Can a Texas DA be sued or pay a merchant for failing to collect on a bad check?

Plain-English summary

Bastrop County Criminal District Attorney Charles D. Penick described a situation that started with a merchant handing his office a bad check for collection. The check writer was offered deferred prosecution on the condition that he pay for the check, take a hot check seminar, and pay a supervision fee to the probation department. Because probation was handling collection, the office's computer showed the defendant as owing nothing. When the defendant later failed to pay and was brought back and placed on probation with an order to pay restitution on other checks, this particular check was left out of the order, because a clerical error had kept it from being re-entered in the books. The mistake surfaced only after the defendant had already been released from probation. Penick asked two things: whether his office could be liable to the merchant for failing to collect, and whether, liable or not, he could pay the merchant out of the hot check fund.

On the first question, the Attorney General concluded that a civil suit against the office for failing to prosecute or for negligence in prosecuting a bad-check collection would be barred by prosecutorial immunity. Prosecutors have absolute immunity for actions tied to the judicial phase of the criminal process, and because the collection and processing of bad checks is done in connection with criminal prosecutions under the Penal Code's theft and bad-check provisions, it falls inside that protection. The opinion added the standard qualifier from the case law: absolute immunity does not cover purely investigative or administrative acts, but even then a prosecutor can fall back on qualified immunity, and the good-faith clerical error described here would not subject the office to liability.

On the second question, the Attorney General concluded the district attorney could not pay the merchant restitution from the hot check fund, for two independent reasons. The fund is governed by article 102.007 of the Code of Criminal Procedure, which allows the money to be used only to defray the salaries and expenses of the prosecutor's office; a payment to a private merchant is neither a salary nor an expense. And separately, unless the merchant had some cognizable legal claim against the office, paying him public money would be a gratuitous transfer that violates article III, section 51 of the Texas Constitution, the provision forbidding grants of public money to private individuals.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The immunity analysis rested on the federal and Texas case law on prosecutorial immunity. As the opinion explained, under Imbler v. Pachtman, 424 U.S. at 427, prosecutors are absolutely immune from liability arising from initiating or presenting a case, and that absolute immunity reaches activities "intimately associated with the judicial phase of the criminal process." The opinion paired Imbler with the Texas decision Clawson v. Wharton County, which applied the same principle in a hot-check collection setting. It then noted the limits drawn in Hart v. O'Brien (citing Buckley v. Fitzsimmons): a prosecutor does not get absolute immunity for acts of investigation or administration, but may still claim qualified immunity, which protects officials performing discretionary functions from federal-law liability unless they violate a clearly established right a reasonable person would have known. Because the bad-check work in this office was done in connection with criminal prosecutions under Penal Code sections 31.03, 31.04, 32.41, and 32.21, the opinion treated it as part of the judicial phase and therefore within absolute immunity, with qualified immunity available as a backstop if a claim were recast as administrative error.

The hot check fund analysis turned on two provisions. Article 102.007(f) of the Code of Criminal Procedure restricts spending from the fund: it "may be used only to defray the salaries and expenses of the prosecutor's office." Paying restitution to a private merchant does not fit either category. Article III, section 51 of the Texas Constitution then supplied an independent bar, forbidding "the making of any grant of public moneys to any individual." The opinion reasoned that a merchant is a private individual, so unless he had a right to recover money damages from the office, any payment to him would be a gratuitous transfer of public funds and impermissible under section 51.

Common questions

Can a merchant sue a Texas DA's office for failing to collect on a bad check?
The opinion concluded such a suit would be barred. A civil action alleging the prosecutor failed to prosecute, or was negligent in prosecuting, a bad-check collection is blocked by prosecutorial immunity, because that work is part of the criminal prosecution process.

Does immunity still apply if the problem was a clerical mistake?
The opinion said that even if a claim were framed as an administrative error rather than a prosecution decision, the office would at least have qualified immunity, and a good-faith error of the kind described would not create liability.

Can a district attorney repay a stiffed merchant out of the hot check fund?
No. The opinion concluded the hot check fund, under article 102.007 of the Code of Criminal Procedure, may be spent only on the salaries and expenses of the prosecutor's office, and a payment to a merchant is neither.

Is there another reason the DA can't just pay the merchant?
Yes. The opinion concluded that absent a cognizable legal claim by the merchant, paying him public money would be an unconstitutional grant of public funds to a private individual under article III, section 51 of the Texas Constitution.

Citations

Statutory and constitutional provisions: Tex. Code Crim. Proc. Ann. art. 102.007(f) (Vernon Supp. 2000); Tex. Const. art. III, § 51; Tex. Penal Code Ann. §§ 31.03, 31.04, 32.41, and 32.21.

Cases: Imbler v. Pachtman, 424 U.S. 409 (1976); Clawson v. Wharton County, 941 S.W.2d 267 (Tex. App.-Corpus Christi 1996, writ denied); Hart v. O'Brien, 127 F.3d 424 (5th Cir. 1997); Buckley v. Fitzsimmons, 509 U.S. 259 (1993).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0168
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0168.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL
STATE OF TEXAS
JOHN CORNYN

January 24, 2000

The Honorable Charles D. Penick
Bastrop County Criminal District Attorney
804 Pecan Street
Bastrop, Texas 78602

Opinion No. JC-0168

Re: Liability of a prosecutor with regard to the 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 a merchant 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 of prosecutorial 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 v. Pachtman, 424 U.S. 409, 433 (1976); Clawson v. Wharton County, 941 S.W.2d 267, 272 (Tex. App.-Corpus 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 51 of the 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 $500.00" for collection. See Letter from Honorable Charles D. Penick, Criminal District Attorney, Bastrop County, to Honorable John Cornyn, Attorney General, at 1 (July 21, 1999) (on file 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.

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 or presentation of a case. Imbler, 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 Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). "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 from 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 31.03, 31.04, 32.41, or 32.21 of the Penal Code, such collection is in our view "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430; see Clawson, 941 S.W.2d 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. CODE CRIM. 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 51 of the Texas Constitution, which forbids "the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever . . . ." TEX. CONST. art. III, § 51. 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 51.

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 51 of the Texas Constitution.

JOHN CORNYN
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