October 16, 2009

Texas Courts of Appeals

Ex Parte Quintana – 8th COA

10/08/09 : Cite No. 08-08-00227-CR : Prosecution of Public Officials

Issue 1:

Can a prosecutor single out a public official by denying her pretrial diversion or deferred adjudication?

Holding 1:

Yes. While the decision might amount to discriminatory selection, the decision to prosecute public officials is rationally related to a legitimate governmental interest because prosecuting elected officials will or is likely to receive media attention, and such a prosecution serves to deter potential similar conduct by others.Read Opinion.

Issue 2:

Can the sole reason for denying pretrial diversion be the defendant’s position as a public official?

Holding 2:

No. Denial of pretrial diversion based solely on the defendant’s position is vindictive prosecution in relation to the defendant’s legal right to run for a public office. In this case, however, there were additional reasons and denial of pretrial diversion was not based solely on the defendant’s status as a public official. Read Opinion.


This is not a particularly thorough decision. But you should keep it in mind if you find yourself in the politically uncomfortable position of prosecuting a public official or someone else of notoriety. Just make sure that you have reasonable bases–other than the public official’s status–to support your actions, so that you can avoid a vindictive prosecution claim.


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