In a ruling that keeps alive, at least for now, the criminal prosecution against Texas Attorney General Ken Paxton, the state’s highest criminal court announced Wednesday that it will determine whether the prosecutors in the case can be paid $300 an hour for their work.
Unpaid since January 2016, the three prosecutors have said they will step aside if denied the payments, potentially putting at risk the case against Paxton, who is accused of securities fraud and failing to register with state regulators in private business deals in 2011 and 2012.
Wednesday’s decision, announced without comment, means the Court of Criminal Appeals will review an August opinion by the Dallas-based 5th Court of Appeals, which said state law and local rules limit payments to a pre-established amount for appointed defense lawyers or prosecutors.
In Paxton’s case, pay would be limited to $1,000 per prosecutor for pretrial work, instead of $300 an hour as negotiated with a Collin County state District Court judge who appointed them.
The 5th Court’s ruling voided an invoice for $205,191 for work done in 2016 by the three prosecutors. A bill for 2017 work has not been submitted.
The ruling did not affect $242,025 that Collin County paid for work done in 2015, although county commissioners have said they might take legal action to force prosecutors to repay most of that money.
Prosecutor Brian Wice said he and other prosecutors were gratified that the court accepted a case that will have an impact on “trial judges, prosecutors and defense attorneys across Texas.”
“We remain convinced the court will reaffirm the fundamental principle that fair trials with reliable results are impossible unless trial judges have the inherent discretion … to fairly and adequately compensate defense attorneys and special prosecutors willing to take on the most complex and high-profile criminal cases,” Wice said in a written statement.
Collin County commissioners had challenged the fees as excessive, and County Judge Keith Self said he was consulting with lawyers on the implications of Wednesday’s court action.
“We continue to be concerned about the cost of the case, and we will continue to pursue some sort of relief from payments that don’t seem to meet state law,” Self said.
The nine-judge, all-Republican Court of Criminal Appeals will not hear oral arguments or accept additional briefs in the case before issuing its ruling. The court does not have a deadline to act.
Paxton’s trial on the failure to register charge, previously set for Dec. 11, was postponed in October, and a new date has not been set.
The criminal case against Paxton, who was indicted by a Collin County grand jury in the summer of 2015, has long been mired in a side issue over payments to prosecutors Kent Schaffer, Nicole DeBorde and Wice.
The three Houston lawyers were appointed to serve as special prosecutors after Collin County District Attorney Greg Willis, a friend and former business partner of Paxton’s, stepped aside from an investigation into Paxton’s business deals in April 2015.
Paxton’s lawyers tried unsuccessfully to drastically cut the $300-an-hour fees during pretrial motions. Also, several unsuccessful lawsuits to cut the prosecutors’ pay were filed by a North Texas developer who has donated to Paxton’s campaigns.
But a complaint by the Commissioners Court in Collin County, where Paxton lives and which he represented during 10 years in the Texas House and two years as a state senator, finally broke through in August when the 5th Court of Appeals stepped in.
Paxton’s prosecutors had argued that Collin County’s indigent defense plan properly divided criminal matters into two categories — ordinary cases that fell under the normal attorney fee schedule and extraordinary cases that allowed judges to set special compensation rates.
The 5th Court of Appeals, however, ruled that the Texas Fair Defense Act does not give judges the power to exceed fee schedules, even for extraordinary cases.
The law created fee schedules to ensure that appointed lawyers and prosecutors are paid fair, but not excessive, rates while allowing county commissioners to more accurately plan for budget needs, the court said.
A state law passed in 2015 also bars judges from appointing special prosecutors in cases involving public officials after a district attorney steps aside.
The bill’s author, Rep. Phil King, R-Weatherford, said the change was made to save money and add accountability.
“Special prosecutors are so incredibly expensive, and these investigations often go on for very long periods of time,” King said Wednesday. “A DA, selected by the people to prosecute crimes, has a great deal of ethical responsibility to the public … that comes with a great deal of accountability.”
Although the law does not apply to Paxton’s case because it involves allegations that occurred before the statute took effect, King said the change applies to future cases, limiting the potential impact of a court decision in Paxton’s case.
The state’s leading criminal defense organization, however, warned the Court of Criminal Appeals that more is at stake than pay for prosecutors.
The Texas Fair Defense Act also applies to appointed defense lawyers, and any ruling limiting the law could endanger the system for ensuring that indigent defendants are represented by competent lawyers, particularly in difficult cases, the Texas Criminal Defense Lawyers Association told the court in a brief.
And, although the association asked to withdraw the brief, saying it was submitted without procedures being followed, the court never acted on that motion and instead told lawyers last week to submit written copies to distribute to the judges.
Paxton is unopposed in the March Republican primary as he seeks a second term to lead a large agency that defends the state in legal cases, ensures child-support obligations are met and enforces consumer-protection and open-government laws, among other responsibilities.
Democrat Justin Nelson, an Austin lawyer, will oppose Paxton in the November 2018 general election.