OFFICEofthe ATTORNEY GENERAL GREG ABBOTT

December 23,2002

The Honorable Sky Sudderth District Attorney 35th Judicial District Brown County Courthouse 200 South Broadway Brownwood, Texas 76801 Opinion No. GA-0005

Re: Authority of a district attorney pro tern to modify a standing local agreement between a district attorney’s office and a law enforcement agency regarding the distribution of forfeited funds (RQ-0569-JC)

Dear Mr. Sudderth:
You ask whether adistrict attorney pro tern in acivil forfeiture action, who was appointed pursuant to article 2.07 ofthe Code of Criminal Procedure, may modify astanding local agreement between the district attorney’s office and local law enforcement agencies on the distribution of forfeited property entered into under chapter 59 ofthe same code. In agiven case adistrict attorney pro tern “assumes the duties of the elected district attorney and in effect replaces the latter in performing germane functions of the office for purposes contemplated by the appointment.” Stephens v. State, 978 S.W.2d 728,73 1(Tex. App.-Austin 1998, pet ref d). However, the duty of the district attorney that the district attorney pro tern thus assumes is to administer the forfeited property “in accordance with

...the provisions of [the] local agreement.” TEX.CODEGRIM. PROC. ANN.art. 59.06(a) (Vernon Supp. 2003). The district attorney pro tern’s role here was limited tothe particular case for which he was appointed, and he was accordingly not authorized to modify the standing local agreement.
Aswe understand the situation giving rise toyour request, based onthe information you have provided, you recused yourself in acivil forfeiture action brought under chapter 59 against aperson who was your client before you became district attorney, when you were engaged in the private practice ofcriminal defense law.’ SeeMotion forRecusal (attachment to Request Letter, supra note 1). Your motion forrecusal was granted by the district court, which thereupon appointed an attorney as district attorney pro tern pursuant to article 2.07 inthe action in question. See Order Appointing District Attorney Pro Tern (attachment to Request Letter, supra note 1). The court, in apartial default judgment in 2000, ordered seized items inthe case “forfeited to the District Attorney for the 35th Judicial District

...to be distributed in accordance with an inter-local agreement entered into

*Letter from Honorable Sky Sudderth, District Attorney, 35th Judicial District, to Honorable John Cornyn, Texas Attorney General (June 24,2002) (on file with Opinion Committee) [hereinafter Request Letter].

An Equal Employment Opportunity Employer Printed on Recycled PaperThe Honorable Sky Sudderth - Page 2 (GA-0005)

by and between the Office ofthe 35th Judicial District [Attorney] and the Brown County Sheriffs Office as provided by law.” See Partial Default Judgment (attachment to Request Letter, supra note 1). In June of this year, an agreed final judgment of forfeiture called for certain contraband property tobe distributed “inaccordance with the interlocal agreement between the District Attorney Pro-Tern in this case and the Brown County Sheriffs Office.” See Agreed Final Judgment of Forfeiture (attachment to Request Letter, supra note 1). You object to what you characterize asthe decision of the district attorney pro tern and the sheriff “to modify the standing local agreement” between the Office of the Thirty-fifth Judicial District Attorney and the Brown County Sheriffs Office. See Letter from Sky Sudderth, District Attorney, to Sheriff Glen Smith (attachment to Request Letter, supra note 1). While you have agreed to the modification in question “for this case only,” id., you take the view that the district attorney pro tern did not have authority to modify a standing local agreement. We concur.
Article 2.07 ofthe Code ofCriminal Procedure provides amethod for the appointment of a district attorney pro tern when the attorney for the state “is disqualified to act in any case or proceeding, is absent from the county ordistrict, or is otherwise unable to perform the duties ofhis office.” TEX.CODEGRIM. PROC. ANN.art 2.07(a) (Vernon 1977). In such acase, thejudge ofthe relevant court “may appoint any competent attorney toperform the duties ofthe office.” Id. “Ifthe appointed attorney isnot an attorney for the state, he is qualified to perform the duties ofthe office for the period of absence or disqualification ofthe attorney for the state on filing an oath with the clerk of the court.” Id. art. 2.07(c). While you refer in your letter to the powers of a special prosecutor, itisclear that the attorney inquestion was district attorney pro tern forthis action; he was so appointed by the court, and took the requisite oath. See State v.Rose&awn 852 S.W.2d 525,529 (Tex. Crim. App. 1993) (Clinton, J.,concurring) (district attorney pro tern replaces district attorney “in performing germane functions of the office for purposes contemplated by the appointment”); Order Appointing District Attorney Pro Tern (attachment to Request Letter, supra note 1). Chapter 59 of the Code of Criminal Procedure generally concerns the forfeiture of contraband, which means “property of any nature, including real, personal, tangible, or intangible” that is either used in the commission of certain detailed offenses, or constitutes or is acquired with the proceeds of such offenses “or acrime ofviolence.” TEX.CODE GRIM. PROC. ANN.art. 59.01(2) (Vernon Supp. 2003). Article 59.05(e) ofthe code requires: “Ifthe court finds that all or any part of the property is subject to forfeiture, the judge shall forfeit the property to the state, with the attorney representing the state asthe agent for the state.” Id. art. 59.05(e). The duty ofthe attorney for the state isto “dispose ofthe property in the manner required by Article 59.06 ofthis code.” Id.
Article 59.06, which governs the duty ofthe attorney representing the state with regard to disposition of forfeited property, requires him to administer it “in accordance with accepted accounting practices and with the provisions of any local agreement entered into between the attorney representing the state and law enforcement authorities.” Id. art. 59.06(a). As this office explained in Letter Opinion 97-091, “The intent of subsection (a) is clearly to provide that the disposition offorfeited property will be governed by the terms ofan existing local agreement inthe first instance.” Tex. Att’y Gen. LO-97-091, at 2;accord Tex. Att’y Gen. Op. No. JC-0075 (1999) at 1. The “[alttomey representing the state,” pursuant to article 59.01, is“the prosecutor with felony jurisdiction in the county in which aforfeiture proceeding isheld under [chapter 591.” TEX.CODEThe Honorable Sky Sudderth - Page 3 (GA-0005)

CRIM.PROC.ANN. art. 59.01(l) (Vernon Supp. 2003). The local agreement at issue here is that between the Thirty-fifth Judicial District Attorney and the Brown County Sheriff. Generally, ofcourse, you are “the attorney representing the state” in forfeiture actions inthe relevant county. Id. However, itmay be argued that in the instant case the district attorney pro tern holds that position, having “assume[d] the duties of the elected district attorney and in effect replace[d] the latter inperforming germane functions ofthe office forpurposes contemplated bythe appointment,” Stephens, 978 S.W.2d at 731. Nevertheless the district attorney pro tern, whose appointment islimited tothe performance ofsuch functions inthe case forwhich he was appointed, is not authorized to alter the terms of disposition in an existing local agreement by virtue of an appointment under article 2.07. Nor does the agreement at issue provide for modification by a district attorney pro tern and sheriff. Accordingly, the district attorney pro tern did not have the authority to modify the existing agreement between your office and the Brown County Sheriff, but
was bound by the plain language of article 59.06(a) to dispose ofthe property by its terms.The Honorable Sky Sudderth - Page 4 (GA-0005)

SUMMARY

Adistrict attorney pro tern appointed under the terms ofarticle 2.07 of the Code of Criminal Procedure for a specific case does not have the authority to alter the terms of disposition of a local agreement on forfeited property under chapter 59 of the Code of Criminal Procedure. Very truly yours,

AttowGeneral of Texas

BARRY R. McBEE First Assistant Attorney General
NANCY FULLER Deputy Attorney General -General Counsel
SUSAN DENMON GUSKY Chair, Opinion Committee

James E. Tourtelott Assistant Attorney General, Opinion Committee