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  • Writer's pictureBrian Foley

Houston Criminal Defense Attorney - Texas Code of Criminal Procedure - Art. 2.01 Duties of DAs

Houston Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law

One of the most important parts of the code is the first article in Chapter 2. Article 2.01 covers the duties of District Attorneys. District Attorneys are the elected officials that hold the prosecutorial power of the State of Texas for the County or Judicial District in question. For Example, there is an Elected District Attorney which has authority over all cases in Harris County, Texas. This is not limited to the city of Houston which has its own municipal court for class C offenses. Harris County's felony and class B or higher misdemeanor jurisdiction extends to each city and municipality inside of Harris County and in the unincorporated areas of the county.

The duties of the District Attorney in Texas are as follows:

  1. To represent the State in All Criminal Cases in the district courts.

  2. To represent the State in All Criminal Appeals from the district courts.

  3. To represent the State in examining courts and habeas corpus actions.

  4. To see that justice is done.

  5. District Attorneys shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.

As a prosecutor myself for many years I took these duties extremely seriously. One thing I would hear from time to time is that prosecutors should "seek justice." This is not what the code provides. The code requires that the prosecutor "see that justice is done." Not merely seek justice. But see that it is done. This along with the duty to not suppress facts or secrete witnesses capable of establishing the innocence of the accused gives guidance to prosecutors. They are not mere advocates for the victim's position. They are not supposed to just cover their bases by delaying a decision. When the just outcome is apparent they are to "see that justice is done." This could be a conviction and prison time, but more often than not in our broken system this means that the case should be dismissed without delay.

Prosecutors wield incredible power. They are over worked and under paid as lawyers typically. Consequently many of them are quite young. In Harris County in particular prosecutors who have been staples of the profession for years have been quitting with great frequency. This has left many of the prosecutors with little experience. Fear ultimately is the enemy of justice for the prosecutor. When a prosecutor is afraid of the outcome, bad decisions are made. This could be fear that the police officer will be mad and make a comment to their boss. Fear that their superior will consider them weak for dismissing a case. Or fear that if they don't take the case to trial then the victim will say negative things about the DA's office in the media.

The code of criminal procedure leaves no room for fears like these. It says that prosecutors must see that justice is done. Cases where the evidence is clear and the crime severe are not the only cases to which this creed applies. It is important that a prosecutor have a backbone. A prosecutor must not be afraid to try a case. But they must similarly not be afraid to dismiss charges when justice requires. This enables them to prioritize their time and effort to individuals that truly pose a dangerous risk to society as opposed to a person who has lived a life on the right side of the law only to be caught up in the system.

In Berger v. United States,, Justice George Sutherland, wrote about prosecutors:

"[He] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v. United States, 295 U.S. 78, 88 (1935).

Article 2.o1 enshrines this tradition into law.

Art. 2.01. DUTIES OF DISTRICT ATTORNEYS. Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely. When any criminal proceeding is had before an examining court in his district or before a judge upon habeas corpus, and he is notified of the same, and is at the time within his district, he shall represent the State therein, unless prevented by other official duties. It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1981, 67th Leg., p. 801, ch. 291, Sec. 98, eff. Sept. 1, 1981.

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