The Collin County commissioners have decided to stop paying the three attorneys who’ve been prosecuting Attorney General Ken Paxton, citing concerns about the legality and expense of the arrangement, but they’re still paying a fourth attorney who might prove to be even less popular with their conservative voters.
Collin County has paid some $82,347 and counting to attorney David Feldman for legal work such as thinking up a reason why the prosecutors shouldn’t have to disclose which reporters they’ve been talking to.
Feldman is being paid the same $300-an-hour rate as the prosecutors, on the order of District Judge George Gallagher.
That could change now that Gallagher is off the Paxton case, depending on whether or not the commissioners or the next judge to get the case decide to scrutinize the arrangement.
Feldman is best known in conservative circles as the Houston city attorney under former Mayor Annise Parker whose office in 2014 subpoenaed five pastors for all sermons they’d given related to “homosexuality” and a gay rights law.
“If someone is speaking from the pulpit and it’s political speech, then it’s not going to be protected,” Feldman said, although he and Parker both later distanced themselves from the subpoenas after they created a national uproar.
David Feldman was initially brought on by Gallagher to defend three court-appointed prosecutors in a lawsuit filed by real estate developer and Paxton ally Jeffory Blackard over their compensation.
Feldman also filed lawsuits on their behalf to block the disclosure of records in the case. For example, he billed nearly a week’s work, at a cost of over $10,000, in response to a request from this reporter to see documents the prosecutors had turned over to the defense, documents the Attorney General had ruled were public.
As Feldman has no contract with the county outlining his scope of work, his workload has continued to expand. The $82,347 figure is from Feb. 2017, but his work since then is likely to push his compensation close to $100,000, which was the amount that Collin County commissioners had initially budgeted for the entire prosecution.
In March, Feldman wrangled with Tony McDonald of Empower Texans over whether one of the prosecutors had taken some required training.
Feldman and the prosecutors also refused to give McDonald records of their phone calls with reporters, despite there being no exemption for phone records in state law. Feldman’s part was to write a legal memo asserting that since the state Supreme Court created a public records disclosure exemption for Social Security numbers a few years ago, surely they’d see phone numbers the same way.
The $82,347 that Feldman has earned does not include a separate $50,626 expense approved by Gallagher last year for two other lawyers he had hired to investigate a Paxton real estate deal from 12 years prior.
The three prosecutors have submitted invoices for another $575,105.99.
Collin County Auditor Jeff May has said that he does not have any discretion on approving the court-ordered payments.
There’s no telling how the Harris County court that eventually gets the Paxton case will see the arrangement. But if it persists, you would have a Harris County judge in a criminal case ordering Collin County to pay a Houston attorney for work in a civil case being heard in Collin County, which would surely raise jurisdictional questions.
It could also raise budgetary problems for the county, as Paxton ally Hiram Sasser noted at a commissioners court meeting last month, as $300-an-hour would become the new default rate for defense counsel in non-capital cases, adding up to “tens of millions” in new annual court costs.
Feldman did not respond to a request for comment.
In a recent ruling over a case out of Galveston where a district judge and the county commissioners battled over control of the purse strings for court personnel, the state Supreme Court sided with the commissioners by a 9-0 vote.
The “judiciary’s constitutionally conferred supervision over a commissioners court is not boundless, the court ruled. “When exercising what the Constitution calls ‘general supervisory control,’ a court may not usurp legislative authority by substituting its policy judgment for that of the commissioners court acting as a legislative body. Instead, it can only set aside decisions or actions of the commissioners court that are illegal, unreasonable, or arbitrary—‘but there the power of the court ends.’ The Constitution makes clear that a district court’s supervisory power remains subject to ‘exceptions [and] regulations as may be prescribed by law.’”
Jon Cassidy can be reached at [email protected]