Who approves spending from a Texas district attorney's asset forfeiture fund?

Plain-English summary

Mark A. Marshall, the McCulloch County Attorney, asked the Attorney General three questions about how the district attorney for the 198th Judicial District could spend money from an asset forfeiture fund, the account that holds proceeds from property seized and forfeited in criminal cases. The questions came up because the district attorney held elective office and intended not to file for reelection before the December 12, 2011 filing deadline, an event that triggers extra approval rules.

Two statutes applied. Article 59.06(d-1)(6) of the Code of Criminal Procedure bars an "attorney representing the state" who holds elective office, and who either did not file for reelection or ran and lost, from making an expenditure not approved by the commissioners court. Section 24.377 of the Government Code adds, on top of article 59.06, that the district attorney may use proceeds from the sale of forfeited property only on the approval of the commissioners court of each county in the judicial district, or of a regional review committee composed of three county officials. A regional review committee had approved the district attorney's proposed use of the forfeiture fund on September 20, 2011.

The opinion answered each question by reading the statutes' plain language. First, expenditures could be made from the fund after December 12, 2011, as long as they came from the budget the regional review committee had already approved on September 20, 2011, because section 24.377 expressly authorizes that approval route in addition to the article 59.06 process. Second, after the filing deadline, either the commissioners courts or the regional review committee of the 198th Judicial District could approve expenditures from the fund. Third, seized cash that is later forfeited could count as "proceeds from the sale of forfeited property" under section 24.377(c), because approval under that section is subject to article 59.06(a), which treats forfeited property as including money, and a Texas appeals court had recognized that cash is subject to article 59.06 forfeiture proceedings.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The McCulloch County Attorney (as the opinion described it): The opinion gave plain-language answers: the previously approved budget could still fund expenditures after the deadline, either the commissioners courts or the regional review committee could approve, and seized cash could be forfeited property under section 24.377(c).

The district attorney of the 198th Judicial District (as the opinion held for them): The opinion confirmed that the regional review committee's prior approval supported expenditures after the filing deadline, and it identified the two bodies that could approve future expenditures from the fund.

County commissioners courts and regional review committees (as the opinion described it): The opinion identified both as entities among those that may approve expenditures from a district attorney's asset forfeiture fund.

Common questions

Who approves spending from a Texas district attorney's asset forfeiture fund?
According to the opinion, the commissioners court of each county in the judicial district, or a regional review committee composed of three county officials, may approve the use of proceeds under section 24.377.

Can the district attorney keep spending after the reelection filing deadline if a budget was already approved?
The opinion concluded yes. Expenditures could be made after December 12, 2011, as long as they came from the budget the regional review committee had already approved on September 20, 2011.

Does seized cash count as forfeited property under this approval scheme?
The opinion concluded that seized cash that is later forfeited could constitute "proceeds from the sale of forfeited property" under section 24.377(c), because article 59.06 treats forfeited property as including money.

What triggers the extra approval requirement in the first place?
The opinion explained that article 59.06(d-1)(6) applies when an attorney representing the state holds elective office and either did not file for reelection or ran for reelection and lost.

Background and statutory framework

The question turned on two statutes read together. Article 59.06(d-1)(6) of the Code of Criminal Procedure restricts an elective-office prosecutor who is leaving office from spending forfeiture proceeds without commissioners court approval. Tex. Code Crim. Proc. Ann. art. 59.06(d-1)(6)(A)-(B) (West Supp. 2011). Section 24.377 of the Government Code adds an approval requirement, allowing use of proceeds only with approval from the commissioners court of each county in the district or a regional review committee. Tex. Gov't Code Ann. § 24.377(c)(1)-(2) (West Supp. 2011).

The opinion read these provisions by their plain terms, treating the September 20, 2011 regional review committee approval as a valid basis for later expenditures and identifying both the commissioners courts and the regional review committee as approving bodies. On the cash question, it relied on article 59.06(a) and the treatment of "forfeited property" as including money in article 59.06(c), (c-2), and (p), supported by State v. One Thousand Dollars ($1,000) in U.S. Currency, 865 S.W.2d 164, 165-66 (Tex. App.-Corpus Christi 1993, writ denied), a Texas appeals court decision noting that cash is subject to article 59.06 forfeiture proceedings.

Citations

Cases:

• State v. One Thousand Dollars ($1,000) in U.S. Currency, 865 S.W.2d 164, 165-66 (Tex. App.-Corpus Christi 1993, writ denied)

Statutes:

• Tex. Code Crim. Proc. Ann. art. 59.06(d-1)(6)(A)-(B) (West Supp. 2011)
• Tex. Code Crim. Proc. Ann. art. 59.06(a) (West Supp. 2011)
• Tex. Code Crim. Proc. Ann. art. 59.06(c), (c-2), (p) (West Supp. 2011)
• Tex. Gov't Code Ann. § 24.377(c)(1)-(2) (West Supp. 2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0920
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0920.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

April 23, 2012

The Honorable Mark A. Marshall Opinion No. GA-0920
McCulloch County Attorney
105 North Church Re: Approval of expenditures from asset forfeiture
Brady, Texas 76825 fund of a district attorney (RQ-1004-GA)

Dear Mr. Marshall:

You ask three questions about how the district attorney for the 198th Judicial District (the "DA") may comply with two statutes, article 59.06 of the Code of Criminal Procedure and section 24.377 of the Government Code.[1] Article 59.06 prohibits "an attorney representing the state" from using "proceeds or property received under [chapter 59]" to "make any expenditure not approved by the commissioners court ... if the ... attorney representing the state holds an elective office" and either did not file for reelection or ran for reelection and lost. TEX. CODE CRIM. PROC. ANN. art. 59.06(d-1)(6)(A)-(B) (West Supp. 2011). Section 24.377 provides that, in "addition to the requirements under [article 59.06, the DA] may use proceeds from the sale of forfeited property ... only on the approval of ... the commissioners court of each county in the judicial district" or a "regional review committee composed of [three county officials]." TEX. GOV'T CODE ANN. § 24.377(c)(1)-(2) (West Supp. 2011). You explain that a regional review committee approved the DA's proposed use of the forfeiture fund on September 20, 2011, and that he intended not to file for reelection before the filing deadline, which, you tell us, was December 12, 2011. See Request Letter.

Your first question is whether "expenditures can be made from the DA's asset forfeiture fund after December 12, 2011 when those expenditures were from the budget previously approved by the regional review committee on September 20, 2011[.]" Id. This question describes an approval process that section 24.377 expressly authorizes, one in "addition to" the article 59.06 process. TEX. GOV'T CODE ANN. § 24.377(c)(2) (West Supp. 2011). Therefore, under the plain language of section 24.377 of the Government Code, expenditures can be made from the DA's asset forfeiture fund after December 12, 2011, when those expenditures were from the budget previously approved by the regional review committee on September 20, 2011.

Your next question is whether "expenditures made from the DA's asset forfeiture fund after the [filing deadline] are to be approved by the county commissioner's courts or the regional review committee[.]" Request Letter. Under the plain language of section 24.377 of the Government Code and article 59.06 of the Code of Criminal Procedure, either the commissioners courts or the regional review committee of the 198th Judicial District may approve expenditures from the DA's asset forfeiture fund after the filing deadline. TEX. CODE CRIM. PROC. ANN. art. 59.06(d-1)(6)(A) (West Supp. 2011); TEX. GOV'T CODE ANN. § 24.377(c)(1)-(2) (West Supp. 2011).

Your third question is whether "'the proceeds from the sale of forfeited property' in Section 24.377(c) ... also include cash that is seized and subsequently forfeited[.]" Request Letter. Approval of the use of proceeds from the sale of forfeited property under section 24.377 is subject to the requirements of article 59.06(a), which governs the conduct of, and the distribution of proceeds from, sales of forfeited property. TEX. GOV'T CODE ANN. § 24.377(c) (West Supp. 2011). Cash is a kind of property subject to article 59.06 requirements. See TEX. CODE CRIM. PROC. ANN. art. 59.06(c), (c-2), (p) (West Supp. 2011) (indicating that "forfeited property" includes "money"). See also State v. One Thousand Dollars ($1,000) in U.S. Currency, 865 S.W.2d 164, 165-66 (Tex. App.-Corpus Christi 1993, writ denied) (noting that cash is subject to article 59.06 forfeiture proceedings). Thus, cash could constitute seized and forfeited property under section 24.377(c).

SUMMARY

Expenditures may be made from the 198th Judicial District district attorney's asset forfeiture fund after those expenditures are approved by a regional review committee under section 24.377 of the Texas Government Code. County commissioners courts and a regional review committee are among the entities that may approve expenditures from a district attorney's asset forfeiture fund. Cash could constitute seized and forfeited property under section 24.377 of the Texas Government Code.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Mark A. Marshall, McCulloch County Attorney, to Honorable Greg Abbott, Tex. Att'y Gen. (Oct. 12, 2011) ("Request Letter").