By Daniel Cox
First Assistant District Attorney in Henderson County
Like most of you, I told myself after the bar exam that I was never taking another test for the rest of my life. But money can be the ultimate motivator.
In early 2019, when my then-boss, Tonda Curry, the elected Criminal District Attorney in Van Zandt County, offered attorneys in her office an on-the-spot bonus and an annual raise if they passed the board certification exam, well, it was time to fill out the application.
A few months ago, TDCAA Executive Director Rob Kepple mentioned in The Texas Prosecutor that he had heard from a number of prosecutors around the state that they were having a hard time even being qualified to sit for the exam. Having recently taken it, I thought maybe my experience with the board certification process could help others not only get qualified to sit for the exam, but to pass it, too. Besides the hassle of having to recall old trials and appeals and reach out to peers for a reference, it was a fairly smooth process.
I had actually flirted with the idea of trying to get board certified a few years earlier, when another boss, former Henderson County District Attorney Scott McKee, mentioned getting board certified to his attorneys. At that time, however, I was intimidated by the process, the application, and the test, and frankly, I didn’t consider myself good enough or smart enough to be board certified.
But with the passage of time and the monetary incentive, I decided to get started.
Requirements
The first thing to know is the requirements. To sit for the exam, you must have been licensed at least five years, with three of those years primarily practicing criminal law. You must not have any disciplinary history with the State Bar. You must have 60 hours of TBLS-approved CLE in the field of criminal law for the three years preceding your application.
The application process is burdensome, time-consuming, and intimidating. You must have a minimum of five references. Of the five, at least one must be a judge of a court of record in front of whom you have practiced. The other four must be criminal law attorneys, either prosecutors or defense attorneys, whom you have tried a case either with or against. Those references will receive a questionnaire from TBLS asking, among other things, about your general knowledge of the law, the Code of Criminal Procedure, evidence, etc. If you know anyone who is board certified and you’re confident that person will give you a good review, it cannot hurt to have a board-certified lawyer as one of your references.
After you choose references, it’s time for the “substantial involvement” portion of the application where you list the cases in which you had, yes, substantial involvement. You will wish you had kept track of all your trials and even other contested matters. If you haven’t, be prepared to suck up to court reporters and court clerks to help you get the information you need. TBLS wants to know cause numbers, styles, charges, resolutions, and the issues in each case. This seems to be where a number of Texas prosecutors get hung up in the application process.
It is a requirement that in the three years preceding application, you have handled as a first chair attorney three of the following four categories:
• five felony trials in state court,
• 10 misdemeanor jury trials in state court and five more felony jury trials in state court (for a total of 10 felony trials),
• five jury trials in federal court or substantial involvement in 10 federal cases with a contested issue, or
• any combination of five state or federal appeals.
Most of us in Texas prosecutor offices worked our way up from misdemeanors to felonies, so the required number of felony and misdemeanor trials should be a non-issue if you’ve been practicing criminal law long enough to sit for the exam. It’s the federal experience and the appeals that keep a lot of Texas prosecutors from qualifying to take the exam. I had no federal trial experience to list on my application. Fortunately, though, I have worked only in offices without appellate divisions: If you try the case, you do the appeal. My appellate experience qualified me for the exam despite not having any federal experience. If you don’t have any federal experience and you work in an office that does have an appellate division (so you’re not handling your own appeals), I recommend getting some appellate experience for the TBLS application.
Speaking of substantial involvement, one area in the application is for listing other matters you have handled. TBLS considers the matters’ complexity, nature, and duration, which I took to mean, “Throw the kitchen sink at them.” If you had a bench trial with a novel legal issue, list it and explain the issue. Do the same with a motion to suppress on a complicated issue. If you sat second chair on some big trials, it doesn’t hurt to list those either, and include what your responsibilities were as second chair. Did you cross a defense expert? List it along with the area of expertise. Did you do voir dire? Include that. The bottom line is, show the TBLS folks that you have handled many complex legal issues, be it in pre-trial hearings, jury or bench trials, or appeals. “Substantial involvement” are the two key words when it comes to listing your experience. Tell them what you’ve done. Beat them over the head with your experience.
I finished and submitted my application in early May 2019. A little more than two months later, I received an email notifying me that I had been qualified to sit for the exam. The exam was in Austin in mid-October, giving me roughly three months to study. Going back to that whole “not wanting to ever take a test again” thing, I of course procrastinated on studying for the first six weeks or so.
Time to study
After the references and substantial involvement portions are handled, it’s time to study for the actual exam. Unlike the bar exam, there are no study guides—no Kaplan or BARBRI—and TBLS does not publish old tests to use as study guides. You’re pretty much on your own. That being said, there is some help out there.
The Texas Criminal Defense Lawyers Association has some practice questions that have been culled from old tests. How the association got them, I don’t know, but if you’re lucky enough to know a board-certified defense lawyer with a copy of those old questions, get your hands on it. That’s as close as you’re going to get to practice questions.
Another great source for study material is the State Bar’s Advanced Criminal Law Course. It’s an expensive CLE, but the written materials are very helpful. It’s usually around 25-ish hours of material that runs the gamut from ethics issues and recent caselaw updates, to pre-trial filings and post-conviction relief, and everything in between. If you’re lucky, there will even be some federal law in there as well.
The Advanced Criminal Law Course is also as close as you’re going to get to pre-made outlines. A lot of the presenters at the Advanced Course outline their material. If there is not an outline, you can usually use PowerPoint presentations and other written materials in lieu of specific resources like there was for bar exam preparation.
I studied for this exam pretty much like I did for the bar: with lots of notecards. I know some people read the Code of Criminal Procedure and the Penal Code from front to back. I didn’t, but it can’t hurt. Do what worked for you with the bar. I was also told that TBLS likes to test on new caselaw, typically from the Supreme Court of the United States (SCOTUS) or the Texas Court of Criminal Appeals. A former co-worker, Tyler Woudwyk, an ADA in Van Zandt County, became board certified in 2020, and he mentioned that TDCAA’s weekly caselaw updates, which are emailed for free to subscribers on Friday mornings, are a great way to stay up-to-date on recent caselaw developments that may be asked on the exam.
When I was getting ready for the test in 2019, the big caselaw development from SCOTUS was Tibbs v. Indiana, which curtailed the government’s ability to seize assets, so I studied that case a lot. Was there anything on my exam about Tibbs? Of course not. I was also told by an old colleague who took the test the year before me that his essay questions were about the death penalty and motions for new trial, so of course I studied those subjects as well—because obviously they’re going to test on the same subjects in back-to-back years, right? Did the test ask anything about the death penalty or motions for new trial on my exam? Nope. I guess the bottom line there is, you cannot predict what will be in the essay portion of the exam.
Taking the test
The exam itself consists of three essay questions in the morning and 100 multiple choice questions in the afternoon. My first essay question was right out of a motion to suppress I had lost a couple weeks earlier. The fact pattern was so similar I almost thought it was asking about my case. This question being on the exam was very serendipitous for me.
The second question gave a fact pattern and then asked what offenses the suspect could be charged with, which punishment ranges those offenses carried, and what possible defenses he could raise at trial. It also asked what the punishment ranges would be in federal court and which evidence would and would not be admissible in federal court. To answer this question, it was helpful that my boss, Tonda Curry, was once an Assistant United States Attorney. A week or so before the test, she gave me a crash course in the federal sentencing guidelines. I was also fortunate enough to have had a good Texas Criminal Procedure professor in law school, so I remembered that Texas does not recognize inevitable discovery for evidence that is fruit of the poisonous tree. Thus, some evidence in my essay question would be suppressed in state court but admissible in federal court. That little bit of federal knowledge was enough to get me through that question.
The third essay question, you ask? I can’t remember it to save my life. The best I can tell you is it was another bar exam-like fact pattern with multiple different questions.
The multiple choice questions were much like those on the bar exam: four possible answers where two are clearly wrong and two could be correct, and you have to pick the most correct one. These questions ran the gamut from deadlines for pre-trial motions and post-conviction relief, to Fourth Amendment issues, specific statutes, and some federal law questions. There wasn’t a whole lot about the appellate process, as Criminal Appellate Law is its own area of expertise with TBLS.
There were also a number of questions on my exam dealing with ethics and conflicts of interest that are primarily issues for defense attorneys. I wasn’t prepared for those questions and had to strain my brain to remember my professional responsibility classes in law school.
The aftermath
After the exam comes the waiting game. It didn’t take quite as long to get the results of the Board Certification Exam as it did the bar exam. The exam was in mid-October 2019 and results came back in early January 2020. The whole time I was waiting, I was hoping that either 1) I passed or 2) everybody forgot I took the exam if I failed. I was made aware that the results were available when my boss, Tonda, yelled at me down the hallway to check my email. With her looking over my shoulder, I opened up the message to see that I had passed. I should note here that Tonda took the test at the same time I did, and she too passed. The feeling was much like the post-Bar Exam feeling—just relief that I had passed and didn’t have to tell everyone that I failed it.
Once you have passed the exam and become board certified, there are additional dues that have to be paid to TBLS, as well as additional CLE requirements in the field of criminal law. This is where it’s great to have a boss like mine, District Attorney Jenny Palmer, who is willing to pay for the extra CLE required to maintain board certification. Every five years after you become certified, you must re-certify, which consists of reporting your substantial involvement and CLE hours. But there is no test for re-certification. I haven’t had to re-certify yet, so I’m not sure how that process goes, but it can’t be any more time-consuming than the initial application.
I think the bottom line is if, like most of us, you do not do federal work, diversify your experience—get involved in some appeals. And when it comes to the substantial involvement portion of the application, give ’em everything you got. Don’t underestimate the power of luck—of having one essay question be on a motion to suppress you lost a few months earlier and having a boss who can give you a crash course in federal sentencing guidelines.
Besides the obvious financial benefit of passing the test, I found that studying for the exam was a good way to brush up on criminal law. You remember things you had forgotten and learn things you didn’t know. There is one drawback to becoming board certified, though. You’re expected to know everything. When somebody asks a question I don’t know the answer to, the immediate refrain is “You don’t know? I thought you were Board Certified!”