In the sense used in the Texas Code of Criminal Procedure this means that prosecutors should not try to convict a defendant of a crime when the prosecutor believes that the defendant is innocent, and should not seek a sentence which is disproportionate to the crime committed, even if the prosecutor believes that he or she is able to do so.
This has to be read, however, in light of the absolute discretion available to prosecutors from which prosecutors have absolute immunity for civil liability for their exercises of discretion, See, e.g., Wayte v. United States, 470 U.S. 598 (1985) and Bordenkircher v. Hayes, 434 U.S. 357 (1978).
Similarly, even the Texas Attorney General is loathe to over regulate exercises of discretion by this office.
For example, on the one hand county attorneys are litigators,
prosecutors required by the Code of Criminal Procedure "not to
convict, but to see that justice is done." Tex. Code Crim. Proc. Ann.
art. 2.01 (Vernon 2005).(fn2) On the other hand, county attorneys are
researchers and writers required to render legal advice to county and
precinct officials within the attorney's county. Tex. Gov't Code Ann.
§ 41.007 (Vernon 2004). As county officials, moreover, county
attorneys hold "virtually absolute sway over the particular tasks or
areas of responsibility entrusted to [them] by state statute."
Familias Unidas v. Briscoe , 619 F.2d 391, 404 (5th Cir. 1980).
- Texas Attorney General Opinions 2006. No. GA-0475.
In practice, this absolute discretion without fear of civil liability, together with the limited grounds upon which discipline can be imposed on a prosecutor, render this standard merely aspirational in practice - setting forth an unenforceable aspirational goal rather than an enforceable standard despite its seemingly clear and mandatory language. Like most aspirational statements it is mandatory in form, but does not identify any consequences for disobedience.
For example, in the case of Commission for Lawyer Discipline v. Hanna, 14-15-00929-CV, 14-15-00931-CV (Tex. App. 2016), a prosecutor convicted of suspect of a drug crime on the basis of a laboratory test by an individual who was later discovered to have falsified drug test results, something that state officials notified all prosecutors in the state of and specifying the cases involved - this led to many reversed convictions in post-trial motions. But, the defendant and his counsel in a particular case were not notified because the evidence had been destroyed and could not be retested, meaning that the defendant would almost surely be released if he sought to have his conviction reviewed. Professional ethics charges were brought against the prosecutor for failing to reveal this exculpatory evidence under the "justice" clause of Texas Code of Criminal Procedure 2.01 (restated in the preamble to Texas Disciplinary Rule 3.09) something that the U.S. Supreme Court had required as a matter of constitutional law since Imbler v. Pachtman, 424 U.S. 409, 427 n. 25 (1976), that prosecutors are "bound by the ethics of [their] office to inform the appropriate authority of after-acquired or other information that cases doubt upon the correctness of the conviction." But, Section 3.09 of the Texas Disciplinary Rules of Professional Conduct does not expressly require post-conviction disclosure of exculpatory evidence (even though the leading treatise of professional ethics in Texas held that it should be interpreted to require that this be done), because Texas deliberately declined to follow a change to the Model Rules of Professional Conduct that incorporated that requirement. Instead, the Texas Court of Appeals held that:
We further note that the Texas Disciplinary Rules of Professional
Conduct establish the "minimum standards of conduct below which no
lawyer can fall without being subject to disciplinary action;"
however, the rules "do not . . . exhaust the moral and ethical
considerations that should guide a lawyer." See Tex. Disciplinary
Rules Prof'l Conduct preamble ¶¶ 7, 11. "A prosecutor has the
responsibility to see that justice is done, and not simply to be an
advocate." Tex. Disciplinary Rules Prof'l Conduct R. 3.09 cmt. 1.
Although we determine today that Rule 3.09(d) did not impose a
post-conviction duty of disclosure under the circumstances of this
case, prosecutors nevertheless should strive to see that justice is
done before and after conviction. See Tex. Disciplinary Rules Prof'l
Conduct preamble ¶ 9 ("Each lawyer's own conscience is the touchstone
against which to test the extent to which his actions may rise above
the disciplinary standards prescribed by these rules.").
Thus, the prosecutors duty "to see that justice is done" in Texas may set a moral standard for prosecutors, but does not impose upon prosecutors even a duty to comply with the United States Constitution as determined in well established case law that could right the wrong of a wrongfully obtained conviction in Texas, if it does not violate Rule 3.09 and its comments, which operationalize that duty in Texas.
It is actually reversible error in Texas for a prosecutor to argue to a jury that he or she has a duty to see that justice is done, while defense counsel has a duty to zealously represent his client in an effort to obtain a favorable result for the client. Wilson v. State, 938 S.W.2d 57 (Tex. Crim. App. 1996). Improper argument to a jury on this basis, however, is frequently acknowledged to be error, but held to be harmless by the Texas courts. See, e.g., Bullard v. State, 02-06-099-CR (Tex. App. 2007) (unpublished decision). It is likewise held to be proper in any case where the defense has implied in any way that the state acted improperly in the case. See, e.g., Linares v. State, 427 S.W.3d 483 (Tex. App. 2014).
As operationalized for enforcement purposes, the "justice" standard is less rigorous. The standards that prosecutors are actually held to is set forth in Rule 3.09 of the Texas Disciplinary Rules of Professional Conduct which are actually enforceable as they are they standard for imposition of discipline on prosecutors in Texas, and the language of the rule is diluted further in the official comment to the rule and the case law interpreting it. Rule 3.09 states:
Texas Disciplinary Rules of Professional Conduct
As amended through September 1, 2016
Rule 3.09. Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting or threatening to prosecute a charge that
the prosecutor knows is not supported by probable cause;
(b) refrain from conducting or assisting in a custodial interrogation
of an accused unless the prosecutor has made reasonable efforts to be
assured that the accused has been advised of any right to, and the
procedure for obtaining, counsel and has been given reasonable
opportunity to obtain counsel;
(c) not initiate or encourage efforts to obtain from an unrepresented
accused a waiver of important pre-trial, trial or post-trial rights;
(d) make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate the guilt of
the accused or mitigates the offense, and, in connection with
sentencing, disclose to the defense and to the tribunal all
unprivileged mitigating information known to the prosecutor, except
when the prosecutor is relieved of this responsibility by a protective
order of the tribunal; and
(e) exercise reasonable care to prevent persons employed or controlled
by the prosecutor in a criminal case from making an extrajudicial
statement that the prosecutor would be prohibited from making under
Source and Scope of Obligations
(1) A prosecutor has the responsibility to see that justice is done,
and not simply to be an advocate. This responsibility carries with it
a number of specific obligations. Among these is to see that no person
is threatened with or subjected to the rigors of a criminal
prosecution without good cause. See paragraph (a). In addition a
prosecutor should not initiate or exploit any violation of a suspect's
right to counsel, nor should he initiate or encourage efforts to
obtain waivers of important pre-trial, trial, or post-trial rights
from unrepresented persons. See paragraphs (b) and (c). In addition, a
prosecutor is obliged to see that the defendant is accorded procedural
justice, that the defendant's guilt is decided upon the basis of
sufficient evidence, and that any sentence imposed is based on all
unprivileged information known to the prosecutor. See paragraph (d).
Finally, a prosecutor is obliged by this rule to take reasonable
measures to see that persons employed or controlled by him refrain
from making extrajudicial statements that are prejudicial to the
accused. See paragraph (e) and Rule 3.07. See also Rule 3.03(a)(3),
governing ex parte proceedings, among which grand jury proceedings are
included. Applicable law may require other measures by the prosecutor
and knowing disregard of those obligations or a systematic abuse of
prosecutorial discretion could constitute a violation of Rule 8.04.
(2) Paragraph (a) does not apply to situations where the prosecutor is
using a grand jury to determine whether any crime has been committed,
nor does it prevent a prosecutor from presenting a matter to a grand
jury even though he has some doubt as to what charge, if any, the
grand jury may decide is appropriate, as long as he believes that the
grand jury could reasonably conclude that some charge is proper. A
prosecutor's obligations under that paragraph are satisfied by the
return of a true bill by a grand jury, unless the prosecutor believes
that material inculpatory information presented to the grand jury was
(3) Paragraph (b) does not forbid the lawful questioning of any person
who has knowingly, intelligently and voluntarily waived the rights to
counsel and to silence, nor does it forbid such questioning of any
unrepresented person who has not stated that he wishes to retain a
lawyer and who is not entitled to appointed counsel. See also Rule
(4) Paragraph (c) does not apply to any person who has knowingly,
intelligently and voluntarily waived the rights referred to therein in
open court, nor does it apply to any person appearing pro se with the
approval of the tribunal. Finally, that paragraph does not forbid a
prosecutor from advising an unrepresented accused who has not stated
he wishes to retain a lawyer and who is not entitled to appointed
counsel and who has indicated in open court that he wishes to plead
guilty to charges against him of his pre-trial, trial and post-trial
rights, provided that the advice given is accurate; that it is
undertaken with the knowledge and approval of the court; and that such
a practice is not otherwise prohibited by law or applicable rules of
practice or procedure.
(5) The exception in paragraph (d) recognizes that a prosecutor may
seek an appropriate protective order from the tribunal if disclosure
of information to the defense could result in substantial harm to an
individual or to the public interest.
(6) Sub-paragraph (e) does not subject a prosecutor to discipline for
failing to take measures to prevent investigators, law enforcement
personnel or other persons assisting or associated with the
prosecutor, but not in his employ or under his control, from making
extrajudicial statements that the prosecutor would be prohibited from
making under Rule 3.07. To the extent feasible, however, the
prosecutor should make reasonable efforts to discourage such persons
from making statements of that kind.
The standard has also been applied to disqualify a prosecutor who has a personal stake in the outcome of a prosecution. In re Guerra, 235 S.W.3d 392 (Tex. App. 2007) (loser of an election appointed as special prosecutor of a voter fraud case in that election).
On the other hand, in a split opinion, the majority of the Texas Court of Criminal Appeals has held that the "justice" mandate is limited to the Texas Code of Professional Responsibility and does not give rise to a duty to reveal a close 27 year personal friendship with a juror which the juror did not disclose in response to a relevant question in the jury selection process. Armstrong v. State, 897 S.W.2d 361 (Tex. Crim. App. 1995).
Similarly, while a prosecutor has a duty to disclose exculpatory evidence to the defense, a prosecutor does not have a duty consistent with the "justice" requirement in Texas to introduce an exculpatory evidence to the jury (i.e. evidence tending to show that the defendant is guilty) at trial. Johnson v. State, 810 S.W.2d 785 (Tex. App. 1991).
In short, the plain meaning of the prosecutor's oath is not enforceable in practice by any legal means in many cases, and is hence merely aspirational, while Rule 3.09 supplies the true, counterintuitive and crabbed legal meaning of this term in Texas. In practice, "Texas Justice" as interpreted by the Texas Court of Criminal Appeals is anything but.