Off the Kuff Rotating Header Image

special prosecutor

No Paxton trial till prosecutor pay case resolved

It’s not on the court calendar at this time.

Best mugshot ever

Attorney General Ken Paxton’s fraud trials have been put on hold as the lawyers pursuing the criminal charges against him fight for years of back pay.

Judge Robert Johnson has taken Paxton’s three criminal cases off his docket for now, the court confirmed to The Dallas Morning News on Friday. While court staff did not have a reason for the removal, the three attorneys prosecuting Paxton have repeatedly asked for the cases to be halted while they fight to have their pay resumed.

The delay will almost certainly push Paxton’s trials into general election season, when he will be seeking another term as the state’s top lawyer. In July, Paxton’s indictments will turn three years old.

[…]

“The (Paxton) case is kind of waiting to go to trial based on [the CCA’s] decision,” said Larry Meyers, a Democrat who lost his seat on the criminal court last year. “About six weeks would probably be a fairly responsible time for them to get an opinion out.”

The Court of Criminal Appeals won’t take up the prosecutors’ case until January 10, so a decision could be issued just before voters go to the polls in the March 6 primary elections. If the court sides with the prosecutors, jury selection in Houston will likely proceed without much further delay. If it doesn’t, the prosecutors have threatened to step down, a move which will temporarily derail the case against Paxton as the county looks for replacement lawyers.

See here for the background. If the CCA rules for the prosecutors, figure on the trial beginning in late spring or early summer. If not, figure on something like the third of never. Let’s hope for the best.

CCA to review Paxton prosecutors pay case

Good.

Best mugshot ever

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

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

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

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

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

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

TCDLA pulls Paxton prosecutors brief

Get your act together, y’all.

Best mugshot ever

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

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

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

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

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

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

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

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

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

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

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

In support of the Paxton prosecutors

Good to see.

Best mugshot ever

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

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

[…]

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

Paxton trial delayed again

This will happen some day. I hope.

Best mugshot ever

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.

Best mugshot ever

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

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

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

[…]

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

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

Paxton prosecutors officially petition the CCA over their pay

Last chance.

Best mugshot ever

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

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

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

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

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

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

Collin County wants its pay back

Of course they do.

Best mugshot ever

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.

Best mugshot ever

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.

Best mugshot ever

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.

Paxton’s trial date set

Mark your calendars.

Best mugshot ever

Texas Attorney General Ken Paxton will face trial in December for the first of three criminal charges, a Houston judge ruled Thursday.

Jury selection will begin Dec. 1 and testimony will start on Dec. 11 for the single count of failing to register as an investment adviser with the state.

Paxton, who was indicted in 2015, also faces two first-degree felony charges of securities fraud.

The hearing Thursday was the second in the case for state District Judge Robert Johnson of the 177th Criminal Court, a freshman jurist assigned to oversee Paxton’s case after it was moved from the attorney general’s home of Collin County.

Paxton’s trial was originally scheduled for May, then moved to September. Both those dates were scrapped amid upheaval over where the trial should be held and whether the visiting judge would remain at the bench.

See here and here for the background. The start date for the trial also happens to be the filing deadline for 2018, so Republicans could be a bit out of luck if Paxton has no primary opponent. The issue of who is paying for the special prosecutors remains unresolved, though there may be a further hearing from Judge Johnson on the matter. For now at least, we have a trial date. The DMN and the Trib have more.

We should all have friends like these

It’s like they say: Friends help you move. Real friends help you move dead bodies. Really real friends help pay for your criminal defense.

Best mugshot ever

Texas Attorney General Ken Paxton, nearly two years into his fight against state securities fraud charges, is continuing to get plenty of help from his friends to cover his soaring legal bills.

The Republican accepted nearly $218,000 in 2016 earmarked for his legal defense from “family friends” and others who Paxton says are exempted from state bribery laws that bar elected officials from receiving gifts from parties subject to their authority, according to a newly-released financial disclosure statement.

Those donations are on top of more than $329,000 Paxton accepted for the same cause in 2015.

Steven and Carrie Parsons of Dallas made last year’s biggest contribution, $75,000. They have also donated thousands of dollars to Paxton’s political campaign.

Alfred and Janet Gleason of Green Valley, Ariz. made the second biggest legal fund donation in 2016: $50,000, according to the filing. Ray and Ann Huffines also gave Paxton $10,000. Ray’s brother is state Sen. Don Huffines, R-Dallas.

As attorney general, Paxton’s authority could extend broadly, so in his disclosure he cited an “independent relationship” exception that allows gifts from family members and those “independent” of an officeholder’s “official status.”

“All gifts for legal defense were conferred and accepted on account of a personal, professional, or business relationship independent of General Paxton’s official status,” Paxton’s disclosure form states.

In all, 15 people or couples chipped in for Paxton’s legal defense last year. And one entity called Annual Fund Inc. contributed $10,000. It funnels money to groups that make independent political expenditures — political action committees that can spend unlimited amounts of cash without disclosing where it came from. Annual Fund Inc, according to Bloomberg, primarily gives to a group called Citizens for the Republic, whose national chairman is conservative media personality Laura Ingraham.

Yeah, no possibility of conflict of interest in any of this. Move along, citizen, nothing to see here.

First Paxton trial hearing in Harris County

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

Best mugshot ever

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.

Best mugshot ever

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.

Paxton gets his new judge

From the Be Careful What You Wish For department:

Best mugshot ever

Texas Attorney General Ken Paxton has received a new judge in his securities fraud case.

Harris County District Judge Robert Johnson’s court has been randomly assigned to the case, according to Bill Murphy, a spokesman for the county district clerk.

Paxton’s lawyers had fought for months to get rid of the previous judge, George Gallagher, who had presided over the case since its early days in 2015. They were finally successful last week when the state’s highest criminal court declined to overturn an appeals court ruling backing their push for a new judge.

Last year, Johnson, a Democrat, narrowly unseated a Republican incumbent, Ryan Patrick, the son of Lt. Gov. Dan Patrick.

See here for the background. That sound you heard was karma committing a hit-and-run on Ken Paxton’s dogma. I mean look, I’ve been saying all along that the “win” Paxton scored in getting Judge Gallagher was in name only, since (unless one truly believed Judge Gallagher had been issuing or would be expected to issue rulings unfair to Paxton) one judge should be more or less like any other. As such, getting Judge Johnson should not mean anything to the prosecution or the defense either, at least pending any rulings he makes that may be fodder for a future appeal. However tasty the irony of all this is, it wasn’t really a “win” for Paxton when Gallagher got booted and it’s not really a “loss” with Johnson being selected. It’s just another judge, who will proceed to do what judges do. The Chron has more.

We have the Paxton case

By “we”, I mean Harris County.

Best mugshot ever

Attorney General Ken Paxton’s criminal case is officially moving to Harris County.

In an order signed Friday morning, Judge George Gallagher vacated several previous orders scheduling hearings in the case and directed the Collin County District Clerk’s Office to transfer the proceedings to the Harris County District Clerk.

Gallagher’s order effectively triggers the search for a new judge in the case, following up on a Texas Court of Criminal Appeals ruling this week that removed him as the judge who would presided over the embattled attorney general’s securities fraud and registration case. Special prosecutors asked the court to keep Gallagher.

The ruling marked a win for the first-term Republican attorney general who has been fighting to remove the judge from his case since Gallagher opted to move the trial out of Paxton’s home of Collin County in April.

See here, here, and here for the background. I always want to put the “win” here in quotes, since I believe it’s a victory in name only, with no practical effect. But I suppose it makes Paxton feel better, so we mustn’t discount that.

The DMN adds some technical details.

A new judge will be assigned by random. Harris County assigns judges for criminal cases using the “Automated Random Assignment System,” a kind of massive bingo cage containing 220 balls that spits out assignments.

On Thursday, Harris County District Courts Administrator Clay Bowman told The Dallas Morning News that Administrative Judge Robert Schaffer would be shepherding the assignment.

“Our local administrative judge is the person who will be handling, sort of shepherding, the assignment of the case,” said Bowman, who added Olen Underwood, the regional presiding judge for Harris and 34 other counties in southeast Texas, would likely also be involved.

There are nearly two dozen criminal district judges in Harris County who could be assigned the case. Nearly half are Democrats. These judges, who are locally elected, have received thousands of dollars in donations from all three prosecutors and two of Paxton’s top attorneys in the past.

This story also calls the ouster of Judge Gallagher as a “win” – specifically, a “major victory” – for Paxton. I wonder if that narrative will change if he draws a Democratic judge. Not that it should matter, of course – it shouldn’t matter in any event who the judge is, since they’re supposed to be all impartial and judicial and all. But whatever. The updated Chron story, which refers to Paxton being handed a “major win”, says that the judicial bingo process should occur “sometime very early [this] week”, so we’ll keep an eye on that. Mazel tov to whoever gets this one dropped in their lap.

CCA declines to get involved in Paxton judge dispute

That’s that, then.

Best mugshot ever

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

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

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

[…]

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

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

Paxton prosecutors appeal decision to boot judge

And on we go.

Best mugshot ever

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

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

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

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

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

5th Court rules Paxton judge overstepped

Yet another bizarre turn in this increasingly bizarre case.

Best mugshot ever

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

Do your job, y’all.

Best mugshot ever

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!

Best mugshot ever

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.

Special prosecutors named in Temple case

We’ll see how they proceed.

The Texas Attorney General’s Office has been tapped to prosecute the murder case against former Alief Coach David Temple in the 1999 death of his pregnant wife.

State District Judge Kelli Johnson appointed Lisa Tanner and Bill Turner, two lawyers with the AG’s office, as special prosecutors almost two weeks after Harris County District Attorney Kim Ogg withdrew from the case because of potential conflicts of interest with her office.

Both Temple’s attorney and a spokesman for the victim’s family praised the choice.

“We’re thrilled beyond thrilled to have these prosecutors appointed,” said victims’ advocate Andy Kahan. “We couldn’t have asked for a better choice.”

He said he hopes they put Temple back in prison for the slaying of Belinda Lucas Temple, who was 8 months pregnant with the couple’s second child when she was killed in their home.

“We’re confident that at the end of the day, they’ll see things the way we’ve seen things since 1999,” he said.

Temple’s defense attorney, Stanley Schneider, likewise praised the choice.

“Lisa Tanner has been trying cases around the state for probably 30 years,” said attorney Stanley Schneider. “She always shows up prepared.”

Tanner and Turner will first have to decide if they are going to retry Temple, who maintains his innocence.

See here for the background. The decision about whether to proceed at all or not is the first big choice Tanner and Turner will have to make. At some point one side or the other isn’t going to be happy with them anymore, but at least for now no one is complaining about not getting a fair shake.

Appeals court chooses not to decide in Paxton prosecutor pay case

This is oddly fitting.

Best mugshot ever

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.

Best mugshot ever

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

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

[…]

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

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

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

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

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

Appeals court to determine if Paxton gets a new judge

Hold everything.

Best mugshot ever

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

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

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

[…]

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

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

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

(more…)

Paxton tries again – and fails – to get a new judge

Never give up, never surrender, I guess.

Best mugshot ever

Attorney General Ken Paxton’s criminal defense lawyers filed a motion Wednesday arguing the judge assigned to oversee his securities fraud trial is ineligible to oversee the case because his appointment was temporary.

Legal experts say the argument appears dubious as Paxton’s legal team looks for ways to secure a new judge in a high-profile legal battle that could decide the political fate of the state’s most embattled Republican.

“Big firms fight for every inch,” said Edward Mallett, a Houston criminal defense lawyer. “I admire the lawyers for being scrappy.”

The motion argues that any rulings District Judge George Gallagher has made in the attorney general’s case since in 2017 should be “vacated and declared void,” including his decision to move the trial out of Paxton’s back yard of Collin County and into Harris County. The case should be reassigned to a new Collin County jurist who assumed office in January, according to the motion.

[…]

Paxton’s legal team filed the motion with Judge Mary Murphy, the presiding judge of the First Administrative Judicial Region, arguing she had assigned Gallagher to her region until Dec. 31, 2016, which should render rulings he’s made since then null and void.

She assigned Gallagher to hear cases in the region on July 29, 2015 to last “until the plenary power has expired or the undersigned Presiding Judge has terminated this assignment in writing, whichever occurs first.”

“Plenary power” refers to a court’s power to dispose of a matter before it, according to Black’s Law Dictionary. That means Gallagher likely has the power to stay with the case until the end, regardless when his time in the judicial region expires, said Mallett, past president of the national, state and county association of criminal defense lawyers. He said the filing’s lack of reference to case law likely reveals that Paxton’s legal team is looking for creative ways to remove the judge without past precedent to back up their arguments.

“This is Texas: issues not clearly controlled by precedent are influenced by politics. The law is art and science combined,” said Mallett.

See here, here, and here for the background. The Trib adds some details.

In their Wednesday filing, Paxton’s lawyers said Gallagher had “no authority” to make rulings in 2017 because his assignment to the case expired at midnight on Dec. 31, 2016. They base that claim on an assignment order that has not previously come to light in the case.

In addition to the order to change the venue, Gallagher’s rulings this year included denials of motions to dismiss and to delay until prosecutors can get paid. The judge declined to comment through a spokeswoman on the Wednesday filing.

Gallagher, who is from Tarrant County, has presided over the case since its early days in 2015, when Collin County’s Chris Oldner stepped aside due to his ties to Paxton. Oldner did not seek re-election in 2016, instead running for a seat on the Texas Court of Criminal Appeals, a race he lost. Oldner was succeeded by Andrea Thompson.

The case should now return to Thompson, Paxton’s team said in its Wednesday filing, which was addressed to Mary Murphy, the presiding judge of the First Administrative Judicial Region of Texas.

I Am Not A Lawyer, so I can’t tell you how good an argument this was, but I can tell you that it didn’t work.

On Thursday morning, Paxton’s attorneys were told their latest request that Judge George Gallagher be forced to step down could not be honored. Why? The court they asked does not have the authority to make this decision.

“The undersigned does not have that power,” Judge Mary Murphy, presiding judge in the First Administrative Judicial Region, wrote in an email. The decision, she said, lies with “the trial court and the appellate courts.”

My take on this is that the administrative judge Murphy says Paxton should be taking this up with judges Gallagher (who has already expressed his opinion) and Thompson in the 416th Court in Collin County, where this whole thing originated. Assuming Judge Thompson has no interest in taking this case back to her court, then the next step for Paxton would be to ask the appellate court, which could be the Fourth Court (which has jurisdiction over Collin County) or one of the First and 14th Courts, which rule for Harris County. I’ll bet a dollar we’ll see that happen in short order.

Special prosecutor to be appointed in David Temple case

Seems like the right call.

Kim Ogg

Harris County District Attorney Kim Ogg is asking for a special prosecutor to handle the murder case against former Alief Coach David Temple, adding new scrutiny to a decades-old case that continues to stir controversy.

Ogg filed court papers Friday to withdraw from the case because of potential conflicts of interest with her office and sought appointment of a special prosecutor.

The news left the family of Belinda Lucas Temple in grateful tears, holding out hope that Temple will once again stand trial for the 1999 killing.

“We recognize that we’re right back where we were in 1999,” victim’s advocate Andy Kahan said, standing next to Belinda’s brother, Brian Lucas, after a court hearing Friday. “But that’s the hand we’ve been dealt and, considering the circumstances and alternatives, we’re ready to move forward.”

[…]

“We’re withdrawing from the case and urge the court to appoint someone with no dog in the fight,” said David Mitcham, head of the DA’s trial division. “The tentacles of this case are just so extensive that we don’t want to create even the appearance of any impropriety.”

Ogg, who took office Jan. 1, said in court filings that two members of her office have possible conflicts. Former judge David Mendoza, who previously overruled Temple’s motion for a new trial, is now chief of Ogg’s Professional Integrity Bureau. And Steve Clappart, Ogg’s chief investigator, chased down leads on alternative suspects while working as an investigator for a previous district attorney. Clappart then stood with Temple’s lawyers as a private investigator in 2015 when they declared Temple was innocent.

Ogg reviewed the file for four months before deciding to seek a special prosecutor.

“Our duty is simply to do justice, not just to win,” Ogg said in a statement after the court hearing.

Temple’s defense attorney disagreed with the move, saying neither Mendoza nor Clappart were witnesses in the case.

“David is innocent and we look forward to our day in court,” attorney Stanley Schneider said.

State District Judge Kelli Johnson will appoint a special prosecutor, who will then decide whether to re-try Temple or dismiss the case.

See here and here for some background. This case is messy enough that having a fresh set of eyes on it, belonging to someone who has no connection to it or political ambitions that could be affected by it, is a good idea. I just hope that our Commissioners Court is less jerky about paying for the ad litem prosecutor than those jokers in Collin County have been. The Press has more.

Paxton still pushing for a new judge

Still, he persisted, I guess.

Best mugshot ever

Texas Attorney General Ken Paxton’s lawyers are not giving up in their bid to get a new judge in his securities fraud case.

Earlier this month, Judge George Gallagher ordered Paxton’s trial be moved to Harris County from Collin County, where Paxton lives, after prosecutors argued Paxton and his allies had tainted the jury pool there. Paxton’s team wrote Friday to Harris County District Clerk Chris Daniel requesting that he assign the case to a new judge. Paxton “has not and will not give” his permission for the current judge to follow the case to Harris County, Paxton’s lawyers wrote to Daniel.

The letter, which was filed in court Monday, is the latest development in a standoff between Paxton’s team and Gallagher, whose spokeswoman said last week he will remain on the case. The spokeswoman, Melody McDonald Lanier, also said Gallagher does not need to rule on a motion Paxton’s lawyers made earlier this month that amounted to their initial request for a new judge.

In the letter to Daniel, Paxton’s lawyers continued to cite a part of the Texas Code of Criminal Procedure that says a judge ordering a change of venue may only continue to preside over the case with the consent of both sides. Gallagher, who is from Tarrant County, has been presiding over the case since its early days in 2015.

See here and here for the background. I know that the District Clerk assigns district court judges in new cases, but this is a continuation of a previous case, and it’s one where the judge was assigned from another county after the original judge recused himself. Is there anything in existing law to suggest that the District Clerk has the authority to assign a new judge after the venue was changed to the Clerk’s county? I have no idea, and based on the prior reports, this is something no one has asked for before. I’m kind of wondering why Team Paxton hasn’t gone to the 1st or 14th Courts of Appeals with this request; maybe he wants to show that he exhausted all other avenues first. Whatever the case, I have to assume the question will eventually wind up there. And I have to wonder, is this all worth it? Do they really think they’ve been screwed by Judge Gallagher so far, and that the risk of making things really awkward in his court is worth the possibility of getting a different judge, one who may not have any more tolerance for his lawyers’ tactics? Again, I have no idea. But it sure is fun to watch. The Chron has more.

No new judge for Paxton

Denied!

Best mugshot ever

State District Judge George Gallagher will remain on the securities fraud case against Attorney General Ken Paxton, according to a spokeswoman for the judge.

It was originally believed Gallagher would have to rule on a request Paxton’s lawyers made this month for a new judge. But the spokeswoman, Melody McDonald Lanier, said Monday that he does not and will continue presiding over the case.

The request came shortly after Gallagher moved Paxton’s trial to Harris County. Prosecutors had successfully sought a venue change, arguing Paxton and his allies had tainted the jury pool in Collin County, where he lives.

Paxton’s lawyers believe Gallagher had been misled into changing the venue.

See here for the background. The reporting I have seen suggests this is something Paxton can appeal, but as this is basically unprecedented we’re all kind of muddling along and waiting to see what happens. So who knows? The DMN has more.

Paxton wants a new judge

He may not get his wish.

Best mugshot ever

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

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

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

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

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

[…]

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

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

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

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

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

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

[…]

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

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

Paxton’s trial date set for September 12

Mark your calendars.

Best mugshot ever

Attorney General Ken Paxton’s newly relocated criminal trial is scheduled to begin Sept. 12.

The judge in the case set the trial date Wednesday, a day after moving the proceedings to Harris County. The trial had originally been scheduled to start May 1 in Collin County.

The judge, George Gallagher, said in his scheduling order that the trial “will conclude no later than” Sept. 22. The order also said jury selection will begin Sept 11.

[…]

Paxton is now seeking a new judge in the case. Hours after Gallagher sent the trial to Harris County on Tuesday, Paxton’s lawyers told the judge they would not give their permission for him to follow the case to the new venue.

See here for the background, and here for more on Paxton’s attempt to get a new judge. I presume someone still needs to rule on that motion, and my guess is that first Judge Gallagher will have the opportunity to step down on his own, and if he chooses not to do so the administrative judge will rule on the motion. (You lawyers please feel free to correct me on this.) I don’t think that will take enough time to disrupt the proposed schedule, but if a new judge is installed I suppose it could. Finally, note that Paxton will only be tried on the lesser charge that he failed to register with the state securities board. If he is convicted, then prosecutors will proceed on the much more serious charges of securities fraud; if they fail, I presume they will cut their losses and go home. Between this and the Stockman trial, we’ve got quite the full calendar ahead of us. The Chron has more.

Paxton trial moved to Harris County

The circus is coming to town, with none of those morally questionable animal acts to get all angsty about.

Best mugshot ever

Attorney General Ken Paxton will face a jury in Harris County on felony criminal charges he committed securities fraud and failed to register with the state as an investment advisor, a district judge ruled Tuesday.

District Judge George Gallagher opted to relocate Paxton’s criminal trial across county lines last month after citing concern that political influences are strong in the attorney general’s home of Collin County where he originally was set to be tried.

“Harris County was selected because the lead counsel for the state and the defense are located there. Harris County also has the facilities to accommodate the trial,” Gallagher said in a statement.

Paxton’s lawyers have opposed the change of venue and say a recent poll shows possible jurists in Collin County are largely undecided about the case. However, attorneys on both sides agreed to allow the court to relocate the trial to a county not adjacent to Paxton’s home county, according to the ruling.

See here for the background. If you live in Harris County and receive a jury summons in the next few weeks, that may end up being a more exciting experience than you’d normally expect.

And with the change in venue, it appears there will be a change of judge as well.

Paxton’s attorneys filed a motion hours later asking that a new judge from Harris County be assigned to the case.

“By this motion, Paxton respectfully advises the Court that he will not be giving the statutorily-required written consent… to allow the Honorable George Gallagher or his court staff to continue to preside over the matter in Harris County,” the motion reads.

Needless to say, there’s no trial date set yet. The questions of who will preside over the case and in which courtroom will have to be settled first, and the new judge will have to get up to speed. I may have to reconsider my original expectation that there will be a verdict before next November. Anyway, time to stock up on popcorn and get ready for the show. You can see copies of the judge’s order and the Paxton motion here, and the Trib and the Dallas Observer have more.

More on the attack on the Paxton special prosecutors’ pay

From Texas Lawyer.

Best mugshot ever

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.

Best mugshot ever

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.