Where must a Texas district attorney keep forfeited drug-case funds, and who audits them in a multicounty district?

Plain-English summary

When Texas police seize cash and property tied to drug crimes, chapter 59 of the Code of Criminal Procedure lets the prosecutor's office and law-enforcement agencies forfeit it and spend the proceeds on law enforcement. A district attorney whose district covered several counties asked the Attorney General how his office was supposed to handle the bookkeeping: where the money had to sit, who could sign the checks, and which county's auditor got to look at the books.

The Attorney General answered that the forfeiture money still has to be deposited with the county treasurer when the treasurer is the county depository, reaffirming an earlier 1992 opinion (DM-162). What is different about forfeiture money is the spending side: article 59.06 carves out an exception to the usual county-finance rules, so the attorney representing the state (or the law-enforcement agency) can be the sole signatory on an expenditure rather than routing every check through the treasurer and auditor. The opinion tied that exception to the secrecy needs of undercover work, the district attorney had explained that requiring two or more signatures on each check would make undercover spending common knowledge and could blow investigations.

The harder question was the multicounty one. Section 140.003 of the Local Government Code says that when a prosecutor's jurisdiction spans more than one county, the forfeiture funds are kept in a single "responsible" county that the district judges designate. The Attorney General concluded that only the auditor of that responsible county has authority to audit the prosecutor's forfeiture accounts; the auditors of the other counties in the district do not. The prosecutor cannot keep exclusive records, the responsible county's auditor must keep records too. Finally, the opinion addressed who pays to store seized property: the peace officer's employer (the county or municipality) is responsible for safeguarding seized contraband and must reimburse the officer's reasonable storage expenses while the property is held.

Currency note

This opinion was issued in 1993. 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. Chapter 59 of the Code of Criminal Procedure and the Local Government Code provisions on county auditors, treasurers, and multicounty prosecutor offices (including sections 112.005, 112.007, 113.041-.064, 115.0035, and 140.003) have been amended and renumbered repeatedly since 1993; confirm current law before relying on anything described here.

Background and statutory framework

Chapter 59 of the Code of Criminal Procedure, enacted in 1989, governs the seizure and forfeiture of contraband. Article 59.06 controls the disposition of forfeited property and proceeds. Subsection (c)(1) directs how the special funds belonging to the attorney representing the state are handled, and subsections (d) and (e) describe spending authority. The Attorney General read subsection (d) as expressly granting spending authority to the local law-enforcement agency or the attorney representing the state, and read that grant together with subsection (g)'s separate provision for an annual audit by the commissioners court or municipal governing body.

The opinion then worked through how article 59.06 interacts with the general county-finance rules in the Local Government Code, sections 113.041 (disbursement by the county treasurer), 113.042 (payment by the treasurer), 113.043 (checks and warrants countersigned by the county auditor), and 113.064 (payment approved by the county auditor). Treating article 59.06 as the more specific and later enactment, and applying the rule that a general provision yields to a specific one (City of Austin v. Cahill, 88 S.W. 542, 546 (Tex. 1905), and Government Code section 311.025(b)), the Attorney General concluded article 59.06 is an exception to those general disbursement and countersignature requirements.

On the multicounty question, section 140.003 of the Local Government Code, the special provision enacted later, requires the forfeiture funds of a district or criminal district attorney whose jurisdiction spans more than one county to be kept in a single "responsible" county designated by the district judges. The Attorney General harmonized section 140.003 with section 115.0035 (county-auditor authority) by reading section 140.003 as the exception for multicounty districts, so that only the responsible county's auditor has audit authority over the prosecutor's forfeiture accounts. Section 140.003 incorporates sections 112.005 and 112.007, which the county auditor must follow for forfeiture-fund transactions. On safeguarding seized property, the opinion relied on article 59.03 (custody by the seizing peace officer) and the principle that a grant of authority impliedly carries what is necessary to exercise it, concluding the seizing officer's employer bears the cost of safeguarding the property.

Citations

• Code Crim. Proc. art. 59.06(c)(1) (special funds of the attorney representing the state)
• Code Crim. Proc. art. 59.06(d), (e), (g) (spending authority; annual audit)
• Code Crim. Proc. art. 59.03 (custody of seized property by the seizing peace officer)
• Local Gov't Code §§ 113.041, 113.042, 113.043, 113.064 (general county disbursement, countersignature, and approval rules)
• Local Gov't Code §§ 112.005, 112.007 (county-auditor record and transaction rules, incorporated by § 140.003)
• Local Gov't Code § 140.003 (funds of a multicounty prosecutor kept in the responsible county designated by the district judges)
• Local Gov't Code § 115.0035 (county-auditor authority)
• Gov't Code § 311.025(b) (specific or later-enacted provision prevails)
• City of Austin v. Cahill, 88 S.W. 542, 546 (Tex. 1905) (a general provision must yield to a specific one)
• Attorney General Opinion DM-162 (1992) (affirmed: forfeiture funds deposited with the county treasurer when it is the depository)
• Attorney General Opinion DM-246 (1993)

Common questions

Where did a Texas prosecutor have to keep forfeited drug-case money under this opinion?
The Attorney General concluded the money still had to be deposited with the county treasurer when the treasurer was the county depository, reaffirming Opinion DM-162 (1992). Article 59.06 changed the spending mechanics, not the place of deposit.

Could the district attorney be the only person signing forfeiture checks?
Yes. The opinion read article 59.06 as an exception to the usual rule that disbursements go through the treasurer and auditor, so the attorney representing the state (or the law-enforcement agency) could be the sole signatory on an expenditure. The prosecutor had explained that requiring multiple signatures would expose undercover spending.

In a multicounty district, which county's auditor audits the forfeiture funds?
Only the auditor of the "responsible" county designated by the district judges under section 140.003. The Attorney General concluded the auditors of the other counties in the district do not have audit authority over the prosecutor's forfeiture accounts under section 115.0035.

Could the prosecutor keep the only set of records on the forfeiture funds?
No. The opinion concluded the responsible county's auditor is required to keep records of the forfeiture-fund transactions; the prosecutor could not keep exclusive records.

Who pays to store property seized in a forfeiture case?
Under this opinion, the employer of the peace officer who seized the property (the county or municipality) is responsible for safeguarding it and must reimburse the officer for reasonable expenses incurred in storing the property while it remains in custody.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0247
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0247.pdf

Original opinion text

Best-effort transcription from a degraded scanned PDF. Several interior pages of the source scan returned no legible text and are marked [. . .]; words shown in brackets are reconstructed where the scan was unclear. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

September 3, 1993

Honorable Wiley L. Cheatham
District Attorney
24th Judicial District
P.O. Box 587
[Cuero], Texas 77954

Opinion No. DM-247

Re: Whether the provisions of article 59.06(c) of the Code of Criminal Procedure governing the disposition of certain forfeited property depend on action by the county auditor [Re line partly illegible in source scan]

Dear Mr. Cheatham:

You request an opinion regarding the procedures your office uses to administer funds [belonging to the attorney representing the state] pursuant to article 59.06(c)(1) of the Code of Criminal Procedure and to comply with that subsection. The funds in question are property or proceeds of property forfeited and seized under chapter 59 of the Code of Criminal Procedure. Subsection (c)(1) of article 59.06 provides as follows:

[. . . Quotation of article 59.06(c)(1) not legible in source scan; see the linked PDF.]

[. . .] In your letter you compare this scheme with [an alternative] in which the district attorney's special fund [is] kept with the county treasurer [and disbursed] by the [auditor] under the direction of the attorney for the state. . . . Under this procedure [it] has been proposed that the county be the depository for the funds, and the [. . .] checks would be issued and signed by the auditor and also signed by the Treasurer and District Attorney (or Sheriff, as the case may be).

You state that the problem with this alternative system is that two or more persons would be involved in the issuance of each check, so it would be impossible to prevent expenditures from becoming common knowledge almost immediately. If the [payments] were part of an undercover operation, the [targets] under the [alternative] system would be most likely to find out about the operation prematurely, with the possible result of ruined investigations and [. . .] imperilment of law-enforcement [personnel].

[. . .]

Although sections 113.041 through 113.043 and 113.064 [generally] require the county treasurer to [make payments] out of the county treasury by [warrants] drawn [on] proper [authority], and require the county auditor to approve those [payments] and countersign checks and warrants, [we are] of the opinion that article 59.06 of the Code of Criminal Procedure [makes an exception to] those provisions. Subsections (d) and (e) of article 59.06 provide in part:

[. . . Quotation of article 59.06(d) and (e) not legible in source scan; see the linked PDF.]

The plain language of subsection (d) [expressly] grants spending authority to the local law-enforcement agency or attorney representing the state. The only condition precedent to the exercise [. . .]. Crim. Proc. art. 59.06(d); Attorney General Opinion DM-246 (1993) at 5-6. [. . .] [Read] in conjunction with subsection (g)'s express provision for an annual audit by the commissioners court or municipal governing body [. . .] the [. . .] review authority of the county auditor.

Article 59.06 is a more specific and [later] enactment than [. . .] subsections 113.041, 113.042, 113.043, and 113.064 of the Local Government Code. See Acts 1987, 70th Leg., ch. 149, § 1 (enactment of Local Government Code); see also Acts 1989, 71st Leg., 1st C.S., ch. 12, § 1 (enactment of chapter 59 of the Code of Criminal Procedure). "[A] general provision must yield to a specific [one] as necessary to give effect to the particular subject of the latter." City of Austin v. Cahill, 88 S.W. 542, 546 (Tex. 1905). [. . .] we conclude that article 59.06 is an exception to section 113.041's requirement that disbursement be made by the county treasurer, [and to] section 113.043's requirement that [checks and warrants be countersigned] by the county [auditor].

[. . .]

Section 140.003(f) incorporates the requirements of section 112.005 and 112.007 in regard to forfeiture-fund transactions of district attorneys and criminal district attorneys. [. . .]

In a multicounty judicial district, may the forfeiture funds of a district attorney or a criminal district attorney be kept in the county where they were forfeited, or must the funds be kept in the county designated by the district judge having jurisdiction in those counties pursuant to section 140.003 of the Local Government Code?

[. . .]

[Subsection (g) of section 140.003 may be read] as a [possibility] only, [. . .] because section 115.0035(a) grants [explicit] authority to a county auditor. This is not a satisfactory [reading] because it is contrary to [the conclusion that] the [Legislature] intended the entire statute to be [given effect]. See [Gov't] Code § 311.021 (listing presumptions). On the other hand, if subsection (g) means that in a multicounty [district only the] auditor of the [responsible] county has audit authority, not that of the other county auditors in those districts, then [the provision] concurs with section 115.0035, which suggests no such [conflict].

"[If] the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision unless the general provision is the later enactment and the manifest intent is that the general provision shall prevail." [Gov't Code] § 311.025(b). Section 140.003, the special provision, was [enacted later], as Acts 1989, 71st Leg., ch. 1037, § 4.03; ch. 1250, § 50.54 [. . .] is the exception to section 115.0035's [. . .] general provision. We conclude that in a multicounty district, the county auditors of the counties other than the [responsible] county do not have [audit] authority over the [accounts] of the district attorney or criminal district attorney and, [furthermore], only the county auditor of the [responsible] county has audit authority under section 115.0035.

Who writes the checks, pays the bills, and keeps the monthly statements on the district attorney's forfeited funds?

Article 59.03 of the Code of Criminal Procedure provides in part:

[. . . Quotation of article 59.03 not legible in source scan; see the linked PDF.]

"[W]hen a statute [. . .] grant[s] [authority], it impliedly authorizes whatever is necessary for [its] [accomplishment] or whatever is [indispensable] to the enjoyment or exercise of the grant." 67 TEX. JUR. 3d Duties § 118, at 701 (1989) (footnote omitted). [The peace] officer who [takes] custody of the property seized under article 59.03 is responsible for safeguarding the property [during] the period of custody. [. . .]

SUMMARY

We affirm the holding of Attorney General Opinion DM-162 (1992) that the special funds [belonging to] the attorney [representing] the state [under] article 59.06(c)(1) of the Code of Criminal Procedure must be deposited with the county treasurer if that is the county depository. Article 59.06 is an exception to the requirement of section 113.041 of the Local Government Code that [disbursements] be made by the county treasurer, the requirement of section 113.042 of the same code that [a payment] be made by the county treasurer, section 113.043's requirement that checks and warrants be countersigned by the county auditor, section 113.064's requirement that [a payment] be approved by the county auditor, and section 140.003's requirement that the county [. . .] manage [. . .] the funds on behalf of the special fund authority. Section 140.003 requires that the [funds] of a [district] having jurisdiction in more than one county be kept in the [responsible] county designated by the district judges of [those] counties. The county auditor is required to comply with sections 112.005 and 112.007 of the Local Government Code in regard to forfeited-fund transactions of [the county offices of] criminal [district attorneys] and county attorneys. The county auditor also is required to comply with section 140.003, which incorporates sections 112.005 and 112.007, in regard to forfeited-fund transactions of district attorneys and criminal district attorneys. [. . .] county law-enforcement agencies and county, district, and criminal district attorneys [. . .] may not keep exclusive records of their [forfeited funds].

The county auditor of the responsible county in a multicounty district (as provided in section 140.003 of the Local Government Code) is [. . .] the only county auditor that has [authority to keep records] of a district attorney's or criminal district attorney's [forfeited-fund] transactions under sections 112.005, 112.007, and 140.003 of the Local Government Code. In [other words], the county auditors of the counties other than the responsible county do not have audit authority over the [accounts] of the district attorney or criminal district attorney under section 115.0035 of the Local Government Code; only the county auditor of the responsible county has audit authority. When a peace officer seizes property pursuant to article 59.03 of the Code of Criminal Procedure, the employer of that peace officer is responsible for the safeguarding of that property and is obligated to reimburse the peace officer for reasonable expenses incurred in storing the property while the property remains in custody.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee