Executive Director's Report
May-June 2022

An update on Rule 3.09

By Rob Kepple
TDCAA Executive Director in Austin

On April 6, the State Bar Committee on Disciplinary Rules and Referenda (CDRR) held a public hearing over Zoom on proposed amendments to Disciplinary Rule of Professional Conduct 3.09, Special Responsibilities of a Prosecutor. As I noted in the last edition of this journal, many prosecutors have questioned the need for such a rule, given that the legislature has chosen to regulate this area of prosecutor conduct with the Michael Morton Act and amendments to Texas Government Code §81.072, which provides that a prosecutor or former prosecutor may face a grievance for a Brady violation that causes a wrongful conviction. Nonetheless, the CDRR published proposed amendments in the March edition of the Texas Bar Journal and set a hearing.

            A number of prosecutors testified at the hearing, including:  Mike Jimerson, County and District Attorney in Rusk County; Jack Roady, Criminal District Attorney in Galveston County and TDCAA Board President; C. Scott Brumley, County Attorney in Potter County; Brian Middleton, District Attorney in Fort Bend County; Bobby Bland, former District Attorney in Ector County, Kim Ogg, District Attorney in Harris County; Lee Hon, Criminal District Attorney in Polk County; Philip Mack Furlow, District Attorney in Dawson, Gaines, Garza, and Lynn Counties; Doug Norman, Assistant District Attorney in Nueces County; Erik Kalenak, Assistant District Attorney in Midland County; and Tillman Roots, Assistant Criminal District Attorney in Comal County.

            Generally, prosecutors testified that a rule requiring disclosure of newly discovered credible and material evidence of a wrongful conviction is OK, as long as the good faith exception that appears in the model rule comments is moved into the body of the rule. On the other hand, the proposed duties to investigate and remedy are not workable. In addition, prosecutors were strongly opposed to the “cradle to grave” provision—once you have been a prosecutor, you will for the rest of your bar card’s life have a duty to enforce all ethical, constitutional, and statutory provisions relating to exculpatory and mitigating evidence. That breathtakingly broad rule is not replicated in any state.

            In addition to Texas district and county attorneys, all four United States Attorneys for Texas penned a letter in opposition to the changes. Brit Featherston, the U.S. Attorney for the Eastern District of Texas, testified to express concerns. Judge Barbara Hervey of the Court of Criminal Appeals and representatives from the Office of the Attorney General also raised issues concerning investigation and remedy and the cradle-to-grave provisions. Finally, city attorneys echoed those concerns and asked that they be exempted from the new provisions entirely. You can see the comments and letters submitted to the committee and watch the entire proceeding at www.texasbar.com/AM/Template.cfm?Section=cdrr&Template=/cdrr/vendor/participate.cfm.

            As part of the work on this issue, TDCAA Research Attorney Stephanie Huser put together some very useful documents. The first is a comprehensive spreadsheet of the other states that have adopted some form of the American Bar Association’s Model Rule 3.8. (Find it below as an attachment.) Second, to further explore the issue of exonerations and the national database that was discussed by the CDRR, she created a one-page infographic on exonerations, which is also below. It is interesting to visualize the causes of wrongful convictions and subsequent exonerations. Since the Michael Morton Act took effect in 2014, exonerations based on Brady violations have been far outpaced by exonerations because of an ineffective defense.

TDCAA awards

Each year at the Annual Criminal & Civil Law Conference, we recognize those in the profession who have stood out. As part of the work of the 2022 Long Range Planning (LRP) Committee led by Bill Helwig, Criminal District Attorney in Yoakum County, the committee reviewed TDCAA’s awards and how winners are chosen. The new long-range plan has not been adopted quite yet, but one change we anticipate is to the nomination processes for the State Bar Criminal Justice Section Prosecutor of the Year and TDCAA’s Lone Star Awards. In the past, nominations were generated by the TDCAA Nominations Committee. That has worked pretty well, but it occurred to the LRP Committee that we may be missing some great nominations from the general membership. There certainly is no downside to getting more nominations for the Nominations Committee to review. I am sure the LRP Committee will develop a more formalized nomination process, but in the meantime here are the criteria for these two awards:

            The State Bar Criminal Justice Section Prosecutor of the Year Award is a broad award for outstanding service to the criminal justice system. This award should be given to a prosecutor who improves the quality of justice through leadership and/or efforts to shape public policy.

            This award, although designated by the State Bar as a “practitioner of the year award,” contemplates that a prosecutor may also be recognized for a body of work or activities that may span more than a single year. It is reserved for a person who has demonstrated a devotion to the profession and who aspires to be a true example of a “minister of justice.” Although this is an award given by the Criminal Justice Section, by tradition TDCAA has been asked to forward a nomination directly to the Section.

             The terms should be read expansively to include all efforts to improve the criminal jurisprudence of the state, whether it be through developing novel theories of prosecution through trial and appellate advocacy, creating and implementing innovative investigation and prosecution techniques, affecting positive change at the Texas Legislature, making significant contributions to the profession of prosecution through training and support of other prosecutors, or spearheading new programs and services in the community at large. 

            The Lone Star Award is designed to recognize significant efforts of a prosecutor, including a civil practitioner, who demonstrates excellence through trial advocacy, appellate advocacy, or other government representation that a person in a district or county attorney office may perform. This award is targeted to those whose work may otherwise go largely unnoticed around the state, but who advances justice in the community. It should honor a prosecutor who has distinguished him or herself in the last year.  

            If you have a great nomination, feel free to let me know so I can forward it to the Nominations Committee!

Mental health book gains attention

Recently, a Harris County law librarian wrote a short review of a TDCAA publication, Mental Health Law for Prosecutors (written by four Harris County ADAs), on the library’s blog (www.harriscountylawlibrary.org/ex-libris-juris/2021/6/9/latest-amp-greatest-mental-health-law-for-prosecutors). The law library’s post was picked up by the American Association of Law Libraries in a daily email digest sent to law librarians across the country. Kudos to authors Bradford Crockard, Jeff Matovich, Erica Robinson Winsor, and Gilbert Sawtelle for the well-deserved recognition! TDCAA used grant funds from the Court of Criminal Appeals to mail copies of the book to all prosecutor offices in summer 2020. Additional copies are available for purchase on the TDCAA website at www.tdcaa .com/product/mental-health-law-for-prosecutors-2020.

Recruitment and retention

As your offices ramp up from the COVID-19 shutdowns, we have heard from quite a few of you who have job openings. It has been slow going filling those positions. The TDCAA Long Range Planning Committee has been looking at the issue, and I am sure that the TDCAA Diversity, Recruitment, & Retention Committee will play a big role in future efforts. As a starting point, check out the work done by TDCAA Assistant Training Director Gregg Cox at THIS LINK compiling the contact information for Texas law school career offices. My experience with these folks has been that they are enthusiastic when prosecutors reach out, and they have been more than happy to introduce you to students who may want to be prosecutors.     

            One hiring method that has worked in a couple offices: hiring a qualified graduate right out of law school as an intern on a student bar card until the graduate passes the bar. Harris County has historically done that with what was called the “pre-commit” program. After all, our profession may be at a competitive disadvantage by not hiring until the potential assistant gets bar results.  

Congratulations, Steve Lupton

Congratulations to Steve Lupton, an assistant DA in the 452nd Judicial District Attorney’s Office, on his retirement after 40 years of practicing law, including 28 as a prosecutor. Steve served as an ADA in a couple offices before being elected district attorney in San Angelo for eight years. 

            Steve offers some great advice for retiring elected prosecutors: Do what he did and become an assistant county or district attorney. I think Steve tried private practice for a short time but missed the public service aspect of a prosecutor job—without some of the administrative head-aches that come with the corner office!

            Take care, Steve.