Are the lawyers prosecuting Attorney General Ken Paxton entitled to hundreds of thousands of dollars, despite rules meant to cap fees at a few grand?
If you were going by recent newspaper reporting of the legal arguments presented on this issue, the question has far-reaching implications for the justice system.
If the Court of Criminal Appeals rules for the Commissioners Court of Collin County, which is protesting a $205,000 bill from the prosecutors, the decision “could endanger the system for ensuring that indigent defendants receive proper representation at trial,” according to one report from the Austin-American Statesman. It “would thwart justice” itself, according to another report from Houston Chronicle.
In reality, the case will have few repercussions. That’s because the system of using special prosecutors to pursue public corruption cases has already been written out of state law.
Rep. Phil King, R-Weatherford, wrote the 2015 law (HB 1690) setting up a new system, with the Texas Rangers handling public corruption investigations, and making local district attorneys responsible for prosecuting the cases.
“We were trying to prohibit the use of special prosecutors, because for one thing, they can become a cash cow,” King said. “And they always drift off the scope of what their charge was. It just becomes a never-ending investigation.”
The legal question is whether trial judges have the discretion to offer lawyers however much they want or if strict interpretation should be applied to state law requiring court-appointed lawyers to be paid according to preset schedules — either flat fees or hourly maximums and minimums. The attorneys in the Paxton case — Brian Wice, Kent Schaffer, and Nicole DeBorde — were granted a $300-an-hour-rate, which is double what Collin County pays in capital murder cases, for reasons that none of the judges serving on the case have ever explained.
Whatever decision the court reaches, it will have no effect on public corruption cases.
“It’s an irrelevant issue,” King said. “The only reason there are special prosecutors in the Paxton case, even though the indictments came out after 1690 was in place, was that the acts that were alleged to be against the law, those occurred before the law went into effect.”
Where this decision might have an effect is in rare cases like the 2015 Twin Peaks shootout in Waco, which has 154 indicted defendants and a district attorney who might stand down from prosecuting the case.
Somebody will have to step up, but as a local news report puts it, “Short of Harris, Dallas, Tarrant, Travis or Bexar counties, there’s not a DA’s office in Texas that has that kind of staff and not more than just a few private law firms that could offer that kind of help, either.”
If special prosecutors are appointed, that could lead directly to a bill for tens of thousands of hours of work, in a county with a total budget of $70 million.
The possibility of budget-busting prosecutions is one reason that the County Judges and Commissioners Association of Texas wrote a friend-of-the-court brief in favor of the Collin County commissioners’ position.
Wice, Schaffer, and DeBorde, on the other hand, have received little official support. The Texas Criminal Defense Lawyers Association filed a brief last Monday and then withdrew it two days later, saying that the association hadn’t authorized anyone to take a position.
They argue that “it is often the unusual cases that require the most skilled and qualified attorneys,” although they don’t explain what is unusual or complex about the Paxton case, as securities registration violations are rarely even prosecuted in Texas.
“We’re gratified that prosecutors and defense attorneys with almost 200 years of collective experience agree how very important this case is, and that we’re entitled to the relief we seek in the Court of Criminal Appeals,” Wice said.
Galveston County also filed a brief supporting fixed fees.
The special prosecutors, Galveston argues, “ask this Court to eliminate legislative and constitutional protections that define where an individual judge’s authority ends. They suggest that in this instance and for their own financial benefit, the Fair Defense Act should be disregarded and Collin County should pay, over its own objection, hundreds of thousands of dollars to prosecute a single defendant.”
Galveston’s involvement is significant, as the Galveston commissioners won a long legal battle earlier this year with a district court judge in a similar battle over control of the purse strings.
In that case, a local judge tried to order the commissioners to pay a court staffer a certain salary, much as Judge George Gallagher ordered Collin County to pay the special prosecutors, but the Supreme Court ruled unanimously in that case that the judge didn’t have the authority to issue such orders.
“Instead, it can only set aside decisions or actions of the commissioners court that are illegal, unreasonable, or arbitrary,” the Supreme Court ruled.