Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 21,2007

The Honorable John R. Roach Opinion No. GA-0588
Collin County Criminal District Attorney
Collin County Courthouse Re: A law enforcement agency's authority
210 South McDonald, Suite 324 concerning money seized as contraband
McKinney, Texas 75069 pending a court's rendition of final judgment
(RQ-0595-GA)

Dear Mr. Roach:

You ask about a law enforcement agency's authority concerning money seized as contraband
pending a court's rendition of final judgment. Specifically, you ask whether a law enforcement
agency that seizes money as contraband is authorized to (l) maintain custody of the money in a
secure evidence room, (2) deposit the money in a non-interest-bearing account; or (3) deposit the
money in an interest-bearing account. l

I. Applicable Law

Your questions require consideration of pertinent provisions of chapter 59 of the Code of
Criminal Procedure, which generally governs the state's seizure, forfeiture, and disposition of
contraband property. See TEx. CODE CRIM. PROC. ANN. art. 59.01-.14 (Vernon 2006) (chapter 59).
Contraband may be property of any nature, including money. See id. art. 59.01(2); see also
$7,058.84 in Us. Currency v. State, 30 S.W.3d 580, 586 (Tex. App.-Texarkana 2000, no pet.)
(holding that money "either intended for use in, or derived from, a violation of the offenses listed
in the forfeiture statute" is contraband). Contraband, including money, is subject to seizure by a
peace officer and forfeiture by a court. See TEX. CODE CRIM. PROC. ANN. arts. 59.02(a), .03(a)-(b),
.05(e) (Vernon 2006).

Article 59.03, which authorizes the seizure of contraband property, provides that the officer
who seizes property "has custody" of it subject only to statutory replevy or to a court order. Id. art.
59.03(c). Within seventy-two hours of seizure, the officer must:

(1) place the property under seal;

'See Letter from John R. Roach, Collin County Criminal District Attorney, to Honorable Greg Abbott, Attorney
General of Texas, at 1-2 (June 21, 2007) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable John R. Roach - Page 2 (GA-0588)

(2) remove the property to a place ordered by the court; or

(3) require a law enforcement agency of the state or a political
subdivision to take custody of the property and move it to a proper
location.

fd. art. 59.03(c). The officer who has seized property also must provide a sworn statement about the
seizure of property to the attorney representing the state. fd

The attorney representing the state must commence forfeiture proceedings within thirty days
of seizure. fd art. 59.04(a). If, after a hearing, the court determines that property is contraband, it
must order the property forfeited to the state and designate the attorney representing the state as the
state's agent. See id art. 59.05(e). The attorney representing the state must administer all forfeited
property "in accordance with accepted accounting practices" and must dispose of the property
according to the detailed provisions of article 59.06. fd art. 59.06(a); see also id. art. 59.05(e).

During the interim between seizure of the property and final judgment, a court may make
temporary orders regarding the property. See id arts. 59.02(e). On motion of "any party" or on its
own motion, after notice and hearing, a court may "make appropriate orders to preserve and maintain
the value of [seized] property until a final disposition ofthe property." fd; see also art. 59.03(c)(2).
Section 59.08 specifically concerns money seized as contraband, authorizing the attorney
representing the state to deposit such money in an interest-bearing bank account pending final
judgment. fd. art. 59.08(a). If a final judgment of forfeiture is rendered, principal and interest from
the seized money must be distributed in the sarue manner as proceeds are distributed under article
59.06. fd art. 59.08(b).

II. Analysis

Your questions concern a law enforcement agency's authority after one of its officers has
seized money as contraband but before a court has rendered final judgment concerning the property.
Request Letter, supra note I, at 1-2. To address your questions, we must harmonize the provisions
ofchapter 59 that concern the temporary disposition of contraband during that interim. See La Sara
Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984) (holding that
"[g]enerally, courts are to construe statutes so as to harmonize with otherrelevant laws, ifpossible").

Under article 59.03, the officer who seizes property as contraband has custody of it, subject
to replevy or court order. TEx. CODE CRIM. PROC. ANN. art. 59.03(c) (Vernon 2006). The court may
issue orders directing the officer's custody and temporary disposition of the property. See id arts.
59.02(e), .03(c)(2). Absent such an order, however, the officer with custody ofproperty must either
place it under seal or require a law enforcement agency to take custody of it. fd art. 59.03(c)(l), (3).
The law enforcement agency that takes custody of property must move it to a "proper location." fd
art.59.03(c)(3). While custody is not defined in article 59.03(c), its provisions describe alternative
measures manifestly intended to secure the property as appropriate. See id art. 59.03(c)(1), (3).
This understanding of the purpose of article 59.03 is consistent with the ordinary meaning of the
The Honorable John R. Roach - Page 3 (GA-0588)

word "custody" as it pertains to property. See, e.g., WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY 559 (2002) (defining "custody" as "the act or duty of guarding and preserving (as by
a duly authorized person or agency): SAFEKEEPING ... judicial or penal safekeeping: control of
a thing or person with such actual or constructive possession as fulfills the purpose ofthe law or duty
requiring it: imprisonment or durance of persons or charge ofthings"); BLACK'S LAW DICTIONARY
390 (7th ed. 1999) (defining "custody" in general as "[t]he care and control of a thing or person for
inspection, preservation, or security"); Tex. Att'y Gen. Op. No. DM-247 (1993) at 13 (construing
"custody" in article 59.03(c) to mean "safekeeping" (citing WEBSTER'S NINTH NEW COLLEGIATE
DICTIONARY 318 (1989))).

Article 59.03(c)(3) does not specify how long a law enforcement agency must maintain
custody of seized property. See TEx. CODE CRIM. PROC. ANN. art. 59.03(c)(3) (Vernon 2006).
When the article is construed in the context of chapter 59 as a whole, however, a law enforcement
agency's authority and responsibility to maintain custody of seized property continues, subject to
court order or other applicable law, until a court directs the property's disposition in a final
judgment. See id arts. 59.03(c)(3), .05(e).

Article 59.03(c)(3) is also silent about the allowable means ofmaintaining custody of seized
property. Id art. 59.03(c)(3). But article 59.03(c)(3) inherently authorizes a law enforcement agency
to take reasonable measures to maintain custody of seized property. See Fort Bend County Wrecker
Ass 'n v. Wright, 39 S.W.3d421, 425 (Tex. App.-Houston [1st District] 2001, no pet.) (holding that
when a statute grants power, "the statute must be construed to include the reasonable authority
necessary to attain the end result"). The article leaves the choice of an appropriate means for
maintaining custody of seized property to the law enforcement agency's reasonable discretion. See
TEx. CODE CRIM. PROC. ANN. art. 59.03(c)(3) (Vernon 2006); cf Weber v. City of Sachse, 591
S.W.2d 563, 567 (Tex. Civ. App.-Dallas 1979, writ dism'd) (recognizing sheriffs reasonable
discretion to make law enforcement decisions to comply with statutory duty to conserve the peace).

You ask specifically whether a law enforcement agency may maintain custody of seized
money in the agency's secure evidence room. See Request Letter, supra note 1, at 2. While the
answer will depend on the specific facts and circumstances, a court could well conclude that
maintaining money in a secure evidence room is a reasonable exercise ofa law enforcement agency's
discretion under article 59.03(c)(3). See TEx. CODE CRIM. PROC. ANN. art. 59.03(c)(3) (Vernon
2006). You also ask whether a law enforcement agency may deposit seized money in anon-interest-
bearing account for safekeeping. See id No provision in chapter 59 prohibits such a deposit and,
again, a court could conclude that depositing seized money in a non-interest-bearing account is a
reasonable means of safeguarding it. 2

Depositing seized money in an interest-bearing account is another matter, however. As you
observe, article 59.08 expressly grants such authority to the attorney representing the state:

'In particular circumstances, there may be evidentiary concerns or other reasons for maintaining seized money
in its condition as seized. As a matter of prudence, a law enforcement agency may wish to consult with the attorney
representing the state before deciding to deposit seized money in a non-interest-bearing account.
The Honorable John R. Roach - Page 4 (GA-0588)

(a) If money that is contraband is seized, the attorney representing
the state may deposit the money in an interest-bearing bank account
in the jurisdiction of the attorney representing the state until a final
judgment is rendered concerning the contraband.

Id. art. 59.08. From the choice ofthe word "may" in article 59.08(a), you surmise that the attorney's
authority to deposit money in an interest-bearing account is discretionary. See Request Letter, supra
note 1, at 1-2. Ifthe authority ofthe attorney representing the state in article 59.08 is discretionary,
you ask whether a law enforcement agency has independent authority to deposit seized money in an
interest-bearing account when the attorney representing the state chooses not to do so. See id.

Article 59.08(a) plainly grants an attorney representing the state discretionary authority
to deposit seized money in an interest-bearing account. The word "may" in a statute "creates
discretionary authority or grants permission or a power" unless the context "necessarily requires
a different construction." See TEx. GOy'T CODE ANN. § 311.016(1) (Vernon 2005) (Code
Construction Act). Absent a court order to the contrary, the attorney representing the state has the
discretion to decide whether to deposit seized money in an interest-bearing account under article
59.08(a), overriding the authority of a law enforcement agency to maintain custody of seized
property under 59.03(c)(3). See TEX. CODECRIM. PROC. ANN. arts. 59.03(c)(2)-(3), .08(a) (Vernon
2006).

Even if the attorney representing the state chooses not to make the deposit authorized by
article 59.08(a), or fails to make any decision at all, the article does not expressly grant authority to
a law enforcement officer or entity to deposit seized money in an interest-bearing account, nor may
we infer such authority. As one court construing the predecessor of chapter 59 held, "[w]hen the
legislature has carefully employed a term, such as 'law enforcement agency,' in one section of [the
predecessor ofchapter 59] and has excluded it in another, it should not be implied where excluded."
State v. $50,600.00,800 S.W.2d 872,880 (Tex. App.-SanAntonio 1990, writdenied)(citingSmith
v. Baldwin, 611 S. W. 2d 611, 616 (Tex. 1980)); see also Johnson v. Second Injury Fund, 688
S.W.2d 107, 109 (Tex. 1985) (stating that "it is a settled rule [of statutory construction] that the
express mention or enumeration of one person, thing, consequence, or class is equivalent to an
express exclusion of all others" (quoting State v. Mauritz-Wells Co., 175 S.W.2d 238, 241 (Tex.
1943))). Had the Legislature intended to grant general authority to deposit seized money in an
interest-bearing accountto law enforcement agencies as well as to the attorney representing the state,
chapter 59 could easily have been written to say so.

We note that "any party" may seek temporary orders from the court to preserve and maintain
seized property. See TEx. CODE CRIM. PROC. ANN. art. 59.02(e) (Vernon 2006). Under article
59.02(e), a law enforcement agency might seek an order ofthe court directing that seized money be
deposited in an interest-bearing account pending final judgment. See id. But, to answer your
remaining question, a law enforcement agency does not have independent authority to deposit seized
money in an interest-bearing account pending the court's final judgment concerning the property.
The Honorable John R. Roach - Page 5 (GA-0588)

SUMMARY

Under article 59.03(c)(3) ofthe Code of Criminal Procedure,
a peace officer may require a law enforcement agency to take custody
of property, including money, that has been seized as contraband.
The law enforcement agency's authority and responsibility to
maintain custody under the article, subject to other law, continues
until a court directs the property's disposition in a final judgment.
The law enforcement agency has reasonable discretion to choose the
means of maintaining custody of such property. However, a law
enforcement agency does not have independent authority to deposit
and maintain money seized as contraband in an interest-bearing
account, and may do so only pursuant to court order.

Very truly yours,

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair,Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee