By Rob Kepple
TDCAA Executive Director in Austin
The State Bar Committee on Disciplinary Rules and Referenda (CDRR) has voted to send a proposed amendment to Rule 3.09 to the State Bar Board for approval. At its May 3 meeting, the CDRR approved the proposed amendment published in the January 2023 edition of the Bar Journal with one change recommended by prosecutors. If the board approves, the Supreme Court adopts the proposed changes, and the rule passes a referendum vote, Rule 3.09 would be amended to include a new ethical duty of prosecutors when encountering new and credible information creating a reasonable likelihood of innocence to notify the defendant, the defendant’s counsel, the convicting court, and a statewide entity that examines and litigates claims of actual innocence (read: Innocence Project of Texas). If the new information relates to a conviction in another jurisdiction, the duty to notify is limited to the appropriate prosecutor in the convicting jurisdiction.
Significantly from a prosecutor’s perspective, this proposed amendment does not include a duty to investigate or a duty to remedy, two things in the American Bar Association (ABA) model rule on the subject, Model Rule 3.8. Prosecutors who were involved in the CDRR process generally were fine with a duty to disclose, as that mirrors duties we already have under the Michael Morton Act, but they felt that investigation was often not possible (because of resources and potential conflicts) and in any event best left to other entities, such as law school actual innocence clinics and the Innocence Project.
One significant change was made to the proposed rule at the May 3 meeting: Proposed Subsection 3.09(f)(1)(iii) relating to post-conviction discovery was changed at the request of prosecutors; it now reads, “[A prosecutor shall] cooperate with the defendant’s counsel by providing all new information known to the prosecutor as required by the relevant law governing criminal discovery.”
We anticipate that the State Bar board will consider this amendment to Rule 3.09 at a fall meeting. We may see it in a referendum to Bar members early next year. I want to take this chance to thank all the prosecutors who served on our ad hoc Rule 3.09 committee. It has been a long process, but they stuck with it. I also want to thank Denton criminal defense attorney Rick Hagen, who served on the CDRR during this process and was an honest broker and thoughtful participant.
The proposed amendment (without the change noted above) can be viewed at the Texas Bar’s website, texasbar.com.
Legislative A-Team
“You must be present to win.” That old rule about raffles most certainly applies to a legislative session. If you decide to show up to testify in a legislative committee for or against a bill, I would suggest it is already too late to make a difference.
And that was doubly true this past session when prosecutors were under the microscope like never before and you, through TDCAA’s Compensation Committee, were seeking enhancements to assistant and elected prosecutor pay. I am happy to report that you had the A-Team in Austin early and often for meeting after late-night meeting. Those behind-the-scenes work sessions molded the issues of the day and produced some real results when it comes to compensation. I want to recognize and thank Jennifer Tharp, CDA in Comal County, and Staley Heatly, 46th Judicial District Attorney, for chairing the TDCAA Legislative Committee and spending countless hours roaming the halls of the big pink building. In addition, Jacob Putman, CDA in Smith County; Jack Roady, CDA in Galveston County; Philip Mack Furlow, 106th Judicial District Attorney; Elmer Beckworth, DA in Cherokee County; and Eric Carcerano, ADA in Chambers County, were in Austin regularly to work behind the scenes on issues of importance to you. In addition, thanks to the offices that sent folks who were here pretty much full time: Paige Williams, ACDA in Dallas County; Lindy Borchardt, ACDA in Tarrant County; and Tiana Sanford, ADA in Montgomery County. And I must mention the great work of Megan Molleur, who served as the Texas Association of Counties (TAC) liaison to TDCAA and put in countless hours on your behalf, providing critical support for your efforts in the TAC family of local officials.
Finally, I hope you all appreciate the efforts of Shannon Edmonds, TDCAA’s Governmental Affairs Director. Shannon is a master of the legislative arena, and his reputation at the capitol for diligence and honest dealing serves you very well. Shannon’s “end game” may be his finest work session after session, when the Memorial Day everyone else checks out in favor of barbecues and a long weekend, whereas Shannon is at his desk working with legislators on the bills that are being quietly amended and changed behind closed doors in the final hours of the session. An awful lot of good law comes of that work (as well as a lot of avoidable problems solved!). Thanks, Shannon, for your dedication to the profession.
Randall Sims retires
I want to take a moment to honor Randall Sims, the 47th Judicial District Attorney in Amarillo upon his retirement in June. Randall has served the profession of prosecution in many roles during his career. Randall, an Eagle Scout and valedictorian of his Wellington High School class, knew when he finished law school at Texas Tech that he wanted to serve his community as a criminal prosecutor. He started in the Potter County Attorney’s Office, then was elected as the 100th Judicial District Attorney, where he served for six years. He retired in June as the 47th Judicial District Attorney after serving for the last 11 years.
It would take up way too much space to detail all of Randall’s service to prosecutors through TDCAA. He was the TDCAA Board President in 2017, and during his long career he also served as a TDCAA Regional Director on three separate occasions. He was also a member of the TDCAA Nominations, Finance, Long Range Planning, Legislative, and Training Committees; the Special Prosecution Unit (SPU) President and an SPU Board member; and a member of the statewide DWI Prosecutor Task Force.
His career of service to the profession has been outstanding, but here is why we are so indebted to Randall: He always answered the call in a crisis. On more than one occasion when a prosecutor’s view was needed at the capitol, Randall would be here and ready to jump right in. I have much appreciation for Randall’s willingness to wade into the protracted negotiations over the journalist shield law in the late 2000s (along with former Ector County DA Bobby Bland and Wichita County CDA Barry Macha). It was a huge effort with a reasonable result that could not have happened without his selfless service. Thank you, my friend, as you ride off into the sunset with your wonderful wife, Donna. You deserve it!
Roy DeFriend honored
Congratulations to Roy DeFriend, the County and District Attorney in Limestone County, who was recently honored as a distinguished alumni by Navarro College. Roy, the valedictorian of the Groesbeck High School Class of 1983, graduated from Navarro College in 1985 and went on to graduate from the Baylor School of Law. Roy was honored for his career of service as an assistant and then the elected prosecutor in his home county, as well as for his many “person of the year” awards from some great outfits: Central Texas Chapter of Mothers Against Drunk Drivers, Texas and Southwestern Cattle Raisers Association, Texas Parks and Wildlife Department, and the Groesbeck Chamber of Commerce. Thanks for your service, Roy—you deserve this honor!
A new USA for the Eastern District of Texas
On May 10, Damien Diggs was sworn in as the United States Attorney for the Eastern District of Texas. He takes the helm from Britt Featherston, the acting USA with whom we have worked so very well on the CDRR Rule 3.09 issue. Diggs has served as an Assistant U.S. Attorney in the Northern District of Texas since 2018, where he was assigned to the criminal division’s violent crime section prosecuting firearms violations and fraud matters. Prior to that, he worked as an assistant U.S. attorney in Washington, D.C., from 2012 to 2018. From 2007 to 2012, he was an attorney with the Department of Education. Diggs was also an associate at Hogan & Hartson (now Hogan Lovells) for two years before beginning his service with the federal government. It is great to see so many experienced criminal prosecutors filling the ranks of United States Attorneys in Texas. Welcome, Mr. Diggs; we look forward to working with you.
Rod “The Cat Lawyer” Ponton brought us joy
We all remember the drudgery of dealing with COVID-19 and the changes it brought to our lives and our work. So it was an absolute delight when Rod Ponton, County Attorney in Presidio County, made a court appearance disguised—against his will—as a cat. That candid moment, which has been joyously viewed by tens of millions worldwide, allowed us to laugh with Rod and at ourselves as we all struggled with virtual meetings, court hearings, and communications.
It is only fitting that the Texas Senate honored Rod’s impressive career with Senate Resolution 626. The resolution both recounts Rod’s long service in the legal field as well as memorializes a much-needed lighthearted moment in a difficult time. Read the resolution at https://capitol .texas.gov/tlodocs/88R/billtext/pdf/SR00626I.pdf#navpanes=0; relive Rod’s moment as “the Cat Lawyer” at www.youtube.com/watch?v=lGOofzZOyl8.
The Baylor Law podcast
If you are like me, you are constantly on the lookout for a new podcast series to listen to when you’re in the car. If you want to hear what is going on in Texas criminal law, let me suggest the Baylor Law Criminal Law Society Podcast. There are dozens of great interviews of prosecutors, defense attorneys, and judges that highlight what is happening in our state. There are more than 50 published episodes, and the hosts crisscross the state in search of unique stories in criminal law. Find it on Spotify.