Can a Texas sheriff keep drug-seizure reimbursement fees in a separate account and spend them at his own discretion?

Plain-English summary

The Kleberg County Attorney asked how a sheriff must handle money collected under article 42.12, section 11(a)(19) of the Code of Criminal Procedure. That provision lets a judge, as a condition of community supervision, order a defendant to reimburse a law enforcement agency for the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other materials seized in connection with the offense. The county attorney explained that the Kleberg County Sheriff had been depositing these fees in a separate account under his own name and spending them at his sole discretion, including roughly $11,000 on building repairs and $895 on mugs bearing the sheriff's name and a DARE logo. The question was whether the sheriff could do that, or whether the money had to go into the county depository and through the ordinary budget process.

The Attorney General concluded the money must be treated as ordinary county funds. Local Government Code sections 113.001 and 113.003 require the county treasurer to receive and account for all money belonging to the county, and the fee here, assessed for the official services of the sheriff's office, belongs to the county. Some funds, like the "hot check" fund and the interest on a dealer's motor vehicle inventory escrow account, sit outside the county budget, but only because the Legislature used very specific language placing them at a particular official's "sole discretion" or making them an official's "sole property." Article 42.12, section 11(a)(19) has no such language. The opinion drew on a closely parallel letter opinion (LO-96-075) about prosecutor fees under the Family Code, which earmarked funds for an office but did not take them out of the county budget process. So these funds must be deposited, administered, and disbursed through the ordinary county fiscal process.

On the second question, the opinion concluded the statute imposes no restrictions on how the funds may be spent beyond earmarking them for the sheriff's office, and the only applicable limit is the Texas Constitution's requirement (article III, section 52) that public money be spent for a public purpose. The "reimbursement" label explains why the money is received but says nothing about how it may later be spent.

Currency note

This opinion was issued in 2000. 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

Sheriffs (what the opinion held for them): The opinion held that a sheriff may not deposit section 11(a)(19) reimbursement money in a separate discretionary account; the money belongs to the county and must go into the county depository and the ordinary budget process.

County treasurers and commissioners courts (what the opinion held for them): The opinion held that these funds are county funds subject to the normal fiscal and budgeting process, with expenditure under the control of the commissioners court absent specific statutory language to the contrary.

The county attorney (what the opinion held on spending limits): The opinion held that no statutory restriction governs how the funds are spent beyond earmarking them for the sheriff's office, subject only to the constitutional public-purpose limit.

Common questions

Can a sheriff spend drug-seizure reimbursement fees however he wants?
No. The opinion concluded these are county funds that must go into the county depository and the ordinary budget process, not a discretionary account.

Why isn't this like the "hot check" fund?
The opinion explained the "hot check" fund sits outside the county budget only because a statute expressly places it at the county attorney's "sole discretion." Section 11(a)(19) has no comparable language.

Is the money limited to a specific use?
The opinion concluded the statute earmarks the funds for the sheriff's office but sets no particular purpose; the only real restriction is that public money must be spent for a public purpose under article III, section 52.

Who controls how the money is spent?
The opinion concluded that, like other county funds without special statutory treatment, expenditure is under the control of the commissioners court through the ordinary budgeting process.

Background and statutory framework

Local Government Code section 113.003 requires the county treasurer to receive all money belonging to the county, and section 113.001 requires the treasurer to keep and account for it in the county depository; such money is budgeted under chapter 111 (here subchapter A, because Kleberg County's population is under 225,000). The opinion concluded the section 11(a)(19) fee belongs to the county because it is assessed for the official services of the sheriff's office (JC-0031 (1999); Local Government Code section 154.003).

The opinion contrasted funds that the Legislature placed outside the county budget with explicit language: the "hot check" fund at the county attorney's "sole discretion" (art. 102.007(f)) and the interest on a motor vehicle inventory escrow account as the assessor-collector's "sole property" (Tax Code section 23.122(c)). As DM-357 (1995) and DM-398 (1996) explained, absent such language, expenditure of county funds is controlled by the commissioners court. Section 11(a)(19) has no such language. The opinion treated the situation as parallel to LO-96-075, which held that Family Code section 71.041(d) earmarked prosecutor fees for an office but did not remove them from the county budget. On spending, it noted the statute requires reimbursement of the "law enforcement agency" (compare section 11(a)(18) on the general revenue fund and section 11(a)(20) on victim counseling costs), which earmarks the funds for the sheriff's office, subject only to the article III, section 52 public-purpose requirement.

Citations

Statutory and constitutional provisions:

• Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(18), (19), (20); art. 102.007(f) (Vernon Supp. 2000)
• Tex. Loc. Gov't Code Ann. §§ 111.001, 113.001, 113.003, 154.003 (Vernon 1999)
• Tex. Tax Code Ann. § 23.122(c) (Vernon Supp. 2000)
• Tex. Fam. Code Ann. § 71.041(d) (Vernon 1996)
• Tex. Const. art. III, § 52

Prior opinions:

• Tex. Att'y Gen. Op. Nos. JC-0031 (1999), DM-357 (1995), DM-398 (1996)
• Tex. Att'y Gen. LO-96-075

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0269
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0269.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

August 16, 2000

The Honorable Delma Rios
Kleberg County Attorney
P.O. Box 1411
Kingsville, Texas 78364

Opinion No. JC-0269

Re: Disposition of funds collected by sheriff pursuant to article 42.12, section 11(a)(19), Code of Criminal Procedure (RQ-0192-JC)

Dear Ms. Rios:

You have asked this office two questions concerning the disposition of funds collected by the Sheriff's Department of Kleberg County pursuant to section 11(a)(19) of article 42.12 of the Code of Criminal Procedure. Essentially, your questions concern whether the sheriff may deposit such funds in a separate account and expend them at his own discretion, or whether such funds must be deposited in the county depository and are subject to the ordinary budgeting process. In our view, section 11(a)(19) of article 42.12 does not set up a separate fund analogous to the "hot check" fund set up by article 102.007 of the Code of Criminal Procedure, and the sheriff, accordingly, may not treat these moneys in the fashion in which the "hot check" fund is treated. Rather, they are to be placed in the county depository and budgeted in the ordinary manner.

Pursuant to Code of Criminal Procedure article 42.12, section 11(a)(19), a judge may require in imposing conditions of community supervision that the defendant:

(19) Reimburse a law enforcement agency for the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other materials seized in connection with the offense.

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a)(19) (Vernon Supp. 2000).

As you explain the situation leading to your request, fees assessed against defendants pursuant to section 11(a)(19) are deposited by the Kleberg County Sheriff "in a separate account under his name and spent at his sole discretion." Request Letter at 2.[1] You further advise that the sheriff has expended approximately $11,000 from this fund for various repairs to a building to be used for offices and training, as well as "$895.00 for mugs with the sheriff's name and DARE program logo." Id.

Generally, Local Government Code section 113.003 requires that "[t]he county treasurer shall receive all money belonging to the county from whatever source it may be derived," see TEX. LOC. GOV'T CODE ANN. § 113.003 (Vernon 1999), and section 113.001 provides that the treasurer "shall keep in a designated depository and shall account for all money belonging to the county." Id. § 113.001. Such moneys are to be budgeted in accordance with the relevant requirements of chapter 111 of the Local Government Code, in this case - because Kleberg County has a population of fewer than 225,000 - subchapter A. See id. § 111.001; see also 1 BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 1990 CENSUS OF THE POPULATION: General Population Characteristics: Texas 3 (population of Kleberg County: 30,274).

The fee at issue here "belongs to the county." The fee is assessed for the official services of the sheriff's office. Fees for such services belong to the county. See Tex. Att'y Gen. Op. No. JC-0031 (1999) at 3; see also TEX. LOC. GOV'T CODE ANN. § 154.003 (Vernon 1999).

Certain funds, such as the "hot check" fund and the fund generated by the interest on the dealer's motor vehicle inventory escrow account, are in the words of Attorney General Opinion DM-357 "wholly outside of the county budgeting process." Tex. Att'y Gen. Op. No. DM-357 (1995) at 6, 9. However, in such cases the legislature has in very specific language given control of these funds to particular officials. See TEX. CODE CRIM. PROC. ANN. art. 102.007(f) (Vernon Supp. 2000) (expenditures from "hot check" fund at "sole discretion of the [county] attorney"); see also TEX. TAX CODE ANN. § 23.122(c) (Vernon Supp. 2000) (interest on motor vehicle inventory escrow account "sole property" of assessor-collector). Absent such language, as we pointed out in both Attorney General Opinions DM-357 and DM-398, "expenditure of county funds is under the control of the commissioners court." Tex. Att'y Gen. Op. No. DM-398 (1996) at 2; see also Tex. Att'y Gen. Op. No. DM-357 (1995) at 5. No such specific language is to be found in section 11(a)(19) of article 42.12. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a)(19) (Vernon Supp. 2000).

The question presented here is closely paralleled by the situation presented in Attorney General Letter Opinion 96-075. There, this office considered whether an attorney's fee collected pursuant to section 71.041(d) of the Family Code by the prosecutor representing an applicant for a domestic violence protective order was analogous to the "hot check" fund. The relevant statutory language in that case provided that these fees "shall be paid to the credit of the county fund from which the salaries of employees of the prosecuting attorney are paid or supplemented," see TEX. FAM. CODE ANN. § 71.041(d) (Vernon 1996), but contained no "sole property" or "sole discretion" language. This office concluded that "[w]hile the language of the Family Code section is sufficient to earmark the funds for the use of the prosecutor's office, it is not sufficient to take the funds out of the general county budgeting process." Tex. Att'y Gen. LO-96-075, at 2. The funds collected pursuant to section 11(a)(19), like those discussed in Letter Opinion 96-075, are not analogous to the "hot check" fund and must be deposited, administered, and disbursed in accordance with the ordinary county fiscal process.

Your second question is what restrictions may apply to expenditure of these funds. Nothing in the statutory language imposes any restrictions on the use of such funds, although they are of course subject to the constitutional restriction that they are to be used solely for public purposes. See TEX. CONST. art. III, § 52. We note that the statute requires the reimbursement of the "law enforcement agency," see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a)(19) (Vernon Supp. 2000) rather than either the county or state, or the victim of the offense. Compare id. art. 42.12, § 11(a)(18) (requiring reimbursement of general revenue fund), with id. art. 42.12, § 11(a)(20) (requiring offender to pay "all or part of the reasonable and necessary costs incurred by the victim" for psychological or HIV-AIDS counseling). This language, while less explicit than that in Family Code section 71.041(d), is sufficient to earmark these funds for the use of the sheriff's office, but does not indicate beyond that any particular purpose for which it must be expended.

Nor does the fact that such funds are characterized as reimbursements provide any further restriction on their later use. To reimburse is "[t]o repay or make up to one (a sum expended)." XIII OXFORD ENGLISH DICTIONARY 534 (2d ed. 1989). While the term "reimbursement" explains the basis on which these moneys are received, it offers no guidance as to how they are to be expended. Though the statute may in short require that these funds be earmarked to the sheriff's office, it is otherwise silent as to the purposes for which they may be spent. The sole applicable restriction is the proviso of article III, section 52 that the funds be expended for a public purpose.

SUMMARY

Funds collected by a sheriff's department pursuant to section 11(a)(19) of article 42.12 of the Code of Criminal Procedure are not analogous to the "hot check" fund created by article 102.007(f) of the Code of Criminal Procedure and must be deposited, administered, and disbursed in accordance with the ordinary county fiscal process. There are no statutory restrictions as to how they may be expended, but they are subject to the general restrictions of Texas Constitution article III, section 52 that they must be expended for public purposes.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee

[1] Letter from Honorable Delma Rios, Kleberg County Attorney, to Honorable John Cornyn, Texas Attorney General (Feb. 15, 1999) (on file with Opinion Committee).