Texas Stamp


PD-0823-21 01/26/2022

“The Fourteenth Court erred by holding that a motion to dismiss that explicitly reserved the State’s right to refile was retroactively converted into an ‘immunity agreement’ when the trial court dismissed a subsequent case on grounds of equitable immunity. Nothing in the record shows the trial court ever consented to an immunity agreement.”

Hatter was charged with felony assault on a peace officer and two misdemeanor DWIs. The victim officer, out of compassion for Hatter’s apparent substance abuse problem, persuaded the prosecutor to offer to dismiss the assault if Hatter pleaded guilty to the DWIs. Hatter had different attorneys on his assault and DWIs, and his attorney on the DWI did not agree to the deal. Trial was set on the assault while negotiations were ongoing, and the prosecutor moved to dismiss it subject to refiling pending Hatter’s plea on at least one DWI. The trial court agreed. When the DWIs were dismissed without that prosecutor’s knowledge, he refiled the assault. Hatter filed a motion asking for specific performance of the prosecutor’s alleged “gentleman’s agreement” not to refile. After a hearing, the trial court found that such an agreement existed (and the prosecutor forgot about it) and ordered the case dismissed.

The State appealed. The court of appeals affirmed. It framed the analysis as the review of an immunity agreement. By granting Hatter’s motion for specific performance of an oral promise not to refile, the trial court gave its approval. See Tex. Code Crim. Proc. art. 32.02 (“No case shall be dismissed without the consent of the presiding judge.”). It rejected the State’s argument that its offer of immunity is binding only if it is approved when it was made or, alternatively, if consideration was given in exchange for it. On the latter point, it relied on Smith v. State, which said the prosecutor who initiates the dismissal sets its terms and the trial court has no obligation to inquire into them before accepting or rejecting it. 70 S.W.3d 848, 855 (Tex. Crim. App. 2002). Justice Jewell dissented. He said there was no immunity agreement because there was no consummated, approved agreement at the time the State dismissed with option to refile and the State objected when an alleged agreement was presented to the trial court for approval.

The State’s petition builds upon the dissent. An immunity agreement must exist before it can be enforced. As per Smith, an immunity agreement cannot exist without the trial court’s approval.  Id. at 851. The trial court never consented to an immunity agreement, nor did it purport to enforce one. Rather, it enforced (over objection) an alleged promise not to prosecute that ran contrary to the dismissal paperwork. It was, in effect, an application of the doctrine of equitable immunity, which does not exist in Texas. Id.

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