                              ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                               March 26, 2010



The Honorable James A. Farren                           Opinion No. GA-0765
Randall County Criminal District Attorney               Re: Concerning a possible defense to prosecution
Randall County Justice Center                           under section 43.24, Penal Code (RQ-0825-GA)
2309 Russell Long Boulevard, Suite 120
Canyon, Texas 79015

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


        ISee Request Letter at 1 (available at http://www.texasattomeygeneral.gov).
The Honorable James A. Farren - Page 2          (GA-0765)



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").
The Honorable James A. Farren - Page 3       (GA-0765)



                                     SUMMARY

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




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
