By: Diana Faust and Jackie Cooper
We are no strangers to Michael Morton’s story and the powerful change in Texas criminal procedural law that came about as a result. As part of Cooper & Scully’s legal defense team, we worked tirelessly along with the Innocence Project in the lengthy fight for DNA testing that ultimately exonerated Michael, who spent nearly 25 years in prison for a crime committed by another. The real murderer killed again shortly after Michael was incarcerated. Michael’s freedom and, we believe, Debra Baker’s life, could have been preserved, but for the prosecutor’s willful withholding of exculpatory evidence from Michael and his defense counsel. Michael’s exoneration set him on his journey to achieve reform for all those who, like himself, lost lifetimes because of prosecutorial misconduct and failures of the Texas criminal justice system. His efforts to seek reform resulted in the enactment of the Michael Morton Act.
Last Friday, March 15, 2019, the Supreme Court of Texas held that governmental immunity barred suit by a former assistant district attorney who alleged that Nueces County wrongfully terminated his employment because he refused his supervisor’s order to withhold exculpatory evidence from a criminal defendant. In Hillman v. Nueces County, Texas, No. 17-0588, ___ S.W.3d ___ (Tex. Mar. 15, 2019), the Court interpreted the Michael Morton Act to conclude that nothing in the Act indicates a legislative intent to waive governmental immunity from a wrongful-termination suit under Sabine Pilot Service, Inc. v. Hauck. In doing so, the Court deferred to the Texas Legislature to address whether its policymaking function needs protection through further amendment to the Michael Morton Act. In a powerful concurring opinion, Justice Guzman (joined by Justices Lehrmann and Devine) emphasized the need for legislative reform of accountability measures for such prosecutorial misconduct as Hillman alleged.
The Underlying Facts and Procedural History. Hillman served as an assistant district attorney in Nueces County for two years. Hillman alleged that while preparing to prosecute a defendant charged with intoxicated assault and leaving the scene of an accident, he discovered and interviewed a witness who said she was with the defendant on the night of the incident and that he was not intoxicated. Because the police report did not mention the witness, Hillman told his supervisor he needed to disclose the witness to the defendant’s attorney, but his supervisor disagreed. Hillman’s supervisor instructed him not to disclose the witness. Believing that he was legally required to disclose the witness under the Michael Morton Act, Hillman called the State Bar Ethics Hotline and the Texas Center for Legal Ethics for advice. Both told Hillman he should disclose the information.
Three days before the defendant’s trial, the victim confirmed to Hillman that the witness had been present at the scene. Hillman relayed this information to his supervisor and informed her that he had decided to disclose the witness to the defense attorney. On the day of trial, Hillman was fired for “failing to follow instructions.” He alleged that he was fired solely for refusing to withhold exculpatory evidence.
Hillman sued Nueces County, the District Attorney’s office, and then-District Attorney Mark Skurka, in his official capacity. He sought actual damages for lost wages and benefits, mental anguish, pain and suffering, and loss of earning capacity, and exemplary damages. The County moved for dismissal based on governmental immunity and the trial court agreed and dismissed the case. The Thirteenth Court of Appeals affirmed.
The Majority Opinion. The Court first discussed the general rule that sovereign immunity (usually called governmental immunity when referring to political subdivisions) protects governmental entities against suits and legal liabilities. The Court focused on governmental immunity from suit, which barred Hillman’s suit unless that immunity was waived.
Hillman urged three alternative grounds for reversal: that (1) the Supreme Court abrogated or waived the County’s immunity from this type of suit in Sabine Pilot, in which it recognized a cause of action for wrongful termination of an at-will employee for refusal to perform an illegal act; (2) the Texas Legislature waived the County’s immunity through the Michael Morton Act; or (3) the Court should abrogate or waive the County’s immunity from suits. Despite recognizing the serious and important policy concerns at issue (raised by Hillman and supporting amici), the Court found each ground unconvincing.
First, the Court agreed that it did not expressly limit the Sabine Pilot exception to private employers, but explained that because it did not consider or address whether the exception applies to government employers, Sabine Pilot provides no controlling principle on that issue. The Court further held that the exception applies to all Texas employers, in the sense that all have a common-law-tort duty not to terminate at-will employees solely because the employee refuses to perform an illegal act. But, the Court reasoned, Hillman cannot pursue his suit for the County’s alleged breach of that duty unless the Legislature has waived the County’s governmental immunity.
Next, the Court considered just that. It examined the Michael Morton Act, the statutory codification of Brady v. Maryland violations. The Michael Morton Act expressly requires prosecutors to:
[D]isclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.
Tex. Code Crim. Proc. § 39.14(h). Prosecutors must disclose such information whenever they discover it, whether “before, during, or after trial.” Id. § 39.14(k).
The Court began with the language of the statute because any waiver of governmental immunity must be through “clear and unambiguous language,” and the five factors expressed in Harris County Hospital District v. Tomball Regional Hospital. The Court concluded that, as to the first four factors, the Michael Morton Act does not address governmental immunity or waiver at all, and; none of its language waives immunity “without doubt” or even creates ambiguity on the point. Further, the Court concluded, the Act does not require that the government be joined in any lawsuit or impose any limitation on the government’s liability in such a suit.
As for the fifth factor, “whether the statutory provisions would serve any purpose absent a waiver of immunity,” the Court considered Hillman’s arguments that (1) the Act necessarily waives the County’s immunity because the Act’s sole purpose is to require prosecutors to disclose exculpatory evidence, and (2) the Act is “illusory” unless it waived immunity from Sabine Pilot claims. Hillman urged that “A law making it a crime for a prosecutor to withhold evidence from the defense, but at the same time allowing the prosecutor’s supervisor to fire him for refusing to do so is nonsensical and cannot possibly be what the Legislature intended when it enacted the Michael Morton Act.”
In rejecting these arguments, the Court explained that the Act serves obvious purposes separate and apart from wrongful-termination issues: it codifies and “supplements prosecutors’” constitutional obligations under Brady. It does so by requiring production of several items previously not discoverable in criminal cases (written witness statements, written communications between the State and its agents, and work product).
The Court further discussed that the Legislature could “always do more to ensure that prosecutors disclose exculpatory information,” suggesting the Act could authorize civil damages suits and waiver of immunity for such suits against those who violate its requirements or terminate subordinates who refuse to violate them. The mere fact that the statute prohibits a government official from engaging in particular conduct does not, the Court explained, establish that the statute also waives government immunity whenever a government employer terminates an employee for refusing to engage in that conduct.
Finally, the Court refrained from engaging in any judicial abrogation of immunity, deferring to the Legislature to waive immunity: “It is the Legislature’s sole province to waive or abrogate sovereign immunity.” The Court stressed that the judicial branch instead retains the authority and the responsibility to determine whether immunity exists in the first place, and to define its scope.
The Court, in reaching its holding and interpretation of the Michael Morton Act, emphasized that it in no way discounted the concerns raised by Hillman and supporting amici and the concurring opinion.
The Concurring Opinion. Justice Guzman, in her concurring opinion, passionately and eloquently described the backdrop of the Michael Morton Act:
Imagine being accused, charged, and convicted of bludgeoning your spouse to death. You are innocent but sentenced to life in prison, effectively orphaning your only child. Over the next 24 years, you wage an uphill battle to prove your innocence, eventually discovering that the prosecution held the keys to your jail cell before you ever set foot in it. Eye-witness testimony pointing the finger at someone else and DNA evidence that was never tested would have exculpated you if the prosecutor had not secreted the evidence from those who were constitutionally charged with defending you. Ultimately exonerated after nearly a quarter century in confinement, you walk free. The prosecutor—now a judge—is found in contempt of court for suppressing this evidence. Small comfort. Justice delayed is justice denied. But more than that, justice delayed is life denied.
While you were locked away for a crime you did not commit, you were denied your unalienable rights of life, liberty, and the pursuit of happiness. You lost your constitutional right to parent your child. To have his love and companionship. To shape who he is and how he became that way. Instead, your beautiful toddler is now a man struggling to reconnect with a person he doesn’t know, can’t remember as a parent, and spent years thinking was a vicious monster. And worse, the actual perpetrator of this heinous crime continued to walk the streets. Free to kill again.
Alas, this is not a hypothetical. This is the true story of Michael Morton. Husband. Father. Supermarket manager. An ordinary Texan whose young wife fell victim to a stranger’s brutality. And while Morton languished in jail, another young wife—Debra Baker—paid the ultimate price at the hands of the same killer, leaving yet another young child motherless. Foreseeable victims of overzealous prosecution.
While Justice Guzman concurred in the judgment and in most of the Court’s reasoning, she sought to “highlight a lacuna in the legislative scheme that neuters the Legislature’s efforts to forestall prosecutorial misconduct that could lead to wrongful convictions.” She lamented that while the Michael Morton Act is a strong foundation, more is required to ensure that those wielding power use it as intended, citing to statistics showing that official misconduct ranks second among the top five factors contributing to exonerations. Justice Guzman stressed that under circumstances such as Hillman alleged occurred, “it is imperative that honest prosecutors not be punished”:
To my mind, the threat of other consequences, including monetary relief, would provide the external pressure to motivate vigilance and self-policing. The Legislature is better suited, and constitutionally constituted, to weigh the policy interests that bear on whether to waive immunity (and to what extent), but as to that matter, this case makes painfully clear that what’s past is prologue.
The Court’s impassioned plea for legislative reform resounds. The 86th Regular Session of the Texas Legislature is well underway as of this writing. Is it listening?
 687 S.W.2d 733 (Tex. 1985).
 373 U.S. 83 (1963).
 283 S.W.3d 838, 844 (Tex. 2009).