By Rob Kepple
TDCAA Executive Director in Austin
At its February 2 meeting, the State Bar Committee on Disciplinary Rules and Referenda voted to advance a proposed American Bar Association (ABA) model rule creating an ethical duty for prosecutors to, with regard to Brady evidence discovered post-conviction, disclose, investigate, and seek to remedy a wrongful conviction. The proposed rule was included in the Texas Register and the March edition of the Texas Bar Journal. A public hearing is scheduled for April 6 at 10 o’clock a.m., presumably by Zoom.
At this stage, some prosecutors continue to question the need for a new ethical rule. As you know, under the Michael Morton Act, prosecutors have a continuing duty after conviction to disclose Brady evidence. In addition, in 2013 the Legislature enacted Government Code §81.072, which specifically provides that a prosecutor may face a grievance under Rule 3.09 if a wrongful conviction was caused by a Brady violation. Many prosecutors are also troubled by the newly proposed ethical “duty to investigate,” which implicates prosecutorial immunity and highlights a lack of resources to take on such a task. In response, several prosecutors have formed an ad hoc committee on this issue and have been in contact with the State Bar Committee on Disciplinary Rules and Referenda over this proposed new rule.
At past meetings, some members of the Committee on Disciplinary Rules and Referenda argued that the duty to correct wrongful convictions is a moral duty. If that is the case, the ad hoc committee of prosecutors asked the committee to explore why, logically, such a rule shouldn’t apply to all lawyers—with the proper limitations. Indeed, Arizona and North Carolina have carefully crafted rules that do just that. These states impose this ethical duty on all lawyers, but they also provide: 1) protections for client confidentiality; 2) a good faith exception in the body of the rule; and 3) a defense if the information is already in the hands of the appropriate governmental agency, defendant, or defense attorney. The thinking is that if this is indeed a moral duty, the entire Texas legal community should share in that responsibility.
The public hearing will be important, because at this stage it has been difficult for anyone not on the bar committee to participate in the process. There is no prosecutor on the committee, and while prosecutors may send in letters, the committee is not obligated to actually discuss the issues raised in the letters. In fact, at the February 2 meeting, committee members publicly addressed exactly none of the issues raised before voting unanimously to move forward. It would be nice to actually have a conversation with the members and focus on the issues prosecutors care about.
Here is the link to the proposed rule and the latest letter from that ad hoc committee of interested prosecutors regarding the committee’s work: www.texasbar.com/AM/Template.cfm ?Section=cdrr&Template=/cdrr/vendor/participate.cfm. You can click on the “meeting materials” and “supplements” links to access the proposed rule, the prosecutor committee letter, and a letter from a law professor and others.
Stephens v. State: a refresher on separation of powers
On December 17, 2021, the Court of Criminal Appeals issued an 8–1 opinion in Stephens v. State. The Court held that Election Code §273.021, which purports to delegate a prosecutor’s power in the judicial branch to the Attorney General, a member of the executive branch, is unconstitutional as a violation of the Separation of Powers Clause. It is a pretty straightforward opinion and reflects the consistent view long held by Texas prosecutors about the proper role of the Attorney General in the area of prosecution assistance. Many of you have read the often-updated Texas Prosecution 101 which describes the constitutional boundaries of the Attorney General’s abilities to prosecute a criminal case.
The significance for local prosecutors? We don’t expect that there will be much change in the long-standing relationship that Texas prosecutors have with the assistant attorneys general who help you on so many cases. Their work is invaluable, and district and county attorneys have enjoyed a great working relationship with the prosecutor assistance folks. One pro tip coming from Stephens, though: It would be a good idea to document your delegation of authority to the AG’s office, either by swearing in the assistant AG as an assistant prosecutor in your office, or if necessary because of a conflict, withdrawing from the case and making sure the attorney general’s office is appointed as the prosecutor pro tem for that case.
Lee Hon, Polk Countian of the Year
Congratulations to Lee Hon, Criminal District Attorney in Polk County, on being recognized by his community as the “Countian of the Year.” Lee, who is stepping down at the end of the year, has had a great career as a Texas prosecutor in his hometown. Lee is a former TDCAA Board President and has been active on behalf of the profession throughout his career. I have much appreciated his steady hand and calm demeanor, especially during some tough legislative sessions. We will miss him.
TDCAA committees for 2022
Our members are what make TDCAA run. We are truly a member-driven organization, and that has contributed greatly to our ability to bring you timely, relevant, and accessible training and services. I want to thank everyone who has volunteered to serve on a TDCAA committee this year; they are listed in the box at right and on the next page.
Staley Heatly, Chair
Philip Mack Furlow
Diversity, Recruitment, & Retention Committee
Marissa Hatchett, Chair
Kebharu Smith, ex officio
Jerry Varney, ex officio
Brandy Robinson, Chair
General Legislative Committee
Staley Heatly, Co-Chair
Jennifer Tharp, Co-Chair
Elmer Beckworth Jr.
C. Scott Brumley
Philip Mack Furlow
Kenda Culpepper, ex officio
John Dodson, ex officio
John Dodson, Chair
Katie Quinney Etringer
Philip Mack Furlow
Emily Johnson-Liu, Chair
Tom Bridges, ex officio
Alan Curry, ex officio
Sunni Mitchell, Chair
Cyndi Jahn, VAC Liaison
Jerry Varney, DRRC Liaison
Kevin Petroff, ex officio
Tiana Sanford, ex officio
 Tex. Code Crim. Proc. §39.14(k).