Consistent with ABA Model Rule 3.8, the Texas Supreme Court adopted three new subsections to Rule 3.09 addressing a prosecutor’s post-conviction obligation to disclose “new and credible information creating a reasonable likelihood that a convicted defendant did not commit an offense for which the defendant was convicted.” New subsections (f), (g), and (h) address the responsibilities that a prosecutor has to rectify a wrongful conviction.
Specifically, pursuant to Rule 3.09(f)(1), if a prosecutor learns of new and credible exculpatory evidence post-conviction, and the conviction was obtained in that prosecutor’s jurisdiction, then the prosecutor is obligated to promptly disclose that information to four different groups of people – the defendant, the defendant’s counsel or the indigent defense appointing authority in the jurisdiction, the tribunal, and a statewide entity that examines and litigates claims of actual innocence. If the defendant has counsel with respect to the matter at issue, notification to that counsel satisfies the obligation to notify the defendant. See, Comment 7 to Rule 3.09. If the defendant does not have counsel, the prosecutor is also charged with moving the court to determine whether the defendant is entitled to have counsel appointed. The prosecutor is further required to cooperate with the defendant’s counsel to provide all new information known as required by the rules that govern discovery in criminal matters.
If the conviction was obtained in another jurisdiction, the prosecutor is only required to promptly disclose the new and credible information to the prosecutor in that jurisdiction. See, Rule 3.09(f)(2).
Comment 8 to Rule 3.09 makes clear that a prosecutor’s disclosure obligation in this respect is commensurate with those created by other law, presumably referring in part to Article 2.01 of the Texas Code of Criminal Procedure (“It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”), as well as the disclosure requirements set out in Texas Code of Criminal Procedure 39.14 (h) and (k).
New subsection 3.09(g) provides prosecutors with a safe harbor to the disclosure obligations. If the prosecutor concludes in good faith that the information is not credible nor exculpatory, then the prosecutor does not violate Rule 3.09(f) even if that good faith conclusion later proves to be incorrect. That said, the recommended course of conduct is to err on the side of disclosure as a determination of whether the information is credible and/or exculpatory is largely fact specific and subjective.
A reminder that the new subsections to Rule 3.09 are now in effect as of October 1, 2024, and TLIE has a one-hour ethics CLE available that discusses all of the new and amended Rules.