How current and former DAs are working criminal cases
So how does state law read with regard to a former Hidalgo County District Attorney, in this case Ricardo Rodriguez, taking on criminal cases involving a client who was indicted while he was still the acting DA?
On the opposite rail rests the question: how does the current DA, Terry Palacios, prosecute cases involving defendants who had retained him as their defense attorney before he was elected district attorney in 2022?
Before deciding to run for Hidalgo County District Attorney last year, Palacios’ private practice was filled to the brim with clients who wanted the well-seasoned attorney in their corner when their case went to criminal court.
Palacios, said that when he took office Jan. 1, 2023, he had between 300 and 500 criminal cases pending.
“The COVID pandemic really put everybody behind,” he said.
Those pending cases, though, can’t be prosecuted by the office Palacios now heads, The Office of the Hidalgo County District Attorney.
“It’s basically tied to the ethics code,” he said. “As state prosecutor, some might question a deal when a former client of mine ends up with what they consider to be a good plea deal with the DA’s office even if I had nothing whatsoever to do with prosecuting the case.”
To handle those 300 to 500 pending cases, Palacios said he’s been in talks with the DA’s office in both Cameron and Willacy counties.
“It’s not yet official, but I’m trying to work something out so that we can exchange similar work when those counties might need a special prosecutor,” he said. If Palacios can work out a quid pro quo with those two counties, such an arrangement (hiring a special prosecutor) won’t cost county taxpayers any money.
“We heard that some courts were on the verge of retaining their own special prosecutors for the cases I had worked on while I was in private practice,” Palacios said, “which would have cost the county money, so we said, ‘Let’s hold on for a minute while we try to work something out with Willacy and Cameron.’” That move by some courts, said Palacios, has been put on hold while he and his staff try to hammer out an official cooperative deal with Cameron and Willacy.
Ricky Rod in Private Practice
Now, time to answer some legal questions about Terry Palacios’s predecessor, Ricardo “Ricky Rod” Rodriguez.
Rodriguez and his law firm were named the city of Pharr’s deputy city attorney and prosecutor this past January, but he’s also working as a criminal defense attorney in Hidalgo County, under the banner of the Ricky Rod Law Group. No fellow attorney has said anything publicly about Rodriguez’s entry back into the private-practice attorney fold, so to speak, but there have been some underground rumblings, at least a few, that not all are happy with the arrangement.
In other words, a person under criminal indictment already has a case pending, but they cut ties with the attorney already listed as their attorney of record and instead hire the former DA, Ricardo Rodriguez, to serve as legal counsel.
Rodriguez said, however, that he had already done his homework before taking on criminal cases involving clients who were indicted while he was acting DA, and he has (Texas) case law that makes clear what he can and cannot do on behalf of both himself and the attorneys who comprise his current private practice, the Ricky Rod Law Group.
Before serving as Hidalgo County District Attorney, Rodriguez was a state District Court judge for almost seven years. Before that, he was doing what he’s doing today, working as an attorney in private practice.
Speaking about any alleged conflict of interest when it comes to taking on new criminal cases, where a criminal defendant wants to excuse his current counsel of record and replace him or her with Rodriguez, the former DA said he has more than a few examples of case law already ruled on by the Texas Court of Criminal Appeals, which state unequivocally what he can and cannot do when it comes to representing criminal defendants who were indicted while he was still county DA.
“I would never get myself in a position to go against what the law says,” Rodriguez said. “There is a case out of Bexar County, for example, where the former DA, in private practice at the time, went on to represent a person who was arrested and indicted while he was still the district attorney.”
So what happened? “The state (county DA) objected to his firm representing the defendant because he was actually in the courtroom, serving as the district attorney, when the case was being called.”
The trial court, however, did not agree, saying that there was no conflict, and neither he nor his firm needed to be removed from the criminal case.
The same case then went to a state Court of Appeals, which ruled just the opposite, saying that the the former DA should not be involved in the case because he had substantial involvement in it when he was state prosecutor.
That term, “substantial involvement,” meant that he had brought in his assistant prosecutors to talk about the case, while serving as DA, and he gave a recommendation about how it should move forward after discussing its strengths and weaknesses. In other words, while he was the district attorney, with this particular case in question, he had been involved to a substantial degree.
“So the Court of Appeals said he’s out, and the firm (he was with) was out,” said Ricardo Rodriguez.
Then it went to the Texas Court of Criminal Appeals, the state’s highest criminal court, because the former DA appealed the lower court’s ruling.
The Court of Criminal Appeals ruled that the former DA should indeed be removed from the case because he had substantial involvement in it, but his firm could stay on as long as the former prosecutor stayed away from any involvement in the case.
In that case, the Texas Court of Criminal Appeals also helped define what exactly constitutes substantial involvement.
According to Ricardo Rodriguez, “Having my name on an indictment, signed by me while I was still the DA, having my name on a file, is not enough for it to be considered substantial involvement,” he said. “What the court said was, a near-perfunctory involvement is not enough.”
In other words, having Rodriguez’s name as DA on a case file with which he had no involvement, because all of the legal work had been handled by his assistant prosecutors and other staff members, would be considered “near-perfunctory,” and would not be considered “substantial involvement.”
Rodriguez said that, based on the upper- court’s ruling, he can now take on a case belonging to a criminal defendant who was indicted when he was Hidalgo County DA, as long as he had no substantial involvement in it at the time. If he did have substantial involvement in a particular case, he cannot work it, so to speak, but his law firm can, if it’s not a sole practice.
What can also happen, said Rodriguez, as a means of protecting the court, is that the defendant can waive any possible conflict of interest by simply signing a document, for example, that says, “Yes, I know that Mr. Rodriguez was Hidalgo County District Attorney when I was indicted, but I am waiving any future right to bring that up on appeal, or any subsequent court filings, because now I want him to serve as my acting legal counsel, and I have no problem with him being the DA at the time of my indictment.”
The ruling on the part of the Texas Court of Criminal Appeals has added implications, according to Rodriguez.
“Let me explain,” he said. “It has to do with due process on the part of the defendant. The court, and this is my opinion, didn’t want to violate any defendant’s right to choose whomever he or she wants to serve as their defense attorney. If the Texas Court of Criminal Appeals had ruled that an entire law firm should be excluded from a case, just because a former DA is one of the partners and had substantial involvement in the case, well, that might be construed by some as being a violation of due process, which is one of the foundational rocks of juris prudence in this country.”
Rodriguez said that when he now considers any new criminal case at his law firm, the Ricky Rod Law Group, he first looks to see if it’s one with which he had any substantial involvement while he was still Hidalgo County DA – 2015 through 2022.
“If I had any substantial involvement, the Ricky Rod Law Group may serve as defense counsel, but I won’t have anything whatsoever to do with that particular case.”
Defense Attorney Salinas Opines
To get the viewpoint from a criminal defense attorney long sourced by this newspaper as a legal expert, given his 30 years as a practicing lawyer, local Criminal Defense Attorney Ricardo “Rick” Salinas says that based on what he’s seen so far, the former DA, Ricardo Rodriguez is trying his best to avoid any conflicts of interest and any appearance of improprieties.
“I think he’s going to have to take it on a case-by-case basis,” Salinas said. “Which isn’t always easy because he’s also got the interests of his firm to consider. It’s not easy to turn down a case that’s going to help you pay the bills.”
He says he has nothing but warm feelings for both the current DA, Terry Palacios,, and the former DA, Ricardo Rodriguez.
“I went to law school with Terry. I like both of these guys, so my opinion is only meant in the spirit of what I would do if I were them. Which is, avoid the appearance of impropriety.”
Salinas has had his own share of perceived conflicts over the years, so he says that gives him a good feel for that old adage: in the minds of many people, perception is reality. His former wife, Marla Cuellar, current state District Court judge of the 275th in Hidalgo County, is a good example, he says.
“I have attorneys from all over the state with criminal defendants in Hidalgo County. I get calls all the time because their cases have landed in the courtroom of my ex-wife. I tell them, sorry, but I don’t practice in her court. That was the agreement we made when she first decided to run. I told her that I’d support her, but I didn’t want to practice in her court. I’ve done my best to avoid those sort of conflicts, although occasionally one of my case lands in her court on a random basis, and I can’t get it moved.”
The same scenario used to play out in the courtroom of his former aunt, Judge Aida Salinas Flores, before she retired. To his chagrin, Salinas says, more than a few of his cases landed in her court.
“People used to say that she’s my aunt. Actually, she’s my fourth cousin, but given that she’s older than me, in the culture down here, people will usually say, ‘Tu tia…your aunt,’ which isn’t really the case. If anything, to my chagrin, I always felt that she made it harder for me than the opposing counsel, which to be honest, caused some friction between us.”
Salinas said he learned this issue concerning conflict, or the perception thereof, when he was a relatively young lawyer, and his dad had retired as county commissioner and chose instead to run for mayor of Mission.
“I had a possible city matter come before me, and I told my dad about it. In other words, that I had pending legal contractual case with the city of Mission. Basically, he said, I had to decide who was going to stick around, him or me, because he didn’t want to be mayor of a city that was handing out legal work to his son. Granted, there was nothing wrong with it on the surface, but he told me that it’s the public’s perception, their sense of impropriety, right or wrong, that matters. I took what he said to heart, and I’ve tried to follow that example ever since.”
According to Salinas, the relationship between the two DAs, past and present, uncle and nephew, is going to make it tough for them to avoid the appearance of any conflict of interest, with regard to criminal cases moving forward. Especially if Ricardo Rodriguez is going to take on cases that were indicted before he stepped down as DA at the end of 2022.
“I understand that there are court opinions that say a criminal defense attorney and his or her firm can handle cases that were indicted while he or she was district attorney. But from the outside looking in, there is going to be, in my opinion, a certain segment of the county’s population that is going to look at this as an adversarial relationship (prosecutor vs. defense attorney), and yet wonder how both men can make it work, given that one is the former DA whose uncle is now the current DA.”
In the end, says Salinas, “I had to make decisions that I felt were best for me and my family. I have every confidence that both men will do the same.”