Can a Texas county sheriff donate asset-forfeiture money to a nonprofit that helps provide mental health and victim services?

Plain-English summary

The Schleicher County Attorney asked the AG whether the county sheriff could donate asset-forfeiture funds to the Eldorado Service Center, a nonprofit that provides office space to governmental and nonprofit organizations offering mental health services, drug counseling, and services for victims of domestic abuse. The sheriff's office wanted to give part of its forfeited funds to help with the maintenance and overhead of the building, which is the only place in the county where residents can get those services.

The AG looked first at the statute. Chapter 59 of the Code of Criminal Procedure governs seizure and forfeiture of contraband, and article 59.06 governs how forfeited property and proceeds are distributed. Proceeds deposited under a local agreement go into a special county fund to be used solely for law enforcement purposes, and the head of a law enforcement agency (here, the sheriff) generally may not donate forfeiture proceeds except to entities specified in subsection (d-2). That subsection lets the agency head use forfeiture proceeds as an official purpose to donate to an entity that assists in, among other things, providing mental health, drug, or rehabilitation services, or services for victims or witnesses of crime or abuse, or related training and education. The statute does not define or limit "assists," which ordinarily means to give support or aid. The AG noted it cannot definitively decide whether a particular expenditure qualifies, because that is a fact question outside the opinion process, but it concluded a court would likely find that by providing office space to those service providers, the Center assists with providing the listed services, so a court would likely find article 59.06 authorizes the donation.

The AG then turned to the constitutional limit. Article III, section 52(a) of the Texas Constitution bars gratuitous grants of public money to individuals, associations, or corporations, but it does not bar an expenditure for a public purpose that yields a clear public benefit in return. The Texas Supreme Court's three-part test asks whether the expenditure's predominant purpose is public rather than to benefit private parties, whether the public entity retains control over the funds to ensure the public purpose is accomplished, and whether the entity receives a return benefit. The AG explained that article 59.06 delegates to the sheriff the responsibility to determine in the first instance whether a donation meets these constitutional requirements, as the office has said of similar expenditures by commissioners courts and sheriffs in prior opinions. Because the Legislature declared a conforming (d-2) donation to be an official law enforcement purpose, the first and third prongs are addressed, and the sheriff can satisfy the control prong by, for example, conditioning the donation on use of the funds for the statutory purposes. So a court would likely find the sheriff may make the donation, provided he determines it is statutorily authorized and comports with the article III, section 52(a) test.

Currency note

This opinion was issued in 2020. 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.

What the opinion meant for those who asked

For the Schleicher County sheriff and county attorney, the opinion's reading at the time was that the donation was likely permissible, but not automatic. The statute (article 59.06(d-2)) opened the door by letting the sheriff use forfeiture proceeds to donate to an entity that assists in providing the listed services, and the AG thought a court would likely treat the Center's provision of office space as such assistance. The constitutional layer, though, put the decision on the sheriff: he had to find a predominant public purpose, keep enough control over the funds to ensure that purpose was carried out (for instance, by conditioning the gift on statutory use), and identify a return benefit, with the Legislature's declaration that a conforming donation is an official law enforcement purpose helping satisfy two of the three prongs. The AG was careful to frame the ultimate qualification of this specific donation as a fact question for the sheriff and, if challenged, a court, rather than something the opinion process could finally resolve.

Common questions

Q: Can a Texas sheriff give forfeiture money to a nonprofit?
A: Only to the entities article 59.06 allows. Subsection (d-2) lets the head of a law enforcement agency donate forfeiture proceeds to an entity that assists in providing mental health, drug, or rehabilitation services, services for crime or abuse victims and witnesses, or related training, as an official purpose of the agency.

Q: Does providing office space to service providers count as "assisting"?
A: The AG concluded a court would likely say yes. "Assists" is not defined or limited in the statute and ordinarily means to give support or aid, and providing office space to organizations that deliver the listed services supports their provision.

Q: What constitutional test applies to the donation?
A: The public-purpose test under article III, section 52(a): the expenditure must have a predominant public purpose, the public entity must keep enough control to ensure that purpose is accomplished, and it must receive a return benefit.

Q: Who decides whether a specific donation qualifies?
A: The sheriff, in the first instance. The AG said article 59.06 delegates to the sheriff the responsibility to determine whether the donation is statutorily authorized and meets the constitutional three-part test; whether a particular expenditure qualifies is ultimately a fact question.

Background and statutory framework

The statutory authority is in Code of Criminal Procedure chapter 59 (seizure and forfeiture), particularly article 59.06, which governs distribution of forfeited property and proceeds, restricts donations by the law enforcement agency head except to entities listed in subsection (d-2), and authorizes qualifying donations to entities that assist in providing the enumerated services. Related definitions are in article 59.01(5) and article 2.12(1), and the sheriff's deputy-appointment authority is in Local Government Code section 85.003. The constitutional limit is article III, section 52(a) of the Texas Constitution, with the public-purpose framework drawn from Texas Municipal League Intergovernmental Risk Pool v. Texas Workers' Compensation Commission, 74 S.W.3d 377 (Tex. 2002). The AG relied on prior opinions KP-0088 (2016) (fact questions outside the opinion process), KP-0261 (2019), GA-0480 (2006), and GA-0322 (2005) for the first-instance-determination point.

Citations and references

Constitutional and statutory provisions:

• Tex. Code Crim. Proc. art. 59.06; art. 59.01; art. 2.12
• Tex. Loc. Gov't Code § 85.003
• Tex. Const. art. III, § 52

Cases:

• Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377 (Tex. 2002)

Prior AG opinions referenced: KP-0088 (2016); KP-0261 (2019); GA-0480 (2006); GA-0322 (2005).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0303
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0303.pdf

Original opinion text

May 6, 2020

The Honorable Clint T. Griffin
Schleicher County Attorney
Post Office Box 506
Eldorado, Texas 76936

Opinion No. KP-0303

Re: Authority of a county sheriff to donate forfeiture funds under Code of Criminal Procedure article 59.06 to a nonprofit entity providing office space for mental health services, drug counseling services, and services for the victims of domestic abuse (RQ-0317-KP)

Dear Mr. Griffin:

You ask about the authority of a county sheriff to donate forfeiture funds received under Code of Criminal Procedure article 59.06 to a nonprofit entity providing office space for mental health services, drug counseling services, and services for the victims of domestic abuse.[1] You tell us the Schleicher County Sheriff's office desires to donate forfeiture proceeds to the Eldorado Service Center ("Center"). Request Letter at 1. You explain that the Center, a nonprofit organization located in the City of Eldorado in Schleicher County, provides office space to "governmental and nonprofit organizations that provide services for mental health issues, drug counseling and services for victims of domestic abuse." Id. You state that the sheriff's office wishes to donate a portion of forfeited funds to the Center "to assist in the maintenance and overhead associated with the operation of the building," which is the only location in the County for citizens to receive these services. Id.

We first examine pertinent statutory authority conveyed in article 59.06 of the Code of Criminal Procedure. Chapter 59 provides for the seizure and forfeiture of contraband and related property. TEX. CODE CRIM. PROC. arts. 59.01-.14. Article 59.06 governs the distribution of the property and proceeds from asset forfeiture. Id. art. 59.06. That article requires the attorney representing the state, typically a district attorney, to administer forfeited property according to the provisions of any local agreement between the attorney and law enforcement agencies. Id. art. 59.06(a). For purposes of article 59.06, a county sheriff is the head of a county law enforcement agency.[2] Under an agreement with the county sheriff's office, the attorney must deposit the appropriate amount of proceeds after statutory deductions in "a special fund in the county treasury . . . to be used solely for law enforcement purposes." Id. art. 59.06(c)(3). The article prohibits the sheriff, as the head of the law enforcement agency, from donating forfeiture proceeds or property to any entity except those specified in subsection (d-2). Id. art. 59.06(d-1)(2). Subsection (d-2) authorizes the county sheriff, as the head of the county law enforcement agency, to make qualifying donations:

The head of a law enforcement agency . . . may use as an official purpose of the agency . . . proceeds or property received under this chapter to make a donation to an entity that assists in:

. . .

(2) the provision of:

(A) mental health, drug, or rehabilitation services; or

(B) services for victims or witnesses of criminal offenses or instances of abuse described by Subdivision (1); or

(3) the provision of training or education related to duties or services described by Subdivision (1) or (2).

Id. art. 59.06(d-2). The statute does not define or limit the word "assists," which broadly means "to give support or aid: HELP." See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 132 (2002) (defining assist). An attorney general opinion cannot definitively answer whether article 59.06 authorizes a particular expenditure because the opinion process does not resolve questions of fact. Tex. Att'y Gen. Op. No. KP-0088 (2016) at 1, 3. However, a court would likely conclude that by providing office space to governmental and nonprofit organizations that provide services for mental health issues, drug counseling, and similar services, the Center assists with the provision of those services. And while it is ultimately a question of fact, a court would likely conclude that the services provided by these entities constitute the provision of one or more services specified in subsection (d-2). Accordingly, a court would likely conclude that article 59.06 of the Code of Criminal Procedure provides statutory authority for the sheriff of Schleicher County to donate a portion of forfeiture funds to the Center to assist in the provision of one or more of the services specified in article 59.06, subsection (d-2). See TEX. CODE CRIM. PROC. art. 59.06(d-2).

Next, we consider potential constitutional limitations on that authorization. Article III, subsection 52(a) of the Texas Constitution limits the Legislature's power to authorize a county "to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever." TEX. CONST. art. III, § 52(a). The provision prohibits only gratuitous grants of public funds to individuals, associations, or corporations. However, the expenditure of public funds for a public purpose that provides a clear public benefit in return is not an unconstitutional grant of public funds. See Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383 (Tex. 2002). The Texas Supreme Court provides a three-part test to determine whether a public entity's expenditure comports with article III, subsection 52(a): (1) the expenditure's "predominant purpose is to accomplish a public purpose, not to benefit private parties"; (2) the public entity must "retain control over the funds to ensure that the public purpose is accomplished"; and (3) the public entity must receive a return benefit. Id. at 384.

By authorizing the sheriff to make qualifying donations, article 59.06 delegates the responsibility to the sheriff to determine in the first instance whether the donation meets constitutional requirements. See TEX. CODE CRIM. PROC. art. 59.06; see, e.g., Tex. Att'y Gen. Op. Nos. KP-0261 (2019) at 3 (stating that commissioners court has responsibility under economic development statutes to determine whether an expenditure meets constitutional requirements); GA-0480 (2006) at 2-3 (stating that sheriff may authorize the off-duty use of a patrol vehicle only if the use complies with article III, subsection 52(a)), GA-0322 (2005) at 4 (stating that a sheriff must determine in the first instance whether the paid suspension of an employee complies with the constitutional three-prong test). Relevant to the first and third prongs of the test, the Legislature has declared that a donation conforming to article 59.06, subsection (d-2) is an official purpose of the law enforcement agency. See TEX. CODE CRIM. PROC. art. 59.06(d-2). With respect to the second prong, the sheriff may maintain sufficient control over the funds by, for example, conditioning the donation on the use of the funds for the statutorily recognized purposes. Thus, a court would likely find that the sheriff of Schleicher County may donate civil forfeiture funds to a nonprofit entity providing office space to entities providing one or more of the services specified in article 59.06, subdivision (d-2) of the Code of Criminal Procedure provided the sheriff determines that the expenditure is statutorily authorized and comports with the three-part test under article III, subsection 52(a) of the Texas Constitution.

S U M M A R Y

Article 59.06, subdivision (d-2) of the Code of Criminal Procedure authorizes a county sheriff to donate a portion of forfeiture funds to an entity that assists in the provision of services specified in the article. Pursuant to article III, subsection 52(a) of the Constitution, a donation or other expenditure must satisfy a three-part test: (1) the predominant purpose of the expenditure is to serve a public purpose, (2) the expenditure includes sufficient controls to ensure that the public purpose is carried out, and (3) the public entity receives return benefit. A court would likely find that the sheriff of Schleicher County may donate civil forfeiture funds to a nonprofit entity providing office space to entities providing one or more of the services specified in article 59.06, subdivision (d-2) of the Code of Criminal Procedure provided the sheriff determines that the expenditure is statutorily authorized and comports with the three-part test under article III, subsection 52(a) of the Texas Constitution.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Clint T. Griffin, Schleicher Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Dec. 5, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] See also TEX. CODE CRIM. PROC. art. 59.01(5) (defining "law enforcement agency" as including "an agency of a political subdivision of the state authorized by law to employ peace officers"); id. art. 2.12(1) (providing that sheriffs' deputies are peace officers); TEX. LOC. GOV'T CODE § 85.003 (authorizing sheriffs to appoint deputies).