July 9, 1990
Honorable Joe Lucas Opinion No. JM-1184
El Paso County Attorney
City-County Bldg., Room 201 Re: Disposal of property for-
El Paso, Texas 79901 feited to a municipality pur-
suant 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, 5 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of the former statute.1 Section 481.158 was repealed in the
1. Additions and corrections to several enacted codes,
(Footnote Continued)
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Honorable Joe Lucas - Page 2 (JM-1184)
second called session of the 71st Legislature. Acts 1989,
71st Leg., 2d C-S., ch. 12, 8 5(c), at 21. Therefore, this
opinion is applicable only to forfeitures that occurred
before October 18, 1989. Id. 5 7, at 21.
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 unde;;;cA-ni
violative of this Act, and extent as 1)
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, azz;:sded;;uzin ;z
all storage and court I
(Footnote Continued)
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. &g Gov't Code
r, 311.031(c). Neither of these two enactments affect the
answer to your question, however.
p. 6241
n
Honorable Joe Lucas - Page 3 (JM-1184)
forwarded to the state comptroller and
deposited with and used as general funds of
the state 3xce t as
If) 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) U 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 th e 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 de posited in a soecial 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
p. 6242
Honorable Joe Lucas - Page 4 (JM-1184)
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:
Eos;~y, securities, certificates of
negotiable instruments stocks,
bonds, businesses or business in;estments
contractual rights, real estate, personal
proDerty and other things of value, and
the Droceeds 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 deDosited in a soecial fund to be
administered bv the seizina acrencies or
office to which thev r forfeited.
Except as otherwise procized 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, !j5.08(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
P. 6243
Honorable Joe Lucas - Page 5 (JM-1184)
reconsidered. That opinion interpreted the "except as
provided below I'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 tocal 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
55 253.001 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 u 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. &g 41 Tex. Jur. 3d Forfeitures and
Penalties 55 5, 15 at 185, 195; 67 Tex. Jur. 3d Statutes
30 164, 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.
p. 6244
Honorable Joe Lucas - Page 6 (JM-1184)
We do not reach your other questions.
SUMMARY
If a political subdivision, including a
home-rule city, acquired a vehicle by for-
feiture 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
MARYKELLER
First Assistant Attorney General
LOU MCCRFARY
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
p. 6245
Untitled Texas Attorney General Opinion
Combined Opinion