In 2013, Eric Hillman was employed as an assistant district attorney in Nueces County, Texas. Mark Skurka was the duly elected district attorney for the county at the time. He was Hillman’s employer.


In 2014, Hillman found himself in a cauldron of professional ethics and legal obligations. He was assigned to prosecute David Sims, an individual charged with intoxication assault—an offense that involves a party being injured by someone driving a motor vehicle while intoxicated. As any good prosecutor would do, Hillman conducted a preliminary investigation to determine the background facts that produced the charge against Sims.


Thorough Prosecutor Investigates Facts of Case


Hillman’s investigation determined that a young woman had been injured while riding in a golf cart driven by Sims. The two were part of a group of friends engaging in horseplay and having fun. They were chaperoned by the mother of another young woman taking part in the festivities. The mother informed Hillman that she observed Sims driving the rented golf cart that injured the passenger. The chaperone added that Sims had consumed only a small amount of alcohol and was not intoxicated. She said the passenger was injured when the golf cart was overturned during horseplay, and that this accident had nothing to do with alcohol consumption.


This information changed the entire complexion of the criminal case against David Sims. Hillman reported the discovery of this obviously exculpatory information to his supervisor Deborah Rudder, telling her that he was ethically and legally bound to turn the information over to Sims’s attorney. Ms. Rudder instructed Hillman not to disclose the information.


Prosecutor Take Professional Obligation Seriously, Fired


Hillman then consulted with two state hotlines that provide information about legal ethics to attorneys: one operated by the Texas Center for Legal Ethics and the other the State Bar of Texas. The hotlines reinforced Hillman’s belief that he had no choice but to disclose the exculpatory information to Sims’s attorney.


On the eve of Sims’s scheduled criminal trial in January 2014, Hillman informed Rudder that he could not follow her directive and that he would provide the exculpatory information to the defendant’s attorney. He did so. The next morning, before Sims’s trial got underway, ethically challenged District Attorney Skurka fired Eric Hillman for “refusing to follow orders.”


Hillman brought a wrongful termination lawsuit against the Nueces County District Attorney’s Office following his dismissal. Attorneys for Skurka and others involved in Hillman’s termination defended against the lawsuit claiming that the county was immune from a lawsuit because Texas adheres to the “at-will doctrine”—a work doctrine followed by many states that allows at employer to fire an employee for any reason or for no reason at all.


This draconian doctrine has one exception.

Exception to At Will Employment


In 1985, the Texas Supreme Court in Sabine Pilot v. Hauk ruled that an employee can state a viable cause of action against an employer in Texas if the employee can show that he or she was terminated from employment for the sole reason that they refused to perform an illegal act.


In 2015, a Nueces County district court refused to apply the Sabine Pilot exception to Hillman’s termination and dismissed his lawsuit. The Thirteenth Court of Appeals on June 1, 2017 upheld the district court’s dismissal of Hillman’s lawsuit.


Hillman sought review of these lower court decisions before the Texas Supreme Court. This past July the court agreed to take up the Hillman lawsuit controversy.


The Texas Innocence Project had taken up Hillman’s cause in March.


On October 18, 2018, the Cato Institute, the American Civil Liberties Union, the Due Process Institute, the Law Enforcement Partnership and the Texas Criminal Laws Scholars joined the Innocence Project with an Amicus Curiae brief in the case.


On October 31, 2018, the Texas Supreme Court heard oral arguments from Innocence Project attorneys in the case.


Failure to Disclose Favorable Evidence Violates Law


The essential issue before the Supreme Court is this: should the Sabine Pilot rule apply to a government employee fired by a government employer because he or she would not violate the law?


Counsel for all the Amici Curiae argue in their briefs that both federal and Texas law required the disclosure of the exculpatory information to David Sims’s defense team. The attorneys point out that a criminal prosecution can be had for violating the Supreme Court decision in Brady v. Maryland and Texas’s Michael Morton Act. They cite the criminal prosecution of former Williamson County District Attorney Ken Anderson for his Brady violations in the Michal Morton case.


As with Ken Anderson, ADA Hillman could have faced criminal prosecution under at least nine state laws had he not turned over the exculpatory information to Sims’s attorneys. In addition to being a criminal violation, Hillman’s failure to disclose would have involved violating these fundamental ethical and legal principles:


  • The due process rights of a criminal defendant;
  • The rule of professional responsibility;
  • The canons of legal ethics; and
  • Basic constitutional fairness and human decency


Ethical Rules are Backbone of Legal System


The incongruity of the Sabine Pilot exception applying to a private sector employee but not to a governmental employee is staggering. Amici Curiae counsel illustrated this incongruity with the following observation made in their brief:


“ … If a partner at a private law firm ordered an associate to fabricate evidence in a civil or criminal trial (perhaps by suppressing evidence subject to court-ordered reciprocal disclosure, or suborning perjury) and the associate rightly refused to do so and was fired, Sabine Pilot (which was based on public policy concerns) would allow for a claim against the law firm and the offending partner. That same protection should exist on the other side of the criminal justice system. A lawyer who chooses to work for the government and who upholds the law and legal ethics should have recourse when a supervisor fires that lawyer for refusing to commit a crime or violate the state’s legal ethics rules. This is particularly so because of the unique role that a prosecutor plays in carrying out the state’s police powers. Indeed, ethics rules are the backbone of the legal profession. The rules must be safeguarded, and public employees who uphold these ethics must be protected by the Court that enacts and enforces the legal ethics for the State of Texas.”


We understand the need for governmental immunity. However, that need should not be an excuse for not applying the Sabine Pilot narrow exception to a governmental employee—especially one charged with the responsibility of upholding the law and prosecuting its violators.


Lawyer Stands for Justice, Upholds Oath


Eric Hillman tried to be an ethical prosecutor, a professional attorney, and an obligated law enforcement officer by refusing to follow a direct order to violate the law. The Innocence Project reported that Rudder told Hillman: “Eric, you need to decide if you want to be a prosecutor or a defense attorney.”


Hillman proved that he was not a prosecutor or a defense lawyer, but rather a good lawyer when he refused Rudder’s direct order to violate the law.


The Texas Supreme Court should now provide him with a legal remedy to right the wrong did to him by the Nueces County District Attorney’s Office.