March-April 2018

Assistant prosecutor longevity pay in danger

Rob Kepple

TDCAA Executive Director in Austin

I hope all assistant prosecutors in Texas take advantage of the Assistant Prosecutor Longevity Pay program.1 Established in 2001 by then-State Representative Vilma Luna (D–Corpus Christi) and Senator Royce West (D–Dallas), who are both former prosecutors, the program provides a yearly supplement of up to $5,000 for assistant prosecutors from state coffers. Much like the existing supplement for state employees, the supplement encourages people serving the state—that’s you—to stay at the job and lend your expertise to enforcing Texas’s criminal laws.

How it works
Every full-time assistant prosecutor is entitled to monthly state longevity pay of $20 per year of service starting in his fifth year. Only service in Texas as an assistant county attorney, assistant district attorney, or assistant criminal district attorney counts, and time accrued in multiple offices is aggregated and counted toward the total service time. Longevity pay is capped at $5,000 per year (reached in the 21st year of service).
    The elected prosecutor must certify an assistant prosecutor’s eligibility for state longevity pay. An assistant receiving state longevity pay who earns an annual salary (from all funds received) of more than $112,000 may not maintain a private practice of law, and the county may not reduce the salary of an assistant prosecutor to offset the longevity pay.
    Not later than the 15th day after the start of each state fiscal quarter, the county auditor or treasurer shall certify to the comptroller the amount of longevity pay due to the assistants in the prosecutor offices serving the county in the preceding fiscal quarter.
    The comptroller shall issue warrants to the county for that longevity pay within 60 days of the start of that state fiscal quarter. Upon receipt of the longevity pay funds, the county shall include the longevity pay in the assistants’ regularly scheduled salary payments or in a separate payment.

Here’s an example
Susan begins work as an assistant county attorney on September 1, 2010.
•    On August 31, 2014, she accrues four full years of lifetime service credit.
•    On September 1, 2014, Susan’s elected boss notifies the county auditor of Susan’s eligibility for state longevity pay.
•    On December 1, 2014 (which is within 15 days of the beginning of the second state fiscal quarter), the county auditor certifies to the comptroller that Susan is eligible for state longevity pay in the amount of $80 per month ($20 multiplied by four years of service).
•    On December 30, 2014 (which is within 60 days of the beginning of the second state fiscal quarter), the comptroller sends a warrant to the county for $240—Susan’s state longevity pay for that quarter.
•    On January 15, 2015 (the next county pay period), the auditor adds her pro-rated longevity pay into Susan’s bi-monthly paycheck (or cuts her a lump-sum check for $240). The county auditor continues to send quarterly certifications of Susan’s eligibility to the comptroller within 15 days of the beginning of each state fiscal quarter.
•    On August 31, 2015, Susan accrues her fifth full year of lifetime service credit.
•    On September 3, 2015, Susan’s elected boss notifies the county auditor of Susan’s increased eligibility for state longevity pay.
•    On December 5, 2015 (which is within 15 days of the beginning of the next state fiscal quarter), the county auditor certifies to the comptroller that Susan is eligible for state longevity pay in the amount of $100 per month ($20 multiplied by five years of service).
•    On December 29, 2015 (which is within 60 days the beginning of that state fiscal quarter), the comptroller sends a warrant to the county for $300 for Susan’s state longevity pay for that quarter. And so on.
    The system has been working well for more than 15 years, but right now, it has a problem: The assistant prosecutor supplement is funded with a cost on the posting of surety bonds. While that revenue has remained steady, the number of assistants has naturally increased over time. If projections hold, by the end of fiscal year 2019, it will need some additional funding.       
    We have begun work on a long-term solution to this issue, including identifying a new funding source and working with legislators to get it in place during the next legislative session in 2019.
    What can you do? First, if you have any doubts that you are getting the proper pay, double-check with your office or the county auditor.  Second, if  the program has contributed to your decision to stay on the job as an assistant prosecutor, please share that story with me. (Email me at [email protected])  Finally, call or email me if you have any questions.

TDCAA website overhaul
We have launched an overhaul of the TDCAA website. The current site has been a good home for our profession, but it is showing its age. For instance, we know that today 44 percent of the people accessing the site do so with a cell phone. God bless you 44 percent for that, because we are painfully aware that our site is not particularly cell-phone friendly.
    We are going to change all that. Our goal is to modernize our site to match gains in technology (certainly since the site was established 10-plus years ago!). We want it to be easy to register for seminars, buy books, and search for useful information and training from any device.  And we want to be able to use the website as a nimble “app” for our seminars.  We will be working on it this spring and summer, and we plan for it to be ready before the 2018 Annual in September.

TDCAA committees
The TDCAA President, Jennifer Tharp (CDA in Comal County) has appointed TDCAA committees for 2018. TDCAA prides itself as a member-driven organization, so the work of the committees is crucial to meeting the needs of our members. You can find all the committees and their members below. If you are interested in committee service or wonder what any of these committees are up to, just give me a call.  

Civil Committee
John Dodson, Chair
Mary Baker
C. Scott Brumley
Leslie Dippel
John Fleming
Mike Hartman
Natalie Koehler
Tiffany Leal
Rebecca Lundberg
Holly Lytle
Katherine Reiley
Quentin Russell
Vince Ryan
Morgan Vaughn

Diversity, Recruitment, and Retention Committee
Sharen Wilson, chair
David Alex
Beverly Armstrong
Efrain De La Fuente
Sunni Mitchell
Jarvis Parsons
Jamie Reyna
Ricardo Rodriguez
Tiana Sanford
Daphne Session
Kebharu Smith
Wilmon Smith
Jeremy Sylestine
Jerry Varney
Erleigh Wiley

Legislative Committee
Staley Heatly, chair
Chilo Alaniz
Jose Aliseda, Jr.
Dusty Boyd
C. Scott Brumley
Kenda Culpepper
Jaime Esparza
John Fleming
Lee Hon
Brett Ligon
Margaret Moore
Laura Nodolf
Kim Ogg
Jarvis Parsons
Julie Renken
Patrick Wilson
Sharen Wilson
Jennifer Tharp

Nominations Committee
Randall Sims, chair
Kriste Burnett
Dusty Gallivan
Jim Hicks
Wanda Ivicic
Landon Lambert
Julie Renken
Jack Roady
Raquel Scott
Teresa Todd
Stephen Tyler
Dale Williford
Patrick Wilson
Bill Wirskye

Publications Committee
Alan Curry, chair
Emily Johnson-Liu
Eric Kugler
Libby Lange
Allison Lindblade
Dan McCrory
Katie Sweeten

Training Committee
Bill Wirskey, chair
Lauren Black
Kelly Blackburn
Tom Bridges
Jacquelyn Christilles
Ralph Guerrero
Dee Hobbs
Ivan Martinez
Aaron Moncibaiz
Chris Nevins
Erik Nielsen
Scott Peal
Kevin Petroff
Anthony Robinson
Lauren Sepulveda
Yvonne Taylor
Melinda Westmoreland

Editorial Committee
Mike Holley, chair
Steven Baker
Kathy Decker
Benjamin Kaminar
Gabby Massey
Scott Simpson
Bill Wirskye

Mandatory Brady training
In 2014, every prosecutor in Texas took a mandated one-hour course on the duty to disclose exculpatory and mitigating evidence.2 The law also provides that every new prosecutor must take the course within 180 days of taking the job. Since December 2013, 3,850 people have completed the mandatory course. We are thankful that the Texas District and County Attorneys Foundation and the Criminal Justice Section of the State Bar came through with some major funding, which allowed TDCAA to offer the training online through our website.       
    Under rules promulgated by the Court of Criminal Appeals, each prosecutor must complete a “refresher” course once every four years. Which is good timing, because although the initial online offering is legally solid and useful, a lot has changed since 2014. Indeed, the Michael Morton Act became effective January 1, 2014, and it has greatly impacted Brady disclosures and discovery, which in practice go hand-in-hand. Courts have considered many aspects of the Michael Morton Act and issued opinions, and the State Bar has been very active in the area of Brady. There is a lot to talk about.
    Our vision is that TDCAA will again offer an hour of mandatory Brady training for free through the TDCAA website, and it will (again) be worth one hour of MCLE ethics. We are working on the content and delivery now, so expect to be able to take the training later in the year. Stay tuned!

A day of civility
On November 16, 2017, the State Bar of Texas, Texas Supreme Court, and Court of Criminal Appeals signed a document declaring April 20, 2018, “The Texas Day of Civility in the Law.” OK, they had to know that they were going to be the brunt of the obvious jokes about it—something like, “Whew! Glad I only have to be courteous to my opponent just one day of the year!”  
    I am glad they issued the proclamation. It is a polite and timely reminder that our legal system benefits if we view the lawyer at the other table as “the loyal opposition.” We all have an important job to do, and ethical rules guide our conduct. Perhaps it is more difficult to maintain that view in the dog-eat-dog world of civil practice, but my experience is that the criminal bar is a smaller group of lawyers who work with each other time and time again. Maintaining a civil discourse is in everyone’s interest.     
    One more thing. We have all met the criminal defense lawyer with a flame-thrower for a mouth, the one who mightily tests our patience. I suppose that lawyer feels that such an attitude serves his client best. But our clients are the State and the people in our community. My guess is that our clients expect a little more from their prosecutors. After all, when we go to court, we take up the case “in the name and by authority of the state of Texas,” and we end with a promise to defend “the peace and dignity of the state.” If we are defending the dignity of the state, it seems only right that dignity finds its way into how we treat others in the courtroom.


1  Tex. Gov’t Code, Chapter 41, Subchapter D.

2  Tex. Gov’t Code §41.111.