Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 16, 2018
The Honorable Lucy Wilke Opinion No. KP-0200
District Attorney
. 216th Judicial District Re: Use of civil asset forfeiture funds to
200 Earl Garrett Street, Suite 202 purchase property insurance pending appeal
Kerrville, Texas 78028 ·(RQ-0195-KP)
Dear Ms. Wilke:
You ask whether an attorney representing the State may use civil asset forfeiture funds
accrued under article 59.06(c)(l) of the Texas Code of Criminal Procedure to insure real property
forfeited to the State. 1 See TEX. CODE CRIM. PROC. art. 59 .06. You explain that the State filed a
civil asset forfeiture action in Kerr County against a piece of real property with a residence
("Property"). See Request Letter at 1; see also TEX. CODE CRIM. PROC. art. 59 .04(g). You tell us
that after a trial on the merits, the court ordered the Property forfeited to the State as contraband.
Request Letter at 1. In granting the State's motion to possess the Property pending the defendant's
appeal of the forfeiture judgment, the court ordered "that the State may insure the Property against
loss for the entire period of the pendency of this appeal." 2 Id. at 2 (quotation marks omitted);
Attachment at 2. You ask whether the attorney may use civil asset forfeiture funds accrued under
article 59.06(c)(l) to purchase the property insurance pending appeal. 3 Request Letter at 1.
Article 59.06(c)(l) permits civil. asset forfeiture funds from the sale of contraband to be
deposited into a special fund in the county treasury "for the benefit of the office of the attorney
representing the state, to be used by the attorney solely for the official purposes of his office."
TEX. CODE CRIM. PROC. art. 59.Q6(c)(l) (applicable if a local agreement exists between the
attorney representing the State and law enforcement agencies). "[A]n expenditure of proceeds ...
is considered to be for an official purpose of an attorney's office if the expenditure is made for an
activity of an attorney ... that relates to the preservation, enforcement, or administration of the
laws of this state, including an expenditure made for" certain listed items, such as "facility costs,
including building. purchase, lease payments, remodeling and renovating, maintenance, and
utilities." Id. art. 59.06(d-4)(7) (emphasis added). You are concerned that the "expenditure of
1
See. Letter and Attachment from Honorable Lucy Wilke, 216th Judicial Dist. Att'y, to Honorable Ken
Paxton, Tex. Att'y Gen. at I (Nov. 27, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-
rqs ("Request Letter" and "Attachment," respectively).
2
See TEX. CODE CRIM. PROC. art. 59.02(e) (authorizing a court to "make appropriate orders to preserve and
maintain the value of the property until a final disposition of the property is made").
3
The source of the funds at issue is presumably from previous civil asset forfeitures, as the Property itself
has not been disposed of pending appeaL
The Honorable Lucy Wilke - Page 2 (KP-0200)
funds for the insurance coverage does not fit squarely with the enumerated uses" listed as examples
of activities that relate to the preservation, enforcement, or administration of state laws. Request
Letter at 2. However, the words "includes" and "including" are "terms of enlargement and not of
limitation or exclusive enumeration, and use of the terms does not create a presumption that
components not expressed are excluded." TEX. Gov'TCODE § 311.005(13). So long as the activity
of the attorney "relates to the preservation, enforcement, or administration" of a state law, the fact
that a particular expenditure is omitted from the examples listed in article 59.06(d-4) is not
dispositive. TEX. CODE CRIM. PROC. art. 59.06(d-4).
We tum our focus to the activity of the attorney in the situation you present. The property
insurance, in the words of the court, is necessary to adequately "protect the [State] against loss or
damage that the appeal may cause." Attachment at 1. If the State wins the appeal, then the attorney
representing the State resumes his or her ultimate role with respect to the Property, which is to
"dispose of the property in the manner required by Article 59 .06" on a final judgment of forfeiture.
TEX. CODE CRIM. PROC. art. 59.05(e). In that instance, the insurance protects the interest of the
State in fulfilling its statutory duty. If the State loses the appeal and the owner regains ownership
and possession of the Property, in which case the owner must reimburse the State for the premiums
it paid,4 the insurance mitigates the State's risk of liability during its possession of the Property.
Both scenarios relate to the attorney's role in the administration of the State's forfeiture laws. In
addition, during an appeal of the forfeiture judgment, the attorney representing the State does not
discontinue his or her role as a party to the proceedings. See id. art. 59.05(e) (providing for
forfeiture of property "to the state, with the attorney representing the state as the agent for the
state"); Tex. R. App. P. 25.l(e) (requiring service of the notice of appeal "on all parties to the trial
court's final judgment"). Therefore, a court would likely conclude that the purchase of property
insurance is sufficiently related to the attorney's administration of the State's forfeiture laws such
that it may be made with civil asset forfeiture funds.
4
See Request Letter at 2 (quoting from the court's order that "if the Defendant is successful on appeal and
regains ownership or possession of the Property, then the Defendant shall reimburse the State for all insurance
premiums paid by the State with respect to the Property").
The Honorable Lucy Wilke - Page 3 (KP-0200)
SUMMARY
A court would likely conclude that an attorney representing
the State may use civil asset forfeiture funds accrued under article
59.06(c)(l) of the Texas Code of Criminal Procedure to purchase
property insurance protecting real property that is the subject of an
appeal from a forfeiture judgment under article 59 .05(e).
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
BECKY P. CASARES
Assistant Attorney General, Opinion Committee