Senators call for more oversight of forfeiture funds
By Lucretia Fernandez
Courier staff
06/07/2008
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AUSTIN -- When District Attorney Michael McDougal came under scrutiny for use of forfeiture funds, voters and politicians debated whether he was spending it properly.
The firestorm occurred before the March Republican primary, and the longtime Montgomery County DA ultimately lost in a runoff to Brett Ligon.
But the forfeiture fallout was not over, and Thursday in Austin the issue was addressed in a Texas Senatorial Criminal Justice Committee hearing.
Sen. John Whitmire, D-Houston, who organized the hearing, campaigned to have 10 percent of forfeiture money go toward supporting drug courts during the 80th legislative session. The bill did not receive support from district attorneys or law enforcement because forfeiture money helps supplement their budgets. The bill did not pass.
On Thursday at the state Capitol, the Criminal Justice Committee, led by Lt. Gov. David Dewhurst, questioned witnesses and listened to comments from the public regarding the use and oversight of forfeiture funds. The main talking points were: who oversees the district attorney and how; whether certain expenditures violate the law; and whether the state can ensure that a district attorney is prosecuted.
"If we're seizing millions of dollars, we need to make sure to use it properly," Whitmire said.
Forfeiture funds are from money and items seized during a criminal investigation. The money is turned over to law enforcement agencies and district attorney offices after a conviction is made in a case. In many counties, the forfeiture money divided between the law enforcement agencies and district attorney with a 70-30 split, respectively, according to testimony.
Law enforcement is directed to use the money for "law enforcement purposes" only, and district attorney offices are to use it for "official purposes," according to the Texas Code of Criminal Procedure.
Dependence on forfeitures
More and more, the offices are leaning on the funds to supplement their budgets because counties and cities stress the need to keep down tax rates, said Rob Kepple, executive director of the Texas District and County Attorneys Association.
"It's this time of year when my district attorneys and county attorneys are pulling together their budgets and people are looking for funding from lots of different sources," Kepple said.
According to Houston Police Chief Harold Hunt, HPD relies on the supplemental funding for overtime, among other things.
"Why the hell should seized funds be used for funds that should be paid for through tax dollars?" Whitmire asked. "Why wouldn't council fund your overtime? These are (forfeiture) funds that you can't count on every year."
However, salaries are being supplemented by the fund in other counties as well.
From 2005-07, the Montgomery County District Attorney's Office spent $60,582 in forfeiture funds on salaries. The Fort Bend District Attorney's Office spent $38,678 on salaries.
A portion of the Montgomery County DA’s Office money spent on "salaries" included annual birthday checks of $100 to employees. But the majority of the money was used to pay part-time help and overtime. Much of the Fort Bend DA's Office "salary" expenditures supported several paychecks, including Social Security and retirement.
The money also is being used to purchase office supplies, computers, training, to run task forces and to maintain drug prevention programs.
Randall Sims, 47th District Attorney, who covers Potter and Armstrong counties, said the rural area of Central Texas, his office depends on the forfeiture money to help move the office forward.
"They are in dire need of the money," Sims said. "Right now, I'm trying to make our county a paperless trail, but that comes with an expensive price tag."
Questionable spending
While he doesn't agree with the forfeiture money being used to support office staffing issues, Whitmire focused on the main issue of the hearing, which was clearing up the law to avoid possible abuses of forfeiture money.
In Montgomery County, McDougal came under scrutiny after copies of Spec's receipts, listing purchases of margarita ingredients, were circulated throughout the community. Although McDougal first denied the receipts being connected to his office, he later learned the receipts were from a credit card purchase by an office investigator, who was reimbursed through the forfeiture account.
McDougal said he and First District Attorney David Bluestein signed off on the reimbursement not realizing it was for alcohol purchases, but merely a reimbursement for supplies used at a charity barbecue in which the office participated.
McDougal, although not summoned by the senatorial committee, attended the hearing Thursday. He did not make comments and did not want to speak with The Courier regarding the matter.
However, two Montgomery County residents voiced their concerns at the hearing.
"Forfeitures are public funds," said Jim Jenkins, reiterating Whitmire's stance that funds seized by public agencies, through the use of tax dollars, are the public's. "The district attorney is not confused, the auditor is not confused, I am not confused; and I'm sure you senators are not confused on the meaning of 'official purposes.'"
Jenkins pointed out an expenditure made by McDougal from the forfeiture account during a golf outing for Precinct 2 Constable Gene DeForest's re-election campaign. McDougal has said he believed the $1,200 check was going toward the Constable's Office, not to the constable’s campaign.
Jenkins said he also disapproved of the more than $50,000 in forfeiture money given to charities.
"I would like to see it returned," Jenkins said. "It is political patronage and politically corrupt."
Montgomery County resident Richard McDuffee stressed the importance of keeping governmental entities in check when it comes to spending.
"Everyone is wanting money, but no one is looking at our paychecks," McDuffee said.
Questionable forfeiture spending is also an issue in Kerr County in the race for the 198th District Attorney's Office. Attorney Richard Ellison is running for the seat in November, and he has questioned current District Attorney Ron Sutton, who is not running for election, on money spent for a conference in Hawaii, which included $14,000 in cash, Ellison testified Thursday.
Oversight
It's the questionable spending that has the senatorial committee asking how the state can create more oversight of the forfeiture account, including enforcement, Whitmire said.
Currently, forfeiture expenditures are supposed to go to county commissioners for approval. In Montgomery County, as in For Bend County, the county auditor reviews each expenditure, and asks for explanation and receipts of any questionable item. However, the final decision on the expenditure is still, in many cases, left to the district attorney, according to testimony.
Each year, audits are to be performed on the accounts and the results are sent to the Texas Attorney General's Office. But the AG’s Office only takes note of audits not submitted. It does not review the line items, said Eric Nichols, deputy attorney general for the Criminal Justice Division of the Attorney General's Office.
"We serve as a repository for the audits," Nichols said.
When asked what the attorney general could do if an alleged improper use of forfeiture funds was brought to the office's attention, Nichols said not much.
"Nothing gives us regulatory authority to do that (prosecute), and we have no criminal jurisdiction if it's such," he said.
The only thing the Attorney General's Office can do is ask the Texas Comptroller's Office to review the audit to see whether there is anything suspicious.
If the comptroller or anyone in the public believes something suspicious is occurring, the only way to bring charges against a district attorney would be to ask the Texas Rangers to investigate, Kepple testified. They could bring charges, such as theft and violation of fiduciary duties if warranted, and the Attorney General's Office could take a case before a grand jury for an indictment.
At that point, a special prosecutor would need to be appointed by a district judge to try the case. Whitmire expressed hesitation about the support a district attorney may have from district judges and questioned whether another political figure, outside local county politics, should be charged with appointing an attorney in such a case.
What’s next
Much of the “gray” areas of the law could be avoided if there were "more bones on the law," giving greater definition to “official purposes,” Kepple said.
Despite Whitmire’s desire to avoid itemizing the law, fearing senators would not be able to think of every worthy cause for the money to be spent, Kepple suggested at least making a list of how the money should not be spent. Kepple also said penalties should be attached for failures to comply with an annual audit.
The question, at the end of the hearing, which remained unanswered, was what agency or office should oversee the forfeiture expenditures. Some testimony suggested the Texas Comptroller's Office.
The issues are expected to be addressed in a bill to be presented during the next legislative session, beginning in January 2009.
©Houston Community Newspapers Online 2008
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