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Paxton prosecutors want another shot

Good luck.

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The attorneys appointed to prosecute Texas Attorney General Ken Paxton indicated in a court filing this week that they aren’t giving up a long-running fight to take the state’s top lawyer to court — at least not yet.

The filing follows a Nov. 21 ruling from the Texas Court of Criminal Appeals that six-figure payments to the special prosecutors were outside legal limits. The prosecutors, who have not been paid since 2016, had in the past suggested that if they did not get paid, they might leave the case, which has dragged on for more than three years.

Brian Wice, one of those prosecutors, on Monday filed a document with the Texas Court of Criminal Appeals seeking more time to ask the court to rehear the case. If the court grants his request, prosecutors would have until Dec. 21 to try and convince the high court to reconsider their case. Wice declined to comment on Tuesday.

On the Wednesday before Thanksgiving, the fractured court handed down a total of six opinions, including three dissents. The all-Republican court will welcome one new member, Michelle Slaughter, in the new year.

See here for the background. I know asking for a re-hearing is a normal thing, though I have no idea how often it works. Maybe with a new judge coming on board there’s a chance of a different outcome, I don’t know. Maybe because the opinions were all over the place the justices themselves might be open to reconsidering. It can’t hurt. I just don’t expect much to change. The DMN has more.

CCA may have killed the Paxton prosecution

Ugh. Just, ugh.

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The Texas Court of Criminal Appeals on Wednesday potentially imperiled the long-delayed criminal prosecution of Texas Attorney General Ken Paxton, ruling that payments to special prosecutors were outside legal limits.

If they cannot get paid, the prosecutors have suggested they could withdraw from the case against Paxton, a three-year-long legal saga that has dragged on in fits and starts amid side fights like the dispute over legal fees.

In its opinion Wednesday, the state’s highest criminal court said a lower trial court was wrong last year to approve a six-figure payment to the three special prosecutors handling the Paxton case. The prosecutors’ invoice was rejected by commissioners in Collin County — Paxton’s home county — touching off the legal fight that made its way to the Court of Criminal Appeals.

“Here, the trial court exceeded its authority by issuing an order for payment of frees that is not in accordance with an approved fee schedule containing reasonable fixed rates or minimum and maximum rates,” the opinion said.

The Court of Criminal Appeals invalidated the payment and ordered the lower court to re-issue it in accordance with the fee schedule.

“While we are disappointed with the majority’s ruling and are exploring all legal options available to us, it does not alter the fact that Ken Paxton remains charged with three serious felony offenses,” the prosecutors said in a statement responding to the ruling.

See here, here, and here for the background. I have no idea what happens next. A copy of the opinion is here, and the Observer has some thoughts. Maybe the prosecutors stick it out – maybe now Collin County will agree to pay them something reasonable, now that they can dictate the terms more. Maybe they step down and some other prosecutors step in. Maybe it all goes up in flames. The fact that we’re having this conversation at all is a scandal that needs to be addressed by the Lege. The possibility that Paxton may end up skating because the system as designed was not capable of finding a prosecutor for the charges against him is too gruesome to contemplate, so I’m not going to think about it any more today. Have some turkey or turkey-alternative, watch some football, and quit griping about how it’s Christmas season already. Happy Thanksgiving to you and yours.

Don’t expect a Ken Paxton trial to happen this year

Delays, delays, nothing but delays.

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Texas Attorney General Ken Paxton was indicted for fraud nearly three years ago but is unlikely to go on trial before Election Day.

Paxton’s trials are on hold while the Texas Court of Criminal Appeals decides whether the prosecutors on the case are being overpaid. The court went on summer recess Wednesday, and won’t hear any cases or issue any major opinions before the fall.

This means they won’t announce a decision in the pay case until September, at the earliest, which experts said will delay Paxton’s trial dates until after the Nov. 6 election — and probably into next year.

“I just don’t see there’s any way it gets tried before the election,” said Rusty Hardin, a Houston attorney who has represented everyone from Enron employees to athletes and TV stars. “I would have doubted that the trial would have happened before the election even if the Court of Criminal Appeals would have decided today.”

There’s more, so read the rest. Just for a sense of the timeline here, the 5th Court of Appeals in Dallas halted the special prosecutors’ pay last February, then ruled they had to give a bunch of it back to Collin County in August. The CCA then stayed that ruling pending any action it would take in September, and after giving everyone 30 days to respond to the prosecutors’ appeal of the 5th Court’s ruling, they agreed in December to formally review that ruling. At that time, it delayed the actual Paxton trial, which was originally set to start on December 11, to this year. More than six months later, the CCA has not scheduled oral arguments for that appeal, and so here we are. There are other factors at play here – the damage done to the Harris County courthouse by Harvey greatly complicates things, for example – but either until this lawsuit gets resolved, nothing else will happen. And just any ruling won’t get us back on track, because if the CCA lets the 5th Court’s ruling stand, the special prosecutors will resign, and we’ll have to start more or less from scratch. Ken Paxton could well be collecting his state pension by the time this sucker gets to a courthouse.

You’ve heard the expression that “justice delayed is justice denied”. Usually, that applies to the defendant, who is entitled by the Constitution to a fair and prompt trial. In this case, as Democratic nominee for AG Justin Nelson says in a statement, Ken Paxton is benefiting from the unending delays, with the assistance of his legislative cronies. You’d think a guy who loudly proclaims his innocence would want to get this over with, but not Ken Paxton. It would seem he’s just fine with putting this off, at least until after the election. Feel free to speculate as to why that might be.

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.

Paxton trial delayed again

This will happen some day. I hope.

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Attorney General Ken Paxton’s trial has been put off for a third time.

The judge in the securities fraud case against Paxton sided Wednesday with prosecutors who had been pushing for another trial delay because of a long-running dispute over their fees. The decision by Harris County District Court Judge Robert Johnson scrapped Paxton’s current Dec. 11 trial date and left the new one to be determined, possibly at a Nov. 2 conference.

Paxton had been set to go to trial on Dec. 11 on the least serious of three charges he faces. The date for that trial had already been pushed back twice because of pretrial disputes, first over the venue and then the judge.

[…]

In a feisty hourlong hearing Wednesday, the prosecutors and Paxton’s lawyers sparred over a familiar subject: whether they should hold off on a trial until the prosecutors could collect a paycheck — an issue currently tied up in a separate legal battle. Earlier this year, when the case was before a different judge, he denied the prosecutors’ first request to delay the trial until they could get paid.

Johnson had a different take Wednesday, granting the prosecutors’ latest motion for continuance. He asked both sides to come up with a new trial date, preferably in late February or early March. After some back and forth — a Paxton lawyer proposed a new trial date on March 6 — they all agreed to continue the discussion at the Nov. 2 pretrial conference.

The prosecutors had been seeking to put off the trial until the state’s highest criminal court, the Texas Court of Criminal Appeals, could sort out the payment issue. Last week, the Court of Criminal Appeals stepped into the dispute over the prosecutors’ pay, issuing a stay of a lower-court ruling last month that invalidated a six-figure paycheck for them. In its decision, the Court of Criminal Appeals gave all sides 30 days to respond to the prosecutors’ contention that the lower court, the Dallas-based 5th Court of Appeals, overstepped its authority when it voided the payment.

If the Court of Criminal Appeals ultimately rules against the prosecutors — effectively leaving them without pay for the foreseeable future — they will move to withdraw from the case, Wice said.

Paxton’s team had none of it. His lawyers contended the prosecutors were seeking to undermine Paxton’s right to a speedy trial and repeatedly pointed to the prosecutors’ previous failures to get the trial delayed due to the payment issue.

“It’s time,” Paxton lawyer Dan Cogdell said. “It’s time to try the case.”

See here for some background. The first I’d heard of this motion was Tuesday when the Trib and the Chron reported on it. You know where I stand on this, and while I agree with Team Paxton that I’d like to get on with this already, I would note that it is well within their power to ask Paxton’s buddies Jeff Blackard and the Collin County Commissioners Court to drop their vendetta against the prosecutors, since that is the main stumbling block at this time. I really don’t see how anyone can object to them wanting to get paid what they were told they would be paid, nor can I see how anyone would expect them to work for free. The solution is simple if they want it to happen. Until then, we await the November 2 hearing at which everyone argues over a new court date.

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.

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.

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…)

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 case gets moved out of Collin County

Well, well, well.

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Attorney General Ken Paxton’s upcoming trials will be moved out of Collin County, the judge presiding over his criminal fraud case decided Thursday.

The ruling is a major victory for the prosecutors, who have for months argued that Paxton’s friends and political allies have sought to malign them in the court of public opinion here, where the attorney general has lived and worked for decades.

Judge George Gallagher ruled the trials should be moved out of Paxton’s backyard but did not set a location for where they would take place. The trials, which were to kick off May 1, will be delayed until a new venue is set.

Both the prosecutors and Paxton’s attorneys denied to comment on the ruling. Gallagher imposed a strict gag order on the parties Wednesday, saying there would be “no more statements to the press.”

In his ruling, Gallagher did not elaborate on why he sided with the prosecution. He also denied Paxton’s request to have his indictments thrown out.

See here for the background on the venue change. Judge Gallagher also denied the special prosecutors’ motion to delay the trail until the lawsuit over their pay is resolved. The hearing that led to all these rulings happened on Wednesday, and this story has some details about how that went.

During Wednesday’s hearing, Paxton’s attorneys rejected claims of a concerted effort in Collin County — where Paxton has lived and worked for years — to malign the prosecutors and skew public opinion in Paxton’s favor. They also released a poll, done by longtime Republican pollster Glen Bolger, that they said showed Paxton had no “home team advantage.”

Bolger’s poll showed that of the 400 people surveyed, a majority were aware that Paxton had been indicted, but few said they had enough facts to decide whether he was guilty or innocent. Of those who knew about the indictments, 14 percent thought he was guilty and 9 percent innocent, and more people now believed he is guilty than they did when he was first charged.

“If there’s been a campaign, it’s been pretty darn ineffective,” Bolger, who said he was paid $12,000 to take the poll, told the court. “People’s attitudes are not being significantly impacted by what has happened so far.”

Also on Wednesday, prosecutors submitted several new pieces of evidence that they said showed the trials should be moved, including a new lawsuit aimed at blocking their pay — which has been on hold since earlier this year — and an invitation to a fundraiser for Paxton co-hosted by four Collin County commissioners and a handful of state lawmakers.

The event took place at the McKinney home of Keresa and JR Richardson in December 2013, a year and a half before Paxton was indicted. At the time, Paxton was a state senator running for the Republican nomination for attorney general.

As the Wednesday hearing was wrapping up, Gallagher questioned the ethical implications of the fundraiser, saying he was concerned about lawsuits filed “by folks that have a great deal of control in this county.”

“We may have a problem here,” said Gallagher. “We may have an ethical problem.”

Collin County Judge Keith Self, one of the fundraiser’s honorary co-hosts, told The News on Thursday that the event was “not germane” to Paxton’s criminal case because it took place well before his 2015 indictment.

“This was 18 months prior to the indictment being released, and Ken Paxton at the time was a sitting state senator,” Self said, adding it would “have been strange” if they hadn’t supported his bid for attorney general.

So the bottom line is, there will be a trial – the latest motion to have the charges thrown out had to do with some allegations by the defense regarding the grand jury; that part of the hearing was done in chambers, so as to preserve the secrecy of the grand jury process – it will not begin on May 1, and it will be someplace else. When we know where it will be, we ought to know when it will be as well. Stay tuned. A statement from the Lone Star Project is here, and WFAA and the Trib have more.

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.

Twice the trials, twice the fun

The Paxton special prosecutors want to separate the charges into two trials.

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Special prosecutors said Thursday they would like to try Texas Attorney General Ken Paxton first on charges he failed to register as an investment advisor, pushing a lengthy trial on his securities fraud charges until a later date.

Kent Schaffer, one of the special prosecutors assigned to the case, said a trial on the registration charges can be completed within days and is a simpler case, whereas the fraud case could last weeks.

Schaffer said the fraud charges likely would be tried week or months after the registration case is finished.

News of the state’s intention riled Paxton’s defense team which had been under the impression the two securities fraud charges and the registration charge would be tried together.

The decision of whether to hold one trial or two is up to Tarrant County state District Judge George Gallagher. The judge also is expected to rule later on the prosecutors’ request for a change of venue.

The judge told both sides his intention was to at least try to pick a jury in Collin County, where the case is filed. The trial had been scheduled to begin May 1.

See here for the background on relocating the proceedings. The Trib has the details of that part of the hearing on Thursday.

The prosecutors called three witnesses to help make their case, including a Dallas TV reporter who recently conducted an interview with former U.S. Sen. Rick Santorum, R-Pa., in which Santorum described the case as a political vendetta against Paxton. The reporter, J.D. Miles, said Paxton ally Jeff Blackard helped arrange the interview, but “I’m not part of a conspiracy, and I wouldn’t know if there is one.”

The prosecution’s second witness was Wayne Dolcefino, a former TV news star who now runs a consulting firm. He testified that he gave the website Watchdog.org leaked records from the Texas Rangers regarding the Paxton case.

Dolcefino has ties to Cogdell, Paxton’s attorney, whom he said has paid him several thousand dollars for a “research project.” Dolcefino insisted his work for Paxton’s lawyers did not involve the media and said he acted on his own when he leaked the records. He said he did it out of dissatisfaction with coverage of the Paxton case thus far and a desire to shine more light on a situation where taxpayer dollars are at stake.

“I did what I did, and I didn’t get paid for it,” Dolcefino said on the stand on Thursday, referring to giving the documents to Watchdog.org.

The third witness, Tom Dailey, is a business manager for Cumulus Media in Dallas, which handled a radio ad buy last year that was done under Watchdog.org’s name. The ads cast doubt on the case against Paxton and promoted Watchdog.org’s work.

The prosecutors asked Dailey to explain how the ads ran during popular times of day and reached Collin County listeners. Cogdell argued the ads will be almost five months old by the time jury selection begins and got Dailey to testify that he was unaware of a connection between the ad buy and Paxton himself.

Good to know that WayneDo still has some game, even if not on the air and even if not in Houston. I don’t have an opinion on the change of venue request. It is certainly the case that Republicans are standing by Paxton, and that surely must exert some pressure, but I don’t know how much difference it would make to move the trial to a similarly Republican county like, say, Williamson. Surely there are twelve people in Collin who have not been paying any attention to all this. As for having two trials instead of one, I understand where the prosecutors are coming from, but – and I can’t believe I’m going to say this – that seems kind of unfair to Paxton. I think he’s a giant pile of sleaze, but if he were any other high-profile defendant, I’d say he deserves to get this over with sooner rather than later, one way or the other. That’s the judge’s call, and we’ll see what he says.

Also the judge’s call, though not if Collin County Commissioners Court has any say in it, is the issue of how much the special prosecutors get paid.

Collin County officials think investigating and prosecuting elected officials like Attorney General Ken Paxton can be too costly, a complaint that could take them into the courtroom or even the state Legislature this year.

On Monday, the Commissioners Court voted to hire lawyers who’ll look into whether the county can challenge the constitutionality of the Texas Fair Defense Act, a state law that sets rules for paying court-appointed attorneys like public defenders and special prosecutors who investigate and pursue charges against officials accused of wrongdoing.

The law lets a group of local judges set these rates, which County Judge Keith Self said could violate the separation of powers that should exist between him and his colleagues on the commissioners court and the legal powers of the judiciary.

“We’re concerned about the unfettered and open access to the county checkbook by judges,” said Self, adding that the goal is to ensure “the commissioners court has has got to have some sort of control over the public purse” when it comes to the costs of high-profile prosecutions like Paxton’s.

The timing is important, too, Self said, because lawmakers meeting in Austin could rewrite the Fair Defense Act this year if the county decides to challenge the law.

The changes won’t have any effect on Paxton’s prosecution — his criminal trial is scheduled for May — but were sought in direct response to the six-figure cost of the attorney general’s fraud case.

“The Paxton case, which we can’t consider right now, has revealed the issues with the local rules and the state law,” Self said Wednesday. “So we believe that now is the time to do it because the Legislature is in session. And if we’re going to get the change in state law down, and some attention on the fact that we believe there’s a separation of powers issue here, we need to get it done.”

See here for some background. I do have some sympathy for the Commissioners, as this is not a mess of their making, and I agree the Lege is the place to go for a remedy. I don’t think there’s anything wrong with the rate at which special prosecutors are paid, I just think the simplest solution is to have the state pay for them. Especially for trials like this, local issues should not be allowed to become concerns. Let the state pony up and be done with it. Courthouse News has more.

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.

CCA declines to take Paxton off the hook

Sorry, Kenny.

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Best mugshot ever

The highest criminal court in Texas said Wednesday it will not hear Ken Paxton’s appeal of securities fraud charges, putting the attorney general on a path to facing a trial in the coming months.

“Today’s ruling marks an end to Mr. Paxton’s almost year-long attempt to avoid being judged by a jury of his peers,” Brian Wice, one of the special prosecutors handling Paxton’s case, said in a statement. “We look forward to going to trial and seeking justice on behalf of the people of Texas.”

The decision Wednesday was made by the Court of Criminal Appeals, which Paxton’s lawyers had asked to review the case as a last resort before trial. Without comment, the court announced it would not consider the appeal.

The decision makes the prospect of the state’s top lawyer sitting through a trial more likely than ever. The proceedings could start as early as next spring.

With the good news comes the bad news, I guess. This doesn’t mean that the CCA couldn’t step in to save Paxton later, after a conviction on one or more charges, it just means that they don’t see any reason for them to stop a trial from happening in the first place. So a trial we will have, barring the exceedingly unlikely event of a plea bargain. Stock up on the popcorn, y’all. Trail Blazers, the Current, and the Lone Star Project have more.

Paxton’s day in SEC court

That’s a slightly misleading headline, but you get the point.

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Best mugshot ever

Lawyers for Texas Attorney General Ken Paxton will argue Friday morning in a Sherman courtroom that the federal civil fraud case against him should be dismissed, their latest effort to unwind the legal troubles that have dogged Paxton for more than a year.

[…]

In the SEC case, Paxton’s lawyers have argued the allegations represent a “dramatic overreach and lack any basis in law.” The SEC lawsuit, they also say, does not claim he made any false or misleading statements to potential investors in Servergy, a technology startup at the center of both cases.

“Mr. Paxton should not be left to labor under a cloud of suspicion while enduring years of costly discovery to refute claims that are meritless on their face,” Paxton’s lawyers wrote in their June motion to dismiss the SEC lawsuit.

They will get the chance to press that argument at 9 a.m. Friday in federal district court in Sherman before U.S. District Judge Amos Mazzant III. Paxton’s team is being led by Matthew Martens, a former top lawyer for the SEC.

James Spindler, a law professor at the University of Texas at Austin, said he would not be surprised if the court dismisses at least some of the charges before trial. He said SEC lawyers “have their work cut out for them” in specifically proving the charges of fraud, which he called “factually dense inquiries” in the context of a case like this one.

“Overall, it seems a little questionable,” said Spindler, an expert in securities regulation. “It depends really on what the facts are, and they haven’t disclosed a lot of the facts of the case yet.”

See here for the background. Let’s wait and see what the government’s case is before we make any guesses about his odds of success.

In the meantime, this also happened.

The state’s highest criminal court Wednesday morning dismissed all three appeals filed on Texas Attorney General Ken Paxton’s behalf, saying his lawyers neglected to include everything needed on the petitions.

The Court of Criminal Appeals gave Paxton 10 days to add what was missing — a copy of the concurring opinion from the Dallas-based 5th Court of Appeals, which in June rejected Paxton’s request to dismiss criminal charges related to private business deals from 2011 and 2012.

Defense lawyers corrected the mistake a little more than two hours after the court issued the unsigned order, which was opposed by Judges Barbara Hervey and Michael Keasler.

“We inadvertently left off attaching to our petition a copy of the concurring opinion from the court of appeals. We have cured the oversight and have refiled,” Paxton lawyer Philip Hilder said.

The error isn’t expected to significantly delay the handling of Paxton’s appeal.

[…]

A trial on the SEC’s accusations has been tentatively set for Sept. 11, 2017, and is expected to last about two weeks.

Lawyers have said a trial on Paxton’s criminal charges, if upheld by the Court of Criminal Appeals, could take place in the spring of 2017.

An oops, but not a big deal. The schedule information at the end of the story is more interesting. If Paxton isn’t successful in getting charges against him dropped, next year is going to be very busy for him. Judge Mazzant is not expected to rule today, so it will be awhile before we know this part of Paxton’s fate.

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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Best mugshot ever

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.

Paxton appeals to CCA

Last chance to avoid a trial or a plea deal.

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Best mugshot ever

Texas Attorney General Ken Paxton is appealing the securities fraud charges against him to the state’s highest criminal court, in one last bid to dismiss the case before it potentially goes to trial.

Paxton’s attorneys filed the appeal Tuesday with the Texas Court of Criminal Appeals, asking the Austin-based court to do away with the three felony indictments facing the attorney general. The case, now more than a year old, centers on allegations that Paxton misled investors in private business dealings from before his time as attorney general.

“Ken Paxton has been charged with a crime that simply doesn’t exist, using a grand jury that was improperly impaneled,” Paxton lawyer Bill Mateja said in a statement. “This petition was filed with the Court of Criminal Appeals to not only correct the lower court’s mistake but to end this improper prosecution.”

The special prosecutors handling Paxton’s case countered that a lower appeals court has already ruled that many of the issues Paxton is bringing up cannot be addressed before trial. Earlier this year, the Dallas-based Fifth Court of Appeals rejected an attempt by Paxton to get rid of the charges ahead of time.

“By simply asking for a ‘do-over,’ Mr. Paxton’s petition falls far short of the exacting standard he must meet before the State’s highest criminal court will review a court of appeals’ decision,” read a statement from the prosecutors, Kent Schaffer and Brian Wice.

See here and here for the latest updates. This was always going to go to the CCA, it was just a matter of how long it took to get there. And for all their supposed pro-prosecution tendencies, the CCA sure does seem to have a soft spot for Republican defendants, so anything can happen here. My guess is that if the CCA takes up the appeal – they could decline to do that, but I can’t imagine they will – the single most likely outcome is that they allow the indictments to stand, on the grounds that this isn’t the time for them to get involved. The more interesting question will be whether they tip their hand about how the future appeal of the trial verdict may go. That’s getting way ahead of ourselves, so let’s sit back for now and see if they take up the case or not. The DMN has more.

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.

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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.

Paxton prosecutors file their response briefs at the 5th Court of Appeals

In sum: Don’t think about Rick Perry!

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Best mugshot ever

A Travis County court’s decision to throw out Rick Perry’s abuse-of-power indictments should have no bearing on Ken Paxton’s securities fraud case, the team prosecuting the first-term attorney general wrote in their latest brief filed Monday.

“Comparing Rick Perry’s case with Mr. Paxton’s is like comparing Citizen Kane with Showgirls,” special prosecutor Brian Wice said late last month after a Travis County appeals court threw out the former governor’s indictments. “The prosecution of Rick Perry, not to mention Tom DeLay, was about the criminalization of politics. Mr. Paxton’s case is about the criminalization of securities fraud.”

Wice, along with fellow special prosecutors Kent Schaffer and Nicole DeBorde, filed a brief Monday with a Dallas-based appeals court responding to Paxton’s latest attempt to have his three felony indictments thrown out. In December, the judge presiding over the attorney general’s securities fraud case decided against quashing the charges, prompting Paxton to appeal that decision to the higher court in Dallas.

In his appeal, Paxton contended the grand jury that indicted him was improperly impaneled and that the state law he’s been charged with violating is both unconstitutionally vague and trumped by a different federal law.

The special prosecutors denied all three claims in their Monday filing, saying a court could not come to these conclusions without first hearing all the evidence at trial. They repeated their arguments that the judge who impaneled the grand jury used the same method he and others employed for many other grand juries, that state law holds in this case and that the statute was clear in its meaning.

“Persons of ordinary intelligence would not have to guess at the plain and common meaning of the term ‘investment adviser representative’ or where to turn ‘to determine who is an [IAR] or who may be penalized for failing to register,’ ” the prosecutors wrote.

See here for the background. Wice’s defense attorney roots are showing here, as he has bought into the Perry defense team’s characterization of that case, which as you know is not mine. It is the CCA’s, however, and they’re the ones who count, so one hopes that Wice’s talent for turning a phrase will help here. Both prosecution and defense have asked for oral arguments, so expect that to be scheduled soon. As the story notes, there could then be a ruling by June or so, though things bog down considerably if an appeal to the CCA follows. For now, at least, things are moving along at a steady clip.

Court hears arguments over paying Paxton’s prosecutors

I am rooting for this to be thrown out of court.

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Best mugshot ever

Dallas County Court at Law Judge Mark Greenberg heard arguments Friday over jurisdictional issues in the civil case brought by taxpayer Jeffory Blackard.

Blackard is challenging the $300 per hour fees being paid to the three Houston attorneys handling the criminal prosecution in the Paxton securities case. Greenberg set a Thursday deadline to either issue a ruling or request further information.

Collin County district judges and the district attorney’s office recused themselves from all things related to Paxton, who is from McKinney and has lots of local ties. So outsiders had to be appointed in their stead.

Tarrant County District Judge George Gallagher was named to preside over the Paxton criminal case. When Blackard filed his civil suit, Greenberg was tapped to hear that. And when the special prosecutors, appointed last year, needed legal representation, an attorney was appointed for them as well.

The main issue to be decided in the Blackard case is whether Greenberg has jurisdiction to question future orders by Gallagher. Blackard’s attorneys argue that he does. Attorneys for Collin County and the special prosecutors believe the proper venue is the Court of Criminal Appeals.

Attorney David Feldman, who represents special prosecutors Kent Schaefer, Brian Wice and Nicole DeBorde, said Friday this is a highly charged political matter.

“Let’s make no mistake about this,” he said. “This is a backdoor attempt to derail the prosecution of the attorney general.”

[…]

Edward Greim, who represents Blackard, said it’s important to be able to question the special prosecutors’ fees, citing the first payment in January that was ordered by Gallagher, approved by county commissioners and paid out in a matter of days.

Greim said he believed that “at the end of the day, we’re going to have a forum to have someone look at the propriety of these bills and have the bleeding stopped.”

So far, Collin County has paid $254,908.85 in fees and expenses logged in the Paxton case between April and December. More payments are expected, as the criminal case is in the early stages with no trial date set.

What’s not known is when future bills will be submitted or how much they will be for. Once the county pays a bill, it can’t be challenged by taxpayers. So Blackard’s civil suit is looking to challenge future payments.

[…]

Attorney Greg Hudson is representing County Judge Keith Self and the four county commissioners in Blackard’s case. He said that the commissioners couldn’t find any valid reason to challenge Gallagher’s order over the fees, so they voted to pay them.

A major concern if the Blackard case proceeds is whether Collin County commissioners will find themselves caught between a Gallagher order to pay the fees and a Greenberg order not to pay the fees.

“This puts my clients in the crosshairs of a web they didn’t weave,” Hudson said, arguing that the validity of Gallagher’s order is under attack, rather than the county commissioners’ decision to abide by the order. That’s also why the challenge over fees doesn’t belong in civil court, he argued.

“This is a slippery slope if a judge such as yourself is placed in a position to second-guess a sister court,” Feldman told Greenberg.

See here, here, and here for the background. An earlier story examined the question of whether the fees these attorneys are being paid were overly generous, and concluded that they were generally considered to be reasonable for this kind of case. I agree with Feldman that if this action succeeds, the case against Paxton becomes extremely unwieldy, possibly too much so to proceed. It’s too bad for Collin County that this is expensive, and as I said before perhaps the Lege should look at the question of when attorneys ad litem get appointed and when it would be better to assign a case to another DA’s office instead, but there’s nothing we can do about that now. This case needs to play out without being artificially impeded. Anything else is an injustice.

Paxton files his first indictment appeal

And on we go.

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Best mugshot ever

Texas Attorney General Ken Paxton continues to fight to get out from under three felony indictments, arguing anew before a Dallas appeals court that he is innocent of accusations he repeatedly violated state securities laws.

“We argue that the entirety of all three indictments should be dismissed,” Bill Mateja, one of Paxton’s attorneys, said Tuesday. “We feel confident that we’ll be able to prevail on appeal.”

[…]

In the 77-page brief filed with the court on Monday, Paxton’s lawyers argued state law is too vague for the indictments to hold water.

Specifically, they said the definition of “investment adviser representative” in the Texas Securities Act is vague and conflicts with federal law. The state law also “unconstitutionally regulates free commercial speech” also doesn’t define how such a person would “solicit” business, they argued.

Repeating the arguments they made before the district judge last year, Paxton’s team also accused the judge who empaneled the grand jury of improperly handling the process by asking for volunteers instead of picking the members at random. Paxton’s lawyers are asking for a hearing before the appeals court.

Paxton’s indictments were upheld by trial judge George Gallagher in December, and the 5th Court of Appeals called for briefs in January. Prosecutors have until March 14 to submit theirs. As noted in that last link, the appeals court could issue a ruling based on the briefs, or it could schedule and hear oral arguments, in which case we will all need to settle in and get comfortable, because we’ll be in for the long haul.

As for the merits of Paxton’s appeal, Texas Lawyer asked a bunch of experts and got some interesting answers:

“These are all interesting things—good legal questions—but on the whole, they are all post-trial questions and not pretrial issues,” said former CCA Judge Cathy Cochran. “It’s a hard row to hoe to bring them in the pretrial context, when there is just no evidence of anything yet.”

Criminal procedure expert John Schmolesky explained that courts will only grant pretrial habeas corpus relief when a defendant proves that a law is unconstitutional on its face rather than arguing it’s unconstitutional as applied to him.

“He has to be convicted and then he can raise his complaint about the statute,” said Schmolesky, a professor at St. Mary’s University School of Law. “The appellate court may very well say, ‘There might be merit to the claim, but we will wait.'”

Hilder & Associates principal Philip Hilder of Houston wrote in an email, “Mr. Paxton is entitled to relief because the statute under which he is charged does not regulate the conduct of representatives of federally filed investment advisers, which applied to Mr. Paxton. Further, we maintain that the statute is vague and unconditionally regulates conduct. Additionally, the indictments are void because they were returned by a grand jury of volunteers improperly selected.”

But attorney pro tem Brian Wice wrote in an email, “His arguments that these prosecutions should end before a jury can pass upon his guilt or innocence are creative. But Mr. Paxton’s appellate brief has provided the court of appeals with no additional argument or authorities that his creativity is a compelling, principled, or reasoned substitute for legal merit.”

[…]

One of Paxton’s claims applies to all three of his charges. He claimed that 416th District Judge Chris Oldner improperly impaneled the grand jury that indicted him. Oldner called a panel at random, but then he asked who was willing to serve. Paxton argued that “willingness to serve” isn’t a lawful qualification. He claimed that the U.S. Court of Appeals for the Fourth Circuit dismissed an indictment under identical circumstances.

Cochran, [former Third Court of Appeals Chief Justice Woodie] Jones and Schmolesky all said the argument is new and interesting.

Cochran said that the U.S. Supreme Court has held that if grand jury law is violated, a defendant must show the violation substantially influenced the grand jury’s decision to indict him. Paxton will have to prove that he wouldn’t have been indicted if the judge impaneled the grand jury correctly, she said.

Jones said, “I would be curious to know if federal grand jury law is the same as Texas grand jury law—there’s a very good chance it is not the same.”

Jones added that his 18 years as an appellate judge taught him never to judge a case based on one side’s briefs.

“I read this one and think to myself, ‘That’s a really interesting issue. I’m going to be curious to see what the state’s response is to the issue,’ or, ‘Once I dig deeper, I’m going to be curious to see what the law is,'” he said. “You really can’t take what is said in a brief at face value.”

So the general (though not unanimous) consensus is that Paxton will not succeed, though he will have some good arguments to make in the event he gets convicted. Team Paxton also thinks the Rick Perry ruling is good for them, though it was noted in that story that the ruling in the Perry case was pretty narrowly tailored. So who knows? In short, prepare for the long haul.

Collin County argues against anti-Paxton prosecutor lawsuit

Reluctantly.

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Best mugshot ever

[Collin County Commissioners] Court on Thursday urged a Dallas judge to drop a lawsuit seeking to block payment to the special prosecutors. The suit, filed in December by local real estate developer and Paxton donor Jeffory Blackard, should be declared moot because the commissioners already had sent the prosecutors their six-figure check, the county argued.

“Texas law is clear a taxpayer cannot bring an action against a local government to recover funds already expended,” the court argued in a brief to Dallas County Court of Law Judge Mark Greenberg. The lawsuit targets the commissioners court, as well as Kent Schaffer, Brian Wice and Nicole DeBorde, three Houston criminal defense attorneys assigned to prosecute Paxton’s felony securities case.

The county and the prosecutors may be fighting for the same outcome, but that does not mean the court is happy about it.

County Judge Keith Self said the Thursday filing does not mean he will stop fighting to cap or block further payment to the prosecutors. The nearly $255,000 they already have received for their first several months of work is enough, he said.

“We paid it, and it’s done. So, we believe that this issue is complete, but I can’t speak for anyone else’s future actions,” said Self, who earlier this month urged the prosecutors to resign. He wants the district attorney from another county to take over the case, believing that would mean there would be more local oversight of the prosecutors’ bills.

See here and here for the background. I’ve been critical of Judge Self’s efforts, but I do have some sympathy for him and the Collin County Commissioners Court. This is an expense they have no control over, and this trial could be done by another county’s DA instead of a special prosecutor. I don’t know the legal technicalities of that – these cases always seem to be assigned to special prosecutors (“attorneys ad litem”) – but there may be a reason why cases like this are handled this way and not in the manner Judge Self prefers. Perhaps that’s a matter for the Legislature to look at. Be that as it may, given that special prosecutors were assigned, and given how much work has already been done and how much evidence would have to be absorbed by any new players in this game, I say keep things as they are and let it play out till the end, however long that takes. Too bad for Collin County’s budget, but it’s too late to change now.

Don’t hold your breath waiting for the Paxton appeals process to play out

Better settle in and get comfy, because this could take awhile.

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Best mugshot ever

An appeal by Attorney General Ken Paxton, who is seeking to dismiss charges that he violated state securities laws, will extend at least into spring, with a strong chance of a ruling being delayed until summer or later.

The Dallas-based 5th Court of Appeals has given Paxton’s lawyers until Feb. 22 to file a brief arguing why they believe the felony charges should be thrown out.

Prosecutors will have until March 14 to counter the arguments.

This type of pretrial appeal is expedited under state law, making it less likely that either side will seek a deadline extension.

But if the court decides to hear oral arguments instead of ruling based solely on the briefs, resolution of the appeal would be pushed further back.

[…]

Defense lawyers have informed the Dallas appeals court that their challenge will focus on four arguments that Gallagher had rejected in December:

  • The charge of failing to register as an investment adviser representative should be dismissed because Paxton was registered with the U.S. Securities and Exchange Commission, trumping the state registration requirement.
  • The state failure-to-register law should be thrown out as unconstitutionally vague because it does not provide sufficient notice about what acts are prohibited.
  • The failure-to-register law should be thrown out because it unconstitutionally infringes on commercial speech by “regulating who and when a person may solicit clients for an investment adviser.”
  • All three charges should be tossed out because the Collin County grand jury that indicted Paxton was improperly formed.

Paxton’s indictments were upheld by trial judge George Gallagher in December, so this is the next step in the process. If the 5th Court rejects the appeal just on the briefs then things may speed up, but if not then remember we are potentially measuring the time frame in years before we get a resolution. The trial itself is on hold until these appeals have played out. Stay patient, we’ll get there eventually.

Paxton prosecutors sue AG office to block records

Hold on to your hats.

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Best mugshot ever

In an unusual and head-spinning twist, prosecutors in the criminal case against Texas Attorney General Ken Paxton sued the attorney general’s office Thursday to block the release of sensitive case information that could hinder Paxton’s defense but that his own agency ordered to be turned over to a Texas newspaper.

Go ahead, read that sentence again.

The latest twist began Oct. 14 when The Dallas Morning News requested copies of thousands of pages of investigative records that prosecutors had provided to Paxton’s defense lawyers in preparation for a potential trial on allegations that Paxton broke state securities laws in private business deals in 2011 and 2012.

Prosecutors sent a same-day reply email denying the request, saying previous attorney general opinions had declared such information off limits under the Texas Public Information Act. They also sought an attorney general’s opinion on whether the records could be withheld — a step the law requires when requested government information is denied.

On Jan. 4, however, the attorney general’s Open Records Division sent a letter informing the prosecutors that they had failed to take a second step required by the law — submitting their legal reasons for denying the request, along with samples of the requested information so Open Records Division lawyers could verify whether it fell under the law’s exceptions to disclosure.

Because the law wasn’t followed, the requested information must be automatically released, the letter said, adding that the only step remaining to prosecutors is a lawsuit “if you believe the information is confidential.”

That lawsuit was filed in Travis County district court Thursday by Dave Feldman, a Houston lawyer that Paxton’s trial judge appointed to represent prosecutors Kent Schaffer, Brian Wice and Nicole DeBorde in the matter.

[…]

“Talk about meeting yourself coming around the corner,” Feldman told the American-Statesman. “We’re having to sue the AG so we don’t have to disclose information adverse to the AG that we shouldn’t have to disclose under the law.”

Usually a story requires some element of time travel to have that kind of brain-bending quality. I might suggest that this is the sort of thing that happens when criminal defense attorneys get employed as special prosecutors: They actually take this kind of thing seriously. Look at it this way – this will not be an issue when Paxton appeals his conviction. Getting it right the first time has its merits. Trail Blazers, which has a copy of the lawsuit, has more.

(By the way, it’s not clear to me if this is the same “Dave Feldman” as our past City Attorney, but I’m going to assume that it is. If nothing else, it’s simpler that way.)

More special prosecutors for Paxton

Uh, oh.

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Best mugshot ever

Two additional special prosecutors have been appointed to look into other allegations of criminal misconduct involving Attorney General Ken Paxton, News 8 has learned.

The two Fort Worth attorneys – Miles Brissette and former state district Judge Bob Gill – were appointed Nov. 13 to investigate “criminal allegations” involving Paxton and others, according to filings obtained by News 8. The filings do not state who the “others” are.

News 8 has learned that the two men are looking into a 2004 land deal involving Paxton and other investors including Collin County District Attorney Greg Willis. That land would later become the site of the Collin Central Appraisal District.

[…]

Brissette and Gill were appointed by Tarrant County Judge George Gallagher, who was appointed to oversee the criminal cases already pending against Paxton.

The appointment of Brissette and Gill came after Ty Clevenger, a Collin County lawyer and blogger, raised questions about the land deal involving the site where the appraisal district was later built.

“The value of the property increased dramatically,” he told News 8 this past summer. “It appears there was some kind of insider information.”

Clevenger has previously sent letters to a Collin County grand jury asking that they investigate the land deal. He’s also alleged that Willis stymied the investigation of Paxton, his one-time friend and business associate.

See here for some background. Clevenger, who has been beating this drum for some time now, was calling for another special prosecutor to investigate this back in October; he has quite a bit more detail on what this is all about, if you want to take a deeper dive. For now, both Team Paxton and Collin County DA Willis are saying what you’d expect, that this is all routine, they’ve been fully cooperating, yadda yadda yadda. These things take time to develop, and it’s entirely possible that nothing will come of it. Still, this can’t be a good feeling for either of those gentlemen today.

Also, too:

Paxton is currently under indictment for two first-degree counts of securities fraud and count of failing to register as an investment advisor. He has denied any wrongdoing. Two other special prosecutors – Brian Wice and Kent Schaffer – are heading up that investigation.

Wice, Shaffer and a third special prosecutor are being $300 an hour. They have already turned in legal bills in excess of $250,000, with more to come.

Collin County Judge Keith Self has accused Wice and Schaffer of fleecing the county. He has called on them to resign.

However, with the appointment of Brissette and Gill, it means that the legal bills facing Collin County will continue to mount.

Suck it, Collin County Commissioners Court. The Trib, PDiddie, and Trail Blazers have more.

UPDATE: The Lone Star Project and the Chron have more.

Collin County agrees to pay Paxton prosecutors

Grudgingly. For now.

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Best mugshot ever

The special prosecutors handling the criminal case against Texas Attorney General Ken Paxton will be paid for their work so far at the rate they were promised.

Commissioners voted 3-2 on Monday to pay the more than $254,000 in legal fees and expenses that have accumulated since April.

[…]

“We have very little discretion over the orders by the judiciary,” said County Judge Keith Self, who questioned the need for “gold-plated justice.”

The fees have come under scrutiny because they far exceed the $100,000 that the county budgeted for the case. They also exceed the amounts set out in Collin County’s rules, which call for a flat $1,000 fee plus $1,000 a day during trial for lawyers appointed in first-degree felony cases. The county’s rules also state that appointed attorneys will be paid only after the case has concluded.

In his orders for payment, Gallagher cited a section in the county’s rules that allows for variances “in unusual circumstances or where the fee would be manifestly inappropriate because of circumstances beyond the control of the appointed counsel.”

Self called for the special prosecutors to resign from the case so that a regional district attorney’s office be appointed to take over with guidance from a local investigator who works on securities law.

The move, he said, would substantially lower the costs without jeopardizing justice.

See here, here, and here for the background. Handing this case off to some county DA’s office might not jeopardize justice, but it sure would delay it, as it would take whatever poor attorneys that got saddled with this colossus months just to read through all the documents that have been generated so far. Maybe that wouldn’t seem so just to the guy who’s trying to clear his name, I don’t know. Anyway, if the good people of Collin County don’t like this arrangement, they should petition their legislators to come up with a better solution. But let’s be honest, Collin County is just complaining about the cost, and I’m afraid I have no sympathy for them. The good news for them is that the lawsuit to limit the prosecutors’ fees is still ongoing, and may wind up capping them from this point forward. But until then, pay up, y’all.

Paxton motion to cap prosecutors’ fees rejected

Sorry, Kenny.

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Best mugshot ever

A state district judge Wednesday rejected Attorney General Ken Paxton’s attempt to drastically cut legal fees for prosecutors in the criminal case against him.

District Judge George Gallagher issued two orders overruling Paxton’s objections to the prosecutors’ fees and ordering Collin County to honor an agreement to pay $300 an hour to Kent Schaffer and Brian Wice, Houston defense lawyers who were appointed as prosecutors in Paxton’s case after Collin County District Attorney Greg Willis — a friend and former business partner of Paxton — stepped aside in April.

Paxton’s lawyers had filed a late-December motion arguing that state law and Collin County rules limited payments for appointed lawyers, including prosecutors, to $1,000 each for pretrial work and $1,000 per day of trial.

According to Paxton’s filing, state District Judge Scott Becker agreed that Collin County would pay Schaffer and Wice $300 an hour. Becker later stepped aside, and the case was transferred to Gallagher.

“Judge Gallagher’s order does no more than honor the agreement we entered into with Collin County regarding the rate of compensation for our work as special prosecutors,” Wice said Wednesday.

I must have missed the filing of this motion, since I don’t appear to have anything on it in my archives. It’s not the same as the lawsuit that was filed to limit the prosecutors’ fees, which could take some time to be fully resolved. I’m hard-pressed to think of a non-petty reason for Team Paxton to do this – I mean sure, it might have made the prosecution do less, which certainly has strategic value for the defense, but come on. The only reason this is an issue at all is because there were no non-Paxton crony options for handling this case in Collin County. Whose fault is that? The Chron has more.