May-June 2015

Newest online ethics training

Rob Kepple

TDCAA Executive Director in Austin

In the last edition of The Texas Prosecutor I announced the completion of another ethics training, available online for free at http:// The training, “A Prosecutor’s Duty to the Truth: A Roundtable Discussion,” has been available for a several weeks now, and it is drawing great reviews. The advice is geared toward newer prosecutors, but the collective wisdom of the roundtable participants—all seasoned elected prosecutors—seems to resonate with those who take the class. The piece of advice that gets the most approval: Listen to the defense attorney. The defense attorney can bring things to your case you just may not know about, and if you have built a good relationship with the defense bar, they will feel like they can share with you evidence that may alert you to insurmountable problems about the case early in the process.
    Check out the online training and let us know what you think.

2017 Annual Update in San Antonio
As many of you know, TDCAA hosts the largest gathering of prosecutors and staff in the nation every September at our Annual Criminal and Civil Law Update. We work hard to keep the cost affordable, which means that we normally go to venues on the coast … during hurricane season. That has been a winning strategy but for the few times hurricanes did darken the coast.
    But a little break in tradition: In 2017 TDCAA will host the Annual conference at the San Antonio Convention Center. Thanks to our meeting planner, Manda Herzing, for securing a great group of host hotels clustered around the Riverwalk and within walking distance of the Convention Center.

State Bar talks ­prosecutor ­accountability
In the last few years we have witnessed a national debate about accountability for prosecutors. Here in Texas we seen prosecutors held accountable in all sorts of ways: by ballot box, removals, courts of inquiry, and even criminal prosecution. All pretty standard stuff for elected officials and public servants.
    So I guess I wasn’t particularly surprised when the State Bar president recently took the time to single out prosecutors among all the lawyers subject to scrutiny and promise that the Bar was going to be actively seeking out suspected bad behavior by prosecutors. In a recent President’s Opinion column, Trey Apffel wrote:
“In the attorney disciplinary area, cases involving prosecutorial misconduct continue to garner media attention. … As a former member of both the Commission For Lawyer Discipline and a district grievance committee for many years, I can assure you that the Office of Chief Disciplinary Counsel [CDC] and the commission take allegations of prosecutorial misconduct seriously and thoroughly review all complains raising such allegations.
    “The CDC has developed training for its lawyers focused on the proper investigation and prosecution of these cases and developed strong working relationships with individuals and entities in the criminal justice system to facilitate the sharing of information and the ability to quickly obtain relevant evidence related to prosecutorial misconduct. The CDC and commission are also diligent in ensuring that the process is fair to all those involved and ever-mindful of confidentiality obligations.
    “Recent sanctions imposed —including a resignation in lieu of discipline, a disbarrment, two probated suspensions, and a public reprimand—demonstrate the commission’s and the CDC’s commitment to fulfilling their mandate to protect the public by thoroughly investigating any grievances in-volving prosecutorial misconduct and pursuing those with merit.”
    Fair enough. We know that we are held to a high standard, and our profession is up to the task. Rumblings from around the state are that the Bar has indeed been active as of late concerning prosecutors. And big-picture-wise, an accountability mechanism is not a bad thing for the profession—some of our counterparts around the country do not have an active Bar grading their papers, and it has left their policymakers struggling to find other avenues of accountability. Indeed, a California prosecutor with whom I spoke recently bemoaned the lack of activity by the California Bar’s disciplinary arm, observing that Bar proceedings were essential to public confidence in the criminal justice system. So count yourselves lucky—I guess!

Former TDCAA ­employees make good
I am very proud that TDCAA has consistently had a staff of great folks dedicated to serving you. And it is always fun to see our former staff members do well. I can’t mention everyone, but a few notables caught my attention in the last couple months.
      First, two former TDCAA employees have made the big time as elected prosecutors. Fred Weber, who served you as a TDCAA law clerk in 1994–1995, took office in January as the Caldwell County Criminal District Attorney. Also taking office in January was Wes Mau, the Hays County Criminal District Attorney, who served as both a TDCAA law clerk and staff attorney from 1992–1994. Kelly Loftus, TDCAA Research Attorney in 1994–1996, has just been promoted to Chief Prosecutor of the 371st District Court in Tarrant County.
    Finally, congratulations to Dade Phelan, who served as the TDCAA Publications Manager in 2000 and 2001. In January Dade took office as the State Representative for District 21 out of Beaumont. And shortly after the legislative session began in January, Dade had the honor of presiding over the Texas House of Representatives as the Speaker of the Day. He made us so proud, banging the gavel and all so well. I expect to see many more former TDCAA employees make history in the future.
OAG’s newest criminal chief: Adrienne ­McFarland
Congratulations to our old friend Adrienne McFarland, who was recently promoted by the Attorney General to the position of Deputy Attorney General for Criminal Justice. Many of you have had the pleasure of working with Adrienne when she served as the Chief of the Criminal Prosecutions Division. Those folks do a great job helping prosecutor offices out, and we are thrilled that Adrienne is now in the top spot.

Jon English goes to Galveston
Congratulations to Jon English, TDCAA’s Re-search Attorney, on landing a job as an Assistant Criminal District Attorney in Galveston County. Many of you have benefited from Jon’s excellent legal research and keen insights into Texas politics (having been a House staffer for a number of years). We here at TDCAA have benefited from Jon’s friendship and the donuts he often brought in the morning. Gonna miss those donuts. Oh, and Jon too! We are thrilled for him and happy he is part of the profession as an assistant CDA!

Encouragement for the STAAR test
Ready for an uplifting story of a prosecutor doing good in his community? Here’s a heart-warmer for you. Anyone who has children in third grade or higher has heard about the STAAR (State of Texas Assessments of Academic Readiness) test, which is administered to Texas schoolchildren to determine how well schools are covering subjects from math and reading to social studies and science.
    Austin Stout, an ACDA in Bexar County, knows all about the STAAR test. His wife, Katy, is a fourth-grade teacher at an elementary school on San Antonio’s west side, and this year was her first to administer the test to her students. “She’d been trying to figure out ways to get the kids motivated,” Austin remembers. “The kids get really stressed out over the test—there’s a lot of pressure on them, and Katy wanted to do something to calm them down before they started.”
    Katy texted her students’ parents to ask that they all send in notes of encouragement for their children; Katy planned to give the messages to the kids a few minutes before starting the test. But the weekend before the test was to begin, she still hadn’t heard back from four or five parents, so those kids would be without an encouraging note come Monday morning.
    “I had previously gone to the school for career day, so I was familiar with some of the students,” Austin explains. “I said to Katy, ‘Let me write a letter to those kids who are missing one.’”
    Armed with Bexar County CDA Nico LaHood’s recent charge for people in the office to be more involved in the community, Austin wrote a short note for the kids on office letterhead: “Dear [Kiddo], I wanted to take a minute and wish you much luck as you begin the STAAR test. Take a deep breath, read everything carefully, and use all of the strategies that you’ve learned. Also, make sure to remember to add lots of details to your writing. I know that the many months you’ve spent practicing have more than prepared you to conquer this test. You’re ready to rock this! Good luck!”
    The reaction was swift. Katy reports overhearing one student tell another, “Man, you’re lucky! You got one from Austin! I just got one from my mom.” Katy posted Austin’s letter on Facebook, and it made its way (as these things do) to my inbox, and now I share it with y’all. Between Austin, who works in the juvenile section in Bexar County, and his schoolteacher wife Katy, they’re clearly making an impact on the youth of San Antonio. Good for y’all!
HOPE for animals
Prosecutors have engaged in a lot of crime-prevention efforts in the past. Recently a Harris County Assistant District Attorney, Jessica Macklin Milligan, has been recognized for her efforts in education and training for the purpose of preventing animal abuse. Jessica, the Houston DA’s Office Animal Cruelty Specialist, has created a program called HOPE (Helping Our Pets through Education). The program is designed to educate elementary school aged children on how to properly care for their pets and to understand the consequences of animal cruelty, dog fighting, and cockfighting. (Read more about it on page 29.) The goal of this program is to instill empathy in our young people, teach students how to recognize animal abuse, and show them what they can do to stop it.