Where must Texas asset-forfeiture money be deposited, the county treasury or somewhere else?

Plain-English summary

When Texas law enforcement seizes and forfeits property tied to certain crimes, the money does not just sit in a prosecutor's desk drawer. Chapter 59 of the Code of Criminal Procedure routes forfeited cash and proceeds, by local agreement, into "special funds in the county treasury," one for the office of the attorney representing the state (usually the district or criminal district attorney) and one for a county law enforcement agency. The DeWitt County Auditor asked a bookkeeping question with real consequences: does putting the money in a "special fund in the county treasury" mean it has to run through the county treasurer and into the county depository, the bonded bank the county uses for its money, like any other county funds?

The Attorney General concluded yes. The plain language of article 59.06(c) contemplates that these forfeiture funds go to the county treasurer for placement in the county depository, handled the way county funds generally are. The opinion pointed to the Local Government Code, which directs that money belonging to a county be deposited with the county treasurer and placed in the county depository in a special fund credited to the collecting officer. Even if forfeiture money has the character of state funds rather than county money, the specific deposit language in article 59.06(c) tells officials to handle it the same way county money is handled.

The Attorney General also rejected treating the two subparts differently. Subpart (3), for a county law enforcement agency, more obviously points to the county-funds rules, but subpart (1) uses identical "special fund in the county treasury" language for the prosecutor's share, so both are deposited essentially the same way. The opinion noted that other deposit statutes are not limited to strictly "county" funds or officers, that the Legislature handled not-yet-forfeited seized money differently (allowing an interest-bearing account under article 59.08), and that reading article 59.06 to allow deposits outside the depository would strip the funds of the bond protection chapter 116 of the Local Government Code requires.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The chapter 59 forfeiture provisions of the Code of Criminal Procedure and the county-depository provisions of the Local Government Code have been amended since 1992, so confirm the current statutes before relying on anything described here.

Background and statutory framework

Chapter 59 of the Code of Criminal Procedure provides for state seizure and forfeiture of property used in, or proceeds gained from, the commission of certain crimes. The prosecutor with felony jurisdiction in the county where the forfeiture proceeding is held, referred to in chapter 59 as the "attorney representing the state," administers forfeited property and may, by local agreement, distribute it to various law enforcement agencies or to that prosecutor's own office for official purposes. Code Crim. Proc. arts. 59.01, 59.06. Article 59.06(c) provides that, if a local agreement exists between the attorney representing the state and law enforcement agencies, all money, securities, negotiable instruments, stocks or bonds, or things of value, or proceeds from their sale, "shall be deposited according to the terms of the agreement" into one or more funds: a special fund in the county treasury for the benefit of the office of the attorney representing the state, to be used solely for the official purposes of that office (subpart (1)); and a special fund in the county treasury if distributed to a county law enforcement agency, to be used solely for law enforcement purposes (subpart (3)).

The auditor asked whether depositing forfeiture funds in a "special fund in the county treasury" subjects them to the general requirements for the deposit of county funds in the county depository. The Attorney General concluded the plain language contemplates that the funds will be deposited in the county depository in accordance with the statutory provisions generally governing county funds. See also Attorney General Opinion DM-72 (1991) (law enforcement agency receiving funds has authority to determine the purposes to which forfeiture funds are applied).

Section 113.021 of the Local Government Code provides that funds and other money belonging to a county "shall be deposited with the county treasurer by the officer who collects the money," and that the county treasurer "shall deposit the money in the county depository in a special fund to the credit of the officer who collected the money." See Letter Opinion No. 92-7 (1992). Even if the forfeiture funds here have the character of state funds and not "money belonging to the county" under section 113.021, the Attorney General concluded that the plain language of article 59.06(c)(1) and (3), specific to the deposit of forfeiture funds, indicates they are deposited in the manner money belonging to the county is deposited. See generally State v. $50,600.00, 800 S.W.2d 872 (Tex. App.—San Antonio 1990, writ denied) (county treasurer authorized to receive and deposit forfeiture funds under former forfeiture laws).

The Attorney General found no basis to treat the two subparts differently depending on whether the funds are for a county or non-county agency. The requirement in subpart (3), for funds "distributed to a county law enforcement agency," might more obviously refer to the Local Government Code provisions for handling county funds, but subpart (1) uses identical "special fund in the county treasury" language for funds for the office of the attorney representing the state (generally a district or criminal district attorney), indicating deposits under subparts (1) and (3) are effected in essentially the same manner. The opinion noted other deposit statutes are not limited to strictly "county" funds or officers: chapter 116 of the Local Government Code provides for selecting a county depository and taking bonds or other security from the depository institution, and section 116.002 directs that money "collected or held by a district, county, or precinct officer in a county" be deposited under that chapter and considered in fixing, and protected by, the depository's bond. See also Local Gov't Code § 140.003 (requiring "specialized local entities," defined to include district and criminal district attorneys, to deposit "funds the entity receives" in the county treasury); compare Code Crim. Proc. art. 103.004 (requiring county and district officers who collect "obligations recovered in the name of the state" to deposit such money with the county treasurer for deposit in a special fund in the county treasury). The Legislature also handled seized money for which no forfeiture judgment has yet been rendered differently, allowing it to be deposited in an interest-bearing bank account in the jurisdiction of the attorney representing the state. See Code Crim. Proc. art. 59.08. Had the Legislature intended already-forfeited funds to be handled differently from county-treasury funds generally, it would have said so, and the Attorney General was wary of construing article 59.06 to permit deposits without the bond protection chapter 116 requires. Accordingly, the Attorney General concluded that the forfeiture funds distributed under article 59.06(c) to the office of the attorney representing the state and to county law enforcement agencies are deposited with the county treasurer for placement in the county depository, in the manner county funds are generally handled.

Common questions

Where do Texas asset-forfeiture funds have to be deposited?
Under this opinion, with the county treasurer for placement in the county depository, in a special fund, the same way other county funds are handled. That applies both to the prosecutor's share and to a county law enforcement agency's share.

Does it matter that the money might really be "state" funds, not county funds?
The opinion concluded it does not change the deposit method. Even if the forfeiture money has the character of state funds, the specific deposit language in article 59.06(c) directs that it be handled like money belonging to the county.

Why does running the money through the county depository matter?
Because the county depository is bonded or otherwise secured under chapter 116 of the Local Government Code. The opinion was reluctant to read the forfeiture statute to allow deposits that would lose that protection.

Is seized money treated the same before forfeiture is final?
No. The opinion noted the Legislature treated not-yet-forfeited seized money differently, allowing it to be held in an interest-bearing bank account in the prosecutor's jurisdiction under article 59.08, which is part of why the after-forfeiture rule points to the county depository.

Citations

• Code of Criminal Procedure arts. 59.01, 59.06, 59.06(c), 59.08, 103.004
• Local Government Code §§ 113.021, 116.002, 140.003; ch. 116
• Attorney General Opinion DM-72 (1991)
• Letter Opinion No. 92-7 (1992)
• State v. $50,600.00, 800 S.W.2d 872 (Tex. App.—San Antonio 1990, writ denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0162
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0162.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

September 8, 1992

Ms. Phyllis Massey
DeWitt County Auditor
307 N. Gonzales St.
Cuero, Texas 77954

Opinion No. DM-162

Re: Whether the provisions of article 59.06(c) of the Code of Criminal Procedure, directing that certain forfeited property be deposited in "special funds in the county treasury," require that such funds be deposited with the county treasurer for placement in the county depository (RQ-352)

Dear Ms. Massey:

Chapter 59 of the Code of Criminal Procedure provides for state seizure and forfeiture of property used in, or proceeds gained from, the commission of certain crimes. The prosecutor with felony jurisdiction in the county in which the forfeiture proceeding is held, referred to in chapter 59 as the "attorney representing the state," administers forfeited property and may by local agreement distribute such property to various law enforcement agencies or to his own office for use for official purposes. Code Crim. Proc. arts. 59.01, 59.06. Article 59.06(c) provides with respect to the disposition of certain forfeited property as follows, in pertinent part:

      If a local agreement exists between the attorney representing the state and law enforcement agencies, all money, securities, negotiable instruments, stocks or bonds, or things of value, or proceeds from the sale of those items, shall be deposited according to the terms of the agreement into one or more of the following funds:

      (1) 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;

      (3) a special fund in the county treasury if distributed to a county law enforcement agency, to be used solely for law enforcement purposes. [Emphases added.]

We understand you to ask whether the provisions of article 59.06(c), that forfeiture funds be deposited in a "special fund in the county treasury," subject such funds to the general requirements regarding the deposit of county funds in the county depository. While we cannot anticipate all issues that may arise with respect to the handling of these forfeiture funds, it is our opinion that the plain language of the above-quoted provisions of chapter 59 of the Code of Criminal Procedure contemplates that the funds will be deposited in the county depository in accordance with the statutory provisions generally governing the handling of county funds. See also, e.g., Attorney General Opinion DM-72 (1991) (law enforcement agency to which funds are distributed has authority to determine purposes to which forfeiture funds are applied).

Section 113.021 of the Local Government Code provides that the "funds and other money belonging to a county shall be deposited with the county treasurer by the officer who collects the money" and that the "county treasurer shall deposit the money in the county depository in a special fund to the credit of the officer who collected the money." See Letter Opinion No. 92-7 (1992). Even if the forfeiture funds in question here have the character of state funds and not "money belonging to the county," as provided for in section 113.021, we believe that the plain language of article 59.06(c)(1) and (3), specific to the deposit of forfeiture funds, indicates that they are to be deposited in the manner in which "money belonging to the county" is deposited. See generally State v. $50,600.00, 800 S.W.2d 872 (Tex. App.—San Antonio 1990, writ denied) (county treasurer authorized to receive and deposit forfeiture funds under former forfeiture laws).

Nor do we believe that a distinction in the manner of depositing the forfeiture funds in question may be made depending on whether the funds deposited in the "special fund in the county treasury" under article 59.06(c) are for the use of a county or non-county agency. While the requirement that forfeiture funds "distributed to a county law enforcement agency" under subpart (3) of article 59.06(c) be deposited in "a special fund in the county treasury" might more obviously be taken to refer to the Local Government Code provisions for the handling of county funds, we believe that the use of the identical language in subpart (1) of article 59.06(c) providing for the deposit of funds "for the benefit of the office of the attorney representing the state," who will generally be a district or criminal district attorney, indicates that the article contemplates that deposits under subparts (1) and (3) will be effected in essentially the same manner.

We note too that other provisions of state law requiring the deposit of funds in the county depository are not limited in their reach to specifically "county" funds or county officers. Chapter 116 of the Local Government Code provides for the selection of a county depository and the taking of bonds or other security from the depository institution for the protection of the funds to be kept there. Section 116.002 of chapter 116 directs that "money collected or held by a district, county, or precinct officer in a county . . . shall be deposited under this chapter . . . [t]he money shall be considered in fixing, and is protected by, a county depository's bond." See also Local Gov't Code § 140.003 (requiring "specialized local entities," defined to include district and criminal district attorneys, to deposit "funds the entity receives" "in the county treasury"). Compare Code Crim. Proc. art. 103.004 (requiring various county and district officers who collect "obligations recovered in the name of the state" to deposit such money with the county treasurer for deposit in a special fund in the county treasury).

We also note that the legislature, in the chapter 59 forfeiture provisions, has made different provisions for the handling of funds which have been seized but for which no judgment concerning forfeiture has yet been rendered. See Code Crim. Proc. art. 59.08 (providing that such money may be deposited "in an interest-bearing bank account in the jurisdiction of the attorney representing the state"). If the legislature had intended that already forfeited funds under article 59.06 were to be handled in a manner different from that in which funds to be deposited in the county treasury are generally handled, we think it would have specifically provided for such rather than simply direct that they are to be "deposited . . . in a special fund in the county treasury." Also, in view of the such language, we would be chary of construing the provisions of article 59.06 so as to permit the deposit of forfeiture funds without the protection of the bonds or other security which Local Government Code chapter 116 directs the county to obtain from the depository institution for the safeguarding of funds placed in the county depository.

Accordingly, it is our opinion that the provisions of article 59.06(c) of the Code of Criminal Procedure providing for the deposit in "special fund[s] in the county treasury" of forfeiture funds distributed to the office of "the attorney representing the state" and county law enforcement agencies contemplate that those funds will be deposited with the county treasurer for placement in the county depository in the manner in which county funds are generally handled.

                             SUMMARY

      The provisions of article 59.06(c) of the Code of Criminal Procedure, providing for the deposit in "special funds in the county treasury" of forfeiture funds distributed to the office of "the attorney representing the state" and county law enforcement agencies, contemplate that those funds will be deposited with the county treasurer for placement in the county depository in the manner in which county funds are generally handled.

                                            DAN MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General