Can a Texas district attorney decline to file charges because the suspect probably has a defense?

TX AG Opinion GA-0765: Is the decision to charge (or not) up to the prosecutor when a defense may apply?

Plain-English summary

A district attorney described a situation involving two divorced parents who shared custody of three minor daughters, and allegations that the father had shown pornographic videos to the daughters. The DA's office had declined to file a criminal case under Penal Code section 43.24, reasoning that the father had a defense under subsection 43.24(c)(2), which makes it a defense to prosecution that the exhibition was to a minor accompanied by a consenting parent. The DA asked the Attorney General for an opinion about that defense.

The opinion did not resolve whether the defense actually applied. It said "even assuming your interpretation of subsection 43.24(c)(2) is correct," and then explained why the question really turned on prosecutorial discretion. A prosecutor has great, substantial discretion in deciding whether and what offenses to charge. Courts give those decisions substantial deference and treat them as ill-suited to judicial review, because they weigh things like the strength of the case, deterrent value, and enforcement priorities. A Texas appellate court has even held that a prosecutor's decision to forgo prosecution is not subject to mandamus.

The opinion added two points specific to defenses. First, a prosecutor is not required to negate the existence of a defense in the charging instrument (Penal Code section 2.03(b)), so a potential defense is not necessarily a bar to prosecution. Second, the possibility that a defendant might raise a defense, something likely present in every case, is simply a factor the prosecutor weighs in assessing the strength of a case. For both reasons, the decision whether to initiate criminal proceedings fell squarely within the district attorney's discretion. The summary was a single sentence: a district attorney's determination about initiating criminal proceedings is within the prosecutor's substantial discretion.

Currency note

This opinion was issued in 2010. 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.

Penal Code section 43.24 and the related provisions discussed here may have been amended since 2010. Confirm current law before relying on anything below.

Who this opinion affected (as of 2010)

Prosecutors and district attorneys: The opinion confirmed that the decision whether to file or decline charges, including where a statutory defense may exist, lies within the prosecutor's substantial discretion and is given substantial deference by courts.

Defense counsel and defendants: The opinion noted that a prosecutor need not negate a defense in the charging instrument, so the existence of a possible defense does not by itself bar a prosecution; it is a factor in the prosecutor's charging assessment.

Officials and the public seeking an AG ruling on the statute: The opinion explained that it did not decide whether the section 43.24(c)(2) parental-consent defense applied to the described facts; that judgment was part of the prosecutorial decision, not something the opinion resolved.

Common questions

Can a prosecutor refuse to file charges if the suspect has a likely defense?
Yes. The opinion concluded that whether to initiate criminal proceedings, including in light of a possible defense, is within the prosecutor's substantial discretion.

Does the existence of a defense stop a prosecution from going forward?
Not necessarily. The opinion cited Penal Code section 2.03(b): a prosecutor is not required to negate a defense in the accusation, so a potential defense is not a bar to prosecution.

Did the AG decide whether the parental-consent defense applied?
No. The opinion expressly assumed, without deciding, that the DA's reading of section 43.24(c)(2) was correct, and resolved the matter on prosecutorial-discretion grounds.

Can a court force a prosecutor to bring charges?
The opinion cited Texas authority that a prosecutor's decision to forgo prosecution is not subject to mandamus, reflecting the deference courts give charging decisions.

Background and statutory framework

Penal Code subsection 43.24(c)(2) provides a defense to prosecution where the sale, distribution, or exhibition "was to a minor who was accompanied by a consenting parent, guardian, or spouse" (Tex. Penal Code Ann. § 43.24(c)(2) (Vernon 2003); see Alford v. State, 806 S.W.2d 581, 585 (Tex. App.-Dallas 1991), aff'd, 866 S.W.2d 619 (Tex. Crim. App. 1993)). A prosecutor has great discretion in deciding whether and what to prosecute (U.S. v. Molina, 530 F.3d 326, 332 (5th Cir. 2008); Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004)), and a prosecuting attorney's duty is to see that justice is done (Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon 2005)). Charging decisions weigh factors such as the strength of the case, deterrent value, and enforcement priorities, and receive substantial deference (U.S. v. Lawrence, 179 F.3d 343, 347 (5th Cir. 1999) (citing Wayte v. United States, 470 U.S. 598, 607 (1985)); Taylor v. Gately, 870 S.W.2d 204, 204-05 (Tex. App.-Waco 1994, writ dism'd w.o.j.)).

A prosecutor is not required to negate the existence of a defense in the charging instrument (Tex. Penal Code Ann. § 2.03(b) (Vernon 2003)), so a potential defense is not necessarily a bar to prosecution. The possibility that a defendant might raise a defense is a factor in the prosecutor's assessment of the strength of the case and falls within prosecutorial discretion. The opinion therefore concluded, without deciding the statutory-interpretation question, that the charging decision was within the district attorney's substantial discretion.

Citations

Statutes:

• Tex. Penal Code Ann. §§ 43.24(c)(2), 2.03(b) (Vernon 2003)
• Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon 2005)

Cases:

• U.S. v. Molina, 530 F.3d 326 (5th Cir. 2008)
• Neal v. State, 150 S.W.3d 169 (Tex. Crim. App. 2004)
• U.S. v. Lawrence, 179 F.3d 343 (5th Cir. 1999)
• Wayte v. United States, 470 U.S. 598 (1985)
• Taylor v. Gately, 870 S.W.2d 204 (Tex. App.-Waco 1994, writ dism'd w.o.j.)
• Alford v. State, 806 S.W.2d 581 (Tex. App.-Dallas 1991), aff'd, 866 S.W.2d 619 (Tex. Crim. App. 1993)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0765
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0765.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

March 26, 2010

The Honorable James A. Farren
Randall County Criminal District Attorney
Randall County Justice Center
2309 Russell Long Boulevard, Suite 120
Canyon, Texas 79015

Opinion No. GA-0765

Re: Concerning a possible defense to prosecution under section 43.24, Penal Code (RQ-0825-GA)

Dear Mr. Farren:

You seek our opinion regarding a parent's defense to prosecution under subsection 43.24(c)(2) of the Texas Penal Code.[1] You tell us about a situation involving two divorced parents who share custody of three minor daughters and allegations that the father showed pornographic videos to the daughters. See Request Letter at 1. You state that your office refused to file a criminal case against the father because your office believes the father has a defense to prosecution under subsection 43.24(c)(2). Id.

A prosecuting attorney "has great discretion in deciding whether, and which offenses, to prosecute." U.S. v. Molina, 530 F.3d 326, 332 (5th Cir. 2008); see also Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004) ("Both Texas and federal courts recognize that prosecutors have broad discretion in deciding which cases to prosecute."); cf. TEX. CODE CRIM. PROC. ANN. art. 2.01 (Vernon 2005) (stating that a prosecuting attorney has a duty to see that justice is done). Courts recognize that prosecutorial decisions are ill-suited to judicial review because such decisions include consideration of factors involved in initiating a criminal case such as, the strength of the case, the case's deterrent value, and the government's enforcement priorities. See U.S. v. Lawrence, 179 F.3d 343, 347 (5th Cir. 1999) (citing Wayte v. United States, 470 U.S. 598, 607 (1985)); see also Taylor v. Gately, 870 S.W.2d 204, 204-05 (Tex. App.-Waco 1994, writ dism'd w.o.j.) (concluding that prosecutor's decision to forego prosecution is not subject to mandamus). Accordingly, courts afford prosecutorial decisions substantial deference. See Lawrence, 179 F.3d at 347.

Penal Code subsection 43.24(c)(2) provides that "[i]t is a defense to prosecution under this section that . . . (2) the sale, distribution, or exhibition was to a minor who was accompanied by a consenting parent, guardian, or spouse." TEX. PENAL CODE ANN. § 43.24(c)(2) (Vernon 2003); see also Alford v. State, 806 S.W.2d 581, 585 (Tex. App.-Dallas 1991) (distinguishing between a defense and an affirmative defense), aff'd, 866 S.W.2d 619 (Tex. Crim. App. 1993). Even assuming your interpretation of subsection 43.24(c)(2) is correct, a potential defense to prosecution is not necessarily a bar to prosecution. See TEX. PENAL CODE ANN. § 2.03(b) (Vernon 2003) ("The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense."); see also TEX. CODE CRIM. PROC. ANN. art. 2.01 (Vernon 2005) (stating that a prosecuting attorney has a duty to see that justice is done). The possibility of a defendant raising a defense is a factor, and likely one present in every case, involved in a prosecutor's determination about the strength of the case and, thus, falls squarely within the scope of your prosecutorial discretion. See Tex. Att'y Gen. Op. No. GA-0246 (2004) at 3 (recognizing difficulty in proving intent in circumstances of possible criminal offense under section 143.006, Local Government Code and noting that "whether to proceed in such a case is a matter squarely within prosecutorial discretion").

SUMMARY

A district attorney's prosecutorial determination regarding the initiation of criminal proceedings is within the prosecutor's substantial discretion.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[Footnote 1: See Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]