A Collin County Commissioner on Tuesday said that she and her fellow commissioners should consider legal action against Judge George Gallagher, citing his edicts that county taxpayers bankroll the paychecks for the special prosecutors pursuing Attorney General Ken Paxton.
Commissioner Susan Fletcher’s statements come the day after the 5th Court of Appeals issued an opinion voiding an order for a $205,000 payment to the three Houston-area lawyers serving as the Paxton prosecution team.
The decision renders the lawyers’ pay illegal and puts a spotlight on Gallagher’s two previous orders directed to the commissioners, declaring his payday decisions “enforceable by all sanctions available to the Court,” which the commissioners understood as threats of jail time.
Having local taxpayers foot the $300 per hour pay for the prosecuting attorneys has been controversial in Collin County — Paxton’s home county that he represented as both state representative and senator — where commissioners have long debated not paying the bill, which now is near $600,000.
Indeed, Fletcher also raised the idea of clawing back the $370,000 county taxpayers have already paid the prosecutors and their lawyers based on the judge’s previous orders.
In addition to this “disgorgement” floated by Fletcher, she specifically said in an emailed statement that the commissioners ought to consider challenging Gallagher’s “qualified immunity” from legal action, “questioning Judge Gallagher’s (and possibly others’) actions and orders to pay bills, which were clearly outside of his (their) official capacity, according to this ruling.”
The last time defense attorneys Brian Wice, Kent Schaffer, and Nicole DeBorde were paid for their special prosecutor work was in January 2016 after they submitted an invoice at the $300 rate and it was approved by Collin County Commissioners.
The subsequent bill by the special prosecutors has gone unpaid.
And the Monday appeals court ruling appears to slam the door on the attorneys charging $300 an hour going forward.
“The law at issue in this case plainly prescribes that all payments made to appointed attorneys in criminal cases be ‘paid in accordance with a schedule of fees’ that includes fixed rates or minimum and maximum hourly rates,” the court ruled. “Judge Gallagher had no authority to order payment of fees in violation of” that law.
Gallagher was removed as presiding judge in the case after he transferred it to Harris County.
Gallagher had cited local rules allowing exceptions to the fee schedule in “unusual circumstances,” without ever explaining what he found unusual about the Paxton case, but the appeals court invalidated the local rule.
“The statute does not prevent the judges from taking into consideration the possibility of ‘unusual circumstances’ in setting the range of reasonable fees allowed,” the court held. “But the legislature intended each county to have an agreed framework that sets out the specific range of reasonable fees that could be paid.”
In the opinion, the court recognized the courts have the responsibility of appointing qualified attorneys, but acknowledged “attorneys appointed will likely be paid a fee much less than a retained attorney would command.”
Attorney David Feldman, who was appointed by Gallagher to represent the other court-appointed attorneys, has said that he will appeal the ruling. Feldman’s own $300-an-hour deal is also threatened by the court’s holding.
The Collin County Commissioners Court meets next on Monday.
Jury selection in the first of the Paxton trials is scheduled for Dec. 1 with the trial start date scheduled for Dec. 11.