Untitled Texas Attorney General Opinion

OPP,CEOFTHE Arron~~vGENERAL.STATEOF TEXAS JOHN CORNYN July 6, 1999 The Honorable B. J. Shepherd Opinion No. JC-0075 District Attorney 220th Judicial District Re: Permissible methods of disposing of property P.O. Box 368 forfeited to the state under chapter 59 ofthe Code of Meridian, Texas 76665 Criminal Procedure (RQ4027) 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 ofthe fact that the requirement of sale by sheriffs auction exists “[i]f a local agreement has not been executed,“T~~. CODECRIM. 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]11 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 ofpublic auction as provided by law for other sheriffs sales. TEX. CODE GRIM. 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 The Honorable B. J. Shepherd - Page 2 UC-0075) 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 GRIM.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 tile 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-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 CFUM.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 ofwhether 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. The Honorable B. J. Shepherd - Page 3 (X-0075) 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 ofthe property forfeited pursuant to chapter 59 of that code to be conducted by sheriffs auction. JO& CokNYN Attorney General of Texas ANDY TAYLOR First Assistant Attorney General CLARK RENT ERVIN Deputy Attorney General - General Counsel ELIZABETH ROBINSON Chair, Opinion Committee Prepared by James E. Tourtelott Assistant Attorney General