Case Information
*1 I-
THE ATTORNEY GENERAL OF TEXAS
i+sy 10, 1988 Honorable Jerry Cobb Opinion No. JR-899 Criminal District Attorney
P. 0. Box 2344 Re: Disposition of motor Denton, Texas 76201-2899 under article V.T.C.S., the
Controlled Substance (RQ-1239) Dear Mr. Cobb:
You ask our opinion on the following questions concerning certain provisions of the Controlled Act, article 4476-15, V.T.C.S.:
(1) When a motor vehicle is forfeited for under use by the Sheriff as permitted section 5.08 of the Act, should certificate of title to the vehicle be the name of the issued in sheriff's department or the county?
(2) When a motor vehicle forfeited 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) the Act or at the direction of the Commis- sioner's Court pursuant to the Local Govern- ment Code?
(3) What is the proper disposition of the funds garnered from the disposal
motor vehicle? Should they be deposited the "special fund" described in section 5.08(f) of the Act or deposited in the general fund of the county?
,-
Sections 5.03-5.081 of the Controlled Substances Act, article 4476-15, V.T.C.S., provide for the forfeiture C motor vehicles, used in connection property, including
with certain violations of the Act. Section 5.07 of the Act sets out the procedures to be followed by a court in ordering a forfeiture and section 5.08 provides for the disposition of forfeited property. See aenerallv Attorney - General Opinions JM-678 (1987) and JW-550 (1986).
Section 5.07 of the Controlled Substances Act states in part:
(a) [If the owner of the property do&s not file an answer] the court shall hear evidence that the property is subject forfeiture and may upon motion forfeit the property to the state or an agency of the state or to a nolitical subdivision of the state authorized bv law to emulov Deace officers. . . .
. . . .
(d) If it is found that the property is subject to forfeiture, then the judge shall upon motion forfeit the property to the state or an agency of the state or to a political subdivision state authorized bv law to emolov oeace officers: However. other than a controlled substance; raw material, or f-w paraphernalia, if proof at the hearing discloses that the interest of any bona fide lienholder, secured party, or other person holding an interest in the property in the nature of a security interest is greater than or equal to the present value of the property, the court shall order the property released to him. If such interest is less than the present value of the property if the proof shows that the property is subject to forfeiture, the court shall order the property to be forfeited to the state or an agency of the state or to a oolitical subdivision of the state authorized bv law to emolov oeace officers. (Emphasis added.) is a political A county state, Childress Countv v. State, 92 S.W.2d 1011 (Tex. 1936), and ? it is authorized to employ peace officers. See Code Crim. Proc. art. 2.12(l).
p. 4432
Honorable Jerry Cobb - Page 3 UX-899)
Section 5.08(c) of the Controlled provides for the use of certain forfeited property for the official business of law enforcement agencies and departments of political subdivisions. It provides relevant part:
The state or an agency of the state or a political the state authorized by law to employ peace officers may maintain, repair, use, and operate official purposes all property that has been forfeited to it. . . . The deoartment or aaencv receivina ral forfeited vehicle may maintain, repair, use, and operate the property with money appropriated to the deoartment ox aaencv for current operations.
If the is a motor vehicle suscewtible of reaistration under the motor vehicle reaistration laws of thisatate.
deDartment or aaencv receivina the forfeited vehicle is deemed to be the ourchaser and the certificate of title shall be .issued to it as recuired . . . . (Emphasis added.) V.T.C.S. art. 4476-15, 55.08(c).
It has been suggest,ed that section 5.08(c) is thus inconsistent. In one part of the subsection political subdivisions are authorized to maintain, use, repair, operate for official purposes property that has been forfeited to them. Another part of the same subsection specifically directs that a certificate of title for a forfeited motor vehicle be issued to the department or aaency of a political subdivision receiving the forfeited property for official use, if such a certificate is required by the Certificate of Title Act, article V.T.C.S.1 5.08(C)
We do not find that the commands of section concerning forfeited motor vehicles to be inconsistent. In a somewhat different, but nevertheless relevant, context in Attorney. General Opinion JW-678, we noted that a
1. We express no opinion on the application in fact of the Certificate of Title Act or any of the statutes dealing with motor vehicle registration to vehicles forfeited for official use in law enforcement.
careful review of the legislative intent undergirding sections 5.07 and 5.08 of the Controlled Substances demonstrates that
[allthough Section 5.07 provides in general terms that property may be forfeited to [a political subdivision] section 5.08 provides that some of the forfeited property will be distributed to a specific officer, agency, or department of a political subdivision.
. . . The oortions of section 5.08 which recuire distribution of forfeited to an office. individual or law enforcement aaencv provide further definition of the court authorized bv section orders of forfeiture 5.07. (Emphasis supplied.)
Attorney General Opinion SM-678 (1987). We note further that the legislative history of-a relevant amendment section 5.08(c) underscores our finding that the statute In 1977, is not inconsistent with regard to this point. section 5.08(c) was specifically amended to have the same general meaning which was retained in the 1979 amendment to the statute.. The analysis accompanying the 1987 legislation noted that the amendment
allow[s] courts to award forfeited
to the Department of Public Safety or to anv other agency or unit of government which the officer who conducted employs seizure.
Bill Analysis to S.B. No. 1033, prepared for Senate Committee on Transportation, 65th Leg. (1977 1 . See Acts 1977, 65th Leg., ch. 492, p. 1270. See a 1 ~0 Attorney i General Opinion JM-678.
Section 5.08(c) designates the department or agency of .a political subdivision receiving a forfeited motor vehicle as the proper entity-to obtain a certificate title, if necessary, for vehicles received for official use, but the department is "deemed to be the purchaser" of the vehicle solelv for the ourooses of the Certificate Of Title Act. Nothing in the Controlled Substances Act vests a department or agency of a political
receiving a forfeited vehicle with any of the muniments of ownership merely because it obtains a certificate of title *5 to the vehicle. A certificate of title to a motor vehicle is not conclusive proof of the actual ownership of the vehicle. Pioneer Mutual Comoensation Co. v. Diaz, 177 S.W.Zd 202 (Tex. 1944). The bare lanauaae of section 5.08 of the Controlled Substances Act, which refers to the Certificate of Title Act, thus cannot be construed to grant to a subordinate department or agency of a political subdiv.ision general authority to hold property as an owner separate and apart from the political subdivision itself.
Your second question is about the proper method for the disposal of a forfeited motor vehicle once it is no longer useful to the law enforcement department or agency operating it. Section 5.08 provides for the disposal different categories of forfeited property in several the raw different.ways. First, controlled substances, materials used to manufacture controlled substances, drug paraphernalia are to be disposed of as provided Second, all in section 5.08(a).
other property that has been forfeited, except for money derived from the sale, manufacture, distribution, dispensation, P delivery, or other commercial undertaking
violative of this Act, Andy exceot as nro- vided [in section 5.08(c)], shall be sold at a public auction under the direction of the county sheriff . . . . (Emphasis added.) V.T.C.S. art. 4476-15, 95.08(b). Finally, section 5.08(c) provides that law enforcement agencies or departments retain the forfeited property political subdivisions may V.T.C.S. art. 4476-15, to be used for official purposes. 55.08(c). for public auction of all
Section 5.08(b) provides raw forfeited property exceot "controlled substances, and drug paraphernalia," which are covered by materials, section 5.08(a), and property retained for use under section 5.08(c) by law enforcement agencies or departments specif- of political subdivisions. Since section 5.08(b) excepts property retained for official use under ically 5.08(c) from the requirement of sale at public auction, it follows that property retained for use by law enforcement agencies or departments under 5.08(c) must be subject the Local Government Code’s general provisions ,for the rc- disposal of surplus public property. Attorney General Opinions JM-678 (1987) and JM-550
- (1986) provide a concise answer to your final question, *6 Honorable Jerry Cobb - Page 6 (JR-899)
which concerns the disposition of proceeds from the sale of the vehicle. Section 5.08(f) Controlled Substances Act provides in relevant part:
m money, securities, certificates
deposit, negotiable instruments, stocks, bonds, businesses or business investments, contractual rights, real estate, personal prooertv and other things of value, and the proceeds 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 dewosited in a soecial.
fund to be administered bv the seizinq agencies or office to which thev are for- feited. Except as otherwise provided 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, 95.08(f). ?
The proceeds from the sale of the forfeited used by the sheriff's department must be deposited in the special fund described in section 5.08(f) Controlled Act. Attorney General Opinion JM-678 (1987).
SUMMARY Section 5.08 of the Controlled Substances V.T.C.S., provides Act, article that when motor vehicles are forfeited pur- suant to that act, t0.a political subdivi- sion authorized by law to employ peace officers, and are received for official use by a department or agency of that political subdivision, are received for official use by a department or agency which has the use of the vehicles. Vehicles forfeited for use by a department or agency of a political subdivision are to be disposed of in accord- ance with the Local Government Code govern- ing the disposition of surplus public property. The proceeds from the sale of property forfeited for official use by a *7 Honorable Jerry Cobb - Page 7 UM-899)
department or agency of a political subdi- vision are to be placed in the special fund described section 5.08(f)
Controlled Substances Act.
JIM MATTOX Attorney General of Texas MARY KELLER
First Assistant Attorney General
LOUMCCRBARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RICE GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General