OFFICE ofthe 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 a district attorney pro tern in a civil forfeiture action, who was appointed 

pursuant to article 2.07 of the Code of Criminal Procedure, may modify a standing local agreement 

between the district attorney’s office and local law enforcement agencies on the distribution of 

forfeited property entered into under chapter 59 of the same code. In a given case a district 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. CODE GRIM. PROC. 

ANN. art. 59.06(a) (Vernon Supp. 2003). The district attorney pro tern’s role here was limited to the 

particular case for which he was appointed, and he was accordingly not authorized to modify the 

standing local agreement. 

As we understand the situation giving rise to your request, based on the information you have 

provided, you recused yourself in a civil forfeiture action brought under chapter 59 against a person 

who was your client before you became district attorney, when you were engaged in the private 

practice of criminal defense law.’ See Motion for Recusal (attachment to Request Letter, supra note 

1). Your motion for recusal was granted by the district court, which thereupon appointed an attorney 

as district attorney pro tern pursuant to article 2.07 in the action in question. See Order Appointing 

District Attorney Pro Tern (attachment to Request Letter, supra note 1). The court, in a partial 

default judgment in 2000, ordered seized items in the 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]. 

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The Honorable Sky Sudderth - Page 2 (GA-0005) 

by and between the Office of the 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 to be distributed “in accordance 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 as the 

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 of the Code of Criminal Procedure provides a method 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 or district, or is otherwise unable to perform the duties of his 

office.” TEX. CODE GRIM. PROC. ANN. art 2.07(a) (Vernon 1977). In such a case, the judge of the 

relevant court “may appoint any competent attorney to perform the duties of the office.” Id. “If the 

appointed attorney is not an attorney for the state, he is qualified to perform the duties of the office 

for the period of absence or disqualification of the 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, it is clear that the attorney in question was district attorney pro tern for this 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 a crime of violence.” TEX. CODE GRIM. PROC. ANN. art. 59.01(2) 

(Vernon Supp. 2003). Article 59.05(e) of the code requires: “If the 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 as the agent for the state.” Id. art. 59.05(e). The duty of the attorney 

for the state is to “dispose of the property in the manner required by Article 59.06 of this code.” Id. 

Article 59.06, which governs the duty of the 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 of forfeited property will be governed by the terms of an existing local agreement in the 

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 a forfeiture proceeding is held under [chapter 591.” TEX. CODE 
The 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, of course, you are “the attorney representing the state” in forfeiture actions in the 

relevant county. Id. However, it may 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 in performing germane functions of the office for purposes contemplated by the 

appointment,” Stephens, 978 S.W.2d at 73 1. Nevertheless the district attorney pro tern, whose 

appointment is limited to the performance of such functions in the case for which 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 of the property by its terms. 
The Honorable Sky Sudderth - Page 4 (GA-0005) 

SUMMARY 

A district attorney pro tern appointed under the terms of article 

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