                                            May 4,1999




Ms. Suzanne N. Batter                             Opinion No. K-0042
Hopkins County Auditor
P.O. Box 288                                      Re: Whether a prosecutor may defer prosecution
Sulphur Springs, Texas 75483                      of a violation of the law contingent upon the
                                                  offender’s donation of money to a governmental
                                                  or nonprofit organization, and related questions
                                                  (RQ-1056)

Dear Ms. Bauer:

        You ask whether a prosecutor, specifically the Hopkins County Attorney, may agree with
an individual arrested on a misdemeanor charge to refrain from prosecuting a violation of the law
if the offender contributes money to the county or county law library, or to private organizations
such as Crime Stoppers, Drug Abuse Resistance Education (“D.A.R.E.“), or the Sheriffs Posse.
Although a prosecutor has broad discretion to refrain from prosecuting a violation of the law that
occurs within his or her jurisdiction, a prosecutor may not require an offender to contribute money
to a public or private entity in consideration of the prosecutor’s decision not to prosecute. You also
ask whether the county attorney may receive and allocate the sum received in accordance with the
agreement, or whether the county treasurer may receive the sum and credit it to the recipient
designated in the contract. Because we conclude a prosecutor lacks authority to enter this type of
agreement, we do not answer these questions.

         You explain that, before a prosecution is filed, the county attorney may decline to prosecute
a violation of the law against an individual who has been arrested while committing a misdemeanor,
such as driving while intoxicated, see TEX. PENALCODE ANN. 5 49.04 (Vernon 1994 & Supp. 1999).
The prosecutor requires, as a quid pro quo, the offender to contribute to an organization selected by
the prosecutor, which may be governmental, e.g., the county or the county law library, or private,
nonprofit, e.g., the Sheriffs Posse, Crime Stoppers, or D.A.R.E.

        The practice you describe is unlike arrangements that are explicitly permitted by statute. A
county or district attorney of El Paso County, for example, may operate a pretrial diversion program.
TEX. GOV’T CODE ANN. 5 54.745(a) (Vernon 1998). In addition, any prosecutor may defer
prosecuting a child and may, in certain circumstances, request the child to attend classes in self-
responsibility and empathy for a victim or request the child to restore property the child damaged.
Ms. SuzanneN. Bauer - Page 2                        (JC-0042)




See TEX. FAM. CODE ANN. $ 53.03(e), (g) (Vernon 1996 & Supp. 1999) (added by Act of
May 22, 1997, 75th Leg., R.S., ch. 593, 5 6, 1997 Tex. Gen. Laws 2072, 2075);’ see also id.
§53.03(g)(VemonSupp. 1999)(addedbyActofJunel,             1997,75thLeg.,RS.,ch.       1013, § 16,1997
Tex. Gen. Laws 3686, 3692) (prosecution may not be deferred in certain circumstances); id.
$59.005(a)( 1) (permitting a prosecutor to defer prosecution for a child at sanction level two for not
less than three nor more than six months). A community supervision and corrections department
established under chapter 76 of fhe Government Code may operate a pretrial intervention program.
See TEX. GOV’T CODE ANN. § 76.011(a) (Vernon 1998). Lastly, fhe practice you describe is
distinguishable from a court’s deferral of adjudication and imposition of community supervision in
accordance with article 42.12, section 5(a) of the Code of Criminal Procedure. See also Busby v.
State, 984 S.W.2d 627,629 (Tex. Crim. App. 1998) (en bane). Notably, ajudge’s authority to order
a defendant to make payments to a charitable or governmental organization ofthe judge’s choosing
is strictly limited. See TEX. CODE GRIM.PROC. ANN. art. 42.12, § 11(b) (Vernon Supp. 1999)
(forbidding judge to require defendant to make payments as condition of community supervision
except as authorized by law); Busby, 984 S.W.2d at 629-30 (stating that section 11(b) limits
conditions authorized by section 1l(a)); see also Comm. on Jud. Ethics, State Bar of Tex., Op. 241
(1999), reprinted at <http://www.courts.state.tx.us/Judethics/241-25O.htm> (stating that Code of
Judicial Conduct restricts judge’s freedom to force litigants to provide gifts or services to specified
 charities or organizations).

        A county attorney’s constitutional and statutory duty to prosecute criminal cases in his or her
county traditionally provides the prosecutor broad discretion to determine not to prosecute an
offense. See TEX. CONST. art. V, 5 21 (requiring prosecutor to represent state in criminal cases
within prosecutor’s jurisdiction); TEX.CODEGRIM.PROC.ANN.arts. 2.01, .02 (Vernon Supp. 1999)
(prescribing district and county attorneys’ duties); Meshell v. State, 739 S.W.2d 246, 254 (Tex.
Crim. App. 1987) (en bane) (recognizing “primary function” of district and county attorneys is to
prosecute the state’s pleas in criminal cases); State Y.Gray, 801 S.W.2d 10 (Tex. App.-Austin 1990,
no writ) (stating that responsibility for criminal prosecutions in Texas is vested in the district and
county attorneys). “[Tlhe duty to prosecute . requir[es] the prosecuting attorney only to exercise
a sound discretion, which permits refraining from prosecuting whenever the prosecutor in good faith
thinks that a prosecution would not serve the best interests of the state       .” 63C AM. JUR. 21,
Prosecuting Attorneys 5 21, at 133-34 (1997); see also 2 WAYNER. LAFAVE & JEROLDH. ISRAEL,
CRIMINALPROCEDURE5 13.2(a), at 160 (1984); NATIONALDISTRKTATTORNEYSASS’N,                       NATIONAL
PROSECUTIONSTANDARDS 150, 152-53 (1st ed. 1977).


        But you do not ask about a prosecutor’s authority to refrain from prosecuting a violation of
the law. See United States v. Flowers, 983 F. Supp. 159, 162 (E.D.N.Y. 1997) (and sources cited
therein) (describing pretrial diversion or deferred prosecution as technique prosecutors have long
used, whereby prosecutor keeps defendant out of criminal justice system but requires defendant to


         ‘The legislaturehasbeforeit a bill proposingto relettersubsection
                                                                         (g), addedby Act of May 22, 1997,75tb
 Leg., RX., ch. 593.5 6, 1997Tex. Gen.Laws 2072,2075,assubsection(h).SeeTex. S.B. 1368,art.19,s 19.01(17),
 76th Leg., R.S. (1999).
Ms. SuzanneN. Bauer - Page 3                      (JC-0042)




rehabilitate self); 2 LAFAVE & ISRAEL, CRIMINALPROCEDURE,5 13.1(d), at 158-59 (1984)
(describing pretrial diversion or deferred prosecution as alternative between formal adjudication and
outright dismissal of charge). Rather, you ask about a prosecutor’s authority to refrain from
prosecuting a violation of the law contingent upon the offender’s contribution to a governmental or
nonprofit organization.

        We conclude as a matter of law that a prosecutor may not agree with an offender to rei%in
from filing a complaint or information in exchange for the offender’s contribution to a designated
organization. We are not aware of any statute that generally permits a prosecutor to exact a donation
from an offender, and you do not cite to any. Moreover, because of the potential for abusing such
a practice, we are reluctant to imply authority in the absence of legislation expressly approving the
practice.

        Rather than this office divining prosecutorial discretion to engage in the practice you describe
from the common law, the legislature should have the opportunity to consider whether to allow the
practice and, if so, what restrictions to place on the practice. But see Wood Y. United States, 622
A.2d 67, 70 (D.C. 1993) (discussing prosecutor’s common-law authority to defer prosecution).
Those states that explicitly authorize a prosecutor to divert an offender to a deferred prosecution
program constrain the prosecutor’s discretion. For example, some of the states that authorize a
prosecutor to defer prosecution restrict the offenses for which deferred prosecution is an option. See
IND. CODEANN. 5 33-14-1-7(a) (West 1996 & Supp. 1998); MONT. CODE ANN. 8 46-16-130(3)
(1997); TENN.CODEANN. 5 40-15-105(a)(l)(B)(i) (1997 & Supp. 1998). Some require that the
agreement be in writing and may require that the offender waive his or her constitutional right to
a speedy trial. See MONT. CODEANN. 5 46-16-130(1)(b), (c) (1997); OKLA. STAT. ANN. tit. 22
5 305.2 (West 1991 & Supps. 1996 & 1997); TENN. CODE ANN. 9 40-15-105(a)(l)(A), (a)(3)
(1997 & Supp. 1998). Several limit the conditions to which an offender may be subject. See IND.
CODEANN. 4 33-14-1-7(b) (West 1996 & Supp. 1998); Mm. STAT.ANN. § 388.24, subd. 3(1)-
(8) (West 1997 & Supp. 1999); MONT.CODEANN. 5 46-16-130(1)(a) (1997); TENN.CODEANN.
§ 40-15-105(a)(2) (1997 & Supp. 1998). Two require that a pretrial diversion agreement be
approved by a court. See IND.CODEANN. 5 33-14-1-7(c) (West 1996 & Supp. 1998); MONT.CODE
ANN. 5 46-16-130(2) (1997). For other state statutes regulating the use of pretrial diversion
agreements, see KY. REV. STAT. ANN. 5 421.500(6) (Michie 1992 & Supp. 1998) (requiring
prosecutor to consult victim on perpetrator’s entry into pretrial diversion program); NEB.
REV. STAT. 5 29-3603 (1995) (“Pretrial diversion plan; requirements”); OKLA.STAT.ANN. tit. 22
 $9 305.1 -.6 (West 1991 & Supps. 1996 & 1997) (“Proceedings After Commitment: Deferred
Prosecution”).
Ms. Suzanne N. Bauer - Page 4                 (X-0042)




                                     SUMMARY


              A prosecutor, such as the Hopkins County Attorney, may not enter into
          an agreement with an offender whereby the prosecutor will “defer”
          prosecution in exchange for the offender’s agreement to contribute money to
          an organization of the prosecutor’s choice.




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                                                &P-l-
                                            JOkN      CORNYN
                                            Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

 ELIZABETH ROBINSON
 Chair, Opinion Committee

 Prepared by Kymberly K. Oltrogge
 Assistant Attorney General
