OFFICE OF THE

DISTRICT ATTORNEY
P.O. Box 1748, Austin, TX 78767
JOSÉ P. GARZA Telephone 512/854-9400 TRUDY STRASSBURGER
DISTRICT ATTORNEY Telefax 512/854-4206 FIRST ASSISTANT

Guidelines for the TCDA Prosecution of Cases

Introduction
At TCDA, we treat every case differently. We know that every victim is different, every crime is
different, and every accused is different than the next. Our overarching goal is to use evidenced
based research to create guidelines that are geared towards crime prevention and community
safety. Sometimes this will mean lengthy prison sentences, and sometimes this will mean
community-based diversion or a dismissal of charges. Because there is no one-sized fits all, we
are asking our staff to incorporate the below principles into their work. Attached at the end of the
these policies are flowcharts which are intended to be a guide to help prosecutors think through
how to use their prosecutorial discretion on each case.
The overarching question to be asked in every case: what can be done to ensure that the crime is
not committed again and that the victim feels safe?
Bail: Those who have committed heinous crimes and are a danger to the community should
remain in custody pending trial. But we must work to ensure that it is not just the wealthy who
are given an opportunity to be released when they are not a danger to the community.
While we cannot set bail ourselves, we will follow our bail statute and we will be using this
analysis to recommend bail to the Judges who will make the final determination:
• We will not consider a person who is an attendance risk, meaning they have missed court
in the past but have not attempted to evade the police, a flight risk.
• For anyone charged with a State Jail Felony, there will be a presumption of release with
no conditions if it is determined that the person poses no threat to community safety or
risk of flight.
• For anyone charged with a higher-level felony, there will be a presumption of release
with the least restrictive condition necessary to ensure that the person is not a risk to the
community or risk of flight.
• Anyone who poses a future risk of harm to our community or a risk of a flight that cannot
be addressed by conditions other than pre-trial incarceration should remain in custody.
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Discovery/Brady: We should be as open and forthright with discovery and Brady as possible. If
we are in possession of offense reports or other materials pre-indictment, and there is not a
legitimate law enforcement reason not to give it to defense, we should make it available
regardless of whether there has been a defense request. Legitimate reasons for withholding
information pre-indictment may include an investigation for another crime that is mentioned in
the offense report. During the course of the case, there should rarely be material in our
possession that is not handed over, but if for some reason we have evidence that falls outside of
Art. 39.14, and we believe it could be exculpatory, we should always err on the side of caution
and turn it over (“if you have to ask if it’s Brady, turn it over”). We should always notify the
defense when we specifically find Brady, especially if it is a voluminous case with thousands of
pages of documents such as CPS records.
Grand Jury: We will present cases to the grand jury when there is either a compelling policy
reason to let the community decide if the case should move forward or if we are confident that
we can prove the case beyond a reasonable doubt. If a necessary witness is not cooperative and
we cannot prove the case at trial without them, we will not present the case. If deficiencies
cannot be remedied within 90 days, consent to release of the defendant and/or dismiss the case.
See TX CCP Art. 17.151 (1).
Readiness: If efforts to contact necessary witnesses have failed, or the witness refuses to
cooperate and charges cannot be proven without the witness, defense counsel must be notified
after 30 days post-indictment. If after six months, and reasonable efforts to contact necessary
witnesses have failed and/or efforts to gain cooperation have failed, the case should be dismissed
as “witness not available.” Due to the pandemic, for open cases prosecutors should consider the
last six months from April 15, 2021, moving forward it is six months from arrest. There may be
exceptions- please conference with your director if you believe that circumstances will change
and the case should not be dismissed.

Diversion: We have greatly expanded our pre-trial diversion program so that more people will
be eligible, and have structured the program so that our prosecutors can seek to find eligible
people instead of waiting on defense counsel to ask. We will also be asking stakeholders to work
with us to expand services that we can offer. At this moment, a team of experienced prosecutors
is reviewing cases to determine if the person is eligible for diversion. Attached is a “FAQ” for
diversion.
Victim Input: When the victim is a family member or known to the accused, consider their
thoughts on sentencing and what is likely cause the least amount of harm or trauma. We do not
know better than the person who has been hurt by a loved one what is best for them. We must
listen to victims and hear what they need to help them on the path towards healing. We have the
ability to be creative and responsive to their needs, if we listen and think outside the box. Child
victims should not bear the responsibility of making a decision about a loved one, however,
ADAs should make every effort to determine which outcome is the least traumatizing and will
keep the community safe.
When the victim is a stranger to the defendant, while it is important that we listen to victims’
requests with regard to sentencing and understand their reasoning, it is also important that we set
realistic expectations. We should also consider and discuss with victims steps that can be taken
to ensure victims feel safe, or could be made whole again in or out of the criminal justice system
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(such as offender-victim mediation, restorative justice referrals, restitution, testifying at

sentencing, etc.).

Ex Parte: No attorney, team leader, or director shall have an ex parte discussion with a judge
about a case. This applies to scheduling, bond decisions, and any other issue about a case. See
Canon 3 (B)(8) of the Texas Code of Judicial Ethics. See also ABA Model Code of Judicial
Conduct, Rule 2.9: Ex Parte Communications. We recognize that this may not always be
possible, and please let us know if you’d like a Director to speak directly to a judge about this.

Sentencing: Over the past forty years, criminal sentencing has become increasingly
disconnected from promoting public safety. The result is a massive system of incarceration
which research reveals serves little measurable crime-reducing purpose and causes substantial
harm to the individuals, family members, and communities it affects. The Travis County District
Attorney’s office must play a central role in reorienting criminal sentencing in ways that
strengthen the social fabric of our community and advance public safety. This set of plea
guidelines will help Assistant District Attorneys by providing direction for how to charge and
resolve their cases.

To responsibly reduce over-incarceration, and the substantial negative effect it has on public
safety, criminologists, researchers, and scholars have suggested a number of key sentencing
reforms to address mass incarceration going forward. They include:

• Utilize minimum mandatory penalties, habitual offender sentencing enhancements, and

other extreme mandatory punishments only when there is an articulable public safety
reason to do so.1
• Impose Jail or Prison sentences for drug and other victimless offenses only when there is
a public safety reason to do so. 2
• Utilize community supervision rather than incarceration whenever possible.3 The length
of probation terms should be no longer than necessary to achieve the goal of probation,
which is generally about two years.4
• Only punish violations of probation with incarceration when there is a direct connection
to a legitimate community safety risk.5

1
Marie Gottshalk, Caught: The Prison State and the Lockdown of American Politics, 266 (Princeton, NJ: Princeton
University Press 2015); Natasha A. Frost, Todd R. Clear, and Carlos E. Monteiro, Ending Mass Incarceration: Six Bold
Reforms, in Ernest Drucker, ed., Decarcerating America: From Mass Punishment to Public Health (New York: The
New Press 2018) at 31-33; Michael Tonry, Remodeling American Sentencing: A Blueprint for Moving Past Mass
Incarceration, 13 Criminology and Public Policy 504, 516-17 (2014).
2
Clear and Austin (2009) at 317; Frost, et. al. (2018) at 29.
3
Gottschalk (2015) at 259.
4
Clear and Austin (2009) at 317, 321; James F. Austin, Reducing America’s Correctional Populations: A Strategic
Plan, 12 JUSTICE RESEARCH AND POLICY 1, 27 (2010).

5
Clear and Austin (2009) at 318; Frost, et. al (2018) at 34; Austin (2010) at 19-20
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• Impose prison sentences that have an evidence-based connection to public safety and
reducing recidivism.6
• Age should matter in criminal sentencing, and individuals under the age of 35 or 40
should never be imprisoned without parole considerations, regardless of the offense or
conviction.7
• Listen to all victims, and ensure that any sentence does not cause more harm to the victim
when the defendant is a loved one or family member.

These recommendations for safely reducing over-incarceration can help prosecutors in this office
use our discretion to eliminate unnecessary imprisonment and devote more resources to cases
that implicate the physical safety of people in our community. The most important shifts must
occur during the pretrial process, where the vast majority of criminal cases in Travis County are
resolved. To that end, we have developed the following plea recommendations to ensure that
every prosecutor in this office has the necessary framework for charging and pleading cases in
ways that strengthen the social fabric of our community and make our neighborhoods safer for
everyone.

Attached are flowcharts that should serve as a guide for prosecutors working through cases.

6
Frost, et. al (2018) at 32 (“Sentences beyond ten years should be rare. Sentences of life should be eliminated.
There should be no such thing as life without the possibility of parole.”); see also Clear and Austin (2009) at 319;
Taylor (2017); Austin (2010) at 19.
7
Frost, et. al (2018) at 33; Tonry (2014) at 524.
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TCDA PRETRIAL DIVERSION

What is our current pretrial diversion program?
Pretrial diversion includes our current specialty courts, TCDA supervised diversion, and
probation supervised diversion. This policy provides for diversion opportunities with varying
degrees of intensity with respect to programmatic requirements and supervision levels. The
different programs have requirements which reflect the needs of the individual defendant. The
requirements can include supervision, treatment, classes, restitution, or CSR. Some of the
options involve the payment of program fees or tuition fees for classes. However, the inability
of a defendant to pay these fees will not disqualify them from PTD nor will non-payment be a
reason for unsuccessful discharge from the program.
What are the different diversion options?
There are three diversion tracks available.

1) Specialty courts
This track includes our current specialty courts including Mental Health Court, DWI
Court, Veterans Court, Drug Court, and the Youthful Offender Program
2) TCDA supervised PTD
Cases in this track are monitored internally for a fixed period of time, typically 3 to
6 months. Defendants may be required to take a class and/or pay restitution. Once
they complete the program, the case is dismissed.
3) Probation supervised PTD
This track requires defendants to report regularly to a probation officer and pay a
$60/month supervision fee. The defendant may be required to complete 1 or more
classes, participate in substance abuse treatment, pay restitution, or complete
other requirements. The program is for up to one year depending on the classes or
other requirements to be completed.
What cases are eligible for pretrial diversion?
Technically, any case can be considered for pretrial diversion. Certain cases are “presumptively
eligible” for diversion. These include most drug possession cases and property crimes. Going
forward, presumptive diversion cases will be sent for diversion review automatically. Any of
those that are determined to be inappropriate for diversion will be returned to the original court
for traditional prosecution. For cases that are not automatically reviewed, the assigned
prosecutor or the defense attorney can submit the case to be considered.
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What about if the defendant is in jail?

If the defendant is in custody, the assigned prosecutor should work on a bond with the defense attorney.
If the offense is presumptively eligible for diversion, the case should be referred for diversion review. If
the offense is not presumptively eligible but the assigned prosecutor believes the case is otherwise
appropriate, the case should be referred for consideration. An out-of-county hold or a parole hold does
not disqualify a defendant from consideration.
What about if the case has a victim?
If the assigned prosecutor wants to refer a case where there is a victim, the prosecutor should contact
the victim before making the referral. This includes property crimes as well as violent ones. The
victim’s view should be considered but is not dispositive. The victim should be asked if there were any
out-of-pocket costs that should be included as restitution. The contact should be documented in the
work product notes. If restitution is requested, the victim’s mailing address and contact information
should be confirmed or updated in TSP.
How does the defense attorney request a PTD review?
There is no longer a written application form. Defense attorneys can submit a request for review by
going to the TCDA web site.
What about if I don’t think it’s a diversion case but the defense attorney wants to apply?
The defense attorney can submit a request through the TCDA web site where they can explain why
the case should be considered for PTD. The prosecutor should enter a work product note explaining
why PTD is not appropriate.
What if a case is rejected for PTD?
The case will be returned to the assigned prosecutor for normal prosecution. A “Rejected for PTD” tag
will be added to the file. If a case has been rejected, but the assigned prosecutor learns new information
that could impact the PTD decision, the prosecutor should put that information into a work product note
and resubmit the case by changing the status to “Diversion Review”.
Special Violence Unit, Family Violence, and Youth Justice
Director approval is required whether it is an ADA or defense request for diversion on cases handled by
these units.
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NOTE: The below flowcharts are to be used as a guide to help an ADA consider factors to use for their
own prosecutorial discretion.
 BAIL FLOW CHART April 28, 2021
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Is the person charged with a State Jail Felony? Presumption is release w/ no conditions ($1 or PR Bond).

Is the person charged with any other Felony? Presumption is release with the least restrictive condition.

Evaluating Exceptions to the Presumptions. Remember, Art. 17.15, Art. 1, Section 13 of Texas Constitution, and
Due Process Clause of Fed’l Constitution apply. We should be considering O’Donnell and Daves for guidance.

FLIGHT RISK: Are there more than two failures to DANGER TO THE COMMUNITY: Is the person
appear w/in the last two years and information that charged with a violent crime, and are there are
shows that the failures to appear were an effort to allegations of prior acts of violence near in time
avoid prosecution, such as evading the police upon OR articulable facts and circumstances to indicate
request on the warrant or using an alias upon a police the accused is at risk for future dangerousness.
encounter that was used to evade prosecution. Alias This may include verbal or non-verbal threats
means more than a misspelling of a name, the use of directed to the victim close in time to the arrest.
maternal or paternal last name, or the use of a The offense alone should not normally be used to
determine dangerousness.
nickname.

If NO to both, presumptive rules apply.

If YES to flight risk or community safety, is there a condition available that would ensure return to
court or safety OTHER than unaffordable bail/preventative detention?

NOTES:
• This flowchart applies to magistration, defense requests for bond AND all ADAs should
review open files and new cases assigned to determine whether or not this policy applies.
• If a person is IN custody on money bail for longer than 72 hours, then there is a
presumption that it is “unaffordable bail” which is effectively preventative detention. The
Statute only allows for “no bond”/actual preventative detention in two situations (Art.
17.152/153).
• If a person has been on EM or GPS for a period of time without violations, defense motions
to reduce /lessen the condition should be considered.
• If a person should be released under this policy but has a hold, efforts should be
undertaken to see if the hold can be lifted or resolved.
 CHARGING FLOW CHART April 28, 2021
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1. Can we prove the case beyond a reasonable doubt at Do not present to the Grand Jury. If
trial on the top charge or is there a compelling policy deficiencies cannot be remedied within 90
reason to let the community decide if the case should days, consent to release and/or dismissal.
move forward? TX CCP Art. 17.151 (1)
2. Are necessary victims and witnesses cooperative? If no,
can the case be made out without them at trial?

Enhancements. Does defendant have a prior felony or

misdemeanor conviction that can be used to enhance the penalty Present as Planned.
for the current charge?

Penalty. Is there an articulable public safety reason Procced without the penalty
enhancement.
to enhance the charge such as a nexus between the
prior conviction and current case? Is there Director
Approval for enhancing? Proceed with the enhancement.

Misdemeanor Enhancements. Is there a clear nexus Proceed without the enhancement.

between the misdemeanor and current charge, in
both time and facts, that would indicate there is a Proceed with the enhancement.
risk to public safety? See § 31.03, 38.04, 43.02.

Capital Murder. Do the facts of the underlying case support a

Present as a murder case.
capital murder charge?

Present as capital murder after a panel of the Division Director, First Assistant, and District Attorney have agreed that
capital murder is appropriate. Factors to be considered include: the facts of the case, defendant’s prior record,
aggravating circumstances, mitigating information, and age of the defendant.

1. Readiness: If, efforts to contact necessary witnesses have failed, or the witness refuses to cooperate and charges
cannot be proven without the witness, defense counsel must be notified after 30 days.
2. If after six months, and reasonable efforts to contact necessary witnesses have failed and/or to gain cooperation
have failed, the case should be dismissed –witness not available.
3. Due to the pandemic, for open cases prosecutors should consider the last six months from today’s date as the
time period. Moving forward, it is six months from arrest.
4. EXCEPTIONS: Please conference with your director if a necessary witness is uncooperative or efforts to contact the
necessary witness have failed, but you believe circumstances will change.
 NARCOTICS CASES April 28, 2021
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Ojngekghjrkajm or less, possession or sale:
Is there an articulable threat to public Reject the charges.
safety that would justify charging the POCS
and has the Director of Policy signed off?

For any narcotics case, regardless of

weight or circumstances or prior record, Send all narcotics cases for diversion review, regardless of prior
has the case been considered for record, holds, or custody status.
diversion?

CHARGING OF NARCOTICS CASE: Threshold Weights. Goal is ensuring that heavy user or mules not charged with first
degree felony. Note: Director permission is required to indict first-degree narcotics cases.

Circumstances that warrant a first-degree charge include:

1. The individual possess controlled substances over the necessary quantity threshold; and
2. Given the specific substance recovered, the quantity possessed or sold is inconsistent with personal use or street-
level dealing; and
3. There are additional facts demonstrating that the individual apprehended is a high-level distributor of controlled
substances (such as evidence he or she managed distribution performed by others; coordinated efforts of many
participants; or made judgement calls about business operations, strategy and methods).

Charging of Narcotics Cases: Possession with Intent to Deliver Controlled Substance. Goal to ensure that sellers, and not
“go-betweens” are charged appropriately.

Circumstances that warrant sale charge:

1. Evidence of an actual or attempted sale not for personal use (ie buying two, selling one and using one);
2. Two or more indicators of distribution such as large amounts of cash, scales, ledgers, etc.

Sentencing. Presumption that, regardless of prior record, that non-incarcerative sentence is appropriate for all narcotics
cases. If Diversion is not appropriate, the presumptive term of supervision for either a deferred adjudication or probation
should be two years. Director approval required for incarceration offer on a drug offense (even first degrees).
 Sentencing Principles April 28, 2021
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Diversion Consideration.
1. No serious bodily injury to victim. Refer for diversion consideration regardless of prior record.
2. Family violence, sexual assault and child abuse cases, refer as needed for diversion.
3. Victim suffered SBI. Case may still be diversion appropriate if it is sufficient to address safety concerns, however,
serious mitigating factors must exist (victim wants diversion, defendant suffers from mental health disorder that
was untreated and now in treatment, etc.).

Presumption is non-incarceration. Period of supervision

Is the charge a drug or victimless offense? should not be longer than necessary to achieve the goal
of supervision (generally two years).

Consider their thoughts on sentencing and what is likely cause the least amount of harm or trauma. We
Is the victim a do not know better than the person who has been hurt by a loved one what is best for them. We must
family member or listen to victims and hear what they need to help them on the path towards healing. We have the ability
known well to the to be creative and responsive to their needs, if we listen and think outside the box. Child victims should
defendant? not bear the responsibility of making a decision about a loved one, however, ADAs should make every
effort to determine which outcome is the least traumatizing and will keep the community safe.

While it is important that we listen to victims’ requests with regard to sentencing and u
nderstand their reasoning, it is also important that we set realistic expectations. We sh
Is the defendant a ould also consider and discuss with victims steps that can be taken to ensure victims fe
stranger to the el safe, or could be made whole again in or out of the criminal justice system (such as o
victim? ffender-victim mediation, restorative justice
referrals, restitution, testifying at sentencing, etc.).

Does the
Substance abuse and mental health disorders should never serve as a justification for
defendant have a imprisonment. This must be true in the context of both initial case resolutions and any
mental health or recommendations this office makes as to violations of bond conditions or probation
substance abuse violations.
disorder?

If considering
incarceration, is Refer to sentencing recommendations. For any case where incarceration is offered,
there a legitimate there must be a legitimate safety concern that will be met by incarceration that cannot
public safety be met through community supervision. All non-incarcerative options must first be
reason to show considered.
that incarceration Any sentence over 20 years must have approval from Director and First Assistant or
is the only way to District Attorney.
keep us safe?
 SENTENCING RECOMMENDATIONS April 28, 2021
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STOP: These recommendations are only to be considered AFTER diversion and all non-incarceratory options have
been explored. Incarceration will be justified for community safety.

Burglary

No sentencing recommendation; rec should be

based on nature of underlying offense.
1. Is the underlying offense violent, or
2. Is there an indication of recent violent
behavior?
Plea to Burglary of a structure (SJF).

DWI, 3rd and subsequent offense

Explore non-incarcerative treatment options,

1. Did the current offense cause serious
otherwise, a plea to felony DWI and short term of
bodily injury to another, or
2. Were the current and two prior incarceration may be necessary.
offenses committed within a span of 5
years or less. Presumption is that misdemeanor and non-
incarceration is appropriate.

Aggravated Robbery

1. Did the offense cause actual, serious Recommended plea range is 4-6 years.
bodily injury to the victim AND
2. Did the defendant demonstrate a
substantial pattern of committing
similar offenses? Recommended plea range is 2-3.5 years.

Robbery

1. Did the offense cause actual injury to Recommended range is 1.5-3 years and reduction to
the victim, AND SJF Theft if appropriate.
2. Did the defendant demonstrate a
substantial pattern of committing
Recommended plea to theft from the person, director
similar offenses?
approval required for incarceratory offer.

Assault on a Family/Household Member with Previous Conviction

1. Has the defendant committed recent, Felony offer, with incarceration to be determined based
prior acts of family violence, and on facts and circumstances of the case
2. Is the violence escalating by becoming
more severe or frequent, and Presumption of misdemeanor offer and non
3. Are the victim and accused in an incarceration, Director approval required for
intimate relationship? incarceratory offer.
 Assault by Impeding Breath or Circulation April 28, 2021
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Recommendation based on individual case and

need for victim safety.

Is there corroborating evidence, such as medical

records, visible injuries, or photographs, of the
strangulation?
Misdemeanor plea, no incarceration without
director approval.

Aggravated Assault

1. Is there SBI and injuries that will be Agg. Assault w/ SBI: 3-5 years
lifelong or require extended care? OR
Agg. Assault with Deadly Weapon: 2- 3.5 years
2. If Aggravated Assault with a deadly
weapon, is the intent to use the weapon
clear from the facts and circumstances
(more than display)?OR Presumption is misdemeanor offer, Director
3. Are the facts clear that there is no approval required for incarceration and felony.
mitigation such as a self-defense claim?

All other cases where diversion or community supervision will not ensure community safety

A term of incarceration only so long as to permit

neurological development. A general presumption is
Is the defendant under the age of 25? that an incarceratory term of 10 years is the
maximum for younger defendants. Director approval
required for more than ten years.

Staff with Director and First Assistant or District

Do you believe that a sentence of over 20 years is Attorney. Be prepared to discuss why a lengthy term
appropriate for community safety? of imprisonment is necessary.