Austin American-Statesman

Court to weigh pay appeal from Paxton prosecutor­s

- By Chuck Lindell clindell@statesman.com

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.

InPaxton’scase, 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.

T he ru li n g 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 GOP 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.

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