Opinion AGO 95-29.

• Case Date: June 08, 1995
• Court: Georgia

Georgia Attorney General Opinions 1995. Opinion AGO 95-29. June 8, 1995OFFICIAL OPINION 1995-29To: The Adjutant General Georgia Department of DefenseRe: The National Guard is a law enforcement agency within the contemplation of O.C.G.A. §§ 16-13-48.1 and -49(u)(4)(B) and is eligible to share in proceeds of drug-related forfeitures with respect to activities under O.C.G.A. § 38-2-10 or a duly declared emergency.This responds to your request for an opinion as to whether the Georgia National Guard may be designated as a "law enforcement agency" for purposes of sharing in proceeds of drug-related forfeitures made available under federal and state law. In connection with this request, members of your staff have informed me that the Georgia National Guard regularly participates in drug law enforcement efforts in the state and has been assigned a substantial level of participation in the Governor's Strike Force on Drugs. You have also informed me that the National Guard Bureau has given approval for the Georgia National Guard to share in proceeds of drug-related forfeitures on the condition that the state designate the Georgia National Guard as a "law enforcement agency." The exact source of this condition is not specified, but appears to be based on federal law. Under our law, state agencies have only such authority as the law confers. Bentley v. State Bd. of Medical Examiners, 152 Ga. 836, 838 (1922), 1987 Op. Att'y Gen. 87-15. Thus, for the National Guard to share in proceeds of drug-related forfeitures, there must be a sufficient legal premise under state law. This requires that two questions be answered: (1) Whether Georgia law allows state agencies to apply for, receive, and expend proceeds of drug-related forfeitures; and (2) Whether the National Guard is such an agency. As to the first question, state agencies are allowed to share in proceeds of drug-related forfeitures made by federal and state authorities. Official Code of Georgia Annotated § 16-13-48.1 provides that: "Money or property seized or forfeited pursuant to federal law regarding controlled substances, . . . which [is] . . . authorized by that federal law to be transferred to a cooperating law enforcement agency of this state . . ., shall be utilized by the law enforcement agency . . . to which . . . transferred . . . ." This language clearly allows cooperating...