DEBBIE BROWN, APPELLEE,
v.
GERALD USRY D/B/A USRY AUTO HOUSE, APPELLEE,
v.
STATE OF OKLAHOMA EX REL. THERESA McGEHEE, DISTRICT ATTORNEY FOR BRYAN COUNTY, APPELLANT.

Appeal from the District Court of Bryan County; Joe C. Taylor, Judge.

Theresa McGehee, Dist. Atty. and Jeff Mixon, Asst. Dist. Atty., Durant, for appellant.
G. Wendell Cathey, Durant, for appellee Gerald Usry d/b/a Usry Auto House.

BAILEY, Presiding Judge

�1 [2] The State of Oklahoma, ex rel. Theresa M. McGehee, District Attorney for Bryan County (District Attorney), seeks review of the Trial Court's order granting judgment to Gerald Usry d/b/a Usry Auto House (Usry) on Usry's third-party claim against District Attorney for payment of storage fees. District Attorney also seeks review of the Trial Court's order directing District Attorney to pay attorney fees to Usry and Debbie Brown (Brown) after judgment for Brown in Brown's action for return of her vehicle, held by Usry at the District Attorney's direction, after denial of District Attorney's claim for forfeiture thereof. District Attorney asserts error of the Trial Court in granting judgment to Usry for storage fees and to Usry and Brown for attorney fees.

�2 In January 1991, an officer of the Durant Police Department arrested Brown and impounded Brown's vehicle. The officer called Usry, a licensed Class A tow-truck operator, directing Usry to tow the vehicle and store it for the District Attorney. The District Attorney's office later verified its "hold" on the vehicle but advised Usry he could release the personal items in the vehicle.

�3 The District Attorney subsequently commenced an action seeking forfeiture of the vehicle. After hearing in May 1991, the Trial Court found seizure of Brown's automobile unauthorized and ordered the District Attorney to return the vehicle to Brown.

�4 By letter dated June 11, 1991, the District Attorney advised Usry that District Attorney released its "hold" on Brown's vehicle and that the vehicle "may be returned to the owner." The letter further advised Usry that "any liens your company may have against the vehicle are unaffected" by the release, concluding that Usry might wish to consult independent legal counsel.

�5 After receipt of the letter from District Attorney, Usry contacted District Attorney in an unsuccessful attempt to arrange for payment of the storage fees. Having received no payment from District Attorney, when Brown requested return of her vehicle from Usry, Usry refused to release Brown's vehicle until or unless the storage fees were paid.

�6 Brown then filed her action against Usry seeking return of her vehicle. Usry answered, denying liability for return of the vehicle, and asserted a counter-claim against Brown claiming a lien on the vehicle for storage fees. Usry also asserted a third-party claim against District Attorney, again denying liability for return of the vehicle and asserting District Attorney's liability for the storage fees.

�7 At trial, Brown and Usry each presented evidence, but District Attorney did not. The Trial Court, having previously ordered the District Attorney to return the vehicle to Brown in the forfeiture action, entered judgment for Usry and against the District Attorney for the amount of the towing and storage charges. The Trial Court further awarded Brown and Usry attorney fees against District Attorney. District Attorney appeals.

�8 District Attorney first asserts error of the Trial Court in granting judgment to Usry on his third-party claim, arguing that Usry had no enforceable contract with District Attorney for payment of the towing and storage fees. In support of this argument, District Attorney contends that in order to establish a binding contract with the State, a person must prove (1) a valid contract with a proper state official and (2) a valid appropriation of money for the contract,

�9 We first note that Usry holds a valid Class A towing license issued by the State of Oklahoma under statute charging the Oklahoma Department of Public Safety with responsibility to govern, supervise, license and control towing and storage services.

�10 In the present case, Usry testified that he received directions from a Durant police officer to tow Brown's vehicle, and that he subsequently received directions from one Ken Henson of the District Attorney's office to "hold" the vehicle. Although the District Attorney argues Usry failed to establish Henson's identity and/or position with the District Attorney's office so as to establish Henson's authority to issue a hold on the vehicle, the record includes a letter on District Attorney's official stationary, written by an Assistant District Attorney, advising Usry of failure of District Attorney's forfeiture action and release of District Attorney's hold on the vehicle. We find this evidence sufficient to establish that Usry contracted with a proper state official, i.e., District Attorney or someone on behalf of District Attorney, for the storage of Brown's vehicle.

�11 District Attorney next asserts no proper appropriation for payment of Usry's towing and storage fees, precluding a finding of valid contract. On this issue, the record reflects Usry had previously stored vehicles at the direction of the District Attorney, and District Attorney admits in the briefs an established practice and custom to pay Usry for towing and storage of vehicles subject to forfeiture from funds generated upon sale of the forfeited vehicles. However, District Attorney asserts that because the Trial Court denied forfeiture in the present case, District Attorney generated no funds from sale of a forfeited vehicle to pay for towing and storage, and hence, District Attorney incurred no liability for payment of Usry's towing/storage fees incurred in the preservation of Brown's vehicle.

�12 Section 2-503 of Title 63, Oklahoma Statutes (1991), defines property subject to seizure and forfeiture. Section 2-506(A) of the same title mandates the seizure of property under certain conditions, and section 2-506(K) charges the district attorney in the county of seizure with custody thereof subject to orders of the court.

�13 Considering this authority and under the facts of this case, we find absolutely no legal or factual support for District Attorney's argument. First, as we have previously noted, Oklahoma statute creates a revolving fund from proceeds of sale of forfeited property for payment of "actual expenses" incurred in preservation of property subject to forfeiture, and for use in drug enforcement, drug abuse prevention, education or "any [other] lawful purpose," including, in our opinion, "for [the] lawful purpose" of "payment of the actual expenses of preserving . . . [seized] property" in cases of failure of enforcement's underlying forfeiture efforts, i.e., Usry's towing/storage fees, as a necessary incident to District Attorney's drug enforcement, drug abuse prevention and drug education efforts.

�14 The District Attorney next complains the Trial Court lacked authority to award attorney fees to Brown and Usry. However, section 936 of Title 12, Oklahoma Statutes (1991), authorizes an award of attorney fees to the prevailing party in an action on a contract for labor or services, and we have previously affirmed the Trial Court's determination of existence of such a valid labor or services contract between Usry and District Attorney, as well as judgment thereon for Usry. Thus, and as to Usry's attorney fees, because Usry prevailed on his labor/services contract claim against District Attorney, we hold the Trial Court authorized under � 936 to award Usry attorney fees against District Attorney.

�15 As to Brown's attorney fees, and although we recognize that property "taken and detained under [� 2-506] shall not be repleviable, but shall be deemed in the custody of the . . . district attorney of the county" of seizure, disposition of such property stands nevertheless subject to orders of the trial court.

�16 In this regard, we find Brown properly stated a cause of action in her petition against Usry for return of her vehicle (replevin), but Usry denied responsibility for return of the vehicle, instead casting responsibility for return of Brown's vehicle on District Attorney under the Trial Court's previous judgment in the forfeiture action ordering District Attorney, not Usry, to return the vehicle to Brown. Thus, and notwithstanding Usry's denomination of his claim against District Attorney as a "third-party petition," we find District Attorney a functional co-defendant on Brown's replevin claim, as such, liable to Brown for attorney fees.

�17 The order of the Trial Court granting judgment and attorney fees to Brown and Usry against District Attorney is therefore AFFIRMED.

�18 HANSEN, C.J., and HUNTER, J., concur.