"District Attorneys are constitutional officers. TEX. CONST. art. 5, sec. 21. Their duties are specified by article 2.01 of the Code of Criminal Procedure. TEX.CODE CRIM.PROC.ANN. art. 2.01. The interpretative commentary to section twenty-one attributes the importance of the office to the 'fact that upon the prosecuting attorneys rests the [absolute] power of determining whether prosecution in any given case shall be inaugurated, or if inaugurated, pushed to a successful conclusion.' TEX. CONST. art. 5, sec. 21 interp. commentary (Vernon 1993)." Taylor v. Gately, 870 S.W.2d at 204. In other words, it appears there is no means of "circumventing" such a decision- nor should there be.
Martin: I have no desire to offer legal advice to a member of the public, but I don't think I agree with your comment.
See TEX. CODE CRIM. PROC art. 20.09 ("The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person." )
Even if a grand jury were to return an indictment, whether any further attempt/effort to "push" the charge occurs remains entirely within the control of the district attorney. Thus, a grand jury has no more power or ability to "ultimately" circumvent the prosecutor's decision than a supposed victim. Neither are any of my comments intended to guide any particular course of action by anyone.
Joining the chorus of "this is not intended to offer advice to any member of the public about a particular legal issue", I would add to the discussion only the established principle that a private citizen has no constitutional right to secure the prosecution or nonprosecution of another. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).
Posts: 1233 | Location: Amarillo, Texas, USA | Registered: March 15, 2001
Well, if the prosecutor does not want to go forward with a case (that's already under indictment), he could dismiss it under art. 32.02, but only with permission of the trial court. It's not hard to imagine a tug-of-war scenario where a judge is skeptical of a DA's decision to ignore the grand jury's decision to indict someone.
In such a case (or even before it gets to that point), the DA could simply bow out and ask for the appointment of an attorney pro tem under art. 2.07. There are obvious advantages to that.
Of course, that all assumes the "credible person" has actually convinced a grand jury to indict someone.
Oh, and I almost forgot: no legal advice disclaimer, yada, yada, blah, blah.
Posts: 143 | Location: Fort Worth | Registered: August 08, 2001
