Untitled Texas Attorney General Opinion ( 1988 )

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 vehicles under article
4476-15, V.T.C.S., the
Controlled Substance Act
(RQ-1239)
Dear Mr. Cobb:
You ask our opinion on the following questions
concerning certain provisions of the Controlled Substances
Act, article 4476-15, V.T.C.S.:
(1) When a motor vehicle is forfeited for
use by the Sheriff as permitted under
section 5.08 of the Act, should the
certificate of title to the vehicle be
issued in the name of the sheriff's
department or the county?
(2) 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 Commis-
sioner's Court pursuant to the Local Govern-
ment Code?
(3) What is the proper disposition of the
funds garnered from the disposal of the
motor 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?
,-
Sections 5.03-5.081 of the Controlled Substances Act,
article 4476-15, V.T.C.S., provide for the forfeiture of
C
property, including motor vehicles, used in connection
p. 4431
Honorable Jerry Cobb - Page 2 (JM-899)
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 to
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 of the state
authorized bv law to emolov oeace officers:
However. for orooertv 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 and
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.)
A county is a political subdivision of the 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 Substances Act
provides for the use of certain forfeited property for the
official business of law enforcement agencies and
departments of political subdivisions. It provides in
relevant part:
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. . . . 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 orooertv is a motor vehicle
suscewtible of reaistration under the motor
vehicle reaistration laws of thisatate. the
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, and
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 6687-1,
V.T.C.S.1
We do not find that the commands of section 5.08(C)
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.
p. 4433
Honorable Jerry Cobb - Page 4 (JM-899)
careful review of the legislative intent undergirding
sections 5.07 and 5.08 of the Controlled Substances Act
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 orooertv to an
office. individual or law enforcement aaencv
provide further definition of the court
orders of forfeiture authorized bv section
5.07. (Emphasis supplied.)
Attorney General Opinion SM-678 (1987). We note further
that the legislative history of-a relevant amendment to
section 5.08(c) underscores our finding that the statute
is not inconsistent with regard to this point. In 1977,
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 vehicles
to the Department of Public Safety or to anv
other agency or unit of government which
employs the officer who conducted the
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 ai1~0 Attorney
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 of
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 subdivision
receiving a forfeited vehicle with any of the muniments of
ownership merely because it obtains a certificate of title
p. 4434
Honorable Jerry Cobb - Page 5 (JM-899)
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 of
different categories of forfeited property in several
different.ways. First, controlled substances, the raw
materials used to manufacture controlled substances, and
drug paraphernalia are to be disposed of as provided for
in section 5.08(a). Second, all
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 of
political subdivisions may retain the forfeited property
to be used for official purposes. V.T.C.S. art. 4476-15,
55.08(c).
Section 5.08(b) provides for public auction of all
forfeited property exceot "controlled substances, raw
materials, and drug paraphernalia," which are covered by
section 5.08(a), and property retained for use under
section 5.08(c) by law enforcement agencies or departments
of political subdivisions. Since section 5.08(b) specif-
ically excepts property retained for official use under
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 to
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,
p. 4435
Honorable Jerry Cobb - Page 6 (JR-899)
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:
m money, securities, certificates of
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 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).
SUMMARY
Section 5.08 of the Controlled Substances
Act, article 4476-15, V.T.C.S., provides
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
p. 4436
Honorable Jerry Cobb - Page 7 UM-899)
department or agency of a political subdi-
vision are to be placed in the special fund
described in section 5.08(f) of the
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
p. 4437