

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

April 25, 1990

Honorable Frank W. Conard, II
District Attorney
P. O. Box 1038
Sweetwater, Texas 79556

Opinion No. JM-1166

Re: Use of controlled substances as "bait" in sting operation (RQ-1928)

Dear Mr. Conard:

Your questions are prompted by a scenario where a law enforcement officer delivers a sample of a previously forfeited controlled substance to a suspect in order to induce the suspect to make a large purchase of a controlled substance. You state that officers "may need to let a sample go to the traffickers in order that approval can be obtained by them from some higher authority to make the larger purchase."

You ask whether this type of reverse sting is legal. Section 5.08 of article 4476-15, V.T.C.S., now section 481.159 of the Health and Safety Code, lists the various orders a district court may enter in directing a law enforcement agency to use or dispose of a forfeited controlled substance. Subsection (a) of section 481.159, as amended by the 71st Legislature, H.B. 989, Acts 1989, 71st Leg., ch. 678, § 1, at 2948, provides the court may order a law enforcement agency to:

(1) retain property for its official purposes, including investigation of offenses under this chapter . . . . (Emphasis reflects addition by amendment.)

Subsection (c), added by amendment, provides for strict regulations over controlled substances used for investigation of offenses under this chapter. A qualified person must be employed to conduct analysis of the substances before and after its use in an investigation. Storage is required in an area accessible only to the law enforcement agency head and the person responsible for analyzing, preserving, and maintaining security over the substances. A log must be maintained that reflects the date, return, type, amount, and concentration of the substance in the investigation. It must reflect the signature and printed or typed name of the officer to whom the substance is issued as well as that of the individual issuing same.

Section 481.159 not only provides for the return of the forfeited substance used for investigation of offenses, but also requires that the substance be analyzed before and after its return. We believe that the legislature has evidenced its intent that any forfeited substance released for investigation must be returned in an unaltered condition. Further indication that any substance must not be placed back in circulation is evidenced by the requirement that a person is designated to be responsible for "preserving and maintaining security over the substances." Under the scenario you have related, the controlled substance is released to the suspect without any assurance that it will be recovered. We do not believe that the release of a forfeited controlled substance to be placed back into circulation is permissible under section 481.159.

SUMMARY

The release of a forfeited controlled substance to a law enforcement officer for the purpose of delivering a sample to a suspect to induce the suspect to make a larger purchase is not permissible under section 481.159 of the Health and Safety Code.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General