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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.

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.

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.

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.

Rep. Sam Johnson to retire

One of Texas’ longest-serving members of Congress will call it quits next year.

Rep. Sam Johnson

U.S. Rep. Sam Johnson announced Friday morning that he will not seek re-election to represent his Plano-based seat in Congress.

Johnson, a Vietnam War veteran, made the announcement over email Friday.

“After much prayer, I have decided I will not seek re-election to serve the Third District of Texas in the U.S. House of Representatives in 2018,” he wrote. “This will be my final term in the appropriately named ‘People’s House.'”

[…]

His 3rd District is strongly Republican, and the GOP primary will most likely determine who will replace him in Congress. Names floated as possible contenders include state Sen. Van Taylor, a Plano Republican, and Collin County Judge Keith Self.

Johnson has been in Congress since 1991, though offhand I can’t think of much that he has done. He did serve in the Korean War as well as the Vietnam War, and was a prisoner of war in Hanoi for seven years, so to say the least he has a compelling personal story. I wish him all the best in his future retirement.

As it happens, the Daily Kos database of Presidential results by Congressional district now includes Texas CDs. Here’s a look at the numbers in CD03:

2012 – Romney 64.3%, Obama 34.2%
2016 – Trump 54.8%, Clinton 40.6%

The data only includes percentages and not vote totals, so it’s hard to say how much of that difference can be accounted for by crossover votes. The data on the Texas Redistricting webpage likely won’t be updated to include 2016 numbers for a few more weeks, so I won’t be able to do any comparisons till then. I did apply the 2016 percentages to the actual result in CD03 to get an estimate:

2012 – Romney 175,383, Obama 93,290
2016 – Trump 173,424, Clinton 128,486 (estimated)
2016 – Johnson 193,684, Bell 109,420

Like I said, I’ll know more once I see the full 2016 data. The 2012 data is here. The Presidential numbers make it look like maybe there could be something competitive under the right circumstances, while the numbers from Johnson’s own race do not. Of course, Dems would have to find a candidate first, and given that they don’t hold any state or county offices in Collin County, that limits their options. Maybe a City Council member from Plano or something like that might be willing to give it a go? I’m just spitballing here. At least we have plenty of time to locate someone. The DMN has more.

Collin County Commissioners Court are a bunch of jerks

Unbelievable.

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Best mugshot ever

In an attempt to lay the legal groundwork to quit funding Texas Attorney General Ken Paxton’s prosecution, Collin County is refusing to pay a longtime local attorney for his work defending indigent clients.

On Monday, the Commissioners Court voted 3-2 to block payment to J. Matthew Goeller, a McKinney defense attorney who has provided legal services to the county for more than 20 years. The county owes him $4,831.25 for defending a poor client who was accused of sexually abusing a minor.

The commissioners aren’t refusing to pay Goeller because he didn’t do his job. They’re doing so because they hope to set the stage to refuse future payments to the three lawyers prosecuting Paxton’s felony fraud case.

The decision means Collin County taxpayers could spend tens of thousands of dollars to fight paying a man who did nothing wrong, and whose job is unrelated to the attorney general or his legal troubles, in the hopes of cutting off funding for Paxton’s prosecution.

County Judge Keith Self, who voted to block Goeller’s pay, said this is the only way to respond to taxpayers who have called on officials to appeal the cost of the Paxton prosecution, which tops six figures.

“This looks like it’s going to be one of those ironic things that we may pay more per hour for an appellate lawyer than we did for the special prosecutors,” Self told The Dallas Morning News after Monday’s vote. “Our citizens are demanding that we come to grips with [this].”

See here for the background on this. Later in the story we learn that the attorney who is being stiffed was recently in a car crash that had an effect on his memory, and he is trying to rebuild his practice. I don’t know hw the three commissioners that voted to stiff him can sleep at night, but the real prize here is Paxton himself, on whose behalf this atrocity is being committed. Seems to me that the decent Christian thing to do would be for him to ask them to give up this fight, and he’ll work with them to craft a bill that would change how special prosecutors are assigned and paid so that counties aren’t faced with this going forward. But no, it’s all about Ken Paxton, and who cares who gets hurt along the way? What a despicable bunch.

UPDATE: Apparently, public pressure got to the Court, and they have reversed their decision to stiff Goeller. They’ll try to find another case to pursue their battle against the special prosecutors.

Collin County won’t fight its special prosecutor bill

For now, anyway.

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Best mugshot ever

The Collin County Commissioners Court on Monday voted to take “a careful review” of the cost of prosecuting Attorney General Ken Paxton, while appealing to residents to set aside emotions and avoid attacking the court’s future decisions.

“Regardless of how any vote comes down today, or future votes come down, one thing I’m confident of is the integrity of my colleagues on this court,” Commissioner Chris Hill said just before the unanimous vote was taken. “There is a very important and fine line that must be drawn between the politics of this case and the justice of this case.”

[…]

Ahead of Monday’s meeting, Paxton’s supporters called on the five members of the commissioners court either to refuse to pay future bills or immediately appeal the Tarrant County judge’s order.

The court took neither step Monday. They instead unanimously passed a resolution (see below) that keeps open their options until the prosecutors submit their next bill.

“Resolved: The Collin County Commissioners Court is committed to taking a careful review of future fee awards and is committed to taking the necessary steps to protect our opportunity to seek appellate review of an order exceeding the local rules to implement the Texas Fair Defense Act, which may include a formal request to stay any such successive order and filing a writ of mandamus in a court of appeals.”

Hill has been outspoken in his opposition to the prosecutors’ hourly rate. In past votes, he and Commissioner Susan Fletcher have voted against paying the fees associated with Paxton’s case, but they have been outnumbered each time.

On Monday, Fletcher appealed to the civility of her constituents, saying, “There are times when legislative bodies have differences of opinion, and this is one of them.”

County Judge Keith Self, who leads the court, urged the commissioners to keep in mind their duty to follow the rule of law.

“We do have a case here that has mixed politics and law. There’s no doubt about it,” Self said. “We have to be very careful as a commissioners court not to be seen to, or even attempting to, place our thumb on the scales of justice in this case.”

Good to know that all that legislative meddling hasn’t worked. Yet. This is one of those times when the state should step in and take autonomy away from the counties. I understand why Collin County doesn’t want to get saddled with this expense, but it’s just too damn bad.

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.

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.

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.

Still working out Paxton prosecution costs

Collin County is still hoping to do this on the cheap.

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Collin County officials expect to budget $100,000 to prosecute Attorney General Ken Paxton, but hope to eventually slash that amount by two-thirds.

The county Commissioners Court on Monday evening is expected to discuss how much it will cost to pay the three special prosecutors appointed to try Paxton, who was indicted in July on three felony charges of violating state securities laws.

Judge Keith Self, who sits on the five-member court, said he expects the panel to approve an allocation of $100,000 for the prosecution, but he hopes that amount will be cut to $33,000 once the county begins receiving invoices from the prosecutors.

Last week, the commissioners court unanimously passed a resolution urging Judge George Gallagher, the Tarrant County jurist presiding over Paxton’s case, to cap prosecution costs at the lower figure, citing Collin County’s rules surrounding indigent defense.

On Monday, Self told the Chronicle that Gallagher had responded to the request by noting he could not predict the total final cost of the prosecution.

“He wrote me a very cordial note back and said that he was unable to estimate expenses and time of the trial. So, he was unable to shed any light on the expenses,” said Self, who said while $100,000 will be budgeted, he thinks spending that amount would violate the county’s rules regarding a prosecution of this kind.

“We read the law as being very clear,” said Self. “We’re trying to be cautious with our budgeting.”

[…]

Texas law states that an attorney pro tem who not a state attorney like Willis “shall receive compensation in the same amount and manner as an attorney appointed to represent an indigent person.”

Each county sets its indigent defense fee schedule. Some counties, like Harris and Travis, have no caps but require fees to be “reasonable.” Collin County’s, in contrast, places specific dollar restrictions on indigent defense.

See here for the background. The problem here is in those last two paragraphs. Collin County doesn’t allocate enough money for indigent defense, which in this case leaves them in the lurch for the special prosecutor they had to get since Ken Paxton is everyone’s buddy. One of those buddies is threatening to sue if they wind up spending any more than that $33K. The special prosecutors could take one for the team and agree to work for pittance wages, but they shouldn’t have to, and the judge shouldn’t feel any compunction to let them or to make them. Let this play out as it will, and if Collin County winds up holding the bag, maybe they’ll reconsider their penurious ways with indigent defense. I’m sure they can afford it. Trail Blazers has more.

How much would you pay to prosecute Ken Paxton?

Whatever your answer, Collin County Commissioners Court wants to pay less.

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Collin County officials want to cap the cost of prosecuting Attorney General Ken Paxton at a fraction of the previously discussed price tag of $285,000, and are questioning whether taxpayer funds can be used to pay for the trial.

The Collin County Commissioners Court on Tuesday passed a resolution urging the presiding judge in the Paxton case to cap the maximum trial cost at $33,000, said County Judge Keith Self, a political ally and donor of Paxton’s.

He said the court believes the amount is appropriate, and that it conforms to Collin County’s local mechanism for funding indigent defense.

Adam Gershowitz, a professor at the College of William & Mary Law Schoolin Virginia, who formerly taught at the University of Houston Law Center, said the cap could prevent prosecutors from having the resources necessary to present a solid case.

“I would call that absurdly low,” said Gershowitz, who has written about the underfunded nature of prosecutors’ offices.

The resolution is non-binding. Presiding Judge George Gallagher of Tarrant County retains the authority to adopt a budget for the case.

[…]

Gershowitz said there is no way to estimate exactly what the prosecution should cost. However, at a base cost of $100 an hour, $33,000 would pay for just 330 hours of work, not counting paralegal fees, hiring expert witnesses and other costs, he said.

“These three people are not going to show up and handle a complicated documents case all by themselves,” he said. “These are all clearly unrealistic expectations.”

Self also said the commissioners court received a letter from a Collin County citizen urging them to investigate whether taxpayer funds could be used to pay for the prosecution. Self declined to identify who signed the letter.

“We’re still researching that,” Self said of the request that the commissioners court look into the use of taxpayer money.

As the story notes, there was a third prosecutor added to the case recently. The judge in the case is not bound by any of this, and I kind of doubt he’ll accept their offer. I suppose what this means is that there’s going to be some wrangling about the bill once there’s a verdict. Given the certainty of an appeal if Paxton gets convicted, this could play out even longer than the case against him ultimately will.

UPDATE: The Morning News fills in a few details.

Under Collin County’s rules, each of the three attorneys would be paid $1,000. The commissioners have estimated that a two-week trial at $1,000 per day per attorney adds another $30,000 to the county’s costs. That’s where the $33,000 estimate comes from.

But Gallagher works out of Tarrant County, which has a different fee schedule. That county’s plan calls for $50 to $150 per hour on a felony case plus up to $300 per court appearance and up to $1,500 per day at trial.

Under those fees, Collin County commissioners estimate the cost to be upward of $117,000. But they believe their rules, not Tarrant County’s rules, should apply.

“There’s a wide discrepancy between $33,000 and $2 million,” Collin County commissioner Chris Hill said.

But he noted that the county needs to remain impartial and treat this like any other case. “Justice should be blind to the defendant,” Hill said.

[…]

[District Judge Scott] Becker could have appointed another district attorney’s office to handle the case after Collin County District Attorney Greg Willis recused himself. Under the law, the costs for prosecution would have been absorbed by the office of that district attorney. Budgeting costs in the Paxton case became an issue because Becker appointed private attorneys.

Collin County’s fee schedule includes a discretionary adjustment of up to $1,000 more per case. Its guidelines also allow payments to vary from the fee schedule “in unusual circumstances or where the fee would be manifestly inappropriate because of circumstances beyond the control of the appointed counsel.”

Graves said a single public prosecutor could absorb the case into the existing workload at even less cost than the $33,000 estimated for the three attorneys. And he doesn’t believe the case calls for fees beyond what the county allows.

“The only thing arguably unusual in this case is the defendant, but that’s not a legitimate reason to add resources,” he said.

Defense attorney Mitch Nolte said the issue highlights just how woefully little lawyers get paid in Collin County when appointed to felony cases.

“Flat fees are inherently unfair,” said Nolte, noting that the $1,000 doesn’t begin to cover an attorney’s time, let alone all the expenses incurred in a criminal case.

I dunno, maybe letting Travis County handle all this stuff isn’t such a bad idea after all.