THE ATTORNEY GESERAL
OF TEXAS
October 20, 1987
Honorable Rene Guerra Opinion No. JR-812
Criminal District Attorney
Hidalgo County Courthouse Re: Disposition of confis-
Edinburg, Texas 78539 cated property by criminal
district attorney under
article 4476-15
Dear Mr. Guerra:
A number of questions are asked relative to the
disposition of confiscated property under article 4476-15,
V.T.C.S., as follows:
1. Is the Hidalgo County District
Attorney authorized by statute to receive
confiscated property?
2. Is the Hidalgo County District
Attorney authorized to supplement the
salaries of his assistants, clerical, and
investigative staff and to pay for other
office related expenses of the District
Attorney with confiscated funds and proceeds
from the sale of other confiscated property?
3. Is the District Attorney authorized
by statute to hold confiscated personal
property for an indefinite period?
At what time is a Sheriff's Sale on
perzonal property to take place when the
state statute and judgement order is silent
as to the date and time of the Sheriff's
Sale?
Section 508(f) of article 4476, V.T.C.S., infra,
provides for the expenditure of funds forfeited to "an
office of a political subdivision of the state authorized
to employ peace officers." Under section 41.102 of the
Government Code, a prosecuting attorney mav emolov an
investiaator. Section 41.101 of the Government Code
p. 3845
Honorable Rene Guerra - Page 2 (JR-812)
includes within the definition of @'prosecuting attorney" a
county attorney, district attorney, or criminal district
attorney. Under article 2.12(5), Texas Code of Criminal
Procedure, investigators of the district attorneys',
criminal district attorneys' and county attorneys' offices
are peace officers. A district court may by judgment
entered pursuant to the provisions of article 4476-15
forfeit property to the Hidalgo County District Attorney.
Art. 4476-15, 5508(f), j.~&&.
With respect to the expenditure of forfeited funds
for the purposes outlined in the second question, section
5.08(f) of article 4476-15 provides in pertinent part:
Except as otherwise provided by this
subsection, expenditures from this fund
shall be used solelv for the investiaation
of anv alleaed violations of th criminal
laws of this state. (Emphasis adied.)
Whether a particular expenditure of funds obtained as
the result of a forfeiture under article 4476-15 is an
expenditure made solely for the investigation of alleged
violations of the criminal laws of this state is dependent
upon the resolution of a factual issue, a function that is
inappropriate to the opinion process.
The third and fourth questions inquire as to .the time
a sheriff's sale of forfeited property is to take place
and how long a district attorney may hold the property. A
copy of a judgment furnished us from a district court of
Hidalgo County in which items of jewelry were forfeited to
the district attorney provides that the forfeiture is to
the "Hidalgo County Criminal District Attorney
(Investigation Fund), as provided by article 4476-15,
Texas Revised Civil Statutes." State v. Five Hundred
Dollars and No Cents, No. C-792-87-A, Dist. of Hidalgo
County, 92d Judicial Dist. of Texas, April 22, 1987. The
judgment of the court did not order retention, delivery or
destruction of the property under section 5.08(a) of
article 4476-15. Thus, section 5.08(b), (c), (d), (e) and
(f) are applicable and provide the manner of its
disposition, as follows:
(b) All other property that has been
forfeited, except the money derived from the
sale, manufacture, distribution, dispensa-
tion, delivery, or other commercial under-
taking violative of this Act, and except as
p. 3846
Honorable Rene Guerra - Page 3 (JM-812)
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 deduction
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 by 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. The department or agency receiv-
ing the forfeited vehicle may purchase the
interest of a bona fide lienholder, secured
party, or other party who holds an interest
so that the property can be released for use
by the department or agency receiving the
forfeited vehicle. The department or agency
receiving the forfeited vehicle may
maintain, repair, use, and operate the
property with money appropriated to the
department or agency for current operations.
If the property is a motor vehicle suscept-
ible of registration under the motor vehicle
registration laws of this state, the
department or agency receiving the forfeited
vehicle is deemed to be the purchaser and
the certificate of title shall be issued to
it as required by Subsection (e) of this
section.
p. 3847
Honorable Rene Guerra - Page 4 (~~-812)
(d) Storage charges property
accrued while the property"?s i%red at the
request of a seizing officer of the depart-
ment or agency receiving the forfeited
vehicle pending the outcome of the forfei-
ture proceedings shall be paid by the
department or agency out of its appropria-
tions if such property after final hearing
is not forfeited to the department or
agency.
(e) The State Department of Highways and
Public Transportation shall issue a cert-
ificate of title to any person who purchases
property under the provisions of this
section when a certificate of title is
required under the laws of this state.
(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 nolitical subdivision of the
> eace
officers shall be deposited in a special
fund to be administered by the seizing
agencies or office to which they are for-
feited. 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. The director of an
agency of the state may use.not more than lo
percent of the amount credited to the fund
for the prevention of drug abuse and for
treatment of persons with drug-related
problems. The director of an agency or
office of a political subdivision that has
received funds under this section shall
comply with the request of the governing
body of the political subdivision to deposit
not more than 10 percent of the amount
credited to the fund into the treasury of
the subdivision. The governing body of the
subdivision shall use the funds received for
p. 3848
, 1 i
Honorable Rene Guerra - Page 5 (JR-812)
the prevention of drug abuse and for treat-
ment of persons with drug-related problems.
Nothing in this subsection shall be
construed to decrease the total salaries,
expenses, and allowances which an agency or
office is receiving from other sources at or
from the time this subsection takes effect.
(Emphasis added.)
You state that you presently have two gold bracelets
and several rings that have been forfeited to you under
judgment of the court. You express the desire to delay
turning these items over to the sheriff for public sale
until "we have accumulated a sufficient quantity to
justify public notice expenses."
As noted in the 4th question and reflected by the
copy furnished us, the judgment is silent as to the time
when the sheriff will sell the forfeited property at
public auction. Nor do we find any statute which provides
a specific time the district attorney shall hold such
property before it is turned over to the sheriff for sale.
However, it is our opinion that a party owning an interest
in the forfeited property may compel a partition under
chapter 23 of the Texas Property Code, providing for the
partition of the interests of joint owners to real and
personal property.
Section 5.08(b) of article 4476-15 provides for the
sale of forfeited property by the county sheriff after
notice of public auction as nrovided bv law for other
sheriff's sales. Rule 650 of the Texas Rules of Civil
Procedure provides for notice of the time and place of the
sale of any personal property levied on under execution.
It is our opinion that the legislature was referring to
the notice requirements of Rule 650 when it made reference
to notice being given as provided by law for other
sheriff's sales: Rule 650 requires the posting of notice
for ten days successively immediately prior to the day of
sale at the courthouse door and at the place where the
sale is to be made.
SUMMARY
A district court of Hidalgo County may
forfeit property to the Hidalgo County
District Attorney under the provisions of
article 4476-15, V.T.C.S. Expenditures from
forfeited funds may be expended by the
p. 3849
Honorable Rene Guerra - Page 6 (JN-812)
Hidalgo County District Attorney solely for
the investigation of any alleged violations
of the criminal laws of this state. While
we find no statute which provides for a
specific time the district attorney may hold
forfeited property before turning it over to
the sheriff for sale, a party owning an
interest in the forfeited property may
compel a partition under chapter 23 of the
Texas Property Code. After forfeited
property is turned over to the sheriff for
sale, notice must be given for 10 days
successively immediately prior to the day of
sale at the courthouse door and at the place
where the sale is to be made pursuant to the
requirements of Rule 650 of the Texas Rules
of Civil Procedure.
JIM MATTOX -
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3850