    OFFICE
         OFTHE*rrorwrv GENERAL.
                             STATE
                                 OFTEXAS
    JOHN CORNYN




                                           January 24,200O



The Honorable Charles D. Penick                      Opinion No. E-0168
Bastrop County Criminal District Attorney
804 Pecan Street                                     Re: Liability of a prosecutor with regard to the
Bastrop, Texas 78602                                 collection of a hot check, and related questions
                                                     (RQ-0088-JC)


Dear Mr. Penick:

          You have asked this office whether your office is liable to amerchant for its failure to collect
restitution for a bad check. We conclude that a civil case against your office alleging that the
merchant was injured by your failure to prosecute such an action or your negligence in prosecuting
it would be barred by the doctrine ofprosecutorial immunity, which holds that a prosecutor is fully
protected by absolute immunity from liability for any actions taken when performing the traditional
functions of a prosecutor. See Imbler Y. Pachtman, 424 U.S. 409,43 3 (1976); Clawson v. Wharton
County, 941 S.W.2d 267, 272 (Tex. App.Xorpus            Christi 1996, writ denied). You further ask
whether your office, whether liable or not to the merchant, may pay the merchant restitution from
the hot check fund. We conclude that you may not, both because article 102.007 of the Code of
Criminal Procedure does not permit such a use of the hot check fund and because article III, section
5 1 ofthe Texas Constitution does not permit you, absent a cognizable claim, to expend public money
in this fashion.

        As we understand it, a merchant brought to your office a bad check “in the amount of
$500.+” for collection. See Letter from Honorable Charles D. Penick, Criminal District Attorney,
Bastrop County, to Honorable John Comyn, Attorney General, at 1 (July 21, 1999) (on tile with
Opinion Committee) [hereinafter “Request Letter”]. The passer of the bad check was offered
deferred prosecution, on condition that he “pay for the check, take a hot check seminar and pay
$50.00 supervision to the probation department.” Id. Because the probation department was to
collect the restitution, your computer showed the defendant as owing nothing.

        When the defendant failed to pay, he “was brought back into court and was placed on
probation with an order to pay restitution on other outstanding checks. , . .” Id. The bad check at
issue here, however, was not included in the order, because that amount, through clerical error, had
not been reentered in your books. Only after the defendant had later been released from probation
was this error recognized.
The Honorable Charles D. Penick      - Page 2       (JC-0168)




         You ask, first, whether you are immune from any liability to the merchant in this instance
on account of the doctrine of prosecutorial immunity. In the absence of a specific pleading, we are
loath to predict whether such an action would be dismissed by a court of competent jurisdiction.
However, in our view, should your office be sued for failing to prosecute or for negligence in the
prosecution of an action to collect on a hot check, such a prosecution would be barred.

         Prosecutors are absolutely immune from liability arising from their initiation orpresentation
of a case. Zmbler, 424 U.S. at 427. Such absolute immunity encompasses a prosecutor’s “activities
intimately associated with the judicial phase of the criminal process.” Id. at 430. “However, a
prosecutor does not enjoy absolute immunity for acts of investigation or administration.”        Hart v.
O’Brien, 127 F.3d 424, 439 (5th Cir. 1997) (citing Buck&y Y. Fitzsimmons, 509 U.S. 259, 273
(1983)). “Even if a prosecutor fails to show absolute immunity for a given activity, he may still
show qualified immunity.”       Id. “Generally speaking, qualified immunity protects government
officials performing discretionary functions Tom civil liability under federal law unless their conduct
violates a ‘clearly established [federal] statutory or constitutional right[] of which a reasonable
person would have known.“’ Id. at 441.

          Because the collection and processing of bad checks by your office is done in connection
with criminal prosecutions pursuant to sections 3 1.03,3 1.04,32.41, or 32.21 ofthe Penal Code, such
collection is in our view “intimately associated with the judicial phase of the criminal process.”
Zmbler, 424 U.S. at 430; see Clawson, 941 S.W.Zd at 272. Accordingly, a civil suit asserting failure
to prosecute or negligence in prosecuting an action involving the collection of a bad check would
be barred by prosecutorial immunity. Should such a suit, on the other hand, be couched in terms of
an injury caused by an administrative error, in our view you would be at least entitled to qualified
immunity. Given the facts as you present them, we do not believe the kind of good faith error you
describe will subject you to liability.

         You further ask whether, irrespective of liability, the district attorney may use funds in his
hot check fund “to pay the merchant his restitution.” Request Letter, supra, at 1. The hot check fund
is governed by article 102.007 of the Code of Criminal Procedure, which provides in relevant part
that expenditure from the fund “may be used only to defray the salaries and expenses of the
prosecutor’s office.    .” TEX. CODEGRIM. PROC.ANN. art. 102.007(f) (Vernon Supp. 2000). Such
a disbursement as you inquire about is neither a salary nor an expense of your office, and accordingly
you may not use the fund for this purpose.

         Further, unless the merchant had some cognizable claim against your office, any use of
public moneys by your office to pay such restitution would violate article III, section 5 1 of the Texas
Constitution, which forbids “the making of any grant ofpublic moneys to any individual, association
of individuals, municipal or other corporations whatsoever         .” TEX. CONST. art. III, 5 5 1. The
merchant is indisputably a private individual. Unless he has a right to recover money damages from
your office, any. payment by your office to him would be a gratuitous transfer of public funds, and
as such impermissible under the terms of article III, section 5 1.
The Honorable   Charles D. Penick    - Page 3       (JC-0168)




                                         SUMMARY

                        A civil action against a prosecutor alleging failure to
                prosecute or negligence in the prosecution of an action to collect on
                a bad check would be barred by the doctrine of prosecutorial
                immunity.

                        Payment by a prosecutor’s office of restitution to a merchant
                for whom the prosecutor, in error, had failed to collect from the writer
                of a bad check is impermissible, both because the hot check fund
                statute does not permit it and because, absent a cognizable claim,
                such a payment would be an impermissible grant of public funds
                under article III, section 5 1 of the Texas Constitution.




                                                Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

 James E. Tourtelott
 Assistant Attorney General - Opinion Committee
