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Criminal procedure

prosecutorial discretion

Prosecutorial discretion generally refers to the authority of a prosecuting officer or agency (United States Attorney or state District Attorney) to decide what if any criminal charges to bring against a person or persons, and what punishment or sentence to seek. Prosecutorial discretion may also be used by a police officer, for example, in deciding whether to issue a driver a speeding citation (ticket) or a warning.

Prosecutors generally have broad authority to make such decisions—subject to the right of the citizens to remove them from office, directly or indirectly, in the voting or election process.

In Texas, prosecutorial discretion is the power vested in prosecuting officers, such as District Attorneys or United States Attorneys, to determine whether to bring criminal charges against an individual and what specific charges to file. This discretion extends to decisions about what penalties or sentences to pursue. The scope of this discretion is wide, allowing prosecutors to weigh various factors, including the strength of the evidence, the seriousness of the offense, and the interests of justice. While this discretion is significant, it is not absolute and is subject to checks and balances, including the possibility of being held accountable by the public through elections. Police officers in Texas also exercise a form of prosecutorial discretion when deciding whether to issue a citation or a warning for offenses like speeding. The exercise of prosecutorial discretion is a fundamental aspect of the criminal justice system, reflecting the need for flexibility and the application of legal judgment to individual cases.

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