The Collin County Commissioners Court voted unanimously Monday to seek repayment of more than $370,000 it has spent on the prosecution of Attorney General Ken Paxton.
Now that an appeals court has ruled that visiting District Judge George Gallagher exceeded his authority in ordering the commissioners to pay a $205,000 invoice, the commissioners are asking the court to invalidate two prior payments to the special prosecutors and their counsel totaling about $370,000.
Since state law requires compensation to fit a preset schedule, the Fifth Court of Appeals in Dallas ruled that Gallagher had no authority to invoke unspecified special circumstances in order to exceed the $3,000 permitted for cases like Paxton’s.
“The law should apply equally to everyone, no matter who is being prosecuted or defended,” Commissioner Susan Fletcher said Monday.
The appellate court decision marks the second time in the case where a higher court has rapped the knuckles of Gallagher; the judge was also found to have exceeded his authority in trying to retain jurisdiction of the case after transferring it to Harris County.
Just before the commissioners’ regular meeting ended, Commissioner Chris Hill introduced a two-part motion, asking the appeals court to invalidate the first payment and directing counsel to begin proceedings to “disgorge” the $370,000.
The motion passed 5-0.
“A plain reading of the opinion… makes it very clear that these fees were unjust enrichment of the special prosecutors, and both (trial) judges relied on local rules that went beyond their statutory limits,” Fletcher said. “The local rules also clearly state that attorneys are not to be paid until the end of the trial, and I don’t see anywhere in the local rules that allows for more than one special prosecutor overall.”
Special prosecutors Kent Schaffer, Brian Wice, and Nicole DeBorde have said they will appeal the decision cutting off their pay to the Court of Criminal Appeals.
“It’s not over yet,” Schaffer said.
There has been some comment this week from both experts and bloggers that the appeals court’s decision would prevent courts from being able to afford qualified private attorneys to serve as special prosecutors in future cases.
However, special court-appointed prosecutors of the sort employed in the Paxton case are no longer permitted under state law. A law that took effect a few weeks after Paxton was indicted changed the procedure to follow when a district attorney recuses himself after the Texas Rangers refer a case.
“The prosecutor for an offense against public administration must represent another county within the same administrative judicial region,” the law now states.
That could create a peculiar situation if Judge Robert Johnson allows the special prosecutors to withdraw from the case because they’re not being paid. If he interprets the law as requiring replacement prosecutors from a district attorney’s office somewhere in north Texas, he will have an extraordinarily impractical trial on his hands.
That trial is scheduled for Dec. 11.