Untitled Texas Attorney General Opinion ( 2008 )

GREG A B B O T T
April 7,2008
Mr. Kenneth Magidson Opinion No. GA-06 13
Harris County District Attorney
1201 Franklin Street, Suite 600 Re: Authority of the Harris County Commissioners
Houston, Texas 77002 Court to lease or purchase a juvenile detention
center in Colorado County and to use funds
forfeited to the district attorney to pay for the
transaction (RQ-063 1-GA)
Dear Mr. Magidson:
Your predecessor in office asked whether the Harris County Commissioner's Court may lease
or purchase a juvenile detention facility located in Colorado County, Texas.' He also asked whether
the Harris County District Attorney's asset forfeiture funds may be used to purchase or lease such
a facility. Request Letter, supra note 1, at 1.
Proceedings against a child under the Juvenile Justice Code may result in placing the child
on probation outside of his home in "a suitable public or private residential treatment facility
licensed by a state governmental entity or exempted from licensure by state law," excluding a facility
operated by the Texas Youth Commission. See TEX.FAM.CODEANN.tit. 3 (Vernon 2002 & Supp.
2007) (Juvenile Justice Code); id. 5 54.04(c), (d)(l)(B)(ii) (Vernon Supp. 2007) (disposition and
placement on probation outside the home).2 The brief that accompanied the opinion request
indicates that there is a shortage of residential treatment facilities in Harris County for all juvenile
offenders who are subject to such placement3 and proposed that asset forfeiture funds held by the
'Letter from Charles A. Rosenthal, Jr., former Harris County District Attorney, to Honorable Greg Abbott,
Attorney General of Texas, at 1 (Sept. 21, 2007) (on file with the Opinion Committee, also available at
http:l/www.oag.state.tx.us) [hereinafter Request Letter].
2See also Brief from Charles A. Rosenthal, Jr., former Harris County District Attorney, to Honorable Greg
Abbott, Attorney General of Texas, at 1 (Sept. 21,2007) (on file with the Opinion Committee) (attachment to Request
Letter, supra note 1) [hereinafter BriefJ.
3The brief notes that the repeal of Family Code subsections 54.04(s) and (t) took away the district court's
authority to send recidivist misdemeanor offenders to the Texas Youth Commission. See id. at 2; see also Act of May
24, 2001, 77th Leg., R.S., ch. 1297, 6 23, 2001 Tex. Gen. Laws 3 142, 3 152-53 (formerly codified as Family Code
section 54.04(s) and (t), repealed by Act ofMay 25,2007,SOth Leg., R.S., ch. 263, 6 64,2007 Tex. Gen. Laws 421,445
(continued.. .)
Mr. Kenneth Magidson - Page 2 (GA-06 13)
Harris County District Attorney be used to assist the county in leasing or purchasing a juvenile
detention facility. See Brief, supra note 2, at 2. In connection with this proposal the following
question is asked: "Does the Harris County Commissioners Court have the authority to lease or
purchase a juvenile detention facility in Colorado County, Texas?" Request Letter, supra note 1,
at 1.
It is well established that commissioners courts "can exercise only such powers as the
Constitution itself or the statutes have 'specifically conferred upon them."' Canales v. Laughlin, 2 14
S.W.2d 451,453 (Tex. 1948) (quoting Mills County v. Lampasas County, 40 S.W. 403,404 (Tex.
1897)). Implied powers of the commissioners court must necessarily flow from some express grant
of authority. See id.; see also Tex. Att'y Gen. Op. No. GA-0154 (2004) at 3 4 . A commissioners
court has broad discretion in exercising powers that are expressly conferred upon it. See Canales,
214 S.W.2d at 453.
Human Resources Code chapter 63 authorizes a county or a combination of counties to
establish and operatejuvenile detention facilities. See TEX.H m . REs. CODEANN.5 63.002 (Vernon
2001). A "[flacility" within chapter 63 is "a residential facility for the placement of juveniles for
periods up to one year in length." Id. 5 63 .OO l(2). Where a single county establishes a facility, the
commissioners court of that county may acquire real property for the facility "through gift, purchase,
condemnation, or any other method." Id. 5 63.017(a). The real property may be acquired outside
the boundaries of the creating county if, in the opinion of the county's commissioners court, "there
will exist a demand for the services to be provided by the facility in the county in which the facility
is to be located in addition to any need which may already exist within the boundaries of the creating
county." Id.; see id. fj 63.017(b) (board of trustees shall establish rules and regulations for the
admission of juveniles into the facility from a county other than county that created the facility).
Real property is defined as "land, and generally whatever is erected or growing upon or affixed to
land." Sun Antonio Area Found. v. Lung, 35 S.W.3d 636, 640 (Tex. 2000) (quoting Chastain v.
Koonce, 700 S.W.2d 579,584 (Tex. 1985) (Gonzalez, J., concurring)).
Section 63.017(a) provides the answer to the first question. Pursuant to this provision, the
Harris County Commissioners Court may acquire real property in another county, including a
building constructed thereon, to locate a juvenile detention facility, if in its opinion there will be a
demand in the other county for the services to be provided by the facility in addition to the demand
existing in Harris County. See TEX.H m . RES. CODEANN.5 63.017(a) (Vernon 2001).
While section 63.017(a) does not expressly authorize a county to acquire real property in
another county by lease, it does authorize the commissioners court to "acquire, through gift,
3(. ..continued)
(effective June 8, 2007)). As a result, the number of referrals to the Texas Youth Commission has diminished, and an
increased number of juvenile offenders must be placed in other facilities outside of their homes. See Brief, supra note
2, at 2.
Mr. Kenneth Magidson - Page 3 (GA-06 13)
purchase, condemnation, or any other method, real property" in another county for a juvenile
detention facility. See id. (emphasis added). A prior opinion of this office construed statutory
language authorizing a commissioners court to "purchase, construct, . . . or otherwise acquire"
buildings as authorizing a county to acquire a building by leasing it. See Tex. Att'y Gen. Op. No.
MW-3 57 (198 1) at 4 (construing former article 2730b, section 1, Revised Civil statute^,^ adopted
by Act of May 19, 1977,65th Leg., R.S., ch. 634, 5 1, 1977 Tex. Gen. Laws 1619). We conclude
that the Harris County Commissioners Court has implied authority to lease real property for a
juvenile detention facility located in another county under its section 63.0 17(a) authority to "acquire,
through gift, purchase, condemnation, or any other method, real property" in another county for
that purpose, subject to the conditions stated in section 63.017(a). TEX.HUM.RES. CODEANN.
5 63.017(a) (Vernon 2001); see Canales, 214 S.W.2d at 453 (implied powers of the commissioners
court flow from an express grant of authority).
Two prior opinions of this office determined that a county could not lease real estate for
county offices or for an airport absent express statutory authority. See Tex. Att'y Gen. Op. Nos.
M- 1166 (1972) (county has no statutory authority to lease space outside the county seat to provide
a branch county ~ f f i c e ) 0-4972
,~ (1942) (former article 12692.1, Revised Civil Statutes: did not
expressly authorize county to lease real estate for airport). The statutes at issue in Attorney General
Opinions 0-4972 and M- 1166, unlike Human Resources Code section 63.0 17(a), did not authorize
counties to acquire real property "through gift, purchase, condemnation, or any other method." TEX.
HUM.RES. CODEANN. 5 63.0 17(a) (Vernon 200 1) (emphasis added). Accordingly, the reasoning
of these opinions is not relevant to the construction of Human Resources Code section 63.01 7(a).
It was also asked whether "the Harris County District Attorney's expenditure of asset
forfeiture funds to purchase or lease a juvenile detention facility constitute[s] use of those funds in
furtherance of an 'official purpose of his office' under article 59.06(~)(1)of the Code of Criminal
Procedure[?]" Request Letter, supra note 1, at 1.
Chapter 59 of the Code of Criminal Procedure relates to the forfeiture of "contraband,"
defined as property used in the commission of certain criminal offenses. See TEX. CODECRIM.
PROC.ANN.ch. 59 (Vernon 2006 & Supp. 2007); id. art. 59.01(2) (Vernon Supp. 2007). Forfeited
property is in general "administered by the attorney representing the state, acting as the agent of the
state, in accordance with accepted accounting practices and with the provisions of any local
4This provision was codified as Local Government Code section 292.001 in 1987. See Act of May 1, 1987,
70th Leg., R.S., ch. 149, Ij 1, 1987 Tex. Gen. Laws 707, 1072. An amendment adopted in 2001 expressly authorized
the commissioners court to "purchase, construct, or provide [buildings] by other means, including a lease or a lease with
an option to purchase." Act of May 27,2001,77th Leg., R.S., ch. 1409, Ij 6, 2001 Tex. Gen. Laws 3619, 3629.
'Attorney General Opinion M-1166 (1972) discussed former articles 1605 and 1605a-3 of the Revised Civil
Statutes. See Act of Mar. 4, 1953, 53d Leg., R.S., ch. 39, Ij 1, 1953 Tex. Gen. Laws 49 (article 1605), Act of Apr. 12,
1961, 57th Leg., R.S., ch. 76, 1961 Tex. Gen. Laws 149 (article 1605a-3).
6ActofApril 14,1941,47thLeg.,R.S., ch. 142, 1941 Tex. Gen. Laws 196, 196-98 (authorizing a city or county
to acquire land for an airport by gift, dedication, purchase or condemnation).
Mr. Kenneth Magidson - Page 4 (GA-06 13)
agreement entered into between the attorney representing the state and law enforcement agencies."
Id. art. 59.06(a) (Vernon Supp. 2007). The Harris County District Attorney is an attorney
representing the state within this provision. See id. art. 59.01(1) (the prosecutor with felony
jurisdiction in the county where a forfeiture proceeding is held is an "[alttorney representing the
state"); see also TEX. GOV'T CODEANN. 5 43.180(b) (Vernon 2004) (Harris County District
Attorney shall represent the state in criminal cases pending in the district and inferior courts of the
county). Code of Criminal Procedure article 59.06, which provides for the disposition of forfeited
property, includes the following provision:
(c) If a local agreement exists between the attorney
representing the state and law enforcement agencies, all money,
securities, negotiable instruments, stocks or bonds, or things of value,
or proceeds from the sale of those items, shall be deposited, after the
deduction of court costs to which a district court clerk is entitled
under Article 59.05(f), according to the terms of the agreement into
one or more of the following funds:
(1) a special fund in the county treasury 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 . . . .
TEX.CODECRIM.PROC.ANN. art. 59.06(~)(1)(Vernon Supp. 2007) (emphasis added); see also id.
art. 59.06(~)(2)-(4) (forfeitures placed in other funds to be used solely for law enforcement
purposes).
Article 59.06 controls and limits expenditures from the special fund. An attorney who
represents the state may spend proceeds awarded to him under chapter 59 after a detailed budget
listing and defining the categories of expenditures has been submitted to the commissioners court.
See id. art. 59.06(d). Expenditures are subject to audit by the commissioners court. See id. art.
59.06(d), (g). "As a specific exception to Subdivisions (1)-(3) of Subsection (c)," an attorney
representing the state may use proceeds received under this chapter to contract with a person or entity
to prepare the required audit. Id. art. 59.06(m). See also id. art. 59.06(h) ("specific exception"
permitting the use of no more than ten percent of the district attorney's special fund for nonprofit
drug prevention programs, certain drug and alcohol rehabilitation or prevention programs, and
"nonprofit chemical dependency treatment facilities licensed under Chapter 464, Health and Safety
Code").
The question before us is whether purchasing or leasing a juvenile detention facility would
be an "official purpose[]" of the Harris County District Attorney's office within article 59.06(~)(1)
of the Code of Criminal P r ~ c e d u r e .When
~ construing article 59.06(~)(1),our primary objective is
7The actual question was whether the purchase or lease of a juvenile detention facility would "constitute use
of those funds in furtherance of an 'official purpose of his office,"' but we have rephrased the question to track the
(continued.. .)
Mr. Kenneth Magidson - Page 5 (GA-06 13)
to ascertain and give effect to the Legislature's intent as expressed by the plain and common meaning
of the statute's words. See F.F.P.Operating Partners, L.P. v. Duenez, 237 S.W.3d 680,683 (Tex.
2007); Tex. Dep 't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). In this
statute, the Legislature used the word "solely," which means "exclusively." See XV OXFORD
ENGLISH DICTIONARY 961 (2nd ed. 1989) (defining "solely" to mean "only, merely, exclusively");
Tex. Att'y Gen. Op. No. H-943 (1977) at 2 (citing Helvering v. Sw. Consol. Corp., 3 15 U.S. 194,
198 (1942), and Stockton Harbor Indus. Co. v. Comm 'r oflnternal Revenue, 216 F.2d 638,645 (9th
Cir. 1954)' cert. denied, 349 U.S. 904 (1955)). The Legislature thus showed its intent to limit the
use of article 59.06(~)(1)asset forfeiture funds to the "official purposes" of the district attorney's
office.
We next address the briefs arguments in favor of using the special fund to acquire a juvenile
detention facility. It proposes a broad construction of "official purposes of his office" in article
59.06(~)(1),based in part on language in New Amsterdam Casualty Co. v. First National Bank. See
New Amsterdam Cas. Co. v. First Nut 'I Bank, 134 S.W.2d 470 (Tex. Civ. App.-El Paso 1939, writ
dism'd judgm't cor.). The court in New Amsterdam uses the term "official purposes" in discussing
a county tax collector's misapplication of county tax funds to his personal debts. Brief, supra note
2, at 5. C. W. Owen, the Upshur County Tax Collector, withdrew county funds from the county's
depository bank, applying a portion to payment of a note he owed the bank and depositing the
balance in his private account. See New Amsterdam Cas. Co., 134 S.W.2d at 473. "This money was
drawn out of his private account by him by means of checks given for other than official purposes.
In any event, the evidence fails to show that any of the money went to the payment of expenses of
his office." Id. The evidence in fact tended to very strongly show that the county money "was used
for purely private obligations of Owen." Id.
The brief points out the contrast in New Amsterdam between the "official purposes" of the
tax collector's office and the "purely private obligations" for which the tax collector used county
funds, suggesting that the phrase "official purposes" should be read broadly, to include any
expenditure except expenditures for a private purpose. Brief, supra note 2, at 6. New Amsterdam
does not support a broad reading of the term "official purposes." The court did not need to address
the meaning of "official purposes" because the tax collector's use of county funds for personal
obligations was so clearly not for an official purpose. Moreover, the New Amsterdam court uses the
term "expenses of his office" interchangeably with expenses for "official purposes," thus indicating
that "official purposes" refers to the duties and functions of the office, rather than any purpose short
of a private purpose. See New Amsterdam Cas. Co., 134 S.W.2d at 473.
The brief also suggests that dicta in Margraves v. State supports a broad reading of "official
purposes." See Brief, supra note 2, at 6 (citing Margraves v. State, 34 S.W.3d 912 (Tex. Crim. App.
2000)). Margraves dealt with a misapplication of state property under former Penal Code section
'(...continued)
language of article 59.06(~)(1),which states that the forfeiture proceeds allocated to the district attorney may "be used
by the attorney solely for the ofJicialpurposes of his ofice." T E X .CODECRIM.PROC.ANN. art. 59.06(~)(1)(Vernon
Supp. 2007) (emphasis added); see Request Letter, supra note 1, at 1.
Mr. Kenneth Magidson - Page 6 (GA-06 13)
39.01, involving a university regent's travel on a state plane for largely personal reasons. See
Margraves, 34 S.W.3d at 9 14 (citing former Penal Code section 39.0 1, as adopted by Act of May
28, 1983, 68th Leg., R.S., ch. 558, 5 7, 1983 Tex. Gen. Laws 3237, 3241-42). In response to
appellant's argument that the state must prove that he had conducted no state business on the trip,
the court observed in dicta that "[a] public servant can misapply government property even when it
is used for official purposes." Id. at 916; see Brief, supra note 2, at 6. Categorical statements of a
court should be read in context. See generally Fed. Sign v. Tex. S. Univ., 95 1 S.W.2d 401,413 (Tex.
1997) (Hecht, J. concurring). The Margraves court made this statement in discussing the meaning
of "misapply," and it was not defining "official purposes" or dealing with a statute like article
59.06(~)(1).See Margraves, 34 S.W.3d at 916. Neither New Amsterdam nor Margraves supports
the suggested broad construction of "official purposes."
The brief raises another argument based on Family Code section 5 1.01. It states that the
district attorney is "obliged to serve as an advocate of the State of Texas in pursuing the statutory
goals of the Juvenile Justice Code," citing Family Code section 5 1.O 1(I), (2)(A), (4), and (5). Brief,
supra note 2, at 6-7. Section 51.O1 provides that
This title shall be construed to effectuate the following public purposes:
(1) to provide for the protection of the public and public
safety;
(2) consistent with the protection of the public and public
safety:
(A) to promote the concept of punishment for criminal
acts;
(4) to protect the welfare of the community and to control the
commission of unlawful acts by children;
(5) . . . separating the child from the child's parents only
when necessary for the child's welfare or in the interest of public
safety . . . .
TEX.FAM.CODEANN.$ 5 1.01 (Vernon 2002) (emphasis added). It is argued that the expenditure
of funds to establish juvenile detention facilities would further these goals. See Brief, supra note 2,
at 7. However, section 5 1.01 addresses the construction of "[tlhis title," that is, title 3 of the Family
Code, the "Juvenile Justice Code." See TEX.FAM.CODEANN.chs. 5 1-60 (Vernon 2002 & Supp.
2007). Article 59.06 of the Code of Criminal Procedure, relating to the use of contraband forfeited
to a prosecuting attorney's office, is not a provision of the Juvenile Justice Code. Thus, the rules of
construction stated in section 51 .O1 of the Family Code do not apply to article 59.06, Code of
Criminal Procedure.
Mr. Kenneth Magidson - Page 7 (GA-0613)
We address the construction of the language in article 59.06(c)(l) that authorizes the Harris
County District Attorney to use funds derived from certain forfeited property "solely for the official
purposes of his office." TEX.CODECRIM.PROC.ANN.art. 59.06(~)(1)(Vernon Supp. 2007). To
determine the meaning of words and phrases in statutes, we read them in context. See TEX.GOV.
CODEANN.5 3 11.01l (a) (Vernon 2005) ("Words and phrases shall be read in context and construed
according to the rules of grammar and common usage."); City of Houston v. Clark, 197 S.W.3d 3 14,
3 18 (Tex. 2006). In this sentence, "official purposes" and "purposes of his office" have the same
meaning. See BLACK'SLAWDICTIONARY 1114 (7th ed. 2004) ("Official" has been defined as "[olf
or relating to an office or position of trust or authority"). The Legislature thus reiterated the idea that
the fund was to be expended only for the purposes of the district attorney's office. See TEX.CODE
CRM. PROC.ANN. art. 59.06(~)(1)(Vernon Supp. 2007).
We look to the constitution and statutes to determine the "official purposes" of the district
attorney's office. Texas Constitution article V, section 21 provides that "County Attorneys shall
represent the State in all cases in the District and inferior courts in their respective counties; but if
any county shall be included in a district in which there shall be a District Attorney, the respective
duties of District Attorneys and County Attorneys shall in such counties be regulated by the
Legislature." TEX.CONST.art. V, 5 21. The Legislature has adopted statutes providing that the
Harris County District Attorney "shall represent the state in criminal cases pending in the district and
inferior courts of the county" and that he "has all the powers, duties, and privileges in Harris County
relating to criminal matters for and in behalf of the state that are conferred on district attorneys in
the various counties and districts." TEX.GOV'TCODEANN.5 43.180(b)-(c) (Vernon 2004). See
also TEX.CODECRIM.PROC.ANN.art. 2.01 (Vernon 2005) ("Each district attorney shall represent
the State in all criminal cases in the district courts of his district and in appeals therefrom, except in
cases where he has been, before his election, employed adversely."). He also represents the State
in district court proceedings involving children under the Juvenile Justice Code. See TEX.FAM.
CODEANN.tit. 3 (Vernon 2002 & Supp. 2007) (Juvenile Justice Code), id. $5 51.02(11) (Vernon
Supp. 2007) (district attorney is a prosecuting attorney for purposes of Juvenile Justice Code);
53.04(a) (Vernon 2002) (prosecuting attorney's authority to petition for an adjudication or transfer
hearing of a child). It is well established that a district attorney's "primary function, is 'to prosecute
the pleas of the state in criminal cases."' Meshell v. State, 739 S.W.2d 246,254 (Tex. Crim. App.
1987) (quoting Brady v. Brooks, 89 S.W. 1052, 1056 (Tex. 1905)).
Statutes on the expenses of the district attorney's office exemplify expenditures for the
"official purposes of his office." Government Code section 41.107 provides as follows:
(a) The commissioners court of the county or counties
composing a district may furnish telephone service, typewriters,
office furniture, office space, supplies, and the other items and
equipment that are necessary to carry out the oflcial duties of the
prosecuting attorney's ofice and may pay the expenses incident to
the operation of the office.
Mr. Kenneth Magidson - Page 8 (GA-0613)
(b) The commissioners court of the county or counties
composing a district may furnish automobiles for the use of the
prosecuting attorney's office in conducting the ofJicial duties of the
office and may provide for the maintenance of the automobiles.
TEX.GOV'TCODEANN.§ 4 1.107 (Vernon 2004) (emphasis added). See id. $8 4 1.106 (salaries of
assistant prosecuting attorneys, investigators, secretaries, and other office personnel; travel expenses
for assistant prosecuting attorneys and investigators); 43.004(b) ("district attorney is entitled to
receive from the state the actual and necessary postage . . . and telephone expenses incurred in the
discharge of official duties"); see also TEX.CODECRIM.PROC.ANN. art. 59.06(d) (Vernon Supp.
2007) (restrictions on use of an award of forfeited property to increase an employee's salary,
expense, or allowance). The kind of expenditures listed in these provisions are "solely for the
official purposes ofhis office." TEX.CODECRIM.PROC.ANN.art. 59.06(~)(1)(Vernon Supp. 2007).
These expenditures enable the district attorney's office to carry out the constitutional and statutory
functions that we have outlined.
Moreover, we find no provision expressly authorizing the Harris County District Attorney
to provide for a juvenile detention facility. We find only one provision authorizing a district attorney
to provide funding for any kind of facility. Article 59.06(h) authorizes, as a "specific exception" to
the restriction on using forfeiture funds, the expenditure of less than ten percent of the fund for
"nonprofit chemical dependency treatment facilities licensed under Chapter 464, Health and Safety
Code." Id. art. 59.06(h). Providing a juvenile detention facility is not an official purpose of the
Harris County District Attorney's office.
The county's authority to provide buildings for county purposes is vested by statute in the
commissioners court, not in the district attorney. See City of Sun Antonio v. City of Boerne, 111
S.W.3d 22'27-28 (Tex. 2003) (the commissioners court has the contracting authority for the county,
unless another statute expressly grants it elsewhere). Local Government Code section 29 1.OO 1 states
that the commissioners court shall provide "a courthouse and offices for county officers at the
county seat," and "provide other necessary public buildings." TEX. LOC. GOV'TCODEANN.
5 291.001(1)-(2) (Vernon 2005). See also TEX.GOV'TCODEANN.5 1301.001(a)(2) (Vernon 2005)
(commissioners court of a county may issue bonds to purchase sites in the county and to construct
buildings thereon for homes or schools for dependent or delinquent children). Accordingly, the
Harris County District Attorney may not use asset forfeiture funds to help purchase or lease a
juvenile detention facility for the county.
Mr. Kenneth Magidson - Page 9
S U M M A R Y
Pursuant to Human Resources Code section 63.0 17(a), the
Harris County Commissioners Court may purchase or lease a juvenile
detention facility in another county. The Harris County District
Attorney may not use asset forfeiture funds to help purchase the
juvenile detention facility for the county, because providing ajuvenile
detention facility is not an official purpose of that office under Code
of Criminal Procedure article 59.06(~)(1)and is therefore not an
authorized use of those funds.
~ t t o r n e w n e r a of
l Texas
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee