Untitled Texas Attorney General Opinion ( 2012 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 23, 2012
The Honorable Mark A. Marshall Opinion No. GA-0920
McCulloch County Attorney
105 North Church Re: Approval of expenditures from asset forfeiture
Brady, Texas 76825 fund of a district attorney (RQ-1004-GA)
Dear Mr. Marshall:
You ask three questions about how the district attorney for the 198th Judicial District (the
"DA") may comply with two statutes, article 59.06 of the Code of Criminal Procedure and section
24.377 of the Government Code. 1 Article 59.06 prohibits "an attorney representing the state" from
using "proceeds or property received under [chapter 59]" to "make any expenditure not approved
by the commissioners court ... if the ... attorney representing the state holds an elective office" and
either did not file for reelection or ran for reelection and lost. TEX. CODE CRIM. PROC. ANN. art.
59.06(d-1)(6)(A)-(B) (West Supp. 2011). Section 24.377 provides that, in "addition to the
requirements under [article 59.06, the DA] may use proceeds from the sale of forfeited property
... only on the approval of ... the commissioners court of each county in the judicial district"
or a "regional review committee composed of [three county officials]." TEX. GOV'T CODE ANN.
§ 24.377 (c)( 1)-(2) (West Supp. 2011 ). You explain that a regional review committee approved the
DA's proposed use of the forfeiture fund on September 20,2011, and that he intended not to file for
reelection before the filing deadline, which, you tell us, was December 12, 2011. See Request Letter.
Your first question is whether "expenditures can be made from the DA' s asset forfeiture fund
after December 12, 2011 when those expenditures were from the budget previously approved by the
regional review committee on September 20, 2011 [.]" Id. This question describes an approval
process that section 24.377 expressly authorizes, one in "addition to" the article 59.06 process. TEX.
GOV'TCODEANN. § 24.377(c)(2) (WestSupp. 2011). Therefore, under the plain language of section
24.377 of the Government Code, expenditures can be made from the DA' s asset forfeiture fund after
December 12,2011, when those expenditures were from the budget previously approved by the
regional review committee on September 20,2011.
ILetter from Honorable Mark A. Marshall, McCulloch County Attorney, to Honorable Greg Abbott, Tex. Att'y
Gen. (Oct. 12,2011) ("Request Letter").
The Honorable Mark A. Marshall - Page 2 (GA-0920)
Your next question is whether "expenditures made from the DA' s asset forfeiture fund after
the [filing deadline] are to be approved by the county commissioner's courts or the regional review
committee[.]" Request Letter. Under the plain language of section 24.377 ofthe Government Code
and article 59.06 of the Code of Criminal Procedure, either the commissioners courts or the regional
review committee of the 198th Judicial District may approve expenditures from the DA's asset
forfeiture fund after the filing deadline. TEX. CODE CRIM. PROC. ANN. art. 59.06(d-1)(6)(A) (West
Supp. 2011); TEX. GOy'T CODE ANN. § 24.377(c)(1)-(2) (West Supp. 2011).
Your third question is whether "'the proceeds from the sale of forfeited property' in Section
24.377(c) ... also include cash that is seized and subsequently forfeited[.]" Request Letter.
Approval of the use of proceeds from the sale of forfeited property under section 24.377 is subject
to the requirements of article 59.06(a), which governs the conduct of, and the distribution of
proceeds from, sales of forfeited property. TEX. GOy'TCODEANN. § 24.377( c) (West Supp. 2011).
Cash is akind of property subject to article 59.06 requirements. See TEX. CODECRIM. PROC. ANN.
art. 59.06(c), (c-2), (p) (West Supp. 2011) (indicating that "forfeited property" includes "money").
See also State v. One Thousand Dollars ($1,000) in U.S. Currency, 865 S.W.2d 164, 165-66 (Tex.
App.-Corpus Christi 1993, writ denied) (noting that cash is subject to article 59.06 forfeiture
proceedings). Thus, cash could constitute seized and forfeited property under section 24.377(c).
The Honorable Mark A. Marshall - Page 3 (GA-0920)
SUMMARY
Expenditures may be made from the 198th Judicial District
district attorney's asset forfeiture fund after those expenditures are
approved by a regional review committee under section 24.377 of
the Texas Government Code. County commissioners courts and a
regional review committee are among the entities that may approve
expenditures from a district attorney's asset forfeiture fund. Cash
could constitute seized and forfeited property under section 24.377 of
the Texas Government Code.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Jason Boatright
Assistant Attorney General, Opinion Committee