The Collin County Commissioners Court is expected to vote Monday on whether to pay $205,191.24 to the court-appointed lawyers who are prosecuting Attorney General Ken Paxton.
On Wednesday, a panel of the Fifth Court of Appeals told the commissioners to take a vote on whether or not to pay the prosecutors.
This means that the long-running battle over the legality of the prosecutors’ special compensation arrangement is coming to a head.
Collin County has been billed some $575,105.99 for the prosecution. Usually, it pays a few thousand dollars for court-appointed attorneys, but in this case, the prosecutors have an oral agreement with Judge Scott Becker to work for $300 an hour.
Paxton’s partisans have long insisted that the deal is illegal, a violation of a state law that says court-appointed prosecutors “shall receive compensation” in the “same amount and manner” as court-appointed defense attorneys.
Judge George Gallagher, who has been presiding over the case, has sought to enforce the oral agreement, ordering the county to pay special prosecutors Kent Schaffer, Brian Wice, and Nicole DeBorde.
However, Gallagher’s judgment has been called into question following a series of increasingly unusual decisions.
Aside from singling out Paxton for an expensive, custom-made prosecution without explaining why, Gallagher has moved the trial itself to Harris County, which is likely to have more Democrats on the jury than Collin County. He is also planning to come down to Harris County to preside over the trial, despite state law requiring the defendant’s written consent to remain on the case, which Paxton has not granted.
Gallagher has been blocked from taking further action by the same appeals court that halted the $205,000 payment; the court is considering whether or not Gallagher is acting lawfully.
Jeffory Blackard, the plaintiff in the taxpayer lawsuit seeking to block that payment, argues that Gallagher has no legal authority to order the county to pay the bill. The judge’s order only has the effect of starting a process to review the payment of the attorneys, but it is the Commissioners Court that has the authority to decide whether or not to pay, he contends.
The commissioners, on the other hand, have worried that Gallagher has the authority to throw them in jail if they don’t pay.
(For those who don’t follow such matters closely, the Commissioners Court is not a judicial body, despite its name; it is the county’s administrative authority.)
Blackard has struggled for a year and a half to find a court willing to assert jurisdiction in the unusual case, which appears to be unprecedented in Texas law. Other district courts have been loath to take any action that smacks of interfering with another district court judge.
He has also managed to stir up a great deal of political pressure on the five commissioners, particularly since a federal court has already thrown out a lawsuit the Securities and Exchange Commission brought against Paxton because the SEC failed to identify a law he had conceivably broken.
So, the vote by the commissioners on Monday will present one of two possible scenarios for the appeals court to consider.
One is that the Commissioners Court votes to approve payment, in which case the appeals court will decide whether Blackard has standing to bring a taxpayer lawsuit blocking payment, and then send it back to a trial court if he does.
“I think a ‘yes’ vote would remove any doubt about the Commissioners Court’s refusal to follow the law and should ease any remaining doubts the Court of Appeals might have about the necessity for a taxpayer lawsuit,” said Edward Greim, Blackard’s attorney.
The other possibility is that the Commissioners Court would vote to deny payment to the prosecutors.
That would open a different can of worms, but Texas law has precedent for that sort of thing. The county can file for a declaratory judgement finding that Gallagher’s payment order was “arbitrary, unreasonable, and capricious,” and therefore invalid.
Or it can just refuse to pay and wait for the prosecutors to sue for their money.
Both are valid options, according to a 1975 Attorney General opinion.
“Collin County can lawfully refuse to pay—and should have refused to pay—invoices that clearly violate both the Local Rules and the Texas Fair Defense Act. Importantly, the Attorneys Pro Tem now admit that this remedy is available to the Commissioners,” Greim argues in a filing.
The special prosecutors argue that Blackard is trying to interfere in their case, that his lawsuits represent an impermissible collateral attack on the proceedings in another court room, and that their payment is part of a “criminal matter,” and therefore not subject to the jurisdiction of a civil court.
Greim says it’s not one court interfering with another, but a question of when the courts have authority over the Commissioners Court. His position is that Gallagher’s authority through a criminal case doesn’t extend to the commissioners, but that the court hearing his lawsuit would have the authority to decide the legality of their decision on whether to pay the prosecutors.
Jon Cassidy can be reached at [email protected]