Can a Texas district attorney use asset-forfeiture money to buy carpet for a county building, and does the commissioners court have to approve it?

Plain-English summary

The Bowie County Auditor asked the AG two questions about the district attorney's authority over asset-forfeiture money. First, could the district attorney use forfeiture funds to buy carpet for a county-owned building, specifically to replace carpet on the second floor of the Bowie County Plaza in Texarkana? Second, did the district attorney need the commissioners court's permission to do it? The auditor did not say how the county uses that second-floor space, which mattered to the analysis.

The AG started with article 59.06 of the Code of Criminal Procedure, which governs how asset-forfeiture funds are handled. Under a local agreement with law enforcement, the attorney representing the State deposits forfeiture proceeds into special funds, one of which is for the office of the attorney representing the State, to be used solely for the official purposes of the office. The statute defines an official purpose to include expenditures that relate to the preservation, enforcement, or administration of state law, and it specifically lists facility costs, including remodeling, renovating, and maintenance. Because of that, the AG concluded that, on the right facts, purchasing carpet for a county building could be a permissible use of the attorney's forfeiture fund as a remodeling or renovating facility cost, so long as the expenditure relates to the official purposes of the office. Whether a particular expenditure actually qualifies is a fact question that an AG opinion cannot answer.

On the permission question, the AG looked at how article 59.06 handles commissioners court involvement. The attorney representing the State may spend from the fund after submitting a budget to the commissioners court, and must account for specific expenditures in an annual audit performed by the commissioners court. But the statute requires the attorney to obtain the commissioners court's approval of an expenditure only in a narrow situation, when the attorney will not be a candidate for reelection under certain circumstances. The AG reasoned that this specific approval requirement would be unnecessary if approval were always required, so an attorney ordinarily does not need the commissioners court's permission to spend forfeiture funds on an otherwise authorized purpose. The AG pointed to a prior opinion reaching the same conclusion about a prosecutor buying carpet from the "hot check" fund.

The AG closed with an important limit. The commissioners court has the duty and authority to provide and maintain the county courthouse and county offices, and broad discretion over repairing and remodeling them. A county officer may not act in derogation of that authority. So while the district attorney may use forfeiture funds for carpet in a county building, the DA may do so only to the extent it does not usurp or unreasonably interfere with the commissioners court's authority over county buildings.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting county auditor (as the opinion described it): The opinion told the auditor that carpet for a county building could be a permissible official-purpose forfeiture expenditure on the right facts, and that the district attorney ordinarily need not get commissioners court approval, while noting the office could not resolve the fact question of this specific expenditure.

District attorneys (as the opinion described them): The opinion treated forfeiture funds as usable only for the official purposes of the office, including facility costs like remodeling and maintenance, and explained that the DA generally spends without commissioners court approval but cannot interfere with the commissioners court's authority over county buildings.

Commissioners courts (as the opinion described them): The opinion described their duty and broad discretion to provide, maintain, repair, and remodel the courthouse and county offices, and said a county officer may not act in derogation of that authority.

Common questions

Can a Texas DA use forfeiture money to buy carpet for a county building?
Under this opinion, possibly. The AG said carpet could be a permissible facility cost under article 59.06 if the expenditure relates to the official purposes of the attorney's office, but whether a specific expenditure qualifies is a fact question.

What can forfeiture funds be spent on?
The opinion explained the funds may be used solely for the official purposes of the attorney's office, which the statute defines to include facility costs such as remodeling, renovating, and maintenance.

Does the DA need the commissioners court's approval to spend forfeiture funds?
Generally no. The opinion concluded an attorney representing the State ordinarily does not need commissioners court permission for an authorized expenditure, because the statute requires approval only in a narrow non-reelection situation.

Is there any limit on the DA buying carpet for county space?
Yes. The opinion said the DA may do so only to the extent it does not usurp or unreasonably interfere with the commissioners court's authority over county buildings.

Does the commissioners court have any oversight at all?
Yes. The opinion noted the attorney must submit a budget to the commissioners court and account for specific expenditures in an annual audit the commissioners court performs.

Background and statutory framework

Article 59.06 of the Code of Criminal Procedure governs the disposition of asset-forfeiture funds. The attorney representing the State administers forfeited property under any local agreement with law enforcement and deposits proceeds, after certain costs, into special funds, including one for the office of the attorney representing the State to be used solely for the official purposes of the office (Tex. Code Crim. Proc. arts. 59.06, 59.06(a), 59.06(c)(1); 59.01(1); Tex. Gov't Code § 44.119(a)). An expenditure is for an official purpose if it relates to the preservation, enforcement, or administration of state law, including facility costs such as remodeling, renovating, and maintenance, though whether a particular expenditure qualifies is a fact question (Tex. Code Crim. Proc. art. 59.06(d-4)(7); Tex. Att'y Gen. Op. No. KP-0088 (2016)).

The attorney representing the State may spend fund proceeds after submitting a budget to the commissioners court and must account for specific expenditures in an annual audit the commissioners court performs, but the statute requires commissioners court approval of an expenditure only when the attorney will not be a candidate for reelection under certain circumstances (Tex. Code Crim. Proc. arts. 59.06(d), 59.06(g)(1), 59.06(d-1)(6)). Because that specific approval requirement would be superfluous if approval were always required, an attorney ordinarily need not seek permission for an authorized expenditure (In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 283 (Tex. 2016); Tex. Att'y Gen. Op. No. JM-313 (1985)). The commissioners court has the duty and authority to provide and maintain the county courthouse and county offices, with broad discretion over repairs and remodeling, and a county officer may not act in derogation of that authority (Tex. Loc. Gov't Code § 291.001; In re El Paso Cty. Comm'rs Ct., 281 S.W.3d 16, 23-24 (Tex. App.—El Paso 2005, no pet.); Tex. Att'y Gen. Op. No. KP-0111 (2016); Dodson v. Marshall, 118 S.W.2d 621, 623 (Tex. Civ. App.—Waco 1938, writ dism'd)).

Citations

Statutory provisions:

• Tex. Code Crim. Proc. arts. 59.01(1), 59.06, 59.06(a), 59.06(c)(1), 59.06(d), 59.06(d-1)(6), 59.06(d-4)(7), 59.06(g)(1)
• Tex. Gov't Code § 44.119(a)
• Tex. Loc. Gov't Code § 291.001

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. KP-0088 (2016)
• Tex. Att'y Gen. Op. No. JM-313 (1985)
• Tex. Att'y Gen. Op. No. KP-0111 (2016)

Cases:

• In re Christus Santa Rosa Health Sys., 492 S.W.3d 276 (Tex. 2016)
• In re El Paso Cty. Comm'rs Ct., 281 S.W.3d 16 (Tex. App.—El Paso 2005, no pet.)
• Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. App.—Waco 1938, writ dism'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0126
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0126.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

January 3, 2017

Mr. William E. Tye Opinion No. KP-0126
Bowie County Auditor
Bowie County Courthouse Re: Authority of a district attorney to use
710 James Bowie Drive forfeiture funds for certain purposes
New Boston, Texas 75570 (RQ-0116-KP)

Dear Mr. Tye:

    You ask about the authority of a district attorney to use forfeiture funds of the attorney's office for certain purposes. Specifically, you ask whether the Bowie County District Attorney ("District Attorney") may use the funds to purchase carpet for a county-owned building, and whether the District Attorney must obtain the commissioners court's permission to do so. [1] Request Letter at 1. Although information you submitted indicates that the District Attorney plans to use the funds to replace carpet on the second floor of the Bowie County Plaza in Texarkana, Texas, you do not inform us how the County utilizes that area. See Request Letter at 1 and Attachment.

    Article 59.06 of the Code of Criminal Procedure governs the disposition of asset forfeiture funds. See TEX. CODE CRIM. PROC. art. 59.06. The attorney representing the State administers all forfeited property "in accordance with ... the provisions of any local agreement entered into" with law enforcement agencies. See id. art. 59.06(a). [2] Under such an agreement, the attorney representing the State must deposit forfeiture proceeds, after deducting certain costs, into one or more of four special funds, including a fund "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). An expenditure from the attorney's fund

            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, including an expenditure made for:

            (7) facility costs, including ... remodeling and renovating, [and] maintenance ... ;

Id. art. 59.06(d-4)(7). Whether a particular expenditure is authorized under article 59.06 is ultimately a question of fact that cannot be answered in an attorney general opinion. See Tex. Att'y Gen. Op. No. KP-0088 (2016) at 3-4. On particular facts, however, the purchase of carpet for a county building could be a permissible use of an attorney's forfeiture fund as remodeling and renovating facility costs to the extent that the expenditure relates to the official purposes of the attorney's office.

    Article 59.06, subsection (d) authorizes the attorney representing the State to spend proceeds from the fund after submitting to the commissioners court a budget for the expenditure of the proceeds. Id. art. 59.06(d). Also, the attorney representing the State must account for specific expenditures in an annual audit performed by the commissioners court. Id. art. 59.06(g)(1). But article 59.06 requires an attorney representing the State to obtain the commissioners court's approval of an expenditure only when the attorney will not be a candidate for reelection under certain circumstances. Id. art. 59.06(d-1)(6). Subsection (d-1)(6) would not have been necessary if the attorney representing the State was required to obtain commissioners court approval in all circumstances. Accordingly, an attorney representing the State ordinarily need not seek permission from the commissioners court to expend funds for purposes otherwise authorized under article 59.06. See In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 283 (Tex. 2016) (stating that courts "must not interpret the statute in a manner that renders any part of the statute meaningless or superfluous" (quotation marks omitted)); cf. Tex. Att'y Gen. Op. No. JM-313 (1985) at 13 (determining that a county attorney, district attorney, or criminal district attorney may expend from the "hot check" fund to purchase carpet without obtaining approval of commissioners court).

    Nevertheless, the commissioners court has the duty and authority to provide and maintain the county courthouse and offices for county officials. TEX. LOC. GOV'T CODE § 291.001; see also In re El Paso Cty. Comm'rs Ct., 281 S.W.3d 16, 23-24 (Tex. App.—El Paso 2005, no pet.) (noting that the commissioners court is vested with broad discretion with respect to repairing and remodeling the courthouse). A county officer may not act in derogation of such authority vested in the commissioners court. See Tex. Att'y Gen. Op. No. KP-0111 (2016) at 4 (noting that just as a commissioners court may not usurp or unreasonably interfere with a county officer's core duties, a county official "may not frustrate the commissioners court in the performance of its responsibilities"). Accordingly, a district attorney may exercise authority to obtain carpet for areas of a county building only to the extent that doing so does not usurp or interfere with the county commissioners' authority with respect to county buildings. See Dodson v. Marshall, 118 S.W.2d 621, 623 (Tex. Civ. App.—Waco 1938, writ dism'd) (noting that a commissioners court has "at least implied authority to regulate the use [of county offices] within reasonable bounds").

                                SUMMARY

                  Article 59.06 of the Code of Criminal Procedure authorizes a district attorney to expend forfeiture funds solely for an official purpose of the attorney's office, which may include expenditures for facility costs such as remodeling, renovating, and maintenance. A district attorney may expend such funds on carpet for a county-owned building to the extent it serves an authorized purpose of the attorney's office. A district attorney need not seek permission of the commissioners court to expend forfeiture funds for such an authorized purpose, provided that the expenditure does not usurp or unreasonably interfere with the county commissioners' authority with respect to county buildings.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] Letter and attachment from Mr. William E. Tye, Bowie Cty. Auditor, to the Op. Comm., Office of the Tex. Att'y Gen. at 1 (June 20, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "Attachment").

[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 § 44.119(a) (providing that the "criminal district attorney of Bowie County shall represent the state in all cases" in the courts of the county and "shall perform all other duties required of district and county attorneys under general law").