Dallas County District Attorney John Cruezet has faced strong push back, and even calls for his resignation, following his bombshell announcement last month that he would decline certain offences.
The headline figure of $750 he used in two published letters was grabbed on by opponents of his stance, including Gov. Greg Abbot and the heads of various police associations.
Abbott, in an interview with NBC 5 in Dallas, launched a scathing attack on the district attorney, stating, "It is reckless and irresponsible for a district attorney or any public official to say theft for less than $750 is not going to be prosecuted. That is legalizing stealing for property less than $750."
In response, the district attorney said the $750 is the threshold that state law says will result in someone being charged with a Class B misdeamenour. He added that he differentiated between those who steal out of personal necessity and those who act out of economic gain.
But Cruezot did tell Dallas City Council's Public Safety and Criminal Justice Committee: "Let me apologize, I can't apologize enough publicly. The way this was written was confusing and totally my fault. This confusion and lack of understanding — (that's something) I'm going to take personal responsibility for."
Both Abbot and the heads of police associations have criticized the district attorney for legislating from his office and overriding Texas law. It also raises questions over police on the street, but Cruezet is not telling officers to stop making any arrest if there is probable cause.
Abbott, in the same NBC interview, said, "What kind of message does that send for one, but for another, listen if your district attorney wants to change the law he is in the wrong job. He needs to run for the legislature and come here to try and change the law. His job, his oath, is to enforce the law that exists and he should prosecute. "
The district attorney hit back: "I'm working to fix a broken criminal justice system that allows a woman to remain in jail for more than a month on $150,000 bail for $105 shoplifting charge at taxpayer expense.
"It doesn't make sense to clog up our jails with people who are not a danger to society. We need to focus on criminals who are a threat to our communities and individuals who commit thefts for economic gain."
At a press conference reported by multiple news outlets, the head of the Dallas Police Association, Mike Mata, took aim at the memo, arguing that Cruezot has not defined what he means.
"We went from 'necessary items' to now 'personal necessary items,'" he said. "I can get you 10 people and they can give you 10 definitions of what they feel is personal. ... If someone is going and needs formula for their child, we're not going to put them in jail for that. Either we're going to find a way to get them that from the store through mediation or we will point them to a church or social services."
In another interview published by the Dallas Observor, Mata also raised the issue of using his office to effect what he believes is legislative change.
"If there's something that needs to be changed legislatively, then he can run for a legislative office and change it in Austin for the whole greater good of the state of Texas," Mata said. "I think you get on a very, very slippery slope when you start to legislate from the bench.
Mata was not immediately available for the Southeast Texas Record to expand on the issue of the legal position of the district attorney. The Attorney General Ken Durkin's office did not immediately reply to requests for comment.
And Kimberlee Leach, the director of communications at the Dallas County District Attorney’s Office, referred to the previously published memos.
However, legal scholars are unanimous that prosecutorial discretion is almost unlimited, but in individual cases.
In a primer published on the law.jrank.org, Judge Gerard E. Lynch, who sits on the US Court of Appeals for the Second Circuit, wrote that "government prosecuting attorneys have nearly absolute and unreviewable power to choose whether or not to bring criminal charges, and what charges to bring, in cases where the evidence would justify charges."
However, Lynch added that the prosecutor is a "significant public figure, exercising political authority on behalf of the state to determine its substantive position. Consequently, the prosecutor is normally a politically responsible actor." And, he noted, the state attorney general has a "generally limited" power and authority over over the local district attorney.