State v. Rochelle L. McNutt, 405 S.W.3d 156

McNutt was charged by information with a misdemeanor DWI (first-time offender).
McNutt was eligible for Harris County’s DIVERT pretrial diversion program, requiring a guilty plea and waiver of rights with court approval.
DIVERT differs from traditional pretrial diversion programs in that charges remain pending and a deferred adjudication can occur only with court approval.
The case was randomly assigned to County Criminal Court at Law No. 2, whose judge refused to approve any DIVERT agreement for McNutt.
Other county criminal courts at law approved numerous DIVERT agreements; Judge 2 did not approve any.
McNutt moved to dismiss claiming due process and equal protection violations; the trial court granted dismissal, and the State appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Due process violation from nonparticipation in DIVERT	McNutt: denial of due process because excluded from DIVERT.	McNutt has no right to pretrial diversion; no entitlement exists.	No due process violation; no entitlement to DIVERT.
Equal protection violation from court-based DIVERT access	McNutt and others in court 2 are treated differently from others.	Assignments are random; no suspect class; no equal protection violation.	No equal protection violation; random assignment and uniform DIVERT terms.
Whether dismissal without prosecutor consent was proper	Dismissal was appropriate to remedy constitutional violations; disparate treatment.	Trial court may dismiss without consent only in extraordinary circumstances with constitutional violation.	Trial court erred in dismissing without prosecutor’s consent; reverse and remand.

State v. Mungia, 119 S.W.3d 814 (Tex. Crim. App. 2003) (trial court may not dismiss without consent absent constitutional violation)
Dinur, 2012 WL 4127281 (Tex. App.—Houston [14th Dist.] 2012) (pilot programs and DIVERT distinctions analyzed (WL cite, no official reporter))
Plambeck, 182 S.W.3d 365 (Tex. Crim. App. 2005) (prosecution consent required for dismissal; procedural baseline)
Ex parte Montgomery, 894 S.W.2d 324 (Tex. Crim. App. 1995) (due process right to a fair process; entitlement analysis)
Santobello v. New York, 404 U.S. 257 (1971) (plea-bargain fulfillment obligations)
Weatherford v. Bursey, 429 U.S. 545 (1977) (no constitutional right to plea bargain)
Clark v. State, 665 S.W.2d 476 (Tex. Crim. App. 1984) (equal protection if no fundamental rights or suspect class)
Vasquez v. State, 739 S.W.2d 37 (Tex. Crim. App. 1987) (rational basis review for equal protection)
Nonn v. State, 117 S.W.3d 874 (Tex. Crim. App. 2003) (equal protection where similarly situated treated alike)
Downs v. State, 244 S.W.3d 511 (Tex. App.—Fort Worth 2007) (difference in treatment must be factually justified)
Smith v. State, 898 S.W.2d 838 (Tex. Crim. App. 1995) (different sentencing within non-suspect classes permissible)
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (U.S. 1985) (equal protection requires similarly situated treated alike)