Special prosecutor in Paxton fraud case asks to be released

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Nicole DeBorde, one of the special prosecutors in the securities fraud prosecution of Texas Attorney General Ken Paxton, has asked for her release from the case after the Texas Court of Criminal Appeals said it would not consider a request for hundreds of thousands of dollars in outstanding and future legal fees.

“As a result of a series of professional obligations over the past several months, the undersigned can no longer devote the requisite time and attention to discharging her duties as an attorney pro tem in these matters,” DeBorde wrote to presiding Harris County District Judge Robert Johnson, according to a Dallas Morning News story.

Johnson had not responded to DeBorde’s request by Tuesday afternoon.

DeBorde submitted her request a week after the appeals court notified the Collin County district court where the Paxton case originated that it would not reconsider the appeal from Brian Wice, another special prosecutor, for more than $200,000 in back pay and a $300 hourly fee as the case moves forward, The Texas Monitor reported.

The Collin County Commissioners Court caps its special prosecutor fees at $2,000, including as much as $1,000 for pretrial work and up to $1,000 for added expenses for each attorney in each case.

DeBorde, Wice and Kent Schaffer, all criminal defense attorneys from the Houston area, took their assignments when Collin County granted Paxton’s attorneys a change of venue in 2017. 

Collin County District Attorney Greg Willis recused himself from the investigation two years earlier, saying his friendship with Paxton and his family would invite claims of corruption in the prosecution of a sitting state attorney general.

Collin County District Judge George Gallagher agreed to pay each of the special prosecutors $300 per hour for their work. The lawyers had been paid a total of $275,000 when an attorney for a Paxton donor filed suit in December 2015 to block further payments until the Collin County prosecutor fee schedule question could be decided.

The donor contended the inflated fees and Paxton’s prosecution were unfair because the attorney general was being treated differently than an “ordinary criminal defendant.”

The appeals court ruling in November did not specifically address the fees first requested by Wice, but instead cited state law barring courts from exceeding their county’s fee limits.

With the appeals court’s refusal last month to revisit that decision, an outstanding invoice submitted by the prosecutors for $205,000 will not be paid.

Wice had hinted that he would step down without the additional pay, but when contacted by The Dallas Morning News after DeBorde’s request, he said in an email, “I am respectfully declining comment on behalf of the special prosecutors.”

DeBorde’s request will likely mean yet another delay in a case that is now nearly four years old. A Collin County grand jury indicted Paxton for securities fraud after the Texas State Securities Board fined him $1,000 for soliciting investors without being registered with the state before he took office.

Paxton, who pleaded not guilty to the securities fraud charges, has contended from the start that the case against him was politically motivated. In March 2017 a U.S. district judge dismissed the federal securities fraud charges against Paxton. Voters in November gave him a second term.

Mark Lisheron can be reached at [email protected].

 

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