Can a prosecutor charge someone with murder years later if the victim dies long after the original assault?

Plain-English summary

This opinion grew out of an unusual criminal case in Montgomery County. According to the county attorney's request, a man allegedly burned a victim in June 1998 when the man was only 13 years old. The victim survived for years but died in April 2011 of cancer that, the request said, stemmed from the burn wounds. With the victim now dead, the county attorney was considering whether to seek a discretionary transfer of a murder charge to district court so the now-adult defendant could be prosecuted.

The legal snag was timing. Family Code section 54.02(j) lets a court transfer a now-adult defendant to district court for an offense committed as a juvenile, but only if the person was at least 10 (and under 17) when an offense such as murder was allegedly committed. In 1998, however, the transfer statute required the offender to have been at least 14, and to have allegedly committed a first-degree felony. The county attorney expected the defendant to argue that applying the current, broader transfer statute to 1998 conduct would violate the ex post facto clauses of the United States and Texas Constitutions, which bar after-the-fact increases in criminal punishment. He acknowledged that out-of-state appellate decisions, which are not binding in Texas, pointed against such a prosecution, but he and the district attorney still wanted to proceed and asked the Attorney General whether an adult murder prosecution would be authorized under current law on these facts.

The Attorney General did not decide the ex post facto question. Instead, it answered at the level of who gets to make the call. Quoting earlier opinions and case law, the opinion explained that a prosecuting attorney has great discretion in deciding whether and what to prosecute, and that courts treat prosecutorial decisions as ill-suited to judicial review because they weigh things like the strength of the case, its deterrent value, and enforcement priorities. The possibility that a defendant will raise a constitutional bar, such as an ex post facto defense, is simply one of the factors a prosecutor may choose to weigh. So the opinion concluded that the decision whether to initiate further proceedings here fell squarely within the county or district attorney's discretion.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Montgomery County Attorney and District Attorney (as the opinion described it): The opinion told them the choice was theirs. Deciding whether to pursue the transfer and prosecution, and how much weight to give a likely ex post facto defense, was within prosecutorial discretion, an area courts review only with substantial deference.

Prosecutors generally (as the opinion described it): The opinion treated the prospect that a defendant will raise a constitutional defense as one factor among many that a prosecutor may consider, not as something that strips the prosecutor of the authority to decide whether to go forward.

On the ex post facto question itself (as the opinion described it): The opinion expressly did not resolve whether applying the current transfer statute to 1998 conduct would be unconstitutional. It noted only that non-binding out-of-state decisions had cut against such a prosecution.

Common questions

Did the Attorney General say this prosecution would be legal?
No. The opinion did not decide the ex post facto question. It said only that whether to bring the case was within the prosecutor's discretion.

What was the ex post facto concern?
In 1998 the law allowed transfer to district court only for offenders 14 or older who committed a first-degree felony. The current statute reaches younger offenders. Applying the broader current rule to old conduct could be challenged as an unconstitutional after-the-fact increase in exposure to punishment.

Who decides whether to bring a charge like this?
The county or district attorney. The opinion stressed that prosecutors have broad discretion over whether and what to prosecute, and that courts give those decisions substantial deference.

Does a likely constitutional defense stop a prosecutor from filing?
Not as a matter of authority. The opinion treated a possible defense, including an ex post facto claim, as a factor the prosecutor may weigh in exercising discretion, not a bar to the prosecutor's power to decide.

Background and statutory framework

Family Code section 54.02(j)(2)(A) authorizes transfer of a person 18 or older to district court if the person was at least 10 and under 17 when alleged to have committed a capital felony or an offense under Penal Code section 19.02, the murder statute. The 1998 version of the transfer law, found in the Act of May 27, 1995 (74th Legislature), required the offender to have been at least 14 and to have allegedly committed a first-degree felony. The ex post facto clauses of the United States and Texas Constitutions bar laws that retroactively increase criminal punishment.

For the discretion analysis, the opinion relied on its own prior opinion GA-0765 (2010), which quoted United States v. Molina and Neal v. State for the breadth of prosecutorial discretion, and on GA-0246 (2004), which recognized that whether to proceed in a difficult case is squarely within prosecutorial discretion. It pointed to the prosecutor's duty under Code of Criminal Procedure article 2.01 "not to convict but to see that justice is done." The opinion also noted the out-of-state decisions the county attorney had cited (United States v. Juvenile Male, United States v. Baker, and a Massachusetts case styled in the request as State of Mass. v. Fuller), none of which bind Texas courts.

Citations

Cases:

• 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)
• 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)

Statutes:

• Tex. Fam. Code Ann. § 54.02(j)(2)(A) (West Supp. 2012)
• Tex. Penal Code Ann. § 19.02 (West 2011)
• Tex. Code Crim. Proc. Ann. art. 2.01 (West 2005)
• Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 34, 1995 Tex. Gen. Laws 2517, 2533-34

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. GA-0246 (2004), GA-0765 (2010)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0967
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0967.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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-1055-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. Id. 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." Id. 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." Id.

Subsection 54.02(j)(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. § 54.02(j)(2)(A) (West Supp. 2012). However, you note that, at the time of the alleged assault, "the respondent was ineligible to 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." Id. 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. Id. 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.

Id. (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").

SUMMARY

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

[1] Letter from Honorable David K. Walker, Montgomery Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. (Apr. 17, 2012), 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).

[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).