Firing an employee in retaliation for refusing to perform an unlawful act violates both federal (Title VII of the Civil Rights Act of 1964) and Texas (Chapter 21 of the Texas Labor Code) law.
Further, the Texas Supreme Court some thirty-four years ago recognized in Sabine Pilot Service, Inc. v. Hauck that an employee fired in retaliation for refusing to perform an unlawful act could bring a civil cause of action for wrongful termination against an employer.
In 1963, some 56 years ago, the U.S. Supreme Court handed down its landmark decision in Brady v. Maryland requiring prosecutors to disclose, upon request by the defendant, any evidence favorable to the defense.
Two years later, the Texas Legislature enacted Article 2.01 of the Texas Code of Criminal Procedure informing state prosecutors that, “They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”
Violating Brady is an Unlawful Act
Over the next five decades Texas prosecutors, as part of their “convict at any costs” mindset, routinely violated the constitutional mandate of Brady and the statutory duty imposed by Article 2.01. This unbridled proclivity for prosecutorial misconduct probably sent eight innocent men to their death in the Texas death chamber and hundreds, possibly thousands, more innocent people to prison for years, often decades.
In 2013, following the release of a man who had spent 25 years in the Texas prison system for a crime he did not commit, the Texas Legislature unanimously enacted the Michael Morton Act (codified in Article 39.14(h) of the Texas Code of Criminal Procedure) which instructs all prosecutors to,
“… disclose 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.”
Prosecutor Refuses to Violate Brady
In 2014, Eric Hillman was an assistant district attorney in the Nueces County District Attorney’s Office. He was investigating the case of a man charged with intoxication assault and leaving the scene of an accident. He located a witness who had not been cited in the original offense report and who stated that the defendant was not intoxicated.
Hillman, a former police officer, believed that the witness’s identity should be disclosed to the defense under the Michael Morton Act. His immediate supervisor, however, instructed him not to disclose the witness information.
Uncomfortable with that instruction, Hillman contacted the Texas Center for Legal Ethics and the State Bar of Texas’s hotline seeking ethical guidance. Both groups advised him quite forcefully to disclose the evidence.
DA Fires Prosecutor for Following Law
Hillman did precisely as advised, providing the witness information to defense counsel roughly one week prior to the trial of the case in question. The supervisor learned of the disclosure, and on the very day the trial was scheduled to commence, Nueces County District Attorney Mark Shurka fired Hillman for refusing to “follow orders.”
This employment termination was not surprising given the fact that Shurka’s office had serious problems with prosecutorial misconduct throughout the DA’s tenure.
Hillman filed a wrongful termination lawsuit against Shurka, relying strongly on the Sabine Pilot precedent. Nueces County defended Shurka by pleading it enjoyed “governmental immunity”—an antiquated legal doctrine that bars civil lawsuits against governmental entities thereby shielding them from any liability exposure. The lower courts dismissed Hillman’s lawsuit under this doctrine.
The case eventually found its way to the Texas Supreme Court. The Innocence Project, the ACLU, the Cato Institute, law professors and criminal defense attorneys across the state joined in support of Hillman’s lawsuit. Those combined efforts failed.
On March 15, 2019, the Texas Supreme Court rejected Hillman’s two primary claims for relief: 1) that the Supreme Court itself waived the governmental immunity defense in wrongful termination case for refusing to perform unlawful acts through Sabine Pilot; and 2) that the Texas Legislature effectively waived the governmental immunity defense in such cases through the Michael Morton Act.
Texas Supreme Court Shields Prosecutorial Misconduct
The Court said there was “nothing” in either the finding or language of Sabine Pilot or the Michael Morton Act that waived the governmental immunity defense. The Court noted that the “governmental-immunity doctrine” has existed for more than six hundred years and is “‘an established principle of jurisprudence in all civilized nations.” The Court added:
“That the legislature has recently revised the Michael Morton Act to strengthen its protections illustrates its continuing awareness of the Act and its importance, as well as its willingness to take steps to improve it. Whether waiving immunity from Sabine Pilot claims should be the next step in that process is up to the legislature, and we must defer to it to ‘protect its policymaking function.’”
The Texas Supreme Court, by extending immunity in the Hillman case, joined the U.S. Supreme Court, with its grant of qualified immunity to prosecutors in the Connick v. Thompson case, in giving constitutional blessing to prosecutorial misconduct, regardless of how lawless and even criminal that misconduct may be.
We agree with this observation made Texas Supreme Court Justice Eva Guzman in a concurring opinion in the Hillman case:
“Brady violations are difficult to uncover because, by definition, they involve concealment of evidence in the prosecution’s exclusive possession and control. Indeed, exposure of Brady violations generally requires the prosecution’s own admission, some ‘chance discovery’ by the defense team, or ‘dumb luck.’ The most effective way to combat prosecutorial misconduct is to provide a disincentive extrinsic to an individual prosecutor’s own moral compass. ‘Ironically, the only one who can act as a check on the prosecution is the prosecution itself.’ This case places the internal dynamics within the prosecutor’s office under a microscope. Although many district attorney’s offices have implemented internal guidance or best practices, when the pressure to withhold evidence comes from the top, internal guidelines are at best a window dressing. Under circumstances like those alleged here, it is imperative that honest prosecutors not be punished.”
To rogue prosecutors, Justice Guzman offered this suggestion to the state legislature:
“…To my mind, the threat of other consequences, including monetary relief, would provide the external pressure required 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.”
We strongly believe there should be a Hillman Amendment to the Michael Morton Act to protect honest prosecutors like Eric Hillman.
Honesty should not be without reward.
Having existed for more than six hundred years, the governmental-immunity doctrine is “an established principle of jurisprudence in all civilized nations.” Tooke, 197 S.W.3d at 331 (quoting Beers v. Arkansas, 61 U.S. 527, 529 (1857)).