ED Report
July-August 2022

The school shooting in Uvalde and lessons learned

By Rob Kepple
TDCAA Executive Director in Austin

When I got the call from John Dodson, County Attorney in Uvalde County, that his town was in the middle of an active shooter situation at an elementary school, my heart sank. As the “not again” thoughts raced through my mind, I recounted in my brain the number of Texas prosecutors who have led their communities in the aftermath of such tragedies, whether the attacker survived to be prosecuted or not. I sadly offer to you now some of the wisdom that other prosecutors and staff have shared when facing a horror like that in Uvalde and how to be prepared, lest something similar happen in your community. Search our website for two articles: “taking action after a mass shooting” and “Sutherland Springs.” I wish you didn’t need to read them.

VAC heroes

On Friday May 26 at about 1:30 p.m. I received a telephone call from an elected prosecutor asking for help. It was the Friday before the Memorial Day weekend, so it was surprising that the phone rang at all. But this was important:  Our friends in Uvalde County needed seven to 10 additional victim assistance coordinators (VACs) to come to Uvalde right then—over the holiday weekend—to help the families of the victims complete their Crime Victims’ Compensation forms. Given the lateness of the day and the urgency of the matter, I didn’t think just calling around to various offices would get us folks as quickly as we needed them, so I did something I have never done in 31 years at TDCAA: I sent an email to all of the VACs in our database. It seemed like I was asking a lot of people to give up the holiday, so I figured sending out a call for help to hundreds of people might lead to a few folks being able to drop their plans and head to Uvalde.

            The response brought tears to my eyes. Within a matter of minutes of sending the email, I was overwhelmed with dozens upon dozens of replies from VACs who were ready to go right then. In fact, one VAC was getting ready to hook up her travel trailer so she’d even have her own place to stay! Suffice it to say that our friends in Uvalde had all the help they needed over a nightmare of a weekend. I honor our victim assistance coordinators for their selfless sacrifice and willingness to put the victims of crime first when the call comes in. I am so proud to work for you!

Rule 3.09 update

If you have been following the work of the State Bar Committee on Disciplinary Rules and Referenda (CDRR), you know that its meeting on May 4 to discuss the testimony offered at the April 6 meeting (summarized in the May–June edition of this journal) was, well, a bit of a mess. The forceful testimony from the many prosecutors who offered thoughtful commentary on exactly what this rule would mean for Texas prosecutors seemed to divide the committee into three camps. Some members wanted to approve the proposal and send it to the Bar’s board for further consideration. Others wanted to postpone the matter to give the committee time to fine-tune the proposal based on the public comments. And still others wanted to indefinitely table the issue due to a lack of consensus. As a result, the committee postponed any decision until the June 1 meeting.

            A week before the June 1 meeting, Professor Vincent Johnson floated another version of a Rule 3.09 amendment that says a prosecutor has the duty to “remedy” a wrongful conviction, but then defines “remedy” to include a disclosure to the proper people. In addition, the committee briefly discussed the proposed compromise offer from C. Scott Brumley, County Attorney in Potter County, who sent a letter detailing his proposal to the committee on May 2—a letter that most of the committee members admitted they had yet to read. (A good lesson here for anyone seeking to influence a governing body or the legislature: A letter alone never works. It won’t even get read most of the time.) 

            Faced with a continued lack of consensus, the committee voted to end the current rulemaking effort and re-initiate the process with two competing proposals in the initial publication. The first proposal would be a combination of Johnson’s new proposal and one made by Mike Ware of the Texas Innocence Project. The second is Brumley’s proposal, and all three are published below.

            Committee member Rick Hagen of Denton volunteered to chair a committee and invited prosecutors to be a part of it. We anticipate Scott Brumley will be invited, but as this issue goes to print, we don’t know who else will be on it. Oddly enough, the person who got this ball rolling last year and offered another proposal last week, Professor Johnson, declined to be on the committee. He also walked out of the meeting at which prosecutors testified, which may make one wonder why everyone else is working so hard on a proposal whose own author won’t defend it in a meeting of prosecutors.

            The next CDRR meeting at which the committee can consider this issue will be August, and of course members must once again go through the comment period, publication, and a public hearing after that.

            I want to thank Scott Brumley and everyone on the committee working on Rule 3.09 who have bird-dogged this issue.  There is still work to be done, so keep an eye out for future updates.

The Johnson proposal:

(f)1 When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

            Comments: [7]2 Under paragraph (f), once the prosecutor knows of clear and convincing evidence that the defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek to remedy the conviction. Necessary steps may include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant, and where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted. [9] A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of section (f), though subsequently determined to have been erroneous, does not constitute a violation of this Rule.

The Ware proposal:

The former prosecutor complies with this duty by disclosing exculpatory and mitigating evidence as provided by this Rule and constitutional and statutory authorities to the following: 1) The current District Attorney or prosecuting authority in the jurisdiction where the conviction occurred, and 2) the current judge of the court of conviction.

The Brumley proposal:

Proposed Rule 3.09 (Special Responsibilities of a Prosecutor)

The prosecutor in a criminal case shall:  …

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; [and]

(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07; and

(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, and

            (ii) the Texas Indigent Defense Commission, if it is a state conviction, or the appropriate federal public defender, if it is a federal conviction; or

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

(g) A prosecutor who concludes in good faith that evidence or information is not subject to disclosure under paragraph (f) does not violate this rule even if the prosecutor’s conclusion is subsequently determined to be erroneous.

            Comment: 7. When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a person was convicted in that prosecutor’s jurisdiction of a crime that person did not commit, paragraph (f)(1) requires disclosure to the defendant and the defendant’s counsel of record (if any) and to an appropriate state or federal office or agency. If the person was convicted outside of the prosecutor’s jurisdiction, paragraph (f)(2) requires disclosure to the appropriate prosecutor in that jurisdiction, thereby triggering the duties required under paragraph (f)(1) for the latter prosecutor. For purposes of this comment and section (f), the term “new” means unknown to a trial prosecutor at the time the conviction was entered or, if known to a trial prosecutor, not disclosed to the defense, either deliberately or inadvertently. The term “credible” means evidence a reasonable person would find believable. The term “material” means that there is a reasonable probability that the disclosure of the new, credible evidence would have led to a different result in trial or sentencing.

Kenda Culpepper on the State Bar’s Board

Congratulations to Kenda Culpepper, Criminal District Attorney in Rockwall County and past President of the TDCAA Board, on her election as an At-Large Section Representative during the State Bar Council of Chairs meeting on May 16. Kenda took office in June and will serve in that capacity until June 2025. (You might also recall that Kenda was awarded the Criminal Justice Section State Bar Prosecutor of the Year award in 2021!)

            As one of six Section Representatives who serve on the State Bar’s Board of Directors, Kenda will represent the interests of members of 48 different State Bar Sections, including Family Law, Real Estate & Probate Law, Criminal Justice, the Judicial Section, Appellate Law, and the Litigation Section. Kenda has most recently served as the Chair of the Criminal Justice Section and the State Bar Professionalism Committee. She also currently serves on the Board of Directors for the Texas Bar College and the Texas Bar Foundation. 

            I know that Kenda is not a voting member of the State Bar Board, but because the Bar (through the CDRR committee) has been in our business of late, I am glad we have a strong advocate for our profession in the room!

Justice the DA Cat

An update on the resident purr-alegal in the Criminal District Attorney’s Office in Cameron County: Justice the DA Cat, who was featured in the last issue of this journal, has a new Instagram handle: @i_amjusticeccdacat. Follow him to keep up with his latest antics.

Robert Trapp appointed administrative judge

Congratulations to Robert Trapp, former Criminal District Attorney in San Jacinto County, who has been appointed by Governor Greg Abbott as Presiding Judge of the Second Administrative Judicial Region, effective May 21, for a term set to expire four years from the date of qualification. Robert served as an elected prosecutor twice, first as the County Attorney in San Jacinto County from January 1984 until December 1989, and second as the District Attorney since July 2014 until his appointment. In between he served as the judge of the 411th District Court for Polk, Trinity, and San Jacinto Counties. Robert has served his community well as both a prosecutor and a judge, and we know he will do a fine job in his new administrative role.  Good luck, Judge, times two!

And welcome to Todd Dillon

Congratulations to Todd Dillon, whom the governor has appointed as the Criminal District Attorney in San Jacinto County. Todd was serving as the first assistant in that office prior to his appointment and has also prosecuted in Polk, Harris, and Angelina Counties.  Welcome to the ranks of elected prosecutors!

Goodbye to Stephanie Huser

I want to offer a heartfelt thanks to Stephanie Huser, the TDCAA Research Attorney who has recently departed for the General Counsel’s Office at the Texas Municipal League. I am sure you all agree that Stephanie did a fine job when you called her with a legal question. She was fast, thorough, and on target! We are sure going to miss her, but it is good to know we now have a resource when someone calls with a municipal law question.

            If you have any interns who might be interested in working for TDCAA as a Research Attorney, please have them contact me.