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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.

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.

Collin County wants its pay back

Of course they do.

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

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

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

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

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

Paxton prosecutors to petition CCA

Last chance to get paid.

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

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

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

[…]

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

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

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

5th Court of Appeals screws Paxton prosecutors

Ugh.

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

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

[…]

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

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

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

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

First Paxton trial hearing in Harris County

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

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

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

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

[…]

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

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

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

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

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

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

I’ll bet they would.

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

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

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

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

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

[…]

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

Do your job, y’all.

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

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

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

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

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

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

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

Collin County punts prosecutor pay question back to appeals court

Incoming!

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

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

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

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

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

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

Appeals court chooses not to decide in Paxton prosecutor pay case

This is oddly fitting.

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

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

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

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

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

Appeals court hears Paxton prosecutors pay arguments

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

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

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

[…]

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

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

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

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

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

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.

Paxton prosecutor pay suspended

Whiplash!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appeals court tosses Paxton prosecutor payment lawsuit again

Round and round we go.

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

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

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

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

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

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

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

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

Paxton prosecutor payment lawsuit tossed again

And again I say, good.

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Best mugshot ever

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

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

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

[…]

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

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

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

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

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

Paxton prosecutor payment lawsuit tossed

Good.

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Best mugshot ever

A Collin County court Thursday tossed out an attempt to stop payments to the special prosecutors appointed to pursue the financial fraud case against Texas Attorney General Ken Paxton.

Filed by prominent real estate developer and Paxton donor Jeff Blackard, the lawsuit argued that Collin County was paying too much to the attorneys prosecuting Paxton, violating local rules for such fees.

In an order issued Thursday signed by Judge Mark Greenberg, the court states that Blackard lacked jurisdiction to file his complaint.

[…]

Blackard, who filed the lawsuit on behalf of himself and “similarly situated taxpayers,” lives in Hopkins County but pays taxes for two parcels of property in Collin County, along with local sales taxes.

See here for the background. This was the result I was rooting for, though I wish it had been on the merits and not on jurisdictional grounds. I presume some actual Collin County resident can be located to act as plaintiff and take another crack at it, so I hesitate to say that this is over. But for now at least, there’s one less distraction. Trail Blazers, which has a copy of the judge’s order, has more.

UPDAT: The Chron story indicates that Blackard plans to appeal. No surprise there, I guess.

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.

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.

Another attack on the Paxton prosecution

If at first you don’t succeed

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Best mugshot ever

A prominent real estate developer has filed a lawsuit seeking to stop payments to the private attorneys appointed to prosecute Attorney General Ken Paxton — the latest twist in the Republican’s securities fraud case.

Jeff Blackard, a Paxton donor, filed the lawsuit in Collin County District Court, arguing that the county was paying too much to the attorneys prosecuting Paxton, violating local rules for such payments.

“This lawsuit seeks to halt a threatened expenditure of public funds that would unlawfully serve to enrich private attorneys at the expense of taxpayers in Collin County, Texas,” says the complaint, filed on behalf of Blackard and “similarly situated taxpayers.”

Blackard says he lives in Hopkins County but pays taxes for two parcels of property in Collin County, along with local sales taxes.

The lawsuit names as defendants District Judge George Gallagher — who is presiding over Paxton’s case — as well as Collin County Judge Keith Self, County Auditor Jeff May and three county commissioners.

Blackard argues that promised payments of $300 per hour to the special prosecutors “would constitute an illegal expenditure of taxpayer funds” because they would eclipse fees typically paid to attorneys appointed to represent poor defendants.

See here and here for some background. Personally, I think this is bush league. This is a big case, it’s going to require that the prosecutors involved spend a lot of time on it, and they should be compensated fairly. I really don’t see what’s so controversial about that. The law may see it differently, however. I’m not at all clear on what that is, but I know what it ought to be. We’ll see if this suit has any merit. I won’t be surprised if this litigation has a life span as long as the Paxton case itself does.