Gain Attention: Use opener here that gives examples of famous TV district attorneys and their roles.

Transcription

1 Slide 1 The office of District Attorney Phase II: Gain Attention: Use opener here that gives examples of famous TV district attorneys and their roles. For example, NBC s Law & Order starring Sam Waterson as Assistant DA Jack McCoy: In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders. These are their stories. State Objectives: Upon completion of this lesson, you should be able to: Outline the constitutional authority of the district attorney Examine the qualifications for assuming the office of district attorney Explain the basic responsibilities and duties of the district attorney Slide 2 Definitions Authority for District Attorney Attorney for the State District Attorney vs. Criminal District Attorney Prosecuting Attorney Present Content: Stimulate participants by presenting the information in short segments (10 minutes each). Refer back to personal example provided during introduction when appropriate. Use visual or other aides to demonstrate ideas.

2 Authority for District Attorney Tex. Const. art. V, 21 provides for district attorneys general authority. That same provision in the Texas constitution provides for the office of county attorney in each of the state s 254 counties, while the legislature may, by legislative enactment, create offices for district attorneys or criminal district attorneys. The only way the legislature can abolish the office of county attorney is by establishing a criminal district attorney for that county. In that case, when the legislature has established a criminal district attorney s office, a county attorney s office no longer exists, and the CDA s office handles all crimes (misdemeanor and felony) for that county, as well as the other duties normally handled by the county attorney s office. Attorney for the State A district attorney s office, on the other hand, co-exists with one or more county attorney s offices. (Some district attorneys serve multiple counties.) The details for each district attorney and criminal district attorney s offices are spelled out in numerous statutes found in Tex. Gov t Code chapters 43 and 44. The terms attorney for the state and prosecuting attorney means a district attorney, county attorney, or a criminal district attorney. Tex. Gov t Code Prosecuting Attorney Representing the State: County and district attorneys are charged primarily with enforcement of criminal statutes. See Guynes v. Galveston County, 861 S.W.2d 861, 864 (Tex. 1993) (Criminal District Attorney did not have duty to represent county in civil matters, and commissioners court could retain civil counsel, as long as Criminal District Attorney s duties were not usurped and he did not object). It generally is not one of the prescribed duties of a district or county attorney to represent the county in its general legal business or the conduct of ordinary civil actions. But the commissioners court is authorized to contract with the district or county attorney to employ that officer as its attorney to represent the county in such matters. Hill Farm Inc. v. Hill County, 425 S.W.2d 414, 419 (Tex. Civ. App. Waco 1968), aff d on other grounds, 436 S.W.2d 320 (Tex. 1969); Op. Tex. Att y Gen. GA-0153 (2004) (Guynes effectively overruled earlier rule that commissioners courts could not contract with county attorneys for defense of future lawsuits). Slide 3 Assuming Office Qualifications & Term $5,000 Bond Oath of Office & Anti-Bribery Statement Salary

3 Qualifications & Term Four years for district attorneys. Tex. Const. art. V, 21. A district attorney must be a licensed attorney. Tex. Gov t Code Tex. Const. art. XVI, 14 says that all district or county officers must reside within their district or county and shall keep their offices at such places as may be required by law. Failure to live within the appropriate district or county results in vacating the office. Bond The district attorney is required to execute a bond for $5,000 with at least two sureties. The bond is payable to the governor and must be approved by the district judge. The bond is to ensure that the district attorney turns over all money that he collects for the state or county. Tex. Gov t Code ; see also Tex. Gov t Code (criminal district attorney bond). Oath of Office and Anti-Bribery Statement Tex. Const. art. XVI, 1(a): All elected and appointed officers, before they enter upon duties of offices, must take oath or affirmation of office and an anti-bribery statement: I,, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God. Anti-bribery statement: Subsection (b) says that all elected or appointed officers, before taking the oath, must subscribe to an anti-bribery oath: I, do solemnly swear (or affirm), that I have not directly or indirectly paid, offered, promised to pay, contributed, or promised to contribute any money or thing of value or promised any public office or employment for the giving or withholding of a vote at the election at which I was elected or as a reward to secure my appointment or confirmation, whichever the case may be, so help me God. Filing the anti-bribery statement: Subsection (c) requires all elected and appointed state officers to file the signed anti-bribery statement with the Secretary of State before taking the oath of office. All other officers shall retain the signed statement with the official records of the office. Note: Failure of a prosecutor to execute the oath of office or the anti-bribery oath does not affect his status as a de facto public officer and therefore does not invalidate any actions taken in the scope of his official duties. Sykes v. State, 2004 Tex. App. LEXIS 2042 (Tex. App. Austin March 3, 2004, pet. ref d). Address notification: Each district and county attorney must notify the attorney general and the comptroller of his/her post office address as soon as practical after election and qualification. Tex. Gov t Code Salary A district attorney or criminal district attorney is entitled to state compensation of at least 80 percent of the compensation for a district judge in the General Appropriations Act. Tex. Gov t

4 Code Although the DA can use discretionary funds from the office s hot check account to supplement salaries of his staff members, he cannot use hot check funds to supplement his own salary. Tex. Code Crim. Proc. art (f). Private Practice: Elected prosecutors who fall under the Professional Prosecutors Act (and who receive state salary supplement) may not engage in private practice and are expressly prohibited from accepting a fee from another attorney to whom the prosecutor has referred a case. Tex. Gov t Code (a), (b). The same preclusion applies to an assistant if, from all state and county funds received, the assistant receives a salary that is equal to or more than 80 percent of the benchmark salary. The current benchmark salary is the state-funded salary of a district judge, which is currently $125,000. Tex. Gov t Code (a)(1); Tex. Gov t Code (2). Slide 4 Basic Responsibilities Duties Seeking Justice: Primary Duty Filing Complaints Grand Jury Indictments Prosecutor Discretion Duties Under Tex. Code Crim. Proc. art. 2.01, a district attorney s duties include: Representing the State in all criminal cases in the district courts (and in appeals in those cases); and Representing the State in any examining trials and habeas corpus proceedings. It is the primary duty of all prosecutors, including any special prosecutors, not to convict, but to see that justice is done. Tex. Code Crim. Proc. art Article 2.01 also precludes district attorneys from suppressing facts or hiding witnesses that could establish a defendant s innocence. Filing Complaints A district attorney s duties related to filing complaints include: Reducing complaints made to the DA to writing and seeing that they are signed and sworn to by the complainant. Tex. Code Crim. Proc. art Filing felony complaints with a magistrate in the county. Tex. Code Crim. Proc. art Administering oaths relating to complaints. Tex. Code Crim. Proc. art

5 [See also slide 9 for more information on administrative duties.] Grand Jury Duties relating to the grand jury for a district attorney include: Appearing before the grand jury and informing them of offenses subject to indictment. Tex. Code Crim. Proc. art Questioning witnesses before the grand jury. Tex. Code Crim. Proc. art Advising the grand jury on questions of law or questions about proper discharge of their duties. Tex. Code Crim. Proc. art Preparing indictments based on a grand jury s vote of true bill. Tex. Code Crim. Proc. art Filing indictments with the district clerk. Tex. Code Crim. Proc. art If an indictment or information is lost, mislaid, mutilated or obliterated, the district attorney may bring this to the attention of the court and record in the minutes of the court. Another indictment or information that is substantially the same may be substituted. Tex. Code Crim. Proc. art Prosecutor Discretion Note, however, that the district attorney has no duty to file all complaints presented to her office. Taylor v. Gately, 870 S.W.2d 204 (Tex. App. Waco 1994, writ dism d). The prosecutor has discretion about which cases to file. A judge cannot instruct a prosecutor s office how to handle charges against a defendant. State ex rel. Holmes v. Denson, 671 S.W.2d 896 (Tex. Crim. App. 1984). Slide 5 Basic Responsibilities, cont. Liaison with Law Enforcement Vacancy in Office Liaison with Law Enforcement The district attorney works with law enforcement officers in investigating and preparing cases to be heard before the criminal district courts. See Tex. Code Crim. Proc. art The district attorney can also work with law enforcement in drawing up search and arrest warrants under Tex. Code Crim. Proc. chapter 18.

6 Vacancy in Office The governor shall appoint a successor if the office of district attorney becomes vacant. Tex. Const. art. IV, 12. The first assistant takes over in conducting the affairs of the office until the successor is appointed. Tex. Gov t Code Slide 6 Basic Responsibilities, cont. Disqualification/Recusal Special Prosecutor vs. Attorney Pro Tem May Not Counsel Adverse to the State Dual Office Holding Disqualification/Recusal Attorney pro tem vs. special prosecutor: A prosecutor is considered disqualified from a case if he is barred by law from conducting the prosecution, and an attorney pro tem is appointed by the court to take his place. Tex. Code Crim. Proc. art. 2.07; State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex. Crim. App. 1994). In contrast, a prosecutor is recused when he voluntarily withdraws from the case and an attorney pro tem is appointed to prosecute the case in his place. Tex. Code Crim. Proc. art. 2.07(b-1). After an attorney pro tem is appointed by the court and takes the oath of office, he assumes the duties of the elected prosecutor and in effect replaces the elected prosecutor in performing functions of office for purposes contemplated by the appointment. State v. Rosenbaum, 852 S.W.2d 525, 528 (Tex. Crim. App. 1993), rev d on other grounds, 910 S.W.2d 934 (Tex. Crim. App. 1994). An elected prosecutor may also retain a special prosecutor to handle a particular case to the extent allowed by the prosecuting attorney. The elected prosecutor retains control and discretion over the case, however. See Rosenbaum, 852 S.W.2d at 528. If the special prosecutor works as a prosecutor in another jurisdiction, the special prosecutor is not entitled to additional money for his services. Tex. Code Crim. Proc. art. 2.07(b). A court may not disqualify the elected prosecutor or his staff on the basis of a conflict of interest unless the conflict rises to the level of a due process violation. Pirtle, 887 S.W.2d at 927. No Texas case has yet found this type of due process violation that allowed a judge to disqualify an elected prosecutor against the prosecutor s will. See also State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex. Crim. App. 1990). If an assistant prosecutor has previously represented a defendant in a related matter, that assistant cannot participate in prosecution of the case, but the

7 entire office need not be excused. If the elected prosecutor, however, has the conflict, the entire office is disqualified. See State ex rel Eidson v. Edwards, 793 S.W.2d at 4. Slide 7 Basic Responsibilities, cont. Allegations Against County Officials May Dismiss a Criminal Action Allegations against County Officials A district attorney is charged with initiating proceedings to prosecute any county officer for neglect or abuse of duties. Tex. Gov t Code ; Tex. Code Crim. Proc. art Removal: County officials are subject to immediate removal for conviction of any felony or misdemeanor involving official misconduct. Tex. Local Gov t Code (a). An officer may also be removed for: (1) incompetency; (2) official misconduct; or (3) intoxication on or off duty caused by drinking an alcoholic beverage. Tex. Local Gov t Code May Dismiss a Criminal Action A prosecutor may dismiss a criminal action at any time, with permission of the judge of the court. Tex. Code Crim. Proc. art The prosecutor must file a written statement setting out the reasons for the dismissal. A judge, however, generally does not have authority to dismiss a case unless the prosecutor asks for a dismissal except in a few circumstances: (1) when dismissal is necessary to neutralize a violation of the defendant s constitutional rights (State v. Johnson, 821 S.W.2d 609 (Tex. Crim. App. 1991)); (2) for a defect of form or substance; or (3) for denial of the constitutional right to a speedy trial.

8 Slide 8 Basic Responsibilities, cont. Family Violence Proceedings Requirement for Proof from Complaining Witness Protective Orders Family Violence Proceedings The district and county attorney shall work with victims of family violence to obtain protective orders and emergency protective orders in appropriate cases. See Tex. Fam. Code The county attorney is responsible for handling protective orders unless the district attorney assumes the responsibility by giving notice to the county attorney. Tex. Fam. Code The prosecutor may not charge a fee to an applicant for a protective order. Tex. Fam. Code Protective Orders 1. Emergency Protective Orders: Tex. Code Crim. Proc. art Good for up to 61 days (91 when deadly weapon used in assault) Police can arrest on site for a violation of the EMO Prosecutor can file a criminal action for violations 2. Protective Orders: Tex. Fam. Code A civil order that prohibits a party from specific acts and can order all parties to comply with specific acts Violations of some of the specific acts are criminal violations and are subject to arrest on site and a criminal action can be filed A PO can be filed by: (1) an adult member of a family for the protection of any other member of the applicants family or household; (2) any adult for the protection of a child; (3) a prosecuting attorney; or (4) the Department of Protective and Regulatory Services. 3. Temporary Ex-Parte Protective Order: Tex. Fam. Code 83 Issued by a judge without notice or a hearing if the applicant is in Clear and Present Danger Effective for up to 20 days until a hearing is held (can be extended) Police can not arrest for violations and prosecutor can not file criminal action for violations

9 Slide 9 Basic Responsibilities, cont. Administrative Duties Records retention: recordspubs/ps.html Open Records Collections No Rewards or Gratuities Administrative Duties District attorneys must comply with various administrative responsibilities set out by statute, including: Report to commissioners court on fees collected. Tex. Local Gov t Code Use the accounting system prescribed by county auditor. Tex. Local Gov t Code May represent county officials and employees. Tex. Local Gov t Code May bid for and sell state property. Tex. Local Gov t Code May make purchase in conformity with county purchasing laws (competitive bidding requirements). Tex. Local Gov t Code ; see also Tex. Local Gov t Code Chapter 262 (competitive bids must be taken for contracts that exceed $10,000). Ask for advice from Attorney General upon request. Tex. Gov t Code Pay money collected into state or county treasury and file annual reports with comptroller for all money received by his office. Tex. Gov t Code Give legal opinions in writing to county or precinct officers regarding their official duties. Tex. Gov t Code Institute proceedings against any county officer abusing or neglecting duties. Tex. Gov t Code Present information to court regarding neglect or failure of duty of any officer. Tex. Code Crim. Proc. art May seek forfeiture under controlled substances tax law. Tex. Tax Code Chapter 159. Oversee asset forfeiture proceedings for relevant felony-level offenses under Tex. Code Crim. Proc. Chapter 59. Keep a register of all official acts and reports, all actions or demands prosecuted or defended by him, and all proceedings held in relation to his official acts. Tex. Gov t Code These records are to be available at all times for inspection by any person appointed to examine it by the governor or by a county commissioner. Records Retention The Texas State Library and Archives Commission issues records retention schedules for each type of local government official under Tex. Gov t Code See their website for the most current publication setting out mandatory minimum retention periods for various records kept by prosecutors offices

10 Open Records In general, the office finance records of a prosecutor s office are not public records, although several provisions in Texas law require the prosecutor to report financial transactions to appropriate authorities (for instance, see Local Gov t Code and Gov t Code ). Budgets and employee salaries are, however, a matter of public record. Case files on open cases are not subject to disclosure under the Public Information Act. Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996), but closed cases are generally subject to disclosure. Tex. Gov t Code Collections The district (or county) attorney may collect money owed to the county or state. See Tex. Gov t Code ; Tex. Code Crim. Proc. art If there is no county attorney, the district attorney may represent the county to enforce collection of delinquent taxes. Tex. Tax Code 6.30(a). (The commissioners court may also contract with a private attorney for delinquent tax collection.) The district attorney may also collect a fee for collecting hot checks. Tex. Code Crim. Proc. art The hot check fees are placed in a separate account that can be used for expenses related to the prosecutor s office and spent at the sole discretion of the elected district attorney. Tex. Code Crim. Proc. art (f). In processing hot check cases, the district attorney can also collect a merchant fee authorized by Tex. Business & Commerce Code and turn the fee over to the merchant. Commissions: A district or county attorney may retain a commission from money collected for the state or a county. The commission amounts to 10 percent of the first $1,000 collected, and 5 percent of the amount collected over $1,000. Tex. Gov t Code The prosecutor must pay the money, minus commission, into the state or county treasury within 30 days of collection. Tex. Gov t Code No later than Aug. 31 each year, the elected prosecutor must file with the county treasurer a sworn account of all money received during the preceding year and payable into the state or county treasury. (Note: Tex. Const. art. XVI, 61 requires an attorney compensated on a salary basis to deposit all commissions in the state or county treasury.) Receipt book: A district attorney who collects fees and money for the state or county must immediately pay the money to the county treasurer. See Tex. Code Crim. Proc. arts The prosecutor must also maintain a receipt book and deliver it to the county auditor for inspection at the end of each month s business. It is a Class C misdemeanor to fail to maintain the receipt book. Tex. Code Crim. Proc. arts No later than Aug. 31 of each year, the district attorney must file with the comptroller or county treasurer a sworn account of all money received for the preceding year that is payable into the state or county treasury. Tex. Gov t Code No rewards or fees A district or county attorney is prohibited from taking a fee, reward, or gift from any person to prosecute a case. Tex. Gov t Code

11 Slide 10 District Attorney s Staff Hiring Assistants & Other Staff Salaries Oaths & Bonds Hiring Assistants & Other Staff The elected prosecutor may hire assistants, investigators, secretaries, and other officer personnel that in his judgment are required for the proper and efficient operation and administration of the office. Tex. Gov t Code (a). The assistants must be licensed to practice law in Texas. Tex. Gov t Code The district attorney may also ask the AG to assist in prosecuting criminal cases or in performing any duty imposed by law on the prosecuting attorney. Tex. Gov t Code (b). Neither the district courts nor the county commissioners have any authority over the elected prosecutor s decision about whom to appoint to his staff. State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994). The district attorney has no obligation to retain the staff hired by the previous elected prosecutor. See, e.g., Gunaca v. State of Texas, 65 F.3d 467 (5 th Cir. 1995); Cudd v. Aldrich, 982 F.Supp. 463 (S.D. Tex. 1997). Tex. Gov t Code All staff of a district attorney s office are subject to removal at the will of the elected prosecutor. Tex. Gov t Code Salaries The district attorney sets the salaries of his staff, subject to approval of commissioners court. Tex. Gov t Code (a). The prosecutor may also pay travel expenses for staff members, subject to commissioners court approval. Tex. Gov t Code (b). The elected prosecutor may also use hot check funds to supplement the salaries of staff members or to pay training fees for those staff members. Op. Tex. Att y Gen. JM-313 (1985). The elected prosecutor may not use the hot check fund to supplement his own salary, however. Oaths & Bonds Oaths: Assistant prosecutors must be licensed to practice law and take the constitutional oath of office. Tex. Gov t Code ; Tex. Gov t Code Failure to take the oath, however,

12 does not invalidate their actions as prosecutors. See State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 929 (Tex. Crim. App. 1994). Bond: The elected prosecutor may (but does not have to) require his assistants and other office personnel to have a bond in the amount set by the elected prosecutor. Tex. Gov t Code Investigators: District attorneys may hire investigators, who have the same authority as the sheriff to make arrests anywhere in the county and to serve warrants, capiases, and subpoenas anywhere in the state. Tex. Gov t Code ; see also Tex. Code Crim. Proc. art Victim Assistance Coordinator: Every elected prosecutor must designate a person to serve as victim assistance coordinator in that jurisdiction. Tex. Code Proc. Art The VAC s responsibilities are to ensure that victims (or their guardian or close relative) is given the rights set out in Tex. Code Crim. Proc. art , including the right to be notified of all proceedings in a criminal case. Tex. Code Crim. Proc. art Slide 11 Staff & Office Expenses Office Expenses Discretionary Funds Liability Insurance Office Expenses The Commissioners Court of the county may furnish telephone service, computers, office furniture, office space, supplies, automobiles and other items and equipment necessary to carry out the official duties of the prosecuting attorney. The court may also pay for expenses incident to the operation of the office. Tex. Gov t Code A commissioners court cannot underbudget a constitutional or statutory office such that it cannot perform its assigned functions. Vondy v. Comm rs Ct. of Uvalde County, 620 S.W.2d 104 (Tex. 1981); see also Op. Tex. Att y Gen. GA-0037 (2003) (a commissioners court may not, by refusing to approve a requested expenditure, interfere with an elected officer s ability to perform his or her legal duties). Discretionary Funds State Funds: The district attorney is entitled to receive from the state out-of-county travel expenses, postage and telephone expenses in the discharge of official duties. Tex. Gov t Code

13 Apportionment Funds: Each prosecutor named in the appropriations act is entitled to receive no more than $34,450 to defray salary and office expenses. Each prosecutor must submit annually to the comptroller a sworn account showing how the money was spent during the year. Private Practice: Elected prosecutors who fall under the Professional Prosecutors Act (and who receive state salary supplement) may not engage in private practice and are expressly prohibited from accepting a fee from another attorney to whom the prosecutor has referred a case. Tex. Gov t Code (a), (b). The same preclusion applies to an assistant if, from all state and county funds received, the assistant receives a salary that is equal to or more than 80 percent of the benchmark salary. The current benchmark salary is the state-funded salary of a district judge, which is currently $125,000. Tex. Gov t Code (a)(1); Tex. Gov t Code (2). Hot check & asset forfeiture funds: Fees collected for hot check fees shall be deposited in the county treasurer in a special fund administered by the prosecutor. Expenditures are made at the sole discretion of the elected prosecutor for official office purposes. Op. Tex. Att y Gen. JM-1034 (1989); Op. Tex. Att y Gen. DM-357 (1995). This fund is wholly outside the county s budgeting process, and the county judge or auditor may not require the district attorney to submit a budget for this fund. DM-357. The elected prosecutor may not supplement her own salary from the fund. Code of Crim. Proc. art (f). Interest that accrues on the principal of the hot check fund, however, must be severed and it accrues for the benefit of the county. Op. Tex. Att y Gen. JC-0062 (1999), JM-632 (1987). Asset forfeiture funds, governed by Code of Crim. Proc. ch. 59, may be used for official purposes of the office only, and they cannot be used to pay bonuses, because that is prohibited by Tex. Const. art. III, 53. No rewards or fees: A district or county attorney is prohibited from taking a fee, reward, or gift from any person to prosecute a case. Tex. Gov t Code Liability insurance The district attorney may purchase liability insurance for herself and her staff to insure against claims arising from performing official duties. The premiums may be paid out of state or county funds allocated for expenses of the office, including the hot check or asset forfeiture fund. Gov t Code

14 Slide 12 Review Constitutional Authority Qualifications Basic Responsibilities Guided Learning: Conduct a guided review of the information and encourage participants to summarize the information for the group List best-case scenario questions and answers, debate topics or other activities here. Summary A district attorney must be a licensed attorney. Their length of office is four years. Under Tex. Code Crim. Proc. art. 2.01, a district attorney s duties include: Representing the State in all criminal cases in the district courts (and in appeals in those cases); and Representing the State in any examining trials and habeas corpus proceedings. It is the primary duty of all prosecutors, including any special prosecutors, not to convict, but to see that justice is done. Tex. Code Crim. Proc. art Article 2.01 also precludes district attorneys from suppressing facts or hiding witnesses that could establish a defendant s innocence. Also see Brady v. Maryland, 373 U.S. 83 (1963).

15 Slide 13 Resources Code of Criminal Procedure Texas Constitution Government Code Penal Code Tax Code Resources to Encourage Retention: Provide participants with an outside assignment, additional reading materials, Web sites and contact information for subject experts Texas Code of Criminal Procedure: See Chapter 2 for statutes dealing with prosecutors duties and authority. Texas Constitution: See art. V, 21 for information about prosecutors authority; see art. XVI, 14 for residency requirements. Texas Government Code: See Chapter 41 for information about running a district attorneys office; see Chapters 43 & 44 for information about district attorneys and criminal district attorneys offices; see Chapter 46 for information about the Professional Prosecutors Act. Texas Penal Code: See Chapter 12 for information about punishments in felony cases. See Chapters 19 (homicide), 21 (sexual offenses), 22 (assault), 25 (offenses against the family), 29 (robbery), 30 (burglary), 31 (theft), 46 (weapons offenses) and 49 (intoxication offenses, including DWI) for information about crimes commonly pursued in district court. Texas Tax Code: See 6.30 for information about collecting delinquent taxes.