The private attorneys who have been prosecuting Attorney General Ken Paxton are filing a petition with the statewide Court of Criminal Appeals hoping to collect on a $205,000 invoice that another appeals court had invalidated.
To win, they’ll have to convince the high court that the appeals court committed “a clear abuse of discretion” in finding the trial court did the same. In plain language, it’s a longshot.
Attorneys Kent Schaffer, Brian Wice, and Nicole DeBorde were appointed by a trial court in 2015 to prosecute Paxton on securities fraud charges after the Collin County district attorney recused himself from the case.
But last month, the Fifth Court of Appeals in Dallas ruled that their $300-an-hour handshake deal, which led to billings of $575,000, was illegal. They should have gotten a $3,000 flat rate according to local court rules and state law, the court ruled.
State law requires that court-appointed prosecutors “receive compensation in the same amount and manner as an attorney appointed to represent an indigent person.” Therefore, the Fifth Court concluded, District Judge George Gallagher had no legal authority to agree to special terms of compensation for the Paxton case.
Gallagher had cited an exception to the rules contained in the local rules for “unusual circumstances,” but the appeals court ruled the loophole itself invalid.
“The statute does not prevent the judges from taking into consideration the possibility of ‘unusual circumstances’ in setting the range of reasonable fees allowed. But the legislature intended each county to have an agreed framework that sets out the specific range of reasonable fees that could be paid,” the court ruled. “By requiring the judges to set both minimum and maximum hourly rates, it is clear the legislature was concerned not only with attorneys receiving a fair rate of payment, but also with counties not being forced to pay excessive fees.”
That ruling came in response to a petition for mandamus, which is distinct from the usual course of appeals.
Courts only issue writs of mandamus to order government officials to fulfill their lawful duties or to correct an abuse of discretion.
In other words, it’s not for the gray areas. It’s for black-and-white matters, which is why they can affect a judge’s reputation for impartiality.
This was the second mandamus ruling against Gallagher in the Paxton case. The challenge facing Schaffer, Wice, and DeBorde is to convince the Court of Criminal Appeals that these matters are indeed quite black-and-white, but that it was the Fifth Court of Appeals making the obvious mistakes.
“Left unchecked, the court of appeals’ decision divesting trial judges of the discretion to control their dockets will have a chilling effect on their ability to appoint competent advocates willing to take on the most complex criminal cases,” Wice wrote in a 62-page petition.
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.
Wice also tries to flip the appeals court’s clarity on its head, arguing that the brief appellate opinion lacked any “meaningful statutory interpretation.”
Among other grounds, Wice argues that the court’s decision to close the “unusual circumstances” loophole led to “absurd results the Legislature could not have intended,” namely, not paying them.
The next step is for the Court of Criminal Appeals to decide if it will entertain the prosecutors’ arguments. The petition hadn’t been assigned a file number as of Tuesday evening, but an unmarked advance copy that prosecutors sent to friendly reporters was available online.
Wice’s argument could still apply in non-public corruption cases, however.
Although the special prosecutors and the other attorneys have been paid some $370,000 already, that amount could be at risk, as the Collin County commissioners have voted to file legal action to force repayment.
Paxton’s trial is set to start Dec. 11.