When a city no longer needs a vehicle seized in a drug case, does it have to sell it at a sheriff's auction?

Texas AG Opinion JM-1184: Must a City Sell a Forfeited Drug Vehicle at Sheriff's Auction?

Plain-English summary

The El Paso County Attorney asked how a home-rule city should dispose of a vehicle it acquired through forfeiture under the Texas Controlled Substances Act, once the city either never had a use for the vehicle or no longer needed it for law enforcement. The question mattered because the former section 5.08(b) of the act said forfeited property "shall be sold at a public auction under the direction of the county sheriff," while section 5.08(c) let a political subdivision keep and use forfeited property for official purposes, and a 1988 opinion, JM-899, had read that use-exception as pulling city-retained property out of the sheriff's-auction process entirely and into the Local Government Code's general surplus-property rules instead.

The Attorney General revisited and modified that 1988 conclusion. The opinion held that the "except as provided below" language in the old section 5.08(b) only meant that property a political subdivision (or the state) chose to keep and use under section 5.08(c) was not sold immediately, not that it escaped the sheriff's-auction process altogether once the subdivision no longer wanted it. Because section 5.08(c) covered property retained by the state and its own agencies as well as by political subdivisions, and Local Government Code surplus-property rules do not govern state property sales or every kind of local sale, the opinion concluded the legislature could not have meant for those general rules to apply. The correct reading: all forfeited property is destined for a sheriff's public auction, but the sale of property an agency or subdivision elects to use is simply delayed until that agency or subdivision no longer wants it. The opinion applies only to forfeitures completed before October 18, 1989, when the relevant provisions were recodified into the Health and Safety Code and then repealed effective that date.

Currency note

This opinion was issued in 1990. 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)

Cities, counties, and other political subdivisions holding pre-October 1989 forfeited vehicles: The opinion meant that once such a subdivision no longer had a law-enforcement use for a vehicle forfeited under the Controlled Substances Act, it had to sell the vehicle at public auction under the county sheriff's direction, rather than dispose of it through the Local Government Code's general surplus-property procedures.

County sheriffs: The opinion confirmed their statutory role directing the public auction sale of forfeited property, both property never used by the subdivision and property whose law-enforcement use had ended.

Practitioners relying on Attorney General Opinion JM-899 (1988): The opinion expressly modified JM-899's holding that use-retained forfeited property fell outside the sheriff's-auction requirement once the subdivision no longer wanted it.

Common questions

Can a city sell a forfeited drug vehicle however it wants once it no longer needs the car?
No, for forfeitures completed before October 18, 1989. The opinion held the vehicle must be sold at public auction under the direction of the county sheriff, the same process that applies to forfeited property the subdivision never used in the first place.

Does the Local Government Code's surplus-property process apply instead?
No. The opinion concluded the legislature did not intend the Local Government Code's general surplus-property provisions to govern sales of forfeiture property, since the same retention provision covered property kept by the state and its own agencies, which those local-government provisions do not reach, and the general surplus rules do not cover every sale by every political subdivision either.

Does this change what happens to the money from selling a forfeited vehicle?
No. The opinion reaffirmed that proceeds from selling a vehicle originally forfeited for law-enforcement use must go into the special fund described in the forfeiture statute, to be spent on investigating alleged criminal law violations, the same conclusion reached in earlier Attorney General Opinions JM-678 (1987) and JM-550 (1986).

Background and statutory framework

Before being incorporated into the newly enacted Health and Safety Code effective September 1, 1989, section 5.08 of the Texas Controlled Substances Act, article 4476-15, V.A.C.S., required that forfeited property other than controlled substances, raw materials, drug paraphernalia, or sale proceeds be sold at public auction under the direction of the county sheriff, subject to an exception described "below." Subsection (c) of that section allowed the state, a state agency, or a political subdivision authorized to employ peace officers to maintain, repair, use, and operate forfeited property for official purposes if it was free of any bona fide lienholder's interest. Subsection (f) directed that proceeds from selling certain forfeited items be deposited in a special fund administered by the seizing agency, to be spent solely investigating alleged violations of the state's criminal laws. These provisions were later moved to Health and Safety Code section 481.157(d) and section 481.158, and section 481.158 was in turn repealed in the second called session of the 71st Legislature effective October 18, 1989, making this opinion applicable only to forfeitures completed before that date.

In 1988, Attorney General Opinion JM-899 addressed how a forfeited vehicle no longer useful to a sheriff's department should be disposed of, and concluded that section 5.08(c)'s use-exception took such property outside the public-auction requirement of subsection (b) and into the Local Government Code's general provisions for disposing of surplus public property. On reconsideration, this opinion concluded that reading was mistaken. Since subsection (c) covered property retained for use by "the state or an agency of the state" as well as by political subdivisions, and Local Government Code surplus-property provisions do not govern sales by the state or its agencies, nor do their "general provisions" cover every sale by every political subdivision, citing Local Government Code sections 253.001 et seq., 263.151 et seq., and 281.055, the legislature could not have intended those general rules to control disposition of all such property. Instead, the opinion read the "except as provided below" language in former section 5.08(b) as meaning only that property a subdivision or agency chose to use under subsection (c) was not sold immediately, with the sale simply delayed until the subdivision or agency no longer wanted to use it for official purposes, at which point the public-auction requirement of subsection (b) applied as it would to any other forfeited property. The opinion accordingly modified JM-899 to the extent of the conflict, while reaffirming JM-899's separate holding, drawn from Attorney General Opinions JM-678 (1987) and JM-550 (1986), that sale proceeds from vehicles used by a sheriff's department must go into the special fund described in subsection (f) rather than a county's general fund.

Citations

Statutes:

• V.A.C.S. art. 4476-15, § 5.08(b)
• V.A.C.S. art. 4476-15, § 5.08(c)
• V.A.C.S. art. 4476-15, § 5.08(f)
• Health & Safety Code § 481.157(d)
• Health & Safety Code § 481.158
• Gov't Code § 311.031(c)
• Local Gov't Code §§ 253.001 et seq.
• Local Gov't Code §§ 263.151 et seq.
• Local Gov't Code § 281.055

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1184
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1184.pdf

Original opinion text

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

July 9, 1990

Honorable Joe Lucas
El Paso County Attorney
City-County Bldg., Room 201
El Paso, Texas 79901

Opinion No. JM-1184

Re: Disposal of property forfeited to a municipality pursuant to the Texas Controlled Substances Act (RQ-1730)

Dear Mr. Lucas:

You have submitted the following question for our opinion:

Must a political subdivision authorized by law to employ peace officers, specifically a home-rule municipality, sell a vehicle that has been forfeited to it, at a public auction under the direction of the county sheriff as set out in Section 5.08(b), Article 4476-15, V.A.C.S., of the Texas Controlled Substances Act, either when the city acquires the vehicle by forfeiture but has no use for the particular vehicle or after the vehicle is no longer useful to the city for law enforcement purposes? If not, by what method may the city sell the vehicle?

In 1989, the legislature enacted the Health and Safety Code as a nonsubstantive revision of existing law. See Acts 1989, 71st Leg., ch. 678, § 14, at 3165. The provisions of article 4476-15, V.T.C.S., the Texas Controlled Substances Act, were transferred to the new code (which became effective September 1, 1989) and are now found in chapter 481, thereof. Provisions regarding forfeiture are located in subchapter E. Those formerly contained in subsection (b) of section 5.08 of article 4476-15 were transferred to section 481.158 of the new code, as were those formerly found in subsections (c), (d), (e), and (f) of section 5.08 of the former statute.[1] Section 481.158 was repealed in the second called session of the 71st Legislature. Acts 1989, 71st Leg., 2d C.S., ch. 12, § 5(c), at 21. Therefore, this opinion is applicable only to forfeitures that occurred before October 18, 1989. Id. § 7, at 21.

1. Additions and corrections to several enacted codes, including the Health and Safety Code, were made by the 71st Legislature. See Acts 1989, 71st Leg., ch. 1100, at 4522. Moreover, section 5.08 of article 4476-15 was amended by the same legislature that repealed it in the process of enacting the Health and Safety Code. See Acts 1989, 71st Leg., ch. 1011, at 4106. The amendment is saved and given effect as part of the code notwithstanding the repeal. See Gov't Code § 311.031(c). Neither of these two enactments affect the answer to your question, however.

Section 481.157(d) of the Health and Safety Code provides that if the adjudication court determines that property seized under the Texas Controlled Substances Act is subject to forfeiture, the judge, on motion, is to forfeit the 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."

Before article 4476-15, V.T.C.S., was incorporated into the Health and Safety Code, section 5.08 thereof read in pertinent part:

(b) All other property [i.e., other than controlled substances, raw materials, and drug paraphernalia] that has been forfeited, except the money derived from the sale, manufacture, distribution, dispensation, delivery, or other commercial undertaking violative of this Act, and except as provided below, shall be sold at a public auction under the direction of the county sheriff after notice of public auction as provided by law for other sheriff's sales. The proceeds of the sale shall be delivered to the district clerk and shall be disposed of as follows:

(1) to any bona fide lienholder, secured party, or other party holding an interest in the property in the nature of a security interest, to the extent of his interest; and

(2) the balance, if any, after payment of all storage and court costs, shall be forwarded to the state comptroller and deposited with and used as general funds of the state except as provided in subsection (f) of this section.

(c) The state or an agency of the state or a political subdivision of the state authorized by law to employ peace officers may maintain, repair, use, and operate for official purposes all property that has been forfeited to it if it is free from any interest of a bona fide lienholder, secured party, or other party who holds an interest in the property, in the nature of a security interest . . . .

. . . .

(f) All money, securities, certificates of deposit, negotiable instruments, stocks, bonds, businesses or business investments, contractual rights, real estate, personal property and other things of value, and the proceeds from the sale of an item described in this subsection that are forfeited to the seizing agencies of the state or an agency or office of a political subdivision of the state authorized by law to employ peace officers shall be deposited in a special fund to be administered by the seizing agencies or office to which they are forfeited. Except as otherwise provided by this subsection, expenditures from this fund shall be used solely for the investigation of any alleged violations of the criminal laws of this state . . . . (Emphasis added.)

In 1988, this office, in Attorney General Opinion JM-899, addressed the same question, essentially, that you pose. Among other things, we were asked:

When a motor vehicle forfeited for use by the sheriff's department is no longer useful to the department, how is it to be disposed of? Should the property be sold at a public auction under the direction of the sheriff as described in section 5.08(b) of the Act or at the direction of the Commissioner's Court pursuant to the Local Government Code?

What is the proper disposition of the funds garnered from the disposal of the motor vehicle? Should they be deposited in the 'special fund' described in section 5.08(f) of the Act or deposited in the general fund of the county?

With respect to the proper disposition of the proceeds realized from subsequently selling property originally forfeited for use by a political subdivision, Attorney General Opinion JM-899 advised:

Attorney General Opinions JM-678 (1987) and JM-550 (1986) provide a concise answer to your final question, which concerns the disposition of proceeds from the sale of the vehicle. Section 5.08(f) of the Controlled Substances Act provides in relevant part:

All money, securities, certificates of deposit, negotiable instruments, stocks, bonds, businesses or business investments, contractual rights, real estate, personal property and other things of value, and the proceeds from the sale of items described in this subsection that are forfeited to the seizing agencies of the state or an agency or office of a political subdivision of the state authorized by law to employ peace officers shall be deposited in a special fund to be administered by the seizing agencies or office to which they are forfeited. Except as otherwise provided by this section, expenditures from this fund shall be used solely for the investigation of any alleged violations of the criminal laws of this state . . . . (Emphasis added.)

V.T.C.S. art. 4476-15, § 5.08(f).

The proceeds from the sale of the forfeited vehicles used by the sheriff's department must be deposited in the special fund described in section 5.08(f) of the Controlled Substances Act. Attorney General Opinion JM-678 (1987).

We think the foregoing answer was correct and remains correct today.

We think, however, that the "public auction" question addressed in Attorney General Opinion JM-899 should be reconsidered. That opinion interpreted the "except as provided below" language contained in the initial sentence of subsection (b) of section 5.08 to exclude forfeited property retained for use by a political subdivision from the "sale at public auction" provision of that sentence. The opinion concluded that property retained for use under section 5.08(c) was subject to "the Local Government Code's general provisions for the disposal of surplus public property."

Upon reconsideration, we conclude that the "as provided below" phrase contained in former section 5.08(b) merely recognized that forfeited property to be used by "the state or an agency of the state or a political subdivision of the state" pursuant to subsection (c) was not to be immediately sold. Inasmuch as subsection (c) concerns property to be used by "the state or an agency of the state," as well as a political subdivision of the state, it could not have been the legislative intent that Local Government Code provisions govern the sale of all property so used. Sales by the state and its agencies are not covered by "the Local Government Code's general provisions for the disposal of surplus public property." Nor do "general provisions" thereof cover all sales by all political subdivisions. Cf. Local Gov't Code §§ 253.001 et seq., 263.151 et seq., 281.055.

Insofar as it is now applicable, we believe the legislative intent of section 5.08, article 4476-15, V.T.C.S. (later section 481.158 of the Health and Safety Code), is that all forfeited property is to be sold at public auction under the direction of the sheriff, but that the sale of property which an agency or subdivision elects to use for public purposes is delayed until the agency or subdivision to which it is forfeited no longer wishes to make use of it for official purposes. This reading makes it unnecessary to find authority elsewhere for the disposal of forfeited property. See 41 Tex. Jur. 3d Forfeitures and Penalties §§ 5, 15 at 185, 195; 67 Tex. Jur. 3d Statutes §§ 164, 165 at 806, 807.

We therefore advise, in answer to your question, that if a political subdivision, including a home-rule city, acquired a vehicle by forfeiture before October 18, 1989, pursuant to the Texas Controlled Substances Act but has no use for the vehicle, or after the vehicle is no longer useful to the political subdivision for official purposes, it is to be sold at public auction under the direction of the county sheriff. See Attorney General Opinions JM-813, JM-812, JM-678 (1987); JM-550 (1986). To the extent of its conflict with this opinion, Attorney General Opinion JM-899 (1988) is modified.

We do not reach your other questions.

SUMMARY

If a political subdivision, including a home-rule city, acquired a vehicle by forfeiture prior to October 18, 1989, pursuant to the Texas Controlled Substances Act but has no use for the vehicle, or after the vehicle is no longer useful to the political subdivision, it is to be sold at public auction under the direction of the county sheriff.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Bruce Youngblood
Assistant Attorney General