                                      OFFICE oftheATTORNEY GENERAL
                                                          GREG         ABBOTT




                                                        December 23,2002



The Honorable Sky Sudderth                                              Opinion No. GA-0005
District Attorney
35th Judicial District                                                  Re: Authority of a district attorney pro tern to
Brown County Courthouse                                                 modify a standing local agreement between a
200 South Broadway                                                      district attorney’s office and a law enforcement
Brownwood, Texas 76801                                                  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].




                                An Equal   Employment    Opportunity   Employer   Printed   on Recycled   Paper
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. CODEGRIM.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. CODEGRIM.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
