Austin American Statesman
Posted at 2:35 PM
Updated at 4:43 PM
The Texas Supreme Court on Friday dismissed a lawsuit by a former Nueces County prosecutor who said he was fired for refusing an illegal order to hide evidence favorable to a criminal defendant.
But the ruling came with a pointed warning, and a plea for action by the Legislature, from three of the court’s nine members.
The Supreme Court was unanimous in deciding that Eric Hillman could not sue the county and the district attorney’s office because, as government agencies, they are immune from lawsuits over wrongful termination.
The court rejected Hillman’s argument that the 2013 Michael Morton Act, named for a Williamson County man who spent almost 25 years in prison for a murder he did not commit, waived government immunity from Hillman’s lawsuit because the act makes it a state crime to hide favorable evidence from defendants.
Hillman’s lawyers argued that making it a crime to withhold evidence, but allowing an assistant district attorney to be fired for refusing to do so, was “nonsensical” and contrary to the Legislature’s intent with the Michael Morton Act.
However, the court ruled, waiving government immunity from lawsuits requires specific language, and nothing in the act addresses immunity.
“We defer to the Legislature to decide whether such a waiver would be appropriate as a matter of public policy,” said the opinion by Justice Jeff Boyd.
Friday’s decision to dismiss Hillman’s lawsuit followed similar rulings by a trial court and an intermediate appeals court based on immunity, a legal concept that shields many government decisions from lawsuits as a way to protect public tax dollars.
Writing a separate concurring opinion, Justice Eva Guzman said the Hillman case exposed shortcomings in the Morton Act that the Legislature should address.
If Hilllman could prove he was fired for failing to hide favorable evidence, “by any measure of law and morality in a civilized country, that is wrongful termination,” Guzman wrote in the opinion joined by Justices Debra Lehrmann and John Devine.
“Those we entrust to pursue justice should not be put to the Hobson’s choice of earning a living or doing the right thing,” Guzman wrote. “Cloaking governmental employers with absolute immunity in such circumstances erodes public confidence in the criminal justice system and undermines concerted legislative efforts to reform that system.”
If illegal practices are encouraged or rewarded, prosecutors might be enticed “to cross the line” or be discouraged from following the disclosure law, Guzman added.
“It’s fair to assume that the Legislature did not envision such a consequence when enacting the Morton Act without adopting measures to ensure prosecutors could comply with the Act without losing their job,” she wrote. “In light of the underbelly this case exposes, it would be appropriate for the Legislature to do so now.”
However, the deadline to file bills for action in the 2019 legislative session has passed. It might be possible to amend existing bills to answer the justices’ call, but the legislation would have to be germane to issues of immunity or the Morton Act.
Nueces County officials denied wrongdoing in Hillman’s case, a dispute that began with the prosecution of David Sims on charges of intoxication assault and leaving the scene of an accident in 2013.
According to court records, Hillman found a witness who was not in the police report and who said Sims was not drunk at the time of the accident, but a supervisor ordered him to keep the information about the witness to himself, saying it did not have to be disclosed to defense lawyers because it came from his independent investigation.
After consulting with experts in legal ethics who disagreed, Hillman disclosed the witness and was fired for refusing to follow orders, his lawsuit said.