                                  ATTORNEY GENERAL OF TEXAS
                                               GREG         ABBOTT




                                                  September 14, 2012



The Honorable David K. Walker                                 Opinion No. GA-0967
Montgomery County Attorney
207 West Phillips, Suite 100                                  Re: Whether an individual may be prosecuted for
Conroe, Texas 77301                                           an alleged assaultive offense that occurred in 1998
                                                              when the person was thirteen years of age, and in
                                                              which the victim died in 2011 (RQ-1 055-GA)

Dear Mr. Walker:

         You seek our opinion regarding a defendant's possible claim that a prosecution for murder
would violate the ex post facto clauses of the United States and Texas Constitutions. 1 Your letter
to this office also asks whether the Montgomery County District Attorney's Office is authorized to
undertake such a prosecution. Request Letter at 1.

         According to your request letter, you are considering whether to effectuate the discretionary
transfer of a murder charge to district court against a 27 -year-old defendant. 2 Your letter indicates
that, although the defendant was thirteen years old when he allegedly burned the victim in June,
1998, the victim did not die until April, 2011. Brief at 1. Further, you relate that the victim's cause
of death in 2011 was cancer that stemmed from the burn wounds he suffered in 1998. /d. You
indicate that your office believes that "it now has probable cause to prosecute this offense based in
part on new information provided by the victim shortly before his death." /d. Finally, you state that
the Montgomery County District Attorney's Office is "in agreement that we should proceed with the
discretionary transfer to district court, if possible." /d.

        Subsection 54.02U)(2)(A) of the Family Code provides for the transfer of a person eighteen
years of age or older to the appropriate district court if the person "was 10 years of age or older and
under 17 years of age at the time the person is alleged to have committed a capital felony or an
offense under Section 19.02, Penal Code." 3 TEX. FAM. CODE ANN.§ 54.02U)(2)(A) (West Supp.
2012). However, you note that, at the time of the alleged assault, "the respondent was ineligible to

         1
          Letter from Honorable David K. Walker, Montgomery Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen.
(Apr. 17, 20 12), http://texasattorneygeneral.gov/opin ("Request Letter").

         2
             Requestor's Brief at 1 (attached to Request Letter) ("Brief').

         3
             Section 19.02 of the Penal Code describes the crime of murder. See TEX. PENAL CODE ANN.§ 19.02 (West
2011).
The Honorable David K. Walker - Page 2                    (GA-0967)




be transferred to district court" because in 1998 the statute only allowed juveniles to be transferred
to district court if the offender was "14 years of age or older ... at the time he is alleged to have
committed ... a felony of the first degree." Brief at 1-2; see Act of May 27, 1995, 74th Leg., R.S.,
ch. 262, § 34, 1995 Tex. Gen. Laws 2517, 2533-34. You therefore anticipate that "the respondent
will argue that application of the current law violates the ex post facto clause of both the United
States and Texas Constitutions." Brief at 2. Although you argue that there is no case "directly on
point" addressing this issue "from either the Fifth Circuit or the Supreme Court of the United
States," you state that decisions by appellate courts in other jurisdictions-whose opinions are not
binding in Texas-seem to counsel against the prosecution at issue in your request. 4 Your brief
indicates that all of the cited cases "seem to dictate the same conclusion: that the current language
of [section] 54.02(j)(2)(A) cannot be applied to conduct occurring prior to January 1, 1999, because
such application would subject the respondent to a greater punishment than was previously
available." /d. at 5. Nevertheless, you conclude that, "[b]ecause Texas courts would not be bound
by any of the cases discussed above," both your office and the District Attorney's Office agree that
the case at issue should be transferred to the district court for felony prosecution. /d. at 1, 6. You
ask whether "an adult prosecution for the offense of murder [would] be authorized under current law
if the deadly conduct occurred when the perpetrator was a juvenile in 1998, but the death of the
victim did not occur until 2011, at which time the perpetrator was an adult." Request Letter at 1.

        As we have noted in an earlier opinion, "[a] prosecuting attorney 'has great discretion in
deciding whether, and which offenses, to prosecute."' Tex. Att'y Gen. Op. No. GA-0765 (2010) at
1 (citing United States v. Molina, 530 F.3d 326, 332 (5th Cir. 2008); Neal v. State, 150 S.W.3d 169,
173 (Tex. Crim. App. 2004)). In that opinion, we stated:

                             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. Accordingly, courts afford prosecutorial
                     decisions substantial deference.

/d. (citations omitted). The possibility that a defendant in a criminal case will claim that his
prosecution is constitutionally barred-or otherwise raise a defense to avoid prosecution-is a factor
that prosecutors may choose to weigh as they determine whether to prosecute a defendant. Within
the confines of a prosecutor's duty "not to convict but to see that justice is done," 5 the factors a
prosecutor elects to consider when evaluating how to proceed in a case are squarely within the scope
of prosecutorial discretion. See id. at 2; see also 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").


        4
         See United States v. Juvenile Male, 819 F.2d 468,470 (4th Cir. 1987); United States v. Baker, 10 F.3d 1374,
1394-95 (9th Cir. 1993); State of Mass. v. Fuller, 657 N.E.2d 1251, 1255-57 (Mass. 1995).

        5
            TEx.   CODE CRIM. PROC. ANN.   art. 2.01 (West 2005).
The Honorable David K. Walker - Page 3          (GA-0967)




                                       SUMMARY

                        A county or district attorney's determination regarding the
               initiation of further proceedings falls within the scope ofprosecutorial
               discretion.

                                               Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
