Untitled Texas Attorney General Opinion ( 2014 )


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  •                                           GREG
    0
    ATTORNEY GENERAL OF TEXAS
    ABBOTT
    May 20,2014
    The Honorable John T. Hubert                                  Opinion No. GA-l 059
    Kleberg and Kenedy Counties District Attorney
    Kleberg County Courthouse                                     Re: Whether Code of Criminal Procedure
    Post Office Box 14 71                                         article 59.06 authorizes a district attorney
    Kingsville, Texas 78364                                       to use asset forfeiture funds in specific
    circumstances (RQ-1166-GA)
    Dear Mr. Hubert:
    You ask whether your office may use asset forfeiture funds under article 59.06 of the
    Code of Criminal Procedure to "purchase a building and land in [your] county, and subsequently
    rent and/or lease the building and land back to the county or other law enforcement agency" 1 and
    comply with article 59 .06(c)(I)'s requirement that the funds "be used solely for the official
    purposes of [your] office." TEX. CODE CRIM. PROC. ANN. art. 59.06(c)(l) (West Supp. 2013).
    You tell us that the property for sale is adjacent to the courthouse and consists of a main
    building, a vehicle storage building, and an asphalt paved parking lot. See Request Letter at 2.
    You explain that Kleberg County would rent or lease the parking lot for use by "juries, grand
    juries, witnesses and the general public" when accessing the courthouse. /d. You also indicate
    that the Texas Department of Public Safety ("DPS") would potentially "lease part of the land
    and/or building" to house its Kingsville Highway Patrol office. /d. at 2-3.
    Article 59.06 of the Code of Criminal Procedure governs the disposition of property used
    in the commission of certain criminal offenses and forfeited to a law enforcement agency. See
    TEX. CODE CRIM. PROC. ANN. art. 59.06 (West Supp. 2013). Article 59.06 authorizes the
    attorney representing the state2 to administer all forfeited property in accordance with any local
    agreement entered into with law enforcement agencies. See 
    id. art. 59.06(a).
    Under a local
    agreement, "all money . . . or proceeds from the sale" of forfeited property shall be deposited
    1
    Letter from Honorable John T. Hubert, Kleberg & Kenedy Cntys. Dist. Att'y, to Honorable Greg Abbott,
    Tex. Att'y Gen. at 1 (Nov. 22, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").
    2
    See TEX. CODE CRIM. PROC. ANN. art. 59.01(1) (West Supp. 2013) (defining "attorney representing the
    state" as "the prosecutor with felony jurisdiction in the county in which a forfeiture proceeding is held"); TEX.
    GOV'T CODE ANN. § 43.182(b) (West Supp. 2013) (providing that the district attorney for Kleberg and Kenedy
    counties "shall represent the state in criminal cases" pending in the district courts of those counties).
    The Honorable John T. Hubert - Page 2         (GA-1059)
    into one or more of four "special" funds. /d. art. 59.06(c). You ask about the special fund set
    forth in article 59.06(c)(1), which is "for the benefit of the office of the attorney representing the
    state, to be used solely by the attorney for the official purposes of his office." /d. art.
    59.06(c)(l). The Legislature recently amended article 59.06 to specify that an expenditure of
    asset forfeiture funds "is considered to be for an official purpose of an attorney's office if the
    expenditure is made for an activity of an attorney or office of an attorney representing the state
    that relates to the preservation, enforcement, or administration" of state laws, "including an
    expenditure made for" one of nine listed purposes. Act of May 9, 2013, 83rd Leg., R.S., ch. 157,
    § 1, 2013 Tex. Gen. Laws 595, 597 (codified at TEX. CODE CRIM. PROC. ANN. art. 59.06(d-4)).
    Your inquiry concerns the purpose described as "facility costs, including building purchase."
    Request Letter at 1 (quoting TEX. CODE CRIM. PROC. ANN. art. 59.06(d-4)(7) (West Supp. 2013)).
    You ask us to consider four hypothetical variations on the basic transaction that is the subject of
    your inquiry in light of these recent legislative amendments. See 
    id. at 2.
    Because your first,
    third and fourth questions are related, we address them together.
    You ask whether your office may "purchase land and a building with asset forfeiture
    funds" and subsequently do one of three things: (1) "lease the asphalt paved parking lot" to
    Kleberg County; (2) "sell the building and land" to Kleberg County; or (3) "lease part of the land
    and/or building" to DPS for its Kingsville highway patrol office. /d. at 2-3. At the outset, we
    note that whether article 59.06 authorizes a particular use of asset forfeiture funds requires
    investigating and resolving fact questions beyond the scope of the opinion process. Tex. Att'y
    Gen. Op. No. GA-0122 (2003) at 5. We can, however, provide some guidance concerning article
    59.06.
    The plain language of article 59.06(c)(l) requires that asset forfeiture funds earmarked
    "for the benefit of the attorney representing the state" be used "solely for the official purposes of
    his office." TEX. CODE CRIM. PROC. ANN. art. 59.06(c)(1) (West Supp. 2013) (emphasis added).
    To satisfy article 59.06(c)(l), an expenditure must be made "for an activity" of the attorney or
    his office, and the activity must "relate[] to the preservation, enforcement, or administration of'
    state laws. /d. art. 59.06(d-4). Article 59.06(d-4) provides a list in subparts (1)-(9) meant to
    illustrate the kinds of purposes for which an expenditure can be made. /d.,· see Jackson Law
    Office, P.C. v. Chappell, 
    37 S.W.3d 15
    , 25-26 (Tex. App.-Tyler 2000, pet. denied) (applying
    the definition of the term "includes" from the Code Construction Act to conclude that a list
    following that term is "for purposes of illustration"); TEX. Gov'T CODE ANN. § 311.005(13)
    (West 2013) (defining the terms "include" and "including" as "terms of enlargement and not of
    limitation or exclusive enumeration"). While article 59.06(d-4)(7) authorizes an expenditure for
    "facility costs, including building purchase," not all facility costs and building purchases are for
    an official purpose of the prosecuting attorney's office. Only those that "relate to the
    preservation, enforcement or administration" of state laws through some activity of the
    prosecuting attorney's office are permitted. TEX. CODE CRIM. PROC. ANN. art. 59.06(d-4)(7)
    (West Supp. 2013). Because article 59.06(c)(l) permits expenditures of asset forfeiture funds
    "solely" for such qualifying purposes, the funds may not be used for purposes that do not relate
    to the preservation, enforcement or administration of state laws through an activity of the district
    attorney's office. Whether article 59.06 of the Code of Criminal Procedure authorizes a district
    attorney to use asset forfeiture funds to purchase land and a building for subsequent sale or lease
    to other entities will depend, therefore, on whether the property's ultimate use is solely for an
    The Honorable John T. Hubert - Page 3          (GA-1059)
    activity of the district attorney's office that relates to the preservation, enforcement, or
    administration of state laws. Based on the facts provided here, it would be difficult for a court to
    conclude that the purchase and transfer of property to an entity other than the district attorney's
    office would result in a use that is solely for the official purposes of the district attorney's office.
    Our analysis, made in light of recent legislative amendments, does not affect the validity
    of GA-0613, as you have suggested. See Request Letter at 3; see also Tex. Att'y Gen. Op. No.
    GA-0613 (2008) at 8 (concluding that a district attorney may not use asset forfeiture funds to
    help purchase a juvenile detention facility for a county because "no provision expressly
    authoriz[es] the Harris County District Attorney to provide for a juvenile detention building").
    The fact that the amended statute includes building purchase costs as an example of a
    permissible expenditure category does not change the requirement that the expenditure have a
    connection to an official purpose of the district attorney's office. See TEX. CODE CRIM. PROC.
    ANN. arts. 59.06(c)(1), (d-4)(7) (West Supp. 2013). In our view, the recent statutory amendment
    to article 59.06 clarified existing law but did not expand the scope of permissible expenditures.
    See Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 878, 83rd Leg., R.S. (2013)
    (stating that the bill "will help provide clarity" regarding forfeited property and "provide[] ... a
    clear directive as to what is and is not an authorized use of asset forfeiture dollars."); see also
    Comm'n on State Emergency Commc'ns v. Tracfone Wireless, Inc., 343 S.W.3d 233,243 (Tex.
    App.-Austin 2011) (providing that a "showing, either by legislative history or otherwise, that
    the intent of the legislature in adopting the amendment in question was to clarify rather than
    change the statute in question" can override the general presumption that legislative amendments
    are designed to change rather than clarify an existing statute), rev 'd on other grounds, 
    397 S.W.3d 173
    (Tex. 2013). Thus, GA-0613 remains valid.
    The Honorable John T. Hubert - Page 4       (GA-1059)
    SUMMARY
    A court would be unlikely to conclude that a district
    attorney may use asset forfeiture funds to purchase land and a
    building for subsequent sale or lease to other entities as such use of
    the property would likely not be considered an official purpose of
    the district attorney's office under article 59.06 of the Code of
    Criminal Procedure.
    Attorney General of Texas
    DANIEL T. HODGE
    First Assistant Attorney General
    JAMES D. BLACKLOCK
    Deputy Attorney General for Legal Counsel
    VIRGINIA K. HOELSCHER
    Chair, Opinion Committee
    Becky P. Casares
    Assistant Attorney General, Opinion Committee
    

Document Info

Docket Number: GA-1059

Judges: Greg Abbott

Filed Date: 7/2/2014

Precedential Status: Precedential

Modified Date: 2/18/2017