Can a Texas DA spend asset-forfeiture money to investigate a juvenile detention center?

Plain-English summary

The Victoria County Auditor asked whether the county's criminal district attorney could use asset-forfeiture funds to hire a consultant to investigate the financial operations of the Victoria County Regional Juvenile Detention Center. The district attorney had entered a consulting agreement, and the commissioners court wanted the study to help with budget preparation.

The AG did not answer yes or no. The governing statute is article 59.06 of the Code of Criminal Procedure, which controls how forfeited assets may be spent. The AG explained that whether article 59.06 authorizes a particular expenditure is a fact question that the opinion process cannot resolve. The AG could, though, lay out the legal standard. Under article 59.06, the attorney representing the State administers forfeited property, and money deposited into the fund kept "for the benefit of the office of the attorney representing the state" must be used "solely for the official purposes of his office."

The AG traced the meaning of "official purpose." In 2008, an earlier opinion (GA-0613) concluded that article 59.06 did not let a district attorney use forfeiture funds to buy or lease a juvenile detention facility, because that was not an official purpose of the office. The Legislature then added subpart (d-4) to article 59.06, defining an expenditure as being for an official purpose if it is for an activity "that relates to the preservation, enforcement, or administration of the laws of this state," and listing nonexclusive examples such as equipment, investigative costs, and crime-prevention programs. So forfeiture money may go only to activities of the State's attorney that fit that description.

Applying that standard to the consultant study would require finding specific facts: the purpose of the study, the functions of the detention center, and whether those connect to the duties of the district attorney's office. The AG said determining those facts is outside the purview of an attorney general opinion, and that the call must be made first by the attorney representing the State, subject to judicial review. The most the AG would say is that a prosecutor may spend forfeiture funds to investigate a juvenile detention center to the extent the expenditure qualifies as an official purpose under article 59.06.

Currency note

This opinion was issued in 2016. 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 forfeiture-disposition provisions of article 59.06 have been amended repeatedly, so confirm the current text of the statute and its subparts before relying on these specifics.

What the opinion meant for those who asked

The county auditor (as the opinion described it): The opinion did not resolve the auditor's specific question. It told the auditor that whether the district attorney's forfeiture expenditure was authorized depends on facts the opinion process cannot decide, and that the determination rests in the first instance with the attorney representing the State, subject to court review.

Criminal district attorneys and other State prosecutors (as the opinion described it): The opinion restated the standard that limits their forfeiture spending: under article 59.06, the money must be used solely for an "official purpose" of the office, meaning an activity relating to the preservation, enforcement, or administration of state law, with the nonexclusive examples the Legislature listed in subpart (d-4).

Anyone applying the standard to a specific expenditure (as the opinion described it): The opinion was explicit that whether a given use of forfeiture funds qualifies as an official purpose is a fact question, not something the AG opines on.

Common questions

Did the AG say the DA could spend forfeiture funds on the study?
No. The AG declined to answer because whether article 59.06 authorizes a particular expenditure is a fact question outside the scope of an attorney general opinion.

What is the test for spending forfeiture money?
Under article 59.06, a prosecutor may spend forfeiture funds only for an "official purpose" of the office, which subpart (d-4) defines as an activity relating to the preservation, enforcement, or administration of state law.

What are examples of an "official purpose"?
Subpart (d-4) lists nonexclusive examples, including equipment, supplies, travel and training expenses, investigative costs, crime-prevention and treatment programs, facility costs, legal fees, and professional-association fees.

Why couldn't the AG just decide it?
Because applying the standard requires finding facts, such as the purpose of the study and how the detention center's operations connect to the district attorney's duties, and the AG explained that resolving such fact questions is not part of the opinion process.

Who decides whether a specific expenditure is allowed?
The attorney representing the State makes that determination in the first instance, and it is subject to judicial review.

Background and statutory framework

Article 59.06 of the Code of Criminal Procedure governs the disposition of asset-forfeiture funds (Tex. Code Crim. Proc. art. 59.06). The attorney representing the State administers all forfeited property "in accordance with accepted accounting practices" and any local agreement with law enforcement, and deposits proceeds, after certain deductions, into special funds, one of which is "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" (id. art. 59.06(a), (c), (c)(1); see id. art. 59.01(1) (defining "attorney representing the state"); Tex. Gov't Code § 44.335(a)-(b) (powers of the Victoria County criminal district attorney)).

To define "official purpose," the AG drew on the statute's history. A 2008 opinion held that article 59.06 did not authorize a district attorney to use forfeiture funds to purchase or lease a juvenile detention facility, because doing so was not an official purpose (Tex. Att'y Gen. Op. No. GA-0613 (2008)). The Legislature then added article 59.06(d-4), which treats an expenditure as being for an official purpose if it is for an activity "that relates to the preservation, enforcement, or administration of the laws of this state," followed by a nonexclusive list of examples (Tex. Code Crim. Proc. art. 59.06(d-4), (d-4)(1)-(9); see also id. art. 59.06(d-2)(1)-(3) (donations to qualifying entities as another official purpose)).

Whether the Victoria County Criminal District Attorney's payment of a consultant to investigate a juvenile detention center fit that standard required investigating particular facts, which the AG said is outside the purview of an attorney general opinion and must instead be determined by the attorney representing the State, subject to judicial review (Tex. Att'y Gen. Op. No. GA-1059 (2014); Tex. Code Crim. Proc. art. 59.06(a)).

Citations

Statutory provisions:

• Tex. Code Crim. Proc. art. 59.06 (disposition of forfeited property)
• Tex. Code Crim. Proc. art. 59.06(a) (administration by the State's attorney)
• Tex. Code Crim. Proc. art. 59.06(c), (c)(1) (special funds; "official purposes")
• Tex. Code Crim. Proc. art. 59.06(d-4), (d-4)(1)-(9) (definition and examples of "official purpose")
• Tex. Code Crim. Proc. art. 59.06(d-2)(1)-(3) (donations as an official purpose)
• Tex. Code Crim. Proc. art. 59.01(1) (definition of "attorney representing the state")
• Tex. Gov't Code § 44.335(a)-(b) (Victoria County criminal district attorney)

Cases:

• None cited.

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0613 (2008)
• Tex. Att'y Gen. Op. No. GA-1059 (2014)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0088
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0088.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 17, 2016

Ms. Judy McAdams Opinion No. KP-0088
Victoria County Auditor
115 North Bridge, Room 1.22 Re: Whether a criminal district attorney may use
Victoria, Texas 77901 forfeiture funds to investigate operations of a
juvenile detention center (RQ-0075-KP)

Dear Ms. McAdams:

You ask about a criminal district attorney's authority to use forfeiture funds to investigate operations of a juvenile detention center. [1] You state that the Victoria County Criminal District Attorney has entered into an agreement with a consulting firm to "investigat[e] the financial operations of the Victoria County Regional Juvenile Detention Center." Request Letter at 1-2. You provided a portion of the consulting agreement that you were able to obtain from the criminal district attorney's office, although the portion describing the scope of the study has not been released by that office. See id., Exhibit A. Also attached to your request are the meeting minutes of a Victoria County Commissioners Court budget workshop, which indicate that the commissioners court desired the study to assist in budget preparation. See id., Exhibit D (exhibits on file with the Op. Comm.).

You specifically ask whether "the Victoria County Criminal District Attorney [may] expend forfeiture funds to hire and pay a consultant to investigate the operations of the Victoria County Regional Juvenile Detention Center." Id. at 1. Your question concerns article 59.06 of the Code of Criminal Procedure, which governs the disposition of asset forfeiture funds. See TEX. CODE CRIM. PROC. art. 59.06. At the outset we note that whether article 59.06 authorizes a particular use of asset forfeiture funds requires investigating and resolving fact questions beyond the scope of the opinion process. See Tex. Att'y Gen. Op. No. GA-1059 (2014) at 2. We can, however, provide some guidance with respect to article 59.06.

Under article 59.06, the attorney representing the State, acting as the agent of the State, administers all forfeited property "in accordance with accepted accounting practices and with the provisions of any local agreement entered into" with law enforcement agencies. See TEX. CODE CRIM. PROC. art. 59.06(a). [2] Under such a local agreement, the attorney representing the State must deposit forfeiture proceeds, after certain deductions for costs, into one or more of four special funds. Id. art. 59.06(c). Pertinent here, one of the funds is "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." Id. art. 59.06(c)(1) (emphasis added).

As you note, in 2008 this office determined that article 59.06 did not authorize a district attorney to use asset forfeiture funds to purchase or lease a juvenile detention facility for the county. Tex. Att'y Gen. Op. No. GA-0613 (2008) at 9; see Request Letter at 2. To give meaning to the term "official purposes," the opinion reviewed the constitutional and statutory provisions pertaining to the district attorney, ultimately determining that providing a juvenile detention facility was not an official purpose of that office. Tex. Att'y Gen. Op. No. GA-0613 (2008) at 7-8. After the opinion issued in 2008, the Legislature added subpart (d-4) to article 59.06 to further define an official purpose of the office of an attorney representing the State:

    (d-4) Except as otherwise provided by this article, an expenditure of proceeds or property received under this chapter is considered to be for an official purpose of an attorney's office if the expenditure is made for an activity of an attorney or office of an attorney representing the state that relates to the preservation, enforcement, or administration of the laws of this state ....

Act of May 9, 2013, 83d Leg., R.S., ch. 157, § 1, 2013 Tex. Gen. Laws 595, 596 (codified at TEX. CODE CRIM. PROC. art. 59.06(d-4)). [3] Subpart (d-4) provides a nonexclusive list of examples of expenditures that are considered to be for an official purpose of a State attorney's office, such as expenditures for equipment, supplies, travel expenses, training expenses, investigative costs, crime prevention and treatment programs, facility costs, legal fees, and professional association fees. TEX. CODE CRIM. PROC. art. 59.06(d-4)(1)-(9). Thus, article 59.06(d-4) authorizes only expenditures that are used solely for an activity of an attorney or office of an attorney representing the State that relates to the preservation, enforcement, or administration of the laws of this State. Tex. Att'y Gen. Op. No. GA-1059 (2014) at 2-3.

Whether the Victoria County Criminal District Attorney's expenditure of forfeiture funds for a consultant to investigate the operations of a juvenile detention center is authorized under article 59.06 will first require an investigation into and determination of the particular facts, such as the specific purpose of the study, the functions and operations of the juvenile detention center, and their connection, if any, to the particular duties and functions performed by that district attorney's office. Investigating and determining these fact questions is outside the purview of an attorney general opinion. See id. at 2 (stating that "whether article 59.06 authorizes a particular use of asset forfeiture funds requires investigating and resolving fact questions beyond the scope of the opinion process"). Instead, such determinations must be made in the first instance by the attorney representing the State, subject to judicial review. See TEX. CODE CRIM. PROC. art. 59.06(a) (providing that "all forfeited property shall be administered by the attorney representing the state"). Accordingly, we may advise only that an attorney representing the State may expend forfeiture funds to investigate a juvenile detention center to the extent that the expenditure qualifies as being for an official purpose of the attorney's office under article 59.06.

[1] Letter from Ms. Judy McAdams, Victoria Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 17, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] See TEX. CODE CRIM. PROC. art. 59.01(1) (defining "attorney representing the state" as "the prosecutor with felony jurisdiction in the county in which a forfeiture proceeding is held"); TEX. GOV'T CODE § 44.335(a)-(b) (providing that the "criminal district attorney of Victoria County ... shall exclusively represent the state in all criminal matters" in the courts of the county and "has all the powers, duties, and privileges in Victoria County that are conferred by law on county and district attorneys in the various counties and districts").

[3] Article 59.06 specifies another official purpose of a prosecuting attorney:

    [A]n attorney representing the state may use as an official purpose of the ... attorney proceeds or property received under this chapter to make a donation to an entity that assists in: (1) the detection, investigation or prosecution of ... criminal offenses; or ... instances of abuse ...; (2) the provision of ... mental health, drug, or rehabilitation services; or ... services for victims or witnesses of criminal offenses or instances of abuse ...; or (3) the provision of training or education related to duties or services described by Subdivision (1) or (2).

TEX. CODE CRIM. PROC. art. 59.06(d-2)(1)-(3).

SUMMARY

An attorney representing the State may expend forfeiture funds to investigate a juvenile detention center only to the extent the expenditure is for an official purpose of the attorney's office under article 59.06 of the Code of Criminal Procedure. Whether a particular expenditure is authorized under article 59.06 involves a question of fact that cannot be answered in an attorney general opinion.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee