Texas Prosecutor, January-February 2019

Honoring Lowell Thompson

Our profession mourns the untimely loss of Lowell Thompson, Navarro County Criminal District Attorney, who recently passed after a sudden illness. He was well-respected and truly admired in his community, and he will be sorely missed.
    You might recall that Lowell won the 2011 Lone Star Prosecutor award, which is given to those prosecutors “in the trenches” whose work on behalf of seeking justice might otherwise go unnoticed. He had come to Austin to file a mandamus to prevent some proceedings by the New York Innocence Project relating to a Navarro County death penalty case. It was not something Lowell relished doing, but he felt he had an obligation to uphold the law.
    It should surprise no one who knew Lowell that one of the condolences sent out to Lowell’s family and community came from Barry Scheck, the Innocence Project Director, who went out of his way to remark about his admiration for Lowell. That tells you all you need to know about Lowell’s character. He will be sorely missed.

When an office is vacant
What happens when an elected prosecutor office is vacant? Under §601.002 of the Texas Government Code, when there is a physical vacancy, the first assistant or chief deputy conducts the affairs of the office until a successor qualifies for it. If that vacancy occurs during a legislative session and the office is subject to Senate confirmation (such as a criminal district attorney position), then the authority of the first assistant to run the office ceases 21 days after the assistant took over the duties. As a practical matter, that means if an office has a physical vacancy when the legislature is not in session, the governor has until the 21st day of the next legislative session to make an appointment. Note, however, that if the office-holder resigns and is not otherwise disqualified from holding office (think conviction for official misconduct or felony), the office holder must continue to serve as a “holdover” until such time as a successor is qualified.1 Questions? Give me a call at 512/474-2436.

Welcome to newly elected prosecutors
At the Newly Elected Boot Camp held in conjunction with the Elected Prosecutor Conference in late November, we welcomed 23 new prosecutors who took office in 2018 or on January 1, 2019 (out of our current 334 elected prosecutors). Generally, criminal district attorneys stand for election with the governor, so the turnover in the 2018 election cycle is not as big as the turnover when all of the county attorneys and district attorneys run during the presidential cycle. Turnover from all sources (retirement, election defeat, etc.) for eligible offices this cycle was 34 percent, which is about typical. Our observations from the last few election cycles: 1) primary contests are where you find the most “action”; 2) roughly a quarter of all prosecutor offices change hands every four years; and 3) the average term in office for current elected prosecutors is seven years.
    Please take a look at the list below of our new elected prosecutors. If you are near them, make sure to welcome them and let them know you are there to help them “drink from the firehose” that is the first year in office. And if you are one of our new folks reading your Texas Prosecutor journal for the first time, we are glad you are on the job, and we are here to help!

Newly elected prosecutors who took office January 1

Lucas Babin, CDA in Tyler County
Aaron Clements, CA in Dickens County
John Creuzot, CDA in Dallas County
Tonda Curry, CDA in Van Zandt County
Will Durham, CDA in Walker County
John Gillespie, CDA in Wichita County
Joe Gonzales, CDA in Bexar County
Barry Johnson, CDA in McLennan County
Constance Filley Johnson, CDA in Victoria County
Robert Love II, CDA in Randall County
Reid McCain Jr., CDA in Harrison County
Brian Middleton, DA in Fort Bend County
Alan Nicholas, Ward County Attorney
Angela Overman, Cochran County Attorney
Anne Pickle, CDA in Jasper County
Jacob Putman, CDA in Smith County
Austin Rawls, CA in Crane County
Courtney Holland Shelton, CDA in Cass County
Steve Simonsen, Loving County Attorney
Sunshine Stanek, CDA in Lubbock County
Chris Strowd, CDA in Deaf Smith County
Tom Watson, CDA in Gregg County

The 21st-Century prosecutor
I recently attended a conference sponsored by the Prosecutors’ Center for Excellence and co-sponsored by the Salt Lake County (Utah) District Attorney’s Office. There are plenty of opportunities to gather with prosecutors from around the country to talk about innovative ideas and solutions and to discuss nothing less than the evolution of prosecution as we know it.
    There were too many great folks there to name them all, but the tenor of the conference was that although prosecutors remain committed to protecting the public from violent and dangerous offenders and serving crime victims, we can take the lead when criminal justice intersects with issues such as mental illness, poverty, and lack of social services. Some of the many programs, ideas, and innovations we discussed: community advisory committees, strategy units to address crime in individual neighborhoods in larger cities, mental health diversion, fast-track drug diversion programs, pretrial release, juvenile firearm courts, and data-driven crime policies.  
    Cy Vance, the Manhattan (New York) DA, had a very interesting take on the evolution of the job of today’s prosecutors. A former Manhattan DA had pioneered the “broken windows” philosophy of crime-fighting, but Vance believes that today we are experiencing a “peace dividend” that justifies an examination of current systems. How that looks in his jurisdiction is a ban on the former stop-and-frisk policies and the end of prosecution for small amounts of marijuana and subway turnstile jumping (not an issue in Texas). He freely acknowledged that he was “ceding the outer barrier” (his exact words) to crime, and that we would all see in the future if this has an overall impact on criminal behavior. This is interesting stuff that may have wide-ranging impact on what we do in Texas, so keep your eye out for what is happening around the country. I like to think we have a lot of good things going on in Texas, and our profession can continue to lead.
    Note that not all the discussion was about diversions and practices that might lead to less incarceration. A decent amount of time was spent on enhancing victim services and emerging trends in crime. Indeed, Cy Vance was most concerned about cybercrime. More on that in the future.

Welcome to new TDCAA Leadership
At our annual business meeting at the Elected Prosecutor Conference in November, members elected leadership for 2019. Under the bylaws, Jennifer Tharp (CDA in Comal County) will serve as Chair of the Board of Directors, and Jarvis Parsons (DA in Brazos County) will serve as President. Kenda Culpepper (CDA in Rockwall County) was elevated to the President-Elect position, and John Dodson (CA in Uvalde County) was elected to serve as Secretary/Treasurer. Bill Helwig (CDA in Yoakum County) was elected the Criminal District Attorney-at-Large, and Landon Lambert (CA in Donley County) will serve as the County Attorney-at-Large.   
    Regional caucuses also elected directors in four of the eight TDCAA regions. Our new regional directors (with the outgoing director in parenthesis): Region 1: Leslie Standerfer, CA in Wheeler County (Landon Lambert, CA in Donley County); Region 2: Hardy Wilkerson, 118th Judicial District Attorney, Howard County (Dusty Gallivan, CA in Ector County); Region 4: Isidro Alaniz, 49th Judicial District Attorney in Webb County (Steve Tyler, CDA in Victoria County); and Region 7: Sharen Wilson, CDA in Tarrant County (Kriste Burnett, DA in Palo Pinto County).  

Baylor’s trial advocacy training and prosecutor offices
Many of you stopped by the Baylor School of Law reception at the Annual Update in September. The law school, led by Dean Brad Toben, has launched a new initiative to educate prosecutor offices that Baylor has a great crop of newly minted lawyers ready, willing, and able to join prosecutorial ranks. The school is proud of its trial advocacy training and has recently expanded its advocacy curriculum to include criminal cases. And the outreach might be taking hold: I am told that recently a DA had an opening and just called Dean Toben directly to get some Baylor résumés!          

TDCAA and the legislature
By the time you read this, the 86th Regular Session of the Texas Legislature will be in full swing, so now is a good time to talk about how TDCAA fits in at the capitol.
    A little history as recounted by our most senior alumni: The involvement of Texas prosecutors in the legislative process through TDCAA began in 1973. Prior to that, legislators had no single “point of contact” for Texas prosecutors, and that lack of communication led prosecutors to unexpectedly (from the legislature’s perspective!) but successfully defeat a 1971 draft of a new Penal Code. In response, legislative leadership engaged with the state’s elected prosecutors (through TDCAA) and tasked them writing the 1974 Penal Code and coming to the capitol to work with legislators regularly—rather than showing up every now and again. Thus, TDCAA became the “middleman” between legislators and elected district and county attorneys. To this day, TDCAA has maintained that role, which benefits both legislators and prosecutors because legislators need to know what their attorneys for the State think on many subjects impacting their communities.
    Two other important points: First, unlike many other states’ prosecutor associations, TDCAA generally does not take public positions on legislation. Texas has 334 independently elected prosecutors who are free to take positions on their own and be as active at the capitol as they would like, even to the point of opposing each other. (A famous example of this was in the 1990s and 2000s, when the Harris County District Attorney’s Office opposed life without parole as an alternative in capital cases, while the Tarrant County Criminal District Attorney’s Office supported it and actually drafted the legislation.) This “big tent” model allows us to best serve our members as their eyes and ears in Austin so that they can make informed decisions on the important policy issues of the day.
    Second, TDCAA encourages legislators to check in with their local district and/or county attorneys on criminal justice matters. TDCAA can help your voice be heard at the capitol if you want it to be, but we aren’t going to speak for you because you are the legislators’ constituents, and they need to know what you think. Indeed, former Jefferson County Criminal District Attorney Tom Hanna said it best when he explained why the 1974 Penal Code effort became the model for how Texas prosecutors do business at the capitol. To paraphrase: “No campaign contributions—just honest answers about a proposal’s impact on law enforcement and criminal jurisprudence.”   
     Our job at TDCAA is to help any prosecutor who is going to the capitol understand and navigate the lay of the land. (Not least importantly, we can also tell you where to find the elevators and bathrooms.) I am not sure you can call going to the capitol fun, but if you get involved during the session, you will certainly learn a lot. And there can be fun moments. For instance, I have it on good authority that during a 1973 late-night redrafting session of Penal Code Chapter 46’s section on prohibited weapons, some folks thought it would be funny to just start listing every type of weapon they could think of, including silly things like tomahawks, dirks, stilettos, swords, and spears. That got out of hand quickly, but as a result, tomahawks are still covered in the code today!

Endnote

1 Tex. Const. Art. XVI, §17.