A Hidalgo County grand jury indicted CPS for failing to protect a child from sexual assault. It does not appear the grand jury acted upon a recommendation of a prosecutor. Anything think you can indict a state agency under those circumstances?

A person means an individual, corporation, or assocition. Tex. Penal Code Ann. Sec. 1.07(a)38). An association means a government or governmental subdivision or agency, trust, partnership, or two or more persons having a joint or common interest. Tex. Penal Code Ann. Sec. 1.07(a)(6). Tex. Penal Code Ann. Secs. 7.22 through 7.24 provide special rules for the criminal responsiblity of corporations and associations. Tex. Penal Code Ann. Sec. 12.51 provides for the penalties for offenses committed by a corporation or association.

These provisions seem to me to allow the proseuction of government agencies if the facts support a charge.

If I read it correctly, section 12.51 provides that the penalties against an "association," as the government must be classified, are restricted to monetary fines. Two issues come to mind.

First, a fine is payable to the State. Thus, you would have the State paying a fine to the State. I do understand, of course, that a chunk of fine money goes to the county of prosecution, but jurors might have a conceptually diffcult time with that prospect. Perhaps the remedial and/or punitive effect would be the deprivation of some of the agency's budgeted funds. Even here, though, there is the specter of using a default, which may well be attributable to a lack of funding, to deprive an already underfunded agency of funding. Confused? Well, read on.

Second, and more confusingly, the notion of trying to collect a judicially-imposed order for the state to pay money to a county (to the extent we would import pragmatics into this wierd scenario), could be seen to implicate the doctrine of sovereign immunity. I haven't done the research, and I do know that sovereign immunity is generally an exclusively civil concept, but it could rear its head under these circumstances. Although I defer to John's learned interpretation of the Penal Code's definitions, I can foresee an argument that the Penal Code does not unambiguously waive the State's sovereign immunity from a monetary award against it. Unless waived, sovereign immunity is a jurisdictional concept (that is, unless waived, immunity from suit divests a trial court of subject matter jurisdiction over a suit for money damages). I suppose the real question is whether a fine-only prosecution against the State would be interpreted to be, in real effect, a suit for money damages.

Seems to me that the real judicial remedy, if one necessarily exists, might be a suit for injunctive relief under the Texas and/or federal Constitution. I have to quit now, because this is giving me a headache. I'm glad I don't work for the AG's office.

[This message was edited by Scott Brumley on 07-02-04 at .]

I can't imagine that the Grand Jury intended to chastise CPS about their effectiveness AND sought to reduce that effectiveness by harming their budget.

OK, assuming we legally can indict an agency, under what theory are we deciding that the agency had a duty to protect the child, which is required to impose criminal liability under the injury to a child statute? Are we saying that an agency, and not individuals, can have such a duty? If so, can we now indict "society"?

Scott:

The real issue wouldn't be collecting the penalty, but rather putting the agency on trial . . . airing dirty laundry etc. Also, the notion that executives might be implicated and tried.

JB:

Isn't that why we have CPS and TDPRS, to give substanceto the State's general obligation to stand in loco parentis(hope I got that right, Latin Scholars, or do I mean in parens patriae)?

Generally, if we are going to put CPS on trial, there are probably many government agencies that are far more negligent in their execution of important duties . . . and probably some of those deal with duties of similar importance. Where would you start? As prosecutors, should not we try other methods to improve these agencies before resorting to the brute force method we use against murderers and rapists?

This is a good example of why I generally shouldn't post in this forum: I don't usually know what i'm talking about. Nonetheless, I'm opinionated enough that I can't stop myself.

John, I think you're right about the true purpose of the indictment, and I would hope that we all recognize that. For what it's worth, I simply threw out my observations as an expression of sympathy to some poor special prosecutor who may inherit that case.

If the argument is that agencies are subject to prosecution for perceived defalcation of duty, what of a prosecutor's office that declines to exercise its authority to seek protective orders for victims of domestic violence when such a putative applicant is killed at the hands of her abuser? More ominously, what about the majority of offices (like mine) that exercise discretion with respect to whether a particular case is accepted for litigation (when a case is declined and the complaining victim is subsequently harmed or killed)?

Oooohhh, that sounds really ugly. I wonder what those famous Williamson County jurors would do to JB's crew in such a situation? That's just evidence of how bizarre that indictment is, once you get past the purely legal "can you do it" issues. It makes me glad I'm not an elected official.

The people who have a duty to protect are the parents. CPS does not have control over the child, absent some court order giving it to them. CPS may have a legal duty to investigate, etc., but that is not the same as the duty imposed, subject to criminal prosecution, on a custodial parent or guardian.

Another grand jury recently issued an indictment without any recommendation from (and probably contrary to) the prosecutor. That was in Austin for criminally negligent homicide by a police officer who shot a car thief attempting to flee.

That grand jury also had grandiose ideas about how criminal responsibility worked. The indictment was subsequently quashed. That's what should happen in Hidalgo County, too.

I for one am happy to see a grand jury state publicly that there is a BIG problem with CPS. Most prosecutors who deal with child abuse cases know what I'm talking about. I'm sure that the scenario that the grand jury indicted cps over is played out in every county in Texas. If we can't indict CPS what about the individual CPS worker who validated abuse then closed the case and did nothing? Or what about the worker who leaves the child with a parent who doesn't believe that the child has been sexually abused and will eventually be back with the defendant as soon as the cps case is closed. Or maybe the supervisor who approves it.

I would not be too quick to assume that there are many other agencies more negligent than CPS. CPS has been given a pretty low burden of proof to remove children from dangerous homes, however, it has been my experience that that authority is extremely under utilized. In addition to leaving the child in danger of more abuse this also often leads to less evidence for a criminal case.

Once the child becomes a ward of the state and that child is in a foster home, the duty is squarely on the agency.

There was some discussion in the articles of late that speak of children harmed in foster homes. The agency is the legal guardian of the child under those circumstances.

It's one thing for CPS to have poorly handled their investigation, but it is something else completely if the parents have reliquished their rights and the child is harmed while the responsibility of the agency.