Executive Director's Report
September-October 2022

Atticus Finch Day

By Rob Kepple
TDCAA Executive Director in Austin

In June, I had the honor of participating in Atticus Finch Day in Bryan. This annual gathering of criminal defense attorneys and prosecutors was the brainchild of Bryan attorneys Shane Phelps and Phil Banks. You can read the story of how it got started here (www.shanephelpslaw.com/the-atticus-files/2015/april/the-completely-true-story-behind-atticus-finch-d), but the short version is that Shane, then a prosecutor, almost came to blows with Phil, a defense attorney, right in front of a jury. They both realized that it was time to recommit to the principle of the opposing side as “the loyal opposition,” and began hosting an annual gathering for both sides of the bar; it’s in the hospitable and honorable mold of the famous fictional lawyer Atticus Finch from To Kill a Mockingbird. Although seersucker suits are recommended, I was thankful they were optional.

            As a big believer in the concept of the loyal opposition, I loved participating in this event. (That’s me on the left in the photo, below, shaking hands with Shane Phelps.) In a twist, my job was to give a short talk for the defense. Legendary prosecutor, criminal defense attorney, and judge Travis Bryan III spoke for the prosecution. I spoke about my view of the defense bar: loyal to their clients and doggedly determined to hold the State to its proof. I told attendees about the time as a young prosecutor when I chided a defense attorney for seeking a trial instead of working the case out with me—as well as the time when, years later after I had gained experience, I sheepishly apologized to that very same attorney for what I had said. I now count him as a friend.

            My point is this: Sure, there will be dustups and exceptions, but our criminal bar is strongest when we recognize the role of our courtroom opponents and honor their efforts. We all have a job to do. I think the public expects us to continue to be honorable and rise to best versions of our respective bars. Thanks for the invite, Shane.

Rule 3.09 update

In the last edition of The Texas Prosecutor, I laid out the three proposals for amendments to Rule 3.09 of the Texas Disciplinary Rules of Professional Conduct relating to prosecutors who learn of new and credible evidence of innocence. Those three proposals were discussed by the Committee on Disciplinary Rules and Referenda (CDRR) at its June 1 meeting; I won’t go into lengthy detail here about what the proposals do (check prior journals to get up to speed). The committee, lacking consensus, allowed the current rule proposal that was printed in the Bar Journal—the full American Bar Association Model Rule 3.8 with disclosure, investigation, and remedy—to expire and punted the whole issue to a subcommittee made up of a couple members of the CDRR plus C. Scott Brumley, County Attorney in Potter County and Chair of the TDCAA Rule 3.09 Committee, and Mike Ware, director of the Innocence Project of Texas.

            The subcommittee met twice, and there was still an impasse in those meetings. Mike Ware continued to push “the full Monty” of disclosure, investigation, and remedy. Scott and the 3.09 Committee offered a compromise of disclosure to the defense, disclosure to the proper tribunal and, disclosure to a statewide entity that examines claims of actual innocence (read: the Innocence Project of Texas).

            Here is the Rule 3.09 Committee proposal:

(f)  When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense for which the defendant was convicted, the prosecutor shall:

            (1) if the conviction was obtained in the prosecutor’s jurisdiction, promptly disclose that evidence to:

            (i) the defendant or defendant’s counsel of record, if any;

            (ii) the tribunal in which the defendant’s conviction was obtained; and

            (iii) a statewide entity that examines claims of actual innocence; or

            (2) if the conviction was obtained in another jurisdiction, promptly disclose that evidence to the appropriate prosecutor in the jurisdiction in which the conviction was obtained.

            I want to thank Jennifer Tharp, CDA in Comal County, and Jack Roady, CDA in Galveston County and TDCAA Board President, for participating in those meetings and holding the line on disclosure.  We continue to hear from our members that a duty to disclose and remedy are non-starters, and as long as they are in a State Bar proposal, they will likely face stiff opposition.

            That said, the full CDRR met on August 3 to discuss the continued impasse. The committee broke into two camps. Subcommittee chair Rick Hagen seemed to support the disclosure proposal that Scott Brumley forwarded and argued that prosecutors have a legitimate concern about having the ability to investigate and may even be in a conflict situation. Other members were not concerned about that and believed that the committee should pass a rule including a duty to investigate and let prosecutors find the resources to do it.  The committee left the issue undecided yet again, pending some additional input from prosecutors on the language in Scott’s proposal relating to the term “material.” You can view the committee’s meeting at https://texasbar-wo4m90g.vids.io/videos/799edab2191ce4c0f0/cdrr-meeting-august-3-2022.

Federal student loan help?

None of us have come to expect swift or decisive action from our federal government, and we have certainly learned not to expect it when it comes to the student loan forgiveness program for public service employees. Indeed, for a while it seemed that the government was deliberately making it hard to navigate the program.

            But recently, we have heard from more of you that the program may be getting a jump-start. A friend of TDCAA even reported that his loan balance was forgiven in August! And indeed, there are reports that the current administration is looking to make student loan forgiveness a real thing: www.nytimes.com/2022/08/24/business/biden-student-loan-forgiveness.html. We will keep an eye on it, but if you are interested you should check it out:  https://myfedloan.org/borrowers/special-programs. 

Welcome, Kane Handford

We are very excited here at TDCAA to announce a new addition to our staff: Kane Handford, our new Research Attorney. Kane just graduated from the University of Texas School of Law with his L.L.M. and is keen on becoming a Texas prosecutor. We are very happy that he will bring his talents to TDCAA for the benefit of prosecutors statewide.

Bill Helwig appointed to the Rural Justice Advisory Board

Congratulations to Bill Helwig, CDA in Yoakum County and TDCAA Board President-Elect, on his appointment to the Rural Justice Advisory Board for Southern Methodist University’s Dedman School of Law’s Deason Criminal Justice Reform Center. Bill has been very active with the Deason Center as it explores ways to enhance the criminal justice system in rural Texas. If you know Bill, he is happy to tell you he hails from Hooterville, Texas (which is better known by others as Plains). Yoakum County is the sixth smallest felony jurisdiction in Texas by population, so the Deason Center is going to get its rural money’s worth out of Bill. Thanks, Bill, for stepping up! 

Encouraging news regarding student loan forgiveness

Editor’s note: As this issue of the journal goes to press, news media is reporting that President Joe Biden wants forgiveness of up to $20,000 of student loan debt for borrowers who earn less than $125,000 a year. We at TDCAA have also heard some encouraging news from a friend of TDCAA, Justin Wood, who wrote to us about finding out his outstanding student loan balance was forgiven in August—after many years of faithfully making payments. Justin was kind enough to write about his experience, which we share with you here.

With all the general attention and news coverage regarding student loan forgiveness and loan forbearance during COVID, it can be a bit confusing. I would specifically direct prosecutors to seek loan forgiveness through the Public Service Loan Forgiveness (PSLF) Program, intended for individuals employed by governmental agencies and some nonprofits who have made 120 consecutive payments on qualifying federal student loans. The best source of information to get started with the application process is at https://studentaid.gov/pslf, where there is a PSLF Help Tool, FAQs, links to begin the application process, and the like.

            The application will produce a single form that they will eventually submit. Part of that process will include employer verification, which is to be completed by applicable qualifying employer(s). For example, for me, the form produced four separate employer verifications that required me to contact two DA’s offices, the Texas Senate, and the nonprofit where I’m currently employed. I contacted someone in Human Resources at each employer, and once I figured out to whom to send the form, I scanned the form, emailed it to that person, and s/he completed it and emailed it back to me. Once I gathered those four verifications, I included them with the rest of the form, and I mailed all of my information to the address on the form. That was in January.

            Once the application was submitted, I monitored the status through the MyFedLoan.com portal. Documents and updates would be uploaded into the portal as they became available (i.e., that my former and current employers had all been verified, that they were verifying my 120 consecutive qualifying payments, etc.), but the updates were sporadic and not always clear about next steps. In fact, I had grown a little discouraged because progress seemed pretty stagnant the last few months. However, I was notified at the beginning of August that a document had been uploaded to my portal, and that’s when I discovered that my loans had been forgiven, and it was reflected in my account information showing a zero balance (yay!). Other people have told me that the timelines from submission to forgiveness have been all over the place, but it sure seems like it has ramped up lately with more and more people receiving notice of forgiveness.

            I had made many more payments than the required 120 (i.e., 220-plus), but the requirement is 120 consecutive payments. I went ahead and included all my qualifying employers because I wasn’t sure when the clock starting ticking regarding the 120 payments—I know it was sometime after I started in prosecution in 2002. I have heard from some people who haven’t quite hit their required 120 payments that they are waiting for the date that 120th payment registers before they start the application process. 

            Though I don’t think someone would be penalized for taking advantage of forbearance during COVID, I don’t know that that’s for sure true. It’s worth noting that I played it safe: I continued making payments on my loans throughout COVID until I applied for loan forgiveness.