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5th Court of Appeals

CCA to review Paxton prosecutors pay case

Good.

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The state’s highest criminal court agreed Wednesday to take a closer look at prosecutors’ long-running fight to get paid for their handling of the securities fraud case against Texas Attorney General Ken Paxton.

The move by the state’s Court of Criminal Appeals could have a major impact on the separate case against Paxton. The prosecutors have suggested they will bail if they cannot get paid, likely imperiling the more than two-year case against the state’s top lawyer.

“We are gratified but not surprised by the Court of Criminal Appeals’ decision to formally hear this landmark proceeding, one that impacts trial judges, prosecutors, and defense attorneys across Texas,” the prosecutors said in a statement Wednesday.

Prosecutors asked the Court of Criminal Appeals in September to reverse a ruling from a lower court that voided a six-figure invoice for work that goes back to January 2016. The prosecutors said the decision by the Dallas-based 5th Court of Appeals — spurred by a legal challenge to the invoice by Collin County commissioners — was a “clear abuse of discretion.”

Days after the prosecutors appealed to the Court of Criminal Appeals in September, it put the lower-court ruling on hold. But the court waited until Wednesday — nearly two months later — to announce its decision to review the ruling.

See here and here for the background. All of this jousting over paying for the prosecutors has pushed the trial back into 2018, with the next court date awaiting the disposal of this case. You know how I feel about this, so let’s hope for once that the CCA’s infamous pro-prosecutor tendencies will be a force for good for once. The Chron has more.

TCDLA pulls Paxton prosecutors brief

Get your act together, y’all.

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A leading organization of criminal defense lawyers on Tuesday withdrew its legal brief in support of prosecutors who are fighting to get paid for work on the criminal case against Texas Attorney General Ken Paxton.

The friend-of-the-court brief, which argued that the payment fight could endanger the system for ensuring that indigent defendants are properly represented at trial, was withdrawn because it did not follow proper procedures by the Texas Criminal Defense Lawyers Association, the organization said.

David Moore, president of the association, said the brief to the Court of Criminal Appeals was pulled because it had not been approved by the group’s executive committee, which unanimously voted Monday to withdraw the document.

That committee will now examine the issue to determine if the brief should be approved or if the matter should be decided by the full board of directors, said Moore, a lawyer in Longview.

“I fear,” said Brian Wice, one of the prosecutors, “there may be other issues in play driving its decision to withdraw its brief other than a purported ‘failure to follow proper procedures and policies.’”

“The larger question is why Mr. Paxton’s defense team does not want the Court of Criminal Appeals to consider” the brief, Wice said, adding that it raised compelling points about the payment fight’s impact on public policy and proper legal representation for indigent defendants.

Dan Cogdell, one of Paxton’s defense lawyers, said he expected further action to be taken against “the parties responsible for its filing.”

“I will not have any further comment on the matter now except to express my grave disappointment in the impropriety of the filing of such a pleading in a case of this magnitude and am gratified that the proper steps to correct the situation have begun,” Cogdell said.

Austin lawyer David Schulman, one of the brief’s authors, said he and others involved believed they had followed the organization’s bylaws, but he declined to discuss specifics.

“This wasn’t any kind of guerrilla action. We thought we were authorized, but we were wrong,” he said.

See here for the background. It’s clear that the arguments made in the TCDLA brief would be good for the defense bar as a whole, but not good for Team Paxton, as they would greatly benefit from having the courts screw the special prosecutors in their case. As Mr. Spock famously said, the needs of the few outweigh the needs of the many. I hope there are enough people with a larger view of things at the TCDLA who can override these objections.

In support of the Paxton prosecutors

Good to see.

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In an unusual step, six prosecutors and Texas’ criminal defense attorneys association have joined a continuing legal storm over how much the special prosecutors overseeing the criminal case against Attorney General Ken Paxton should get paid.

Preventing the three special prosecutors in Paxton’s case from getting paid would thwart justice, according to Bexar County District Attorney Nicholas “Nico” LaHood, Travis County District Attorney Margaret Moore, Fort Bend County District Attorney John Healey Jr., Travis County Attorney David Escamilla, former State Prosecuting Attorney Lisa McMinn and Enrico Valdez, a Bexar County assistant district attorney. The group intervened late Friday with the state Court of Criminal Appeals.

[…]

In a separate filing with the appeals court, the Texas Criminal Defense Lawyers Association argues much the same thing, saying that courts have previously ruled that proper compensation for appointed prosecutors is necessary and that the Collin County Commissioner’s Court should honor the payments to the three special prosecutors in the Paxton case.

“We’re gratified that prosecutors and defense attorneys with almost 200 years of collective experience agree how very important this case is, and that we’re entitled to the relief we seek in the Court of Criminal Appeals,” Houston attorney Brian Wice, one of the special prosecutors in the case, said in a statement Sunday.

See here and here for the background. A copy of the prosecutors’ brief is here, and the TCDLA brief is here. Friday was the deadline for all to submit documents in support of or opposition to the Fifth Court’s ruling. The Statesman adds details.

The Texas Criminal Defense Lawyers Association, in a brief filed recently with the Court of Criminal Appeals, argued that unless the ruling is reversed, it will place strict limits on legal fees, “effectively preventing the judiciary from being able to appoint qualified lawyers in difficult cases.”

“All of the gains made and all of the advances and improvements accomplished in indigent defense in Texas over the last 20 years will fall to the wayside,” the association argued. “Texas will return to the days of sleeping lawyers and otherwise unemployed insurance lawyers taking court appointments in criminal cases.”

A second brief by six current or former prosecutors — including Travis County District Attorney Margaret Moore and County Attorney David Escamilla — also urged the appeals court ruling to be overturned, arguing that it undermines the pursuit of justice in cases, like Paxton’s, where outside prosecutors are appointed after a local district attorney steps aside for a conflict of interest or similar reason.

Judges must have the discretion to set higher fees for unusual or difficult cases, they told the court.

“After all, it is often the unusual cases that require the most skilled and qualified attorneys, and these are the very attorneys who are most likely to decline the representation without adequate compensation,” said the prosecutors, who included former State Prosecuting Attorney Lisa McMinn and Fort Bend County District Attorney John Healey Jr., a Republican.

[…]

“Without the ability to pay a reasonable market rate in these rare circumstances, courts are effectively without power to fulfill their constitutional obligation,” the defense lawyers group told the Court of Criminal Appeals.

According to the brief from the Travis County prosecutors and others, the lower-court ruling also undermines the ability of court-appointed prosecutors to do a complicated and taxing job that often includes seeking warrants, handling grand juries, responding to defense motions, interviewing witnesses, reviewing evidence and preparing for trial.

In addition to discouraging qualified lawyers from serving as prosecutors, the prosecutors’ brief complained that the ruling allows politics to invade criminal justice decisions — such as in Collin County, where commissioners have voiced support for Paxton while seeking to limit payments to those prosecuting him.

“It creates a situation where the local county commissioners can effectively stop a criminal prosecution,” the brief said.

I’ve been saying a lot of these things myself, so I’m glad someone with actual legal credentials is making those arguments formally. Galveston Count and the County Judges and Commissioners Association of Texas filed briefs in support of Collin County, since all they really care about is the financial impact. I’ll say again, the state could solve this very easily by picking up the tab in these cases. It’s a small amount of money in that context, and it would avoid all these problems. Someone needs to file a bill to this effect in 2019.

CCA stays Paxton prosecutor pay ruling

A bit of sanity at last, though we’re not out of the woods yet.

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Texas’ highest criminal court has stepped into the long-running dispute over the prosecutors’ pay in the securities fraud case against Attorney General Ken Paxton, putting on hold a lower-court ruling that voided a six-figure invoice.

In a decision Monday, the Court of Criminal Appeals issued a stay of an Aug. 21 ruling by the Dallas-based 5th Court of Appeals that had invalidated the $205,000 payment, which covered work going back to January 2016. Last week, the prosecutors asked the Court of Criminal Appeals to reverse that ruling, calling it a “clear abuse of discretion.”

In its order Monday, the Court of Criminal Appeals gave all sides 30 days to respond to the prosecutors’ arguments.

[…]

“We’re extremely gratified that, after a thoughtful and careful review of our writ, at least five judges on the Court of Criminal Appeals recognized that we were entitled to a stay of the Fifth Court of Appeals’ order,” prosecutor Brian Wice said in a statement. “We’re cautiously optimistic that the Court will ultimately conclude that the Fifth Court’s unwarranted decision to scuttle the fee schedules of over two-thirds of all Texas counties was a clear abuse of discretion.”

See here, here, and here for the background. This isn’t a ruling in the case, just basically a stay on the 5th Court order pending oral arguments. The CCA could still uphold the lower court’s ruling, which would be bad. But at least there’s now a chance we could affirm the principle that private citizens should not be able to derail prosecutions. The Chron and the DMN have more.

Paxton prosecutors officially petition the CCA over their pay

Last chance.

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The special prosecutors in the securities fraud case against Attorney General Ken Paxton are asking the state’s highest criminal court to help them get paid.

On Tuesday, the prosecutors asked the Court of Criminal Appeals to reverse a ruling from a lower court last month that voided a six-figure invoice for work that goes back to January 2016. The prosecutors said the decision by the Dallas-based 5th Court of Appeals was a “clear abuse of discretion.”

The ruling “will have a chilling effect on the ability of trial judges to appoint qualified lawyers — defense attorneys and special prosecutors alike — willing to take on the most complicated and serious cases,” the prosecutors wrote.

The Court of Criminal Appeals must now decide whether it will hear the prosecutors’ case. Prosecutor Brian Wice asked for oral arguments.

It is a high-stakes moment for the trio of Paxton prosecutors, made up of Houston attorneys Nicole DeBorde, Kent Schaffer and Wice. If the Court of Criminal Appeals turns them down, they will likely have to make a decision about whether to continue working for free.

See here, here, and here for the background. You know where I stand on this. It’s a travesty this has even gotten this far. If the CCA doesn’t put an end to this nonsense, it’s a get out of jail free card for Paxton. Winning in court is one thing, winning by forfeit is another altogether. Don’t screw this up, CCA. The DMN has more.

Collin County wants its pay back

Of course they do.

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Collin County is about to start another fight over the prosecution of indicted Texas Attorney General Ken Paxton.

Since 2015, the county has been billed more than half a million dollars to prosecute Paxton, who faces securities fraud charges. But fresh off a court win that voided half of those costs, county commissioners now want the rest of their money back.

On Monday, the commissioners voted unanimously to sue for the more than $205,000 they paid the special prosecutors in January 2016. They argue that since a Dallas court struck down the prosecutors’ hourly fees — ruling they broke local and federal rules — the county should be reimbursed for all that it’s spent on the case.

See here and here for the background. What Collin County is doing is unprecedented, but that doesn’t mean they won’t get what they want. I have hope that the CCA will reverse this ridiculous ruling, but I can’t say I have faith. What I want to know is this: What happens if at some point the prosecutors say “screw this, I’m going to back to my real job”? In particular, what happens if they say this before the Paxton trial begins? I’m hard-pressed to imagine a scenario more ridiculous than Ken Paxton winning his trial by forfeit, but it could happen. What is the fallback position here, and has anyone other than me considered it?

By the way, let me also note that this is a rather extreme example of why local elections matter. Having a Democrat on Collin County Commissioners Court would not have changed the course of their actions, but it at least would have provided a voice of opposition. I don’t know what the electoral map looks like from this perspective – I may try to check it out if I can – but getting a foothold in red counties like this has got to be a priority.

Paxton prosecutors to petition CCA

Last chance to get paid.

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The state’s highest criminal court will get a chance to decide whether the special prosecutors appointed in the criminal cases against Texas Attorney General Ken Paxton can be paid the $300-an-hour rate they were promised.

Kent A. Schaffer, one of the three special prosecutors in Texas v. Paxton, said the trio will file for a writ of mandamus with the Court of Criminal Appeals to vacate the Fifth Court of Appeals decision Monday to void the judge’s order authorizing an approximately $205,000 payment.

“It’s not over yet,” said Schaffer, a partner in Bires Schaffer & DeBorde in Houston.

[…]

Collin County paid the first order issued by Judge George Gallagher of Tarrant County to pay the special prosecutors $254,908 for pretrial work, but county commissioners balked at making the second payment ordered by Gallagher in January. Instead, the commissioners filed for a writ of mandamus to compel the trial court to vacate its order requiring payment.

According to the Fifth Court’s opinion in In Re Collin County, Texas, Commissioners, Rule 4.01B adopted by Collin County’s judges authorizes payments of pro tem attorneys to deviate from the schedule adopted by the judges. The three-judge panel of the Fifth Court, which heard the commissioners’ petition for a writ, noted in its opinion that Rule 4.01B appears to thwart the objective of Texas Code of Criminal Procedure Article 26.05, which requires district judges to adopt a schedule of reasonable fees for appointed attorneys.

See here for the background. After all this time, I confess I’m a little unclear on what happens if the special prosecutors lose. Does this mean they will then have been paid all they’re ever going to be paid, or does it mean their pay will be recalculated and readministered based on a much lower hourly rate? In either case, this is ridiculous and will indeed make it impossible to find qualified special prosecutors in future situations. You know my answer to this – the state should pick up the tab when a state official is involved. That ain’t happening any time soon, so let’s hope the CCA makes it all go away, at least for now.

5th Court of Appeals screws Paxton prosecutors

Ugh.

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The prosecutors pursuing charges against Attorney General Ken Paxton haven’t been paid in more than a year and a half — and they will continue to wait on a payday.

On Monday, the 5th Court of Appeals in Dallas voided a $205,000 invoice dating back to January 2016, saying state laws and local rules did not allow the three special prosecutors to be paid the $300-an-hour rate they were promised.

[…]

[David Feldman, attorney for the special prosecutors,] argued state law and local rules gave Collin County district judges, who decide how much to pay special prosecutors, discretion to stray from fee rules in unusual circumstances. He called it “honorable” that his clients continued to prosecute the case when they hadn’t been paid in 19 months.

But the Dallas court on Monday sided with the commissioners, saying Texas law requires counties to “set both minimum and maximum hourly rates” in these cases. By adopting local rules that allowed them to exceed their own maximum fees, the court said “the judges exceeded their authority.

“The statute does not prevent the judges from taking into consideration the possibility of ‘unusual circumstances’ in setting the range of reasonable fees allowed,” Justice Molly Francis wrote for the court. “But the legislature intended each county to have an agreed framework that sets out the specific range of reasonable fees that could be paid.”

See here and here for some background. I will say again, this basically amounts to a get-out-of-jail-free card for state officials who are accused of crimes in their home counties. The state should be responsible for the cost of such prosecutions, wherever they occur, and they should cover the going pay rate for attorneys who are qualified to handle a high-profile case. It’s the only way to avoid these shenanigans.

First Paxton trial hearing in Harris County

Not much happened, but there are some big questions to address.

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The securities fraud case against Texas Attorney General Ken Paxton kicked off Thursday in Harris County with no new trial date being set.

Instead, the new judge in the case, Robert Johnson, asked both sides to come back July 27 to continue discussing a potential schedule. Prosecutors pushed to hold off setting a trial date until they can get paid – an issue currently tied up in a Dallas appeals court.

Paxton has had two previous trial dates scrapped due to legal disputes – first over the venue, then over the judge. The hearing Thursday was the first time Paxton appeared before Johnson, the new judge, in the relocated venue of Harris County.

[…]

The issue of the prosecutors’ pay has long consumed the case. Collin County commissioners voted last month not to approve payments to the prosecutors and to instead take the dispute to the Dallas-based 5th Court of Appeals, where it has not yet been resolved.

“As long as they continue to sue us, our hands our tied,” said one of the prosecutors, Brian Wice. “This is an unprecedented attempt to defund and ultimately derail the prosecution.”

Paxton’s lawyers countered that the payment case could take much longer than the prosecutors were letting on.

“Whether they get their money is not our problem,” Paxton lawyer Dan Cogdell said, adding that the citizens of Texas also deserve a speedy trial. “He is the sitting attorney general.”

See here and here for some background. As the DMN notes, the 5th Court of Appeals says it will issue a ruling in the Paxton prosecutors pay lawsuit sometime after July 19. How much after, we don’t know. Maybe the issue will be moot by the time July 27 rolls around. Modulo further appeals, of course. Judge Johnson has asked both parties to submit procedural timelines of the case by July 7, for that July 27 hearing. Maybe we’ll get some of these questions answered then. The Chron has more.

Collin County would like us to pick up the Paxton prosecutor tab

I’ll bet they would.

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As Attorney General Ken Paxton’s legal troubles head into their third year, there’s another question aside from whether he’ll beat the rap — who will pay for it all?

Taxpayers in Collin County, where Paxton was indicted on three felony charges, have had to pick up the tab. This hasn’t gone over well in McKinney, a conservative stronghold where the Republican attorney general is not only a well-known resident but also the first statewide official elected from the area in almost 150 years.

After months of pressure and multiple lawsuits from Paxton loyalists to halt funding to the case, local officials recently voted to stop paying the prosecutors at all.

Then, late last week, after months of mulling the idea, county leaders finally took their grievances to court. One is even hoping the county can rid itself of the case and its price tag altogether by getting taxpayers in Houston, where Paxton will stand trial, to pick up the rest of the tab.

It’s been 18 months since the prosecutors were paid. With a brand-new judge presiding over the case and multiple related lawsuits pending, when, how much and who will pay them is more a mystery than ever before.

[…]

In a brief filed with the 5th Court of Appeals in Dallas, the county commissioners argued the prosecutors’ pay was “outrageously high” and illegal. Their fees violate a state law, they said, that requires counties to adopt “reasonable fixed rates or minimum and maximum hourly rates” for compensating special prosecutors.

They want the court to throw out the prosecutors’ last paycheck — which topped $205,000 — and have voted to reject paying the bill until in the meantime. This last invoice, filed in January, covers all of 2016.

David Feldman, the prosecutors’ lawyer, said his clients’ decision to continue while not being paid “shows a commitment to serving the public good.” The three prosecutors — Nicole DeBorde, Kent Schaffer and Brian Wice — are criminal defense attorneys who charge many times this rate in their private practices.

“It’s honorable that they’re continuing to invest time in the prosecution because this is not something they went out and asked for.

[…]

Harris County Criminal District Court Judge Robert Johnson, a Democrat elected last year, was chosen this week to replace Gallagher. Johnson could choose to hike or slash the prosecutors’ paychecks as he sees fit.

On Wednesday, he declined to comment on the fight over the case’s cost. But depending on Collin County’s future decisions, he may be forced to weigh in.

County Judge Keith Self, one of the five Collin County commissioners, wants to discuss whether there’s a way to push the case’s costs onto Harris County. The commissioners haven’t discussed this proposal, he said, but he’s “hopeful” they’ll be open to the possibility.

Commissioner Duncan Webb said they should wait until the Dallas court makes a decision.

“I want to get the issue resolved, the quicker the better, and do what we’re legally supposed to do and pay what we’re legally supposed to pay,” Webb said. “I don’t know whether Harris County’s going to get involved with this or not. That’s way out there at this moment.

See here, here, and here for the background. I’m sure our Commissioners Court will be delighted to hear about this. Remember how I’ve said that it would probably make more sense for the state to pay for special prosecutors in cases like this, if only to avoid these shenanigans? I still think that’s the right idea. In the meantime, it may be awhile before the 5th Court gets involved again.

A Texas appellate court [last] Friday said without a live controversy, it doesn’t have jurisdiction in a fight to block payment for the special prosecutors appointed to handle the felony securities fraud case against Texas Attorney General Ken Paxton.

The Fifth Court of Appeals in Dallas dismissed real estate developer Jeff Blackard’s bid to enjoin the Collin County Commissioners Court from paying a trio of special prosecutors under a $300 hourly rate agreement, citing the county’s recent vote against paying an invoice from the prosecutors. Blackard had argued the county’s local court rules require appointed prosecutors to be paid under a limited flat fee schedule, and his quest to block hefty payments to the prosecutors raised what the appeals court referred to as unusual and challenging procedural issues.

Blackard had requested the appellate court abate his suit indefinitely, based on the possibility the county might in the future approve payment of a fee invoice at a time and in an amount that he contends is illegal, according to the opinion. But the court doesn’t have jurisdiction over contingent future events that may not occur, and the matter is not ripe for resolution, a panel of the court said.

“Because the Commissioners Court has rejected the invoice and has authorized counsel to challenge the district court’s order, no pending ‘illegal’ expenditure of public funds currently exists for Blackard to seek to enjoin,” the court said.

I don’t really know what any of this means. I’m just trying to keep track of it all.

CCA declines to get involved in Paxton judge dispute

That’s that, then.

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Texas’ highest criminal court has declined to intervene in the dispute over the judge in Attorney General Ken Paxton’s securities fraud case.

On Friday, prosecutors asked the state Court of Criminal Appeals to reverse a lower appeals court ruling that supported Paxton’s push to remove the judge, George Gallagher. On Wednesday, however, the Court of Criminal Appeals denied the prosecutors’ request without explanation.

The Dallas-based 5th Court of Appeals had ruled Gallagher lost jurisdiction over the case when he changed venue to Harris County in April. The ruling voided all subsequent orders by Gallagher, including one that slated a September trial date.

[…]

Before the appeals court ruling, Paxton was set to go to trial Sept. 12 in Houston on the lesser of three charges he faces.

See here for the background. As I said, I really don’t think it makes any difference who the judge is – certainly, it shouldn’t make any difference, given how this is supposed to work. Whatever the merits of how we got here, I say let’s get another judge in place and get this show on the road. The DMN has more.

Paxton prosecutors appeal decision to boot judge

And on we go.

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Prosecutors in the securities fraud case against Attorney General Ken Paxton are asking the state’s highest criminal court to overturn a ruling backing his push for a new judge.

Paxton’s lawyers scored a win Tuesday when a state appeals court ruled the judge, George Gallagher, had lost jurisdiction by changing venue to Harris County in April. The Dallas-based 5th Court of Appeals directed Gallagher to vacate all subsequent orders, including one that set a September trial date.

On Friday, prosecutors responded to that ruling by asking the Texas Court of Criminal Appeals to reverse it, suggesting the 5th Court of Appeals lacked jurisdiction to make the decision in the first place. They also questioned the court’s interpretation of a part of the Texas Code of Criminal Procedure that Paxton’s team has leaned on in its campaign for a new judge.

The prosecutors are asking for oral arguments before the Texas Court of Criminal Appeals.

See here for the background. I imagine for the prosecutors it’s not a matter of who the presiding judge is but of the trial schedule. Installing a new judge means pushing back the September 12 trial date, possibly by a lot. The special prosecutors, I am sure, would like to eventually wrap this business up and get back to their regular lives. Add in the jeopardy to them getting paid for their work, and they are strongly incentivized to bring this to a close. We’ll see what the CCA has to say.

5th Court rules Paxton judge overstepped

Yet another bizarre turn in this increasingly bizarre case.

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A state appeals court sided Tuesday with Attorney General Ken Paxton in his bid for a new judge in his securities fraud case, ruling the current judge lost jurisdiction when he changed venue to Harris County in April.

The court also directed the judge, George Gallagher, to vacate all subsequent orders, including one that set a September trial date.

The ruling by the Dallas-based 5th Court of Appeals appears to add some uncertainty to the case, though it represents a breakthrough for Paxton’s lawyers. For weeks, they have been arguing Gallagher did not have the authority to follow the case out of Collin County.

The appeals court did not explicitly order Gallagher’s removal from the case but voiced agreement with Paxton’s lawyers that he is “without authority to continue to preside over” it. Paxton’s attorneys have repeatedly argued Gallagher cannot follow the case to Harris County because they have not provided written permission as required under the state’s Code of Criminal Procedure.

In issuing his opinion Tuesday, Justice Robert Fillmore also lifted a stay the appeals court had put on the trial court proceedings earlier this month.

See here for the background. The Chron adds some details.

The decision vacates all decisions made by Tarrant County Judge George Gallagher after his April 11 ruling to move the case across the state amid concern about Paxton’s political connections in the attorney general’s home county.

[…]

“Under the plain language of the statute, (Gallagher) is without authority to continue to preside over the cases and is also without authority to issue orders or directives maintaining the case files in Collin County. Consequently, all orders issued by (Gallagher) after he signed the April 11, 2017 transfer order are void,” read the ruling written by Justice Robert M. Fillmore.

Absent an appeal to the state’s court of criminal appeals, the ruling dictates that Gallagher is no longer responsible for the case. The ruling also calls for court documents to be moved to Harris County where another judge would be appointed.

The ruling also nixes a trial date for Sept. 12, when the state’s special prosecutors were expected to try Paxton on charges he failed to register as an insurance adviser. When the trial will be held would be up to a new judge, possibly delaying a resolution on the case as Paxton’s political adversaries determine whether the criminal charges will hurt him in the next election. The filing deadline to run for office is in December.

OK, so this is obviously a win for Paxton, since he’s been fighting like a cornered wolverine to get Judge Gallagher off the case. Mission almost certainly accomplished! That said, this feels like a win on paper that may not translate to much in practical terms. For one thing, the trial will still be in Harris County – Paxton had opposed the change of venue – and argued that all of Judge Gallagher’s rulings since January were invalid. As far as I know, the last ruling of any consequence by Judge Gallagher was the move to Harris County, which was on April 11. Other than having the administrative judge for the region appoint someone new to the bench, it’s not clear to me what else has changed.

And not to put too fine a point on it, as aggrieved as Paxton is by Judge Gallagher’s rulings, who’s to say any other jurist would have ruled differently? Unless you believe that Judge Gallagher had it in for Paxton, I don’t see why any other judge would be likely to make a difference in the outcome. So fine, bring on a new judge. And let Paxton go unchallenged in the primary because he hasn’t been adjudicated yet. If he winds up being convicted next May or so, that will be fine by me. The DMN has more.

Time for the 5th Court to decide on Paxton prosecutor pay

Do your job, y’all.

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Texas Attorney General Ken Paxton’s months-long effort to remove the judge in his securities fraud case is coming to a head in a Dallas appeals court.

Prosecutors say the 5th Court of Appeals has no jurisdiction to get rid of the judge, George Gallagher, because he has moved the case out of its reach — to Harris County. But Paxton’s lawyers say there is no evidence the case has been sent there yet, making the 5th Court of Appeals the appropriate place to push for Gallagher’s removal.

The 5th Court of Appeals paused the case earlier this month to give all sides an opportunity to hash out the dispute. A number of responses stemming from that decision were due Tuesday.

The prosecutors, in their latest response, called it “deja vu all over again” to see Paxton ask the 5th Court of Appeals to intervene in the case. His lawyers were unsuccessful last year in trying to get the court to dismiss the charges.

The prosecutors held firm Tuesday in their central argument against Paxton’s attempt to get the 5th Court of Appeals involved, saying his “claims are ultimately undone by the same facts that purport to fortify them; the transfer of venue to Harris County makes the Harris County appellate courts the proper place” to ask for Gallagher’s removal. Harris County is served by the 1st Court of Appeals.

Paxton’s lawyers countered that the prosecutors “entire argument is premised on the flawed assumption” that Gallagher remains the presiding judge in the case. They reiterated that they have not consented to letting Gallagher follow the case to Harris County, arguing it thus remains in Collin County — and under the jurisdiction of the 5th Court of Appeals.

See here, here, and here for the background. One thing we can all agree on is that there are no new arguments being made. The court just needs to decide whose argument it buys. Time to get this done and move on.

Collin County punts prosecutor pay question back to appeals court

Incoming!

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The Collin County Commissioners Court has voted to not pay the prosecutors pursuing criminal charges against Attorney General Ken Paxton.

The 5th Court of Appeals last week directed the commissioners to vote on the prosecutors’ latest bill before it can rule on a lawsuit challenging the fees’ legality. On Monday, the commissioners voted against paying the latest invoice, which tops $205,000 for a year’s work.

“We’re faced with a black-and-white choice: You either pay it, or you challenge it,” said County Judge Keith Self, who sits on the five-member commissioners court. “But don’t expect what we do today to stop the criminal trial.”

Self was addressing the dozen people who attended the Monday meeting and asked the commissioners to reject the latest bill. Most called the criminal case against Paxton a “witch hunt” and pleaded with the commissioners to do something about it. One woman said she was praying for them; another man called the case “frivolous;” still another attendee likened the whole thing to something out of the Soviet Union before adding, “They had genocide.”

The commissioners voted 4-0 (one member was absent) to not pay the prosecutors, who submitted their last invoice in January. They also asked the county’s attorney to prepare for their own court challenge over the fees issue, something the commissioners last year said was an option.

See here and here for the background. Who knew Collin County was so full of drama enthusiasts? My bleeding heart is getting a real workout over here, y’all. Seriously, though, it’s time for the court to put an end to this nonsense and tell Collin County to suck it up and pay the prosecutors. To do otherwise is to ensure that no one will ever want to serve as a special prosecutor in a high-profile case like this ever again. If you think that’s justice, then you really need to re-read your old Soviet history books.

Appeals court chooses not to decide in Paxton prosecutor pay case

This is oddly fitting.

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The 5th Court of Appeals on Wednesday said they won’t make a decision on whether the three prosecutors’ fees are legal until the county votes to pay their last bill, which topped $205,000. The prosecutors’ pay has been on hold since January.

The court has told the Collin County Commissioners Court to vote on the fees within the next thirty days, after which the court will rule on the fees’ legality. County Judge Keith Self, who sits on the commissioners court, called the decision “judicial overreach,” and said it’s time to go to trial in the Paxton case so the county can “stop the bleeding.”

“We’ve entered the theater of the absurd,” he told The Dallas Morning News on Friday. “Let’s pay the bill. Let’s get this case to trial. If an injustice has been done, let the trial sort it out.”

The commissioners will vote Monday on the prosecution’s latest bill, Self said. He could not guess how the vote would turn out, but if the commissioners turn down the payment, it could hamper the court’s ability to decide the case pending before them.

See here for the background. As the noted philosopher Geddy Lee once said, “if you choose not to decide you still have made a choice”. In this case, the 5th Court of Appeals has chosen to decide at a later date, with the hope that they won’t actually need to decide. I’d say we’re not only in the theater of the absurd, we’ve been there long enough to see another feature. I can’t wait to see what Collin County Commissioners Court does on Monday.

Appeals court hears Paxton prosecutors pay arguments

Meanwhile, back in Dallas, the 5th Court of Appeals had a hearing on the never-ending lawsuit by a Collin County crony to cut off payments to the Ken Paxton special prosecutors.

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On its face, the lawsuit filed by Jeffory Blackard, who has donated to Paxton’s campaign, appears to be an attempt to undermine the prosecution of the attorney general, who faces three counts of felony securities fraud in McKinney.

But Blackard’s attorney, Edward Greim, argued that the case is about a taxpayer fighting government excess. In January, the appeals court ordered Collin County to stop paying the three lawyers prosecuting Paxton’s criminal fraud case until the justices could hear the case. Collin County District Attorney Greg Willis recused himself from trying the case because he and Paxton are friends. Special prosecutors were hired in his place.

[…]

The heart of the suit comes down to whether a taxpayer can block payments to special prosecutors on the grounds that the fees are illegal and not simply unreasonable.

“Is there a difference between unwise and illegal decisions?” asked Justice David J. Schenck.

The attorney for the special prosecutors, David Feldman, said such lawsuits take the decisions away from the elected officials — in this case, county commissioners. And he said this lawsuit could open the door for more taxpayer lawsuits nitpicking every penny spent.

“Why have a representative form of government? We should just try everything through the judiciary,” Feldman said.

See here and here for some background. The case was rescheduled from May to September at the request of the prosecutors so this matter can be resolved. As you know, I think the plaintiff’s argument is ridiculous, but I also think the state needs to pick up the tab here. The latter isn’t going to happen, so Collin County needs to suck it up. We’ll see what the judges think.

Appeals court to determine if Paxton gets a new judge

Hold everything.

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A state appeals court has intervened in the securities fraud case against Attorney General Ken Paxton, putting it on hold as his lawyers try to get a new judge.

Hours after Paxton’s team requested that the Dallas-based 5th Court of Appeals get involved, the court on Tuesday issued a stay of all proceedings in the case until further notice. The court gave all sides until May 23 to respond to Paxton’s effort to ditch the judge, George Gallagher.

The order by the 5th Court of Appeals means there will no longer be a hearing Thursday in Houston on a prior attempt by Paxton to install a new judge.

[…]

In their filing with the 5th Court of Appeals on Tuesday morning, Paxton’s lawyers argued that once Gallagher changed the venue, “he was statutorily prohibited from entering further orders or continuing to preside over the case without the statutorily required written consent of” Paxton and his team.

In a subsequent letter to the appeals court, prosecutor Brian Wice argued the court did not have the jurisdiction to consider Paxton’s request to remove Gallagher. The court has also set a May 23 deadline for Paxton’s lawyers to respond to Wice’s letter.

This is another instance where the news moved faster than I did. Originally, Judge Gallagher scheduled a hearing for Thursday to take up the question of whether he needed to hand the case off to another judge. Then Paxton filed his emergency motion with the 5th Court of Appeals, and then they stepped in. Beneath the fold is all of the blogging I had done on this, which is now mostly of historical value. All I can say at this point is that after all the work Paxton’s team has done to remove Gallagher, it would be hilarious if they get their wish but then don’t get any more favorable handling from whoever succeeds Gallagher. Read on, and the DMN has more.

(more…)

Paxton wants a new judge

He may not get his wish.

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The judge presiding over Attorney General Ken Paxton’s criminal trial plans to remain on the case, regardless of Paxton’s request for a new judge, his spokesman said.

“He anticipates remaining the judge,” District Judge George Gallagher’s spokeswoman Melody McDonald Lanier told the Houston Chronicle Thursday.

Paxton’s criminal defense team requested a new judge after Gallagher moved Paxton’s criminal trial to Harris County from Paxton’s home of Collin County, a move the attorney general’s lawyers opposed. Special prosecutors argued the attorney general’s allies had worked to poison the jury pool there.

Lawyers representing the embattled Republican attorney general said in a motion Tuesday they would refuse to sign off on a procedural move to to keep Gallagher with the case at it moves to Harris County.

Asked for comment about Paxton’s motion to remove him as the case’s judge, Gallagher’s spokeswoman said “He can’t comment because he is the judge and he anticipates remaining the judge.”

[…]

“As far as I know, there is nothing in the Code of Criminal Procedure that addresses what is to happen if the defendant or defense counsel withholds the consent to which article 31.09 refers,” said George Dix, a law professor at the University of Texas at Austin, referring to the code Paxton cited in his motion. “No case, as far as I know, has addressed the meaning of this provision.”

See here and here for the background. As the DMN notes, what Paxton is asking for is basically unprecedented.

It’s quite possible no one else has ever asked for what Ken Paxton wants now.

This week, after Judge George Gallagher moved the attorney general’s upcoming criminal trials from Collin to Harris County, Paxton asked for a new judge. He cited a state law that’s meant to be procedural, a way for Gallagher to maintain the original case number and continue to use his own court reporter and clerk when the proceedings move to Houston.

But Paxton’s attorneys have interpreted the law to also require their client’s “written consent” for Gallagher to continue presiding over the case.

Paxton didn’t give his consent. He’s the first to refuse to do so and ask for a new judge in the process, experts said.

[…]

If Paxton’s motion is granted and upheld on appeal, it could set a precedent that will allow any criminal defendant or prosecutor to use the same tactic and get a new judge if a case is moved. But it’s unclear how likely that is to occur.

If Judge Gallagher denies the motion, the Chron story suggests any appeals would be heard by either the 5th Court of Appeals in Dallas or the 1st or 14th Court of Appeals in Houston. I don’t think this is likely to affect the proposed trial calendar, but as noted we are in unprecedented territory here. Already the entertainment value of this proceeding is off the charts, and we’re still five months away from jury selection.

More on the attack on the Paxton special prosecutors’ pay

From Texas Lawyer.

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As courtroom twists go, this one is practically unheard-of: On the brink of bringing Texas’ attorney general, Ken Paxton, to trial on felony securities fraud charges, the government’s prosecutors are threatening to bail out of the case unless they get paid.

Whether one of the biggest criminal cases in Texas finally goes before a jury is now in limbo over what prosecutors contend is a deliberate effort by rich supporters of Paxton, an up-and-coming firebrand in Republican legal circles, to delay justice by challenging their paychecks. So far, the tactic is working.

[…]

Supporters of Paxton have made an issue of the $300-an-hour fees being charged by the special prosecutors, who are paid by the Dallas suburban county where the trial will be held. A three-judge panel of a Dallas appeals court agreed to halt payments on the $200,000 in legal bills while it considers a lawsuit filed by Jeff Blackard, a wealthy Dallas developer and onetime Paxton political donor, who has argued that the fees were excessive and costing taxpayers too much.

“Everyone in the courtroom is being paid except for us,” one of the appointed prosecutors, Brian Wice, has said. “No one expected us to work for free.”

Firing back, Paxton’s attorneys earlier this month accused prosecutors of being “financially self-serving” and argued they don’t have a right to be paid until the case is over. As of last year, Paxton had raised more than $300,000 from private sources to pay his own high-powered defense team.

Legal observers say they’ve never seen a case jeopardized quite like this.

“It’s outrageous that the prosecution should be derailed by the defendant somehow, or the defendant’s supporters or friends, defunding the prosecution,” said Joe Turner, a veteran Austin attorney who helped Willie Nelson and Matthew McConaughey beat drug busts years ago.

[…]

Blackard’s attorney denies that the lawsuit is a ploy to keep Paxton from facing a jury.

“It’s not about whether Paxton is or is not prosecuted. It’s about whether the taxpayers’ money is spent properly,” said attorney Eddie Greim, who is based in Kansas City, Missouri.

Prosecutors told a judge in court documents that Blackard “has already succeeded in shutting down this prosecution” and warned that having to appoint replacements will only drag the case out further.

Most of this, which was written before the decision by Judge Gallagher that delayed the trial until the prosecutor pay dispute gets resolved, is stuff we know. As a matter of law, the suit may have merit, but as a matter of common sense it’s completely ridiculous. It simply cannot be the case that a private citizen can derail a prosecution like this. I maintain that the funding for cases like these should be the state’s responsibility. Indeed, it was the state’s responsibility until the 2011 Legislature kneecapped the Public Integrity Unit of the Travis County DA’s office. Whatever you think of that action, it created a problem for which there is no current solution. It won’t affect this case, but the Lege really should address this. Ken Paxton will not be the last elected official to cause this issue for a county Commissioners Court.

Paxton prosecutors ask for delay

Delay for pay, as it were.

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The special prosecutors handling the securities fraud case against Texas Attorney General Ken Paxton are asking to put off his trial until they can get paid.

On Thursday, the prosecutors proposed moving the trial, currently set for May 1, to 60 days after a Dallas appeals court settles the payment dispute, which stems from a lawsuit by a Paxton supporter. Earlier this year, the 5th Court of Appeals temporarily blocked Collin County from paying the outside prosecutors assigned to the case, casting uncertainty over whether they would get paid as they prepare for trial in the high-profile case.

Collin County officials appointed special prosecutors Kent Schaffer and Brian Wice in 2015 after Collin County District Attorney Greg Willis, a Paxton friend and business partner, stepped aside. Nicole Deborde, a Houston attorney, later joined the prosecution.

“Everyone in the courtroom is being paid to be there except us,” the prosecutors said in a statement Thursday. “No one expected us to work for free when we accepted our appointment as special prosecutors. It’s only fair to compensate us for the hours we’ve already spent and will continue to spend to adequately prepare to try this case on behalf of the citizens of the State of Texas.”

[…]

If granted, the motion would likely push the trial deeper into the year as prosecutors wait for a favorable ruling from the appeals court. In their filing Thursday, however, the prosecutors expressed confidence the trial would still proceed on a relatively prompt timeline.

“If the past is prologue, this case could be tried sooner rather than later, certainly no later than September 1, 2017,” the prosecutors wrote.

See here for the background. The logic seems inarguable to me – surely we don’t expect the special prosecutors to work for free at this point – but one never knows with the courts. It’s not clear to me what happens if the 5th Court overturns the lower court ruling and agrees that their pay has been capped. I don’t know that there’s an obvious answer to that. We’ll see what the trial court makes of this.

Paxton prosecutor pay suspended

Whiplash!

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Collin County must immediately stop paying the three lawyers prosecuting Ken Paxton’s criminal fraud case, a Dallas court has said.

The 5th Court of Appeals in Dallas on Monday temporarily halted the payments — the result of a lawsuit filed against the county and prosecutors by a local taxpayer — and will consider a more permanent block probably within the next few weeks. The court’s decision could determine the immediate future of the case against Paxton, the first-term attorney general who faces three felony charges of violating state securities laws.

The Collin County Commissioners Court handles the local budget. Its five Republican members were scheduled to vote Monday on the prosecutors’ latest bill, which tops $205,000 for a year’s worth of work.

Instead, they delayed the vote and any future payments to the prosecutors until the court weighs in. The prosecutors will not stop working in the meantime, their lawyer David Feldman said.

“My clients are going to rely on the fact that they’re going to get paid,” said Feldman, who said he was surprised by the court’s decision Monday.

See here and here for the background. And yes, another lawsuit by the same plaintiff had just been thrown out on procedural grounds, but with the prosecutors submitting another bill, the frequent filer got another shot at it. Attorney Feldman had more to say about this to the Statesman.

Dave Feldman, the lawyer representing the three prosecutors, said Blackard is trying to hamstring the prosecution of Paxton, who has been accused of securities fraud linked to private business deals in 2011.

“He’s just a rich stalking horse for Ken Paxton. They’re trying to starve the beast,” Feldman said.

An adverse ruling could hinder Paxton’s prosecution, Feldman said. “Nobody does work for nothing,” he said.

Eddie Greim, a lawyer for Blackard, said his client is not trying to sandbag the case against Paxton.

“The (prosecutors) have tried to make this about a political issue, and they have tried to attack the person that they are criminally prosecuting. But in fact this case is about following the rule of law and making sure that when the Texas Legislature passes a rule that it is in fact applied equally to everyone,” Greim said.

Blackard has argued that state law and Collin County rules limit appointed lawyers, including prosecutors, to $1,000 each for pretrial work and $1,000 per day of trial.

District Judge George Gallagher has ordered Collin County to pay the prosecutors $300 an hour, saying county rules allow for higher rates for “unusual circumstances.” Gallagher last year also rejected an effort by Paxton’s defense lawyers to limit the prosecutors’ pretrial pay to $1,000 each.

The pay that Collin County would offer is ridiculous. I understand why Collin County is reluctant to pay the amount they will be billed, but 1) if their DA hadn’t been a crony of Paxton’s this wouldn’t be a problem, and 2) suck it up, buttercup. If you want to make a case to the Lege that the state should pick up part or all of the cost of a special prosecutor in cases like this, go for it. I think there’s merit to that argument. Or, you know, you could just hand it all off to a specialized team that handles government corruption cases, like the Public Integrity Unit at the Travis County DA’s office. But until such a law is passed, this is how it is. Attacking the pay that the special prosecutors earn for putting aside their regular jobs is just a way to subvert the system. The Fifth Court needs to stop it. The Chron and the Current have more.

Appeals court tosses Paxton prosecutor payment lawsuit again

Round and round we go.

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The three lawyers prosecuting Texas Attorney General Ken Paxton can continue to get paid, at least for now, a Dallas appeals court decided this week.

For more than a year, local real estate developer Jeffory Blackard has waged a legal battle to keep the prosecutors from getting paid. Blackard alleges Collin County — which is on the hook to fund the prosecution — is misusing taxpayer money by agreeing to pay $300 an hour to the attorneys overseeing the criminal fraud case against Paxton.

On Wednesday, the 5th Court of Appeals in Dallas disagreed with Blackard and threw out his suit. But it’s not dead yet, his attorneys said.

“Mr. Blackard will continue to pursue his claim until some Texas court agrees to take it up,” Edward Greim told The Dallas Morning News in an emailed statement. “We respectfully disagree with the Court of Appeals’ decision.”

It’s unclear whether Blackard’s attorneys will appeal the Dallas court’s decision to the Texas Supreme Court, ask for a rehearing in Dallas or file a new suit.

Collin County has been billed $510,000 for the prosecutors’ work so far. The latest invoice was submitted last week, and the Commissioners Court is scheduled to discuss whether to pay the bill on Jan. 30.

Ironically, Greim said, one reason the appeals court threw out his client’s suit is because there was no payment pending when they heard the case. Now that there is another invoice submitted, this one for $205,000 for more than a year’s work, Blackard will revive his challenge.

See here and here for the background. In late April, the Fifth Court denied a writ of mandamus to order the trial court to reverse itself, on the grounds that Blackard didn’t have standing. This whole thing gets pretty deep into the procedural weeds, so I’ll not expose my ignorance by trying to analyze it. I will note that apparently Blackard has already filed another lawsuit, though the DMN’s stupid paywall prevents me from telling you any more than that. Expect to see another update on this in due time.

Races I’ll be watching today, non-Legislative edition

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This is my companion to yesterday’s piece.

1. SBOE district 5

I’ve discussed the SBOE races before. This particular race, between incumbent Ken Mercer and repeat challenger Rebecca Bell-Metereau, is the one that has the closest spread based on past performance, and thus is the most likely to flip. If it does flip, it would not only have a significant effect on the SBOE, which would go from 10-5 Republican to 9-6, with one of the more noxious members getting ousted, it would also cause a bit of a tremor in that this was not really on anyone’s radar going into 2016. Redistricting is supposed to be destiny, based on long-established voting patterns. If those patterns don’t hold any more, that’s a big effing deal.

2. Appeals courts

I’ve also talked about this. The five courts of interest are the First, Fourth, Fifth, 13th, and 14th Courts of Appeals, and there are multiple benches available to win. I honestly have no idea if having more Democrats on these benches will have a similar effect as having more Democrats on the various federal appellate benches, especially given that the Supreme Court and CCA will most likely remain more or less as they are – I would love to hear from the lawyers out there about this – but I do know that having more Dems on these benches means having more experienced and credible candidates available to run for the Supreme Court and CCA, and also having more such candidates available for elevation to federal benches. Building up the political bench is a big deal.

3. Edwards County Sheriff’s race

Jon Harris is an experienced Democratic lawman running for Sheriff against a wacko extremist in a very Republican county, though one with a small number of voters. This one is about sanity more than anything else.

4. Waller County Sheriff’s race

I’ll be honest, I didn’t have this one on my radar until I read this Trib story about the race, in which the recent death of Sandra Bland is a factor. Waller County went 53-46 for McCain over Obama in 2008, though the Sheriff’s race that featured a problematic Republican was a lot closer. It was 58-41 for Romney, which is close to what it was statewide. Democratic challenger Cedric Watson will have to outperfom the countywide base to defeat incumbent Glenn Smith, it’s mostly a matter of by how much he’ll have to outperform.

5. Harris County Department of Education, Precinct 2

There aren’t any at large HCDE Trustee positions up for election this year, so I haven’t paid much attention to them. This race is interesting for two reasons. One, the Democratic candidate is Sherrie Matula, who is exceptionally qualified and who ran a couple of honorable races for HD129 in 2008 and 2010. And two, this is Jack Morman’s Commissioner’s Court precinct. A win by Matula might serve as a catalyst for a strong candidate (*cough* *cough* Adrian Garcia *cough* *cough*) to run against Morman in 2018.

6. HISD District VII special election

You know this one. It’s Democrat Anne Sung versus two credible Republicans and one non-entity who hasn’t bothered to do anything other than have a few signs put up around town. One key to this race is that it’s the only one that will go to a runoff if no one reaches 50% plus one. Needless to say, the conditions for a December runoff would be very different than the conditions are today.

7. HISD recapture and Heights dry referenda

I don’t think any explanation is needed for these.

What non-legislative races are on your watch list for today?

State Bar dismisses other complaint against Paxton

No matter what else happens, our ethically challenged Attorney General can say he beat at least one rap against him.

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Attorney General Ken Paxton telling county clerks they do not have to issue marriage licenses to same-sex couples is not a sign of “professional misconduct,” according to the State Bar of Texas.

The organization last week dismissed a complaint filed against the embattled top prosecutor by more than 200 Texas attorneys, who argued that he “violated his own official oath of office” by issuing a written opinion stating that clerks and public officials could ignore the U.S. Supreme Court’s ruling legalizing same-sex marriage if it conflicts with their religious beliefs.

In an Aug. 3 notice obtained by The Texas Tribune, the State Bar said, “The Chief Disciplinary Counsel has determined that there is no just cause to believe that [Paxton] has committed professional misconduct.”

[…]

Steve Fischer, a former director of the State Bar of Texas and one of the attorneys who filed the complaint, said that while he didn’t get the result he wanted, there is “no further interest to continue the grievance.”

“We sort of made our point that he can’t tell clerks to disobey a Supreme Court’s ruling,” he said. “It’s the law of the land. He’s entitled to his own personal opinion, but he should draw a line.”

See here for the background. This may not have risen to the level of misconduct, but it was hardly exemplary conduct either, especially from the Attorney General. I don’t think a mild slap on the wrist of some kind would have been out of place, but whatever. Everyone who wants to get married in Texas can do so, and the matter hardly raises any eyebrow any more. Whatever happened with this complaint, Paxton lost the real fight, with barely a whimper. I’ll take that.

Meanwhile, in other Paxton-trouble news, the special prosecutors have filed their response to his petition to the Court of Criminal Appeals to have the felony charges against him dismissed.

Defense lawyers raised issues that cannot be appealed before trial or were correctly decided when the Dallas-based 5th Court of Appeals upheld criminal charges accusing Paxton of securities fraud and failing to register with state securities regulators, prosecutors told the Court of Criminal Appeals.

“The Court of Criminal Appeals grants less than 4 percent of all petitions for discretionary review filed by criminal defendants. Our reply makes it clear that Mr. Paxton’s petition is not one of them,” prosecutor Brian Wice said.

The prosecutors also argued that Paxton, who filed his appeal Aug. 1, waited too long to challenge the two felony fraud charges, requiring that portion of his appeal to be automatically dismissed.

You can see the state’s reply here. They rebutted each of the defense’s specific claims in addition to asserting that the defense filing was too late, but the legalese was too thick for me to make it all the way through without my eyes glazing over. Suffice it to say, the prosecution begged to differ.

And finally, Paxton is asking the SEC for more time in his fraud case on their docket.

Contemplating an aggressive round of depositions, Texas Attorney General Ken Paxton has asked for an additional 3½ months to question potential witnesses about allegations that Paxton defrauded investors in private business deals five years ago.

The additional time, if granted by U.S. District Judge Amos Mazzant III, would delay until at least September 2017 a civil trial on fraud allegations made by federal regulators.

In a recent court filing, Paxton’s lawyers told the judge they will need more time to question as many as 46 potential witnesses, including state Rep. Byron Cook, R-Corsicana, and his wife, Kay.

[…]

Another reason to grant a delay, lawyers told Mazzant, is that Paxton could face a criminal trial as early as spring 2017 on state felony fraud charges related to his actions on behalf of Servergy.

“Mr. Paxton respectfully submits that, as a matter of fairness, the trial of his criminal matter should occur prior to the trial of this matter,” his lawyers said.

Paxton’s lawyers also informed Mazzant that they are not interested in reaching an out-of-court settlement with the SEC. Neither side has requested or made a settlement offer, they added.

SEC lawyers told Mazzant they expect to finish their depositions — which would include questioning Paxton and his wife, Angela — by Feb. 6. Paxton’s lawyers pressed for a May 26 deadline on depositions.

See here and here for the background. Paxton has also filed a motion to dismiss the SEC charges against him, which still awaits the judge’s ruling. You have to admit, defending himself from a myriad of charges relating to his bad behavior is a full-time job, so Paxton has a compelling case for delay here. We’ll see if the judge grants it.

Another view of Democratic goals for 2016

Sounds about right.

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Some Democrats say Clinton has a chance at winning a majority in Texas, where interest is heightened because U.S. Housing and Urban Development Secretary Julián Castro has been mentioned as a possible Clinton running mate. Castro said Friday that he isn’t being vetted as one.

They’re looking for Trump’s rhetoric to help unite Democrats behind their presumptive nominee after her hard fight with U.S. Sen. Bernie Sanders of Vermont, although signs of division still exist.

“We’re going to win. It’s going to be bigger than what Obama was able to do when he ran in Texas,” said state Rep. Senfronia Thompson, D-Houston. “Donald Trump has done one thing for us. He’s united us.”

Others simply are hoping for some progress, given the steep hill ahead of Democrats who last won a statewide election in 1994. The last time a Democratic presidential candidate lost to a Republican by only single digits in Texas was in 1996, when President Bill Clinton defeated Republican Bob Dole nationally and Reform party candidate Ross Perot got 7 percent of the vote.

“I think that the best that Democrats can hope for this cycle is that we’re getting better,” said Democratic strategist Colin Strother. “What Democrats can hope for this cycle is that everybody gets a little more engaged … that they get out there and start busting their knuckles and building our list and improving our fundamentals.”

Rice University political scientist Mark P. Jones put some parameters on what “better” could look like for Democrats.

“‘Better’ is keeping Trump’s victory in the single digits, and taking back somewhere around a half-dozen state House seats, taking back Congressional District 23 and turning Harris County blue,” Jones said.

In Harris County, he said, that means reclaiming the sheriff’s office, flipping the district attorney and tax assessor-collector offices and sweeping the overwhelming majority of countywide judicial elections.

That’s basically in line with what I suggested previously. On a great day, Dems could pick up two or three more House seats, and it’s not crazy to suggest that Fort Bend County, where Barack Obama won 48.5% of the vote in 2008, could be flipped, but they got the basics. I will note again that an under-the-radar opportunity for Dems is in the district Court of Appeals races. Here’s Texas Lawyer on this possibility:

But political experts who’ve taken a closer look at judicial races in Texas believe there’s one very important set of elections where Trump and his bombastic behavior could do some serious damage to his party’s ballot mates.

If a Trump effect is going to be felt anywhere in Texas, they believe it’s most likely to occur on Republican-held intermediate courts of appeals based in large Texas cities. Those races draw a pool of a mix of voters from both urban and suburban counties. And the split between Democrat and Republican votes have grown much closer in those courts in recent years.

Two simple things have to happen for the Trump effect to upset a down-ballot races in Texas, according to Cal Jillson, a Southern Methodist University political science professor who had studied the state’s voting trends for years.

First, Democrats in urban counties have to come out and vote at full strength to vote against him. And second, Republican voters who are turned off by the bigoted and often offensive candidate have to stay home on Election Day in November.

“When you think about Texas’ major cities, the inner cities are blue, the inner ring suburbs are purple and the outlying suburbs are red,” Jillson said. And the biggest problem for Republicans can be found in the purple suburbs, where stalwart Republicans may be turned off by Trump, he said.

“Two thirds of Republicans didn’t vote for Trump, but most are making their peace with him. And the money people are coming back to Trump,” Jillson said. “But … for a party to be competitive, they have to pull 90 percent of their electorate. And if you’re only pulling 85 percent up to 90 percent, you’ll lose. And that will effect congressional races and some state races.”

And the best place to watch the Trump effect in action on election night might be Houston’s First and Fourteenth Courts of Appeals and Dallas’ Fifth Court of Appeals. Those courts, which have six seats up for grabs, are based in solid Democratic counties but are surrounded by numerous smaller red counties that have made those courts safe seats for Republicans for more than two decades.

The Trump effect has Democrats believing they now have the best shot ever for electing a complete slate of candidates to the Houston and Dallas courts of appeals. Democrats mounted a complete sweep of trial court races in Dallas County in 2006 and nearly took all of those seats in Harris County in 2008.

Those aren’t the only ones to watch. Dems lost a seat on the 13th Court of Appeals in the 2010 debacle, for example. That bench, held by 2008 Supreme Court candidate Linda Yanez, is up for re-election this year, and Dems have an experienced candidate in a judicial district that gave over 58% of the vote to a Democrat in 2008. There are Democrats running for Republican-held benches on the 4th (anchored in Bexar County) as well. The 13th should be the easiest pickup, with perhaps the 4th being next, and the 1st, 5th, and 14th more challenging still, but those are all opportunities that should be watched. The weeds get deeper from here, but you get the idea. There are available gains and attainable goals. We need to define what we want and figure out how we want to get them.

District appeals court declines to reconsider Paxton indictment

Sorry, Kenny.

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Best mugshot ever

A state appeals court Thursday rejected Attorney General Ken Paxton’s motion to reconsider its June 1 ruling that upheld criminal charges against him.

The two-sentence order from the Dallas-based 5th Court of Appeals gave no reason for the ruling.

[…]

Paxton will have 30 days to decide whether to take his appeal to the next, and final, stop — the Court of Criminal Appeals, the state’s highest criminal court.

Further appeals appeared likely Thursday.

“We are evaluating our options but anticipate that we will petition the Court of Criminal Appeals, as we strongly disagree with this court’s reasoning and rationale,” Paxton lawyer Philip Hilder said.

See here for the background. At this point the only step left is the Court of Criminal Appeals, and if/when they reject the motion it’ll be on to the trial phase. On the assumption that they do reject any and all motions to dismiss, it will be important to see why they reject it. It’s one thing for them to do so on the merits of the claims, and another entirely if the reason given is basically “now is not the time to make these claims”, which was the initial reason for Rick Perry’s motions to be denied. Whatever the case, expect the filings to land with the CCA in the next few weeks.

Paxton asks appeals court to reconsider

Pretty please?

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Best mugshot ever

Lawyers for Attorney General Ken Paxton on Wednesday asked a state appeals court to reconsider its recent ruling that upheld the criminal charges against him.

The motion did not address the two most serious charges alleging that Paxton committed fraud when he solicited investors in Servergy Inc. without disclosing that he was being paid by the McKinney tech company. The Dallas-based 5th Court of Appeals rejected Paxton’s request to dismiss the first-degree felony charges in a June 1 ruling.

Instead, Wednesday’s filing argued that judges on the appeals court incorrectly applied the law when they also rejected Paxton’s bid to dismiss a third charge — failure to register as an investment adviser representative with the State Securities Board, a third-degree felony.

Paxton’s legal team argued that the court incorrectly held that defendants violate the law merely by giving advice without being registered. Advisers also have to be aware that they have a duty to register, an essential detail the court mistakenly dismissed as irrelevant, the defense lawyers said.

“Guilty knowledge must be proven,” Paxton’s lawyers told the court. “Accordingly, Paxton respectfully requests that the court rehear this case and correct that error.”

See here for the background. The motion to rehear is here. To my layman’s eye, it looks like hair-splitting, but I admit that such technicalities make the world go round, so who knows. Any lawyers want to comment on this?

5th Court of Appeals refuses to toss Paxton indictments

Sorry, Kenny.

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Best mugshot ever

A Dallas appeals court on Wednesday upheld Attorney General Ken Paxton’s three felony fraud indictments, a decision he is likely to appeal to the highest criminal court in the state.

“We are gratified but not surprised that just three weeks after oral argument, the en banc court of appeals unanimously concluded that Mr. Paxton’s claims were clearly without merit,” the special prosecutors handling the case said. “We are confident that the Court of Criminal Appeals will reject Mr. Paxton’s next round of appeals as surely and as swiftly as the court of appeals did today.”

In its decision, the 5th Court of Appeals said three of the arguments Paxton used to challenge his indictments could not be considered at this point in the legal process. The fourth argument, it said, was invalid.

Paxton’s first three arguments dealt with whether the judge who empaneled the grand jury that indicted him had done so improperly. The fourth argued that one of the state laws Paxton is accused of violating is unconstitutional and trumped by similar federal law.

“Having concluded that appellant’s first, second and third issues are not cognizable on pretrial habeas and that appellant’s fourth issue lacks merit, we affirm the trial court’s orders denying the relief sought by appellant,” Chief Justice Carolyn Wright wrote in the court’s opinion.

Paxton’s attorneys have not decided whether to appeal the Dallas court’s decision, but they issued a statement Wednesday making clear they disagreed with the ruling.

“The Court did not hold that Mr. Paxton’s main claims were without merit, rather were premature at this stage of the proceedings,” attorney Philip Hilder said. “Respectfully, we disagree that these fundamental flaws cannot be challenged pretrial and will evaluate in coming days whether to raise these issues with the Court of Criminal Appeals.”

See here and here for some background. The full 5th Court of Appeals heard the case, so there’s no intermediate step to take before going to the Court of Criminal Appeals. Arguments before the 5th were heard less than three weeks ago, so to say the least this was a quick decision on their part. The peg that Team Paxton will hang its hat on is that for three of their four arguments, the 5th Court made no ruling on the merits, just that now was not the time to make those arguments. If I had to guess, I’d say the CCA will rule the same way, but you never know with those guys. The bottom line is that we’re another step closer to a trial. The Trib has more.

Paxton’s day in appellate court

The grand jury was out to get Ken Paxton, apparently.

Best mugshot ever

Best mugshot ever

Lawyers for Attorney General Ken Paxton on Thursday tried to cast doubt on the makeup of the grand jury that indicted him. They’re hoping to overturn a lower court’s decision not to dismiss the securities fraud charges against him.

Much of the discussion at the Dallas-based 5th Court of Appeals centered on the composition of the Collin County grand jury that indicted Paxton on state charges nearly a year ago, setting up a legal drama that led to federal charges earlier this year. Paxton has pleaded not guilty to the state charges, which allege he misled investors in a company in which he had personal dealings before he became the state’s top law enforcement official.

Paxton’s lawyers argued Thursday morning that the the appeals court should reverse last year’s decision by Collin County District Judge George Gallagher not to end the case against Paxton before trial. Paxton lawyer Bill Mateja told the 5th Court of Appeals that the grand jury that indicted Paxton was not sufficiently random, the result of a judge who allegedly gave prospective jurors too much leeway in removing themselves from the process.

“Quite simply, the court did not follow the rules,” Mateja said, later acknowledging that if the grand jury were voided, it would affect every case it heard, not just Paxton’s. “It is better to nip this in the bud now than allow this to fester.”

Special prosecutor Brian Wice countered that there was nothing improper about how the jury was put together, saying Collin County District Judge Chris Older, who oversaw that process, “had inherent discretion” and “acted in good faith.” Even if the jury’s composition was less than random, Wice said, Paxton’s lawyers have so far failed to show how it harmed them.

See here, here, and here for the background. Seems like a lot to ask the court for a ruling that would have the effect of potentially throwing out a bunch of other indictments, but what do I know? There was another question at issue as well.

The other point of contention was whether Paxton was properly registered as an investment adviser when he encouraged some of his own legal clients to seek the services of Frederick “Fritz” Mowery, a friend who operated an investment firm in the same building as Paxton’s law office. Paxton received a commission on these referrals.

Arguing against the third-degree felony charge, Mateja said Paxton was registered with the federal authorities because so was Frederick “Fritz” Mowery, the friend who operated the investment firm that Paxton recommended.

He added the federal investment definition for investment advisor representative “trumps the state’s definition.” He also called the state definition too broad, saying it could require people who distribute leaflets for investment firms or newspapers that advertise for them to register as a representative.

Wice disagreed, saying the state law is clear and that Paxton should have been registered with the the Texas State Securities Board.

Yes, that’s Ken Paxton’s lawyer arguing that federal law trumps state law. Because Ken Paxton has that much respect for the power of the federal government. How anyone managed to keep a straight face during this is a mystery to me.

Anyway. The courtroom proceedings were staid and boring compared to the political spectacle, which involved Paxton making a video whining about how terribly, terribly persecuted he’s being for this itty bitty financial peccadilloes. I mean, what’s a little fraud among friends, and I right? The Lone Star Project takes apart Paxton’s claims. I’m hoping the 5th Circuit judges do the same; both sides say they expect an expedited ruling, but that would still be months from now. Finally, it turns out that there’s yet another former employee of the AG’s office who is collecting salary for doing nothing. It’s a long story, so read it all; there’s a bit at the end about how this particular employee had oversight of a disastrous project to upgrade and outsource the management of child support enforcement systems. Maybe I’m reading too much into things, but that all smells fishy to me in a way that the others did not. Read it and see what you think. The Chron has more.

Meyers voter ID lawsuit on hold

That’s my interpretation of this.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas Court of Criminal Appeals Judge Larry Meyers and his co-plaintiff yesterday nonsuited their lawsuit against the state that claimed the voter ID law was unconstitutional.

The plantiffs plan to refile their lawsuit after they gather more evidence, said their attorney, Andrew Sommerman. The nonsuit came just one day after they argued their case before Dallas’s Fifth Court of Appeals.

“This was a hearing on a plea to the jurisdiction. We got the impression after arguing in front of the panel, the court of appeals would want to see more evidence about one thing or another,” said Sommerman, a partner in Sommerman & Quesada in Dallas.

The Fifth Court justices on the panel seemed to want more evidence about the number of people who had been denied their vote because of the voter ID law, Sommerman said. He said he feels good about the merits of the lawsuit, but there needs to be more work to regarding the jurisdiction question.

See here for the background. My bit of Google-based research tells me that to “non-suit” means to drop the matter (in this case, at least) without it being concluded or decided. It’s not clear to me why this information is needed, or why the pause in the action has to happen, but since the federal lawsuit has surely covered this ground, I imagine it can be provided in fairly short order. I’ll keep my eyes open for further developments.

Paxton prosecutor payment lawsuit tossed again

And again I say, good.

Best mugshot ever

Best mugshot ever

The Fifth Court of Appeals has dismissed a challenge to the payments being made to three sets of special prosecutors appointed in connection with criminal charges against Texas Attorney General Ken Paxton.

Collin County taxpayer Jeffory Blackard filed a civil suit late last year challenging the $300-per-hour fees charged by the attorneys appointed to prosecute Paxton over allegations of securities violations. The suit argued that the amounts deviate from the Collin County fee schedule. After the case was dismissed in March, Blackard filed an appeal.

In its opinion issued Friday, the appellate court noted that taxpayers have limited standing to challenge the lawfulness of government acts. But that standing “does not, however, authorize a taxpayer to challenge an order in a criminal case in which he is not a party,” the opinion stated. “Because relator lacks standing to challenge the trial court’s order, we dismiss the petition.”

[…]

At a meeting earlier this week, Collin County commissioners approved payments to two other sets of attorneys.

Two attorneys were appointed to investigate a 2004 real estate deal involving Paxton. They presented their findings last month, and a grand jury voted to take no action. Their bill for legal fees and expenses totaled $50,626.

Commissioners also approved a $32,130 interim payment for legal fees and expenses for attorney David Feldman. He was appointed to represent Schaffer, Wice and DeBorde in the Blackard case.

Feldman also represents the trio in a separate case against the attorney general’s office to prevent the release of documents filed in the criminal case. The Dallas Morning News had filed a request in October for all records that prosecutors had given to Paxton’s attorneys. Paxton’s office ordered in January that the records be released. The special prosecutors filed suit against the AG’s office to prevent their release.

See here and here for the background. A copy of the court’s order is at the top link. Having come this far, I would expect Blackard to appeal to the Supreme Court, but as yet there’s no word of that. Even if that doesn’t happen, there’s still plenty of other action happening, as you can see. Ken Paxton is a terrible Attorney General, but he is a fee generator for our state’s lawyers. You have to give him credit for that. The Chron has more.

Meyers’ voter ID lawsuit gets appellate hearing

I hope he gets to keep it going.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

[Court of Criminal Appeals Justice Lawrence] Meyers filed his state lawsuit in October 2014, while another legal challenge to the state’s voter ID law was pending in federal court in Corpus Christi. A federal judge overturned the law, but it has remained in effect during the state’s appeals to higher courts.

Meanwhile, state and local officials in Texas tried to get Meyers’ challenge dismissed. A Dallas trial judge — former state lawmaker Dale Tillery, a Democrat — refused that request. Now those officials are asking the state’s 5th Court of Appeals in Dallas to toss it. That hearing is set for Tuesday.

Meyers is lapping this up. His challenge is the sort of technical thing you would expect from a long-time judge. He points to this sentence in the Texas Constitution (emphasis added): “In all elections by the people, the vote shall be by ballot, and the Legislature shall provide for the numbering of tickets and make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box; and the Legislature shall provide by law for the registration of all voters.”

“It does not include ‘prevent,’” he says, adding that the voter ID law is “a prior restraint against your constitutional right to vote.”

As he put it in his original filing, the voter ID law forces voters to prove they are innocent before they cast their ballots rather than requiring the state to prove that someone is actually guilty of voter fraud once they have voted. Someone who doesn’t have the required identification “will be denied his right to vote and will be presumed to be guilty of voter fraud,” he wrote.

Proponents of the voter ID law say it’s no more burdensome than presenting identification in routine commercial transactions, and say the law has built-in workarounds for people who don’t have drivers’ licenses to show voting officials.

Meyers contends that the state’s effort to prevent voter fraud — he doesn’t think such fraud exists in any serious way — creates an obstacle to voting that does more harm than good. Voter fraud is already illegal, he points out, and the state can and should prosecute it whenever it occurs.

“We’re just asking that our Constitution be enforced,” he says. “Voter ID is almost identical to what the old poll tax was. … It suppresses the vote.”

In its legal filings, the state argues that Meyers doesn’t have grounds to sue because he hasn’t shown how he the voter ID law has done him any harm. Those state lawyers also contend that the law does not add to the “qualifications” of voters but is more akin to other requirements, like when the polls are open or when elections are held.

See here and here for the background. Obviously, I agree with Meyers on the merits; the questions about standing are beyond my non-lawyerly capabilities to analyze. Meyers has said that he’ll drop this lawsuit if the federal courts uphold the ruling that Texas’ voter ID law was unconstitutional. We may have some indication by July of that. In the meantime, I’m rooting for the courts to allow this challenge to keep going.

Paxton to get full court treatment

The full (sort of) 5th Court of Appeals will decide whether to dismiss or uphold the indictments against AG Ken Paxton.

Best mugshot ever

Best mugshot ever

The 5th Court of Appeals announced late Friday that instead of the typical three-judge panel, nine of its 13 justices will hear oral arguments in Paxton’s case on May 12. Four justices stepped aside without explaining why.

State rules discourage appeals courts from hearing cases en banc, as full court panels are called, favoring three-judge panels except as required by “extraordinary circumstances.”

Oral arguments in Paxton’s case were wedged into an already busy docket that had hearings scheduled into the second week of June, another sign that the state appeals court was treating the Paxton case as an unusual situation — perhaps not surprising in a matter involving criminal charges against a sitting attorney general.

[…]

During oral arguments, each side will have 20 minutes to present their cases, with Paxton’s lawyers having an additional five minutes for “rejoinder.”

The appeals court will then take time — several months is not unusual — to research, write and issue an opinion, which will undoubtedly be challenged by the losing side at the Court of Criminal Appeals, the state’s top criminal court.

If the charges against Paxton are upheld, it is unlikely that his trial could begin until sometime in 2017.

See here and here for the background. The story says that this initial en banc hearing is “highly unusual”, but it gives no context to or examples of that, so we’re left to guess what that means. I know that with federal appeals courts, after a three-judge panel makes its ruling the losing side can then ask for an en banc review. If the procedure is the same with the state’s appeals courts, then I would guess this is about expediency. We know the ruling will be appealed, so why not combine steps here and save a bit of time? If the procedure isn’t the same, then I hope one of the lawyers in the audience can set things straight. Regardless, mark June on your calendar for the next episode in this drama.