Can Texas seize the profits when a death row inmate sells his artwork online?

TX AG Opinion GA-0298: Can Texas forfeit an inmate's profits from selling artwork online?

Plain-English summary

A state representative asked whether a death row inmate who sold his original artwork on an Internet website, for prices ranging from $10 for a box of greeting cards to $465 for a large print, was violating the state's forfeiture statute. The question was prompted by James V. Allridge III, convicted and sentenced to death for a 1985 convenience store robbery-murder, who sold his art online during his incarceration and was executed in August 2004. A victims' advocate had argued this kind of "murderabilia" profit should be confiscated under a 2001 law, Senate Bill 795, aimed at income boosted by a defendant's notoriety.

The opinion first corrected the framing of the question: Chapter 59 forfeiture is a civil, in rem proceeding against property, not a criminal prohibition, so an inmate does not "violate" the forfeiture statute by selling art online. Article 59.01(7)(B) does not ban the sales; it creates a post-sale remedy letting the state try to forfeit proceeds if it can prove the property's value was increased by notoriety gained from the person's conviction. The opinion concluded that no court had yet interpreted this provision, and that whether the value of a specific sale was inflated by notoriety, as opposed to reflecting the artwork's ordinary market value, is inherently a fact question that the opinion process cannot resolve. The opinion also described how the money is handled if forfeiture succeeds: the prosecuting attorney must send the state's proceeds to the attorney general, minus the fair market value of similar art without added notoriety (which goes to the property owner), and the attorney general holds those funds in escrow for crime victims with a judgment against the perpetrator, with any unclaimed balance moving after five years to the compensation to victims of crime fund.

Currency note

This opinion was issued in 2005. 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.

Who this opinion affected (as of 2005)

Prosecutors and the attorney general's office handling forfeiture cases: The opinion clarified that article 59.01(7)(B) is a civil forfeiture remedy, not a criminal prohibition, and that pursuing forfeiture of an inmate's notoriety-inflated sale proceeds requires proving, as a fact matter, that a sale occurred and that the price was increased by notoriety from the person's conviction.

Crime victims with judgments against a convicted perpetrator: The opinion described how forfeited notoriety proceeds are handled: the attorney general holds transferred funds in escrow for victims who have obtained a judgment against the perpetrator, with unclaimed funds moving to the state's victims' compensation fund after five years.

Inmates selling art or other property with public notoriety, and the businesses or platforms facilitating those sales: The opinion meant that selling such property was not itself illegal, but proceeds from a sale could become subject to a forfeiture action if the state could prove the notoriety-value element in court.

Common questions

Does an inmate break the law by selling his artwork on the Internet?
No, according to this opinion. Article 59.01(7)(B) does not prohibit such sales; it only creates a civil remedy letting the state seek forfeiture of proceeds after a sale, if it can prove the property's value was increased by the seller's notoriety from a criminal conviction.

Who decides whether an inmate's art sale profits are subject to forfeiture?
A court, in a civil forfeiture proceeding where the state must prove by a preponderance of the evidence that the sale price was increased by notoriety gained from the person's conviction. The opinion explained that an attorney general opinion cannot resolve that kind of fact question.

What happens to money the state successfully forfeits under this law?
The prosecuting attorney transfers the forfeited notoriety-related income to the attorney general, after deducting the fair market value of similar property without added notoriety (which goes back to the property's owner). The attorney general holds the transferred funds in escrow for crime victims who have obtained a judgment against the perpetrator, and after five years moves any unclaimed balance to the state's compensation to victims of crime fund.

Does this opinion say whether James Allridge's specific art sales were subject to forfeiture?
No. The opinion expressly declined to resolve that question, noting that whether the value of his sold artwork was increased by his notoriety, and by how much, are fact questions outside what an attorney general opinion can determine.

Background and statutory framework

Chapter 59 of the Code of Criminal Procedure governs forfeiture of contraband. Property that qualifies as contraband is subject to seizure, and if a district court determines after a hearing that property is contraband, the court may order it forfeited to the state. Forfeiture under chapter 59 is a civil proceeding, and the state must prove by a preponderance of the evidence that the property is contraband subject to forfeiture. Contraband includes property that is "the proceeds gained from the commission" of certain felonies or crimes of violence, or property acquired with such proceeds.

In 2001, the legislature enacted Senate Bill 795, adding article 59.01(7)(B), which expanded the definition of "proceeds" to include income a person accused or convicted of a crime receives from the sale of tangible property whose value is increased by the notoriety gained from that person's conviction. The same bill added article 59.06(k)(2), a special disposition rule for this kind of income: the prosecuting attorney must transfer to the attorney general the income from such a sale, after first determining the fair market value of substantially similar property that has not gained notoriety value and deducting that amount, which instead goes to the property's owner. The attorney general then deposits the transferred income into an escrow account held for crime victims who obtain a judgment against the perpetrator for damages from the crime; after five years, any amount not ordered paid to a specific victim moves to the compensation to victims of crime fund.

The opinion emphasized that no Texas court, and no court from another state, had construed article 59.01(7)(B) as of the time of the opinion. Applying the statute's plain language, the opinion identified two things the state would need to prove in any forfeiture action: that a sale of tangible property occurred, and that the sale price reflected an increase in value attributable to notoriety gained from the seller's conviction, as opposed to the property's ordinary market value. Because market value questions are inherently questions of fact for a fact-finder to resolve, and because an attorney general opinion cannot resolve fact questions, the opinion concluded it could not determine whether income from Allridge's Internet art sales specifically was forfeitable proceeds under article 59.01(7)(B).

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. art. 59.01(7)(B) (Vernon Supp. 2004-05)
• Tex. Code Crim. Proc. Ann. art. 59.06(k)(2) (Vernon Supp. 2004-05)
• Tex. Code Crim. Proc. Ann. arts. 59.01-.14 (Vernon Supp. 2004-05)
• Tex. Code Crim. Proc. Ann. arts. 59.02(a), 59.03(a)
• Tex. Code Crim. Proc. Ann. art. 59.05(e)
• Tex. Code Crim. Proc. Ann. art. 59.05(a)-(b)
• Tex. Code Crim. Proc. Ann. art. 59.01(2)(A)-(D)
• Tex. Code Crim. Proc. Ann. art. 59.01(7)(A)-(B)
• Tex. Code Crim. Proc. Ann. art. 59.06(k)(3)
• Tex. Code Crim. Proc. Ann. art. 59.02(e) (Vernon Supp. 2004-05)

Cases:

• Hardy v. State, 102 S.W.3d 123, 126-27 (Tex. 2003)
• Polk County v. Tenneco, Inc., 554 S.W.2d 918, 923 (Tex. 1977)

Other authorities:

• Act of May 1, 2001, 77th Leg., R.S., ch. 124, §§ 1-2, 2001 Tex. Gen. Laws 277 (Senate Bill 795)
• Tex. Att'y Gen. Op. No. GA-0003 (2002)
• Michael Graczyk, Artist inmate executed in clerk's death, Houston Chronicle, Aug. 27, 2004
• Cindy Horswell, Victims advocate sees a test case in inmate's artwork, Houston Chronicle, Aug. 2, 2004

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0298
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0298.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 25, 2005

The Honorable Robert E. Talton
Chair, Urban Affairs Committee
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0298

Re: Whether a Texas inmate violates the Texas forfeiture statute by selling his artwork on an Internet website (RQ-0252-GA)

Dear Representative Talton:

You ask whether an inmate who sells artwork on an Internet website thereby violates articles 59.01(7)(B) and 59.06(k)(2) of the Code of Criminal Procedure concerning the forfeiture of certain proceeds.[1] See TEX. CODE CRIM. PROC. ANN. arts. 59.01(7)(B), 59.06(k)(2) (Vernon Supp. 2004-05). Your question was prompted by the situation of James V. Allridge III, who was convicted and sentenced to death for killing a clerk in a 1985 convenience store robbery. See Request Letter, supra note 1, at attachment.[2] During his incarceration, Allridge sold his original artwork on an Internet website for prices ranging from $10 for a box of greeting cards to $465 for a large print. See Horswell, supra note 2.

Chapter 59 of the Code of Criminal Procedure governs forfeiture of confiscated contraband. See TEX. CODE CRIM. PROC. ANN. arts. 59.01-.14 (Vernon Supp. 2004-05). Property that is contraband under the chapter is subject to seizure. See id. arts. 59.02(a), 59.03(a). If a district court determines after a hearing that property is contraband, the court may order property forfeited to the state. See id. art. 59.05(e). Forfeiture under the chapter is a civil proceeding, and to prevail the state must prove by a preponderance of the evidence that the property in question is contraband subject to forfeiture. See id. art. 59.05(a)-(b). Contraband subject to forfeiture includes property of any nature that is "the proceeds gained from the commission" of certain felonies or a crime of violence or is acquired with such proceeds. Id. art. 59.01(2)(A)-(D). The Code defines "proceeds" to include certain post-crime income:

(7) "Proceeds" includes income a person accused or convicted of a crime or the person's representative or assignee receives from:

(A) a movie, book, magazine article, tape recording, phonographic record, radio or television presentation, telephone service, electronic media format, including an Internet website, or live entertainment in which the crime was reenacted; or

(B) the sale of tangible property the value of which is increased by the notoriety gained from the conviction of an offense by the person accused or convicted of the crime.

Id. art. 59.01(7)(A)-(B).

Your question focuses on article 59.01(7)(B), which provides for forfeiture of income from the sale of property having a certain notoriety value. In 2001, the legislature added article 59.01(7)(B) to the Code when it enacted Senate Bill 795. See Act of May 1, 2001, 77th Leg., R.S., ch. 124, § 1, 2001 Tex. Gen. Laws 277, 277. Senate Bill 795 also added article 59.06(k)(2) to the Code, which provides specially for the proceeds' disposition. See id. § 2, 2001 Tex. Gen. Laws at 277 (adding TEX. CODE CRIM. PROC. ANN. art. 59.06(k)(2)). Under article 59.06(k)(2), the attorney representing the state who administers forfeited property must transfer to the attorney general an amount that, in essence, represents the property's increase in value due to notoriety gained from the conviction of the person accused or convicted.[3] The attorney representing the state must transfer "to the owner of the property" an amount representing the fair market value of similar property that does not have added notoriety value. Id.

The attorney general deposits such transferred income into an escrow account where the funds are held for crime victims who obtain a judgment against the perpetrator for damages caused by the crime. See id. art. 59.06(k)(3). After five years, the attorney general transfers any amounts that have not been ordered paid to a specific victim to the "compensation to victims of crime fund." Id.

You ask whether Allridge's Internet sales "violate" Senate Bill 795. Request Letter, supra note 1, at 1. However, the term "violate" is not entirely appropriate in the context of chapter 59 forfeiture. A forfeiture proceeding under the Code is a civil, in rem action against property. See Hardy v. State, 102 S.W.3d 123, 126-27 (Tex. 2003). Forfeiture under the chapter is intended to be remedial. See TEX. CODE CRIM. PROC. ANN. art. 59.02(e) (Vernon Supp. 2004-05). Strictly speaking, article 59.01(7)(B) does not proscribe conduct as a violation of law and does not prohibit Internet sales of an inmate's artwork. Rather, the article establishes a post-sale remedy, which is that sales proceeds may be forfeited as contraband under the Code. Consequently, the more pertinent question is whether income from Internet sales of an inmate's artwork could be proceeds subject to forfeiture under article 59.01(7)(B).

No court has construed article 59.01(7)(B), but its plain language suggests questions of fact or mixed questions of fact and law. The article authorizes forfeiture of certain proceeds that are "income a person accused or convicted of a crime or the person's representative or assignee receives from . . . the sale of tangible property the value of which is increased by the notoriety gained from the conviction of an offense by the person accused or convicted of the crime." Id. art. 59.01(7)(B). From the information you have provided, it seems likely that a finder of fact could conclude that a sale of tangible property has occurred and that Allridge attained a measure of notoriety. Article 59.01(7)(B) requires the state to establish that the value of property sold "is increased by the notoriety gained from the conviction of an offense by the person accused or convicted of the crime." Id. art. 59.01(7)(B). The value of property is inherently a fact question. See Polk County v. Tenneco, Inc., 554 S.W.2d 918, 923 (Tex. 1977) (market value is a question of fact). Consequently, a forfeiture proceeding under article 59.01(7)(B) would require evidence that the value of the property was increased by notoriety gained from Allridge's conviction, among other things. See TEX. CODE CRIM. PROC. ANN. art. 59.01(7)(B) (Vernon Supp. 2004-05). Additionally, the attorney for the state would be required to transfer "to the owner of the property" the amount of proceeds representing the fair market value of similar property whose value has not increased due to notoriety. Id. art. 59.06(k)(2).

Fact questions cannot be resolved in an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0003 (2002) at 1 (stating that the opinion process does not determine facts). Consequently, the opinion process cannot resolve whether income from the sale of Mr. Allridge's artwork over the Internet is contraband pursuant to article 59.01(7)(B) of the Code and thus subject to forfeiture.

SUMMARY

Article 59.01(7)(B) of the Code of Criminal Procedure provides for forfeiture of certain income from "the sale of tangible property the value of which is increased by the notoriety gained from the conviction of an offense by the person accused or convicted of the crime." TEX. CODE CRIM. PROC. ANN. art. 59.01(7)(B) (Vernon Supp. 2004-05). Whether such income constitutes proceeds subject to forfeiture depends upon the resolution of fact questions.

BARRY R. McBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Robert E. Talton, Chair, Urban Affairs Committee, Texas House of Representatives, to Honorable Greg Abbott, Texas Attorney General (July 29, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Allridge remained on death row for 17 years, until he was executed on August 26, 2004. Michael Graczyk, Artist inmate executed in clerk's death / Last-day appeal for a stay is denied despite support from celebrities, HOUSTON CHRONICLE, Aug. 27, 2004, available at 2004 WL 83662655; Cindy Horswell, Victims advocate sees a test case in inmate's artwork / He says a law confiscating profits of 'murderabilia' should be enforced, HOUSTON CHRONICLE, Aug. 2, 2004, available at 2004 WL 83654837 [hereinafter Horswell].

[3] Article 59.06(k)(2) provides:

The attorney for the state shall transfer to the attorney general all income from the sale of tangible property the value of which is increased by the notoriety gained from the conviction of an offense by the person accused or convicted of the crime, minus the deduction authorized by this subdivision. The attorney for the state shall determine the fair market value of property that is substantially similar to the property that was sold but that has not been increased in value by notoriety and deduct that amount from the proceeds of the sale. After transferring income to the attorney general, the attorney for the state shall transfer the remainder of the proceeds of the sale to the owner of the property. The attorney for the state, the attorney general, or a person who may be entitled to claim money from the escrow account described by Subdivision (3) in satisfaction of a claim may at any time bring an action to enjoin the waste of income described by this subdivision.

TEX. CODE CRIM. PROC. ANN. art. 59.06(k)(2) (Vernon Supp. 2004-05).