AUSTIN (KXAN) — The Texas Court of Criminal Appeals issued an opinion Wednesday saying that an agreement to pay special prosecutors working on a case against Texas Attorney General Ken Paxton was beyond legal limits and should have been a fixed fee.

Paxton was indicted in 2015 over allegations of fraud prior to becoming the state’s top lawyer. He’s pleaded not guilty.

The attorneys appointed to prosecute Paxton have argued that upholding a trial court’s order of paying these prosecutors at an hourly rate is appropriate because the trial court’s determination of a reasonable fee for their services is a discretionary call, not a ministerial one.

The Collin County Local Administrative Judge had entered into an agreement to pay these attorneys $300 per hour for their work as special prosecutors in this case. The Collin County Commissioners Court had said the trial court didn’t have authority to set a fee outside of the fixed rate in the fee schedule approved by local judges.

“A trial court still has discretion to set a fee in each case, but compensation must fall within a fee schedule adopted by formal action of the judges of the county courts, statutory county courts and district courts trying criminal cases in each county,” the opinion states. “The fee schedule must have either a reasonable fixed rate or minimum and maximum hourly rates that take into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the states rates.”

Right now, the prosecutors haven’t received payment for more than two years for their work in these cases. The Texas Court of Criminal Appeals says the lower court must pay the attorneys in compliance with the fee schedule.

In a dissenting opinion, Judge Elsa Alcala said she considered policy implications of the Court’s interpretation of the statute and how it could lead to denied payments of a reasonable fee to defense attorneys appointed to represent indigent defendants.

“The Court’s decision today will likely affect an overwhelming number of criminal cases in Texas and will possibly result in even more claims of ineffective assistance of counsel for indigent defendants,” Alcala said.

Paxton’s trial has been repeatedly pushed back, amid legal fights like this one related to attorneys’ fees. He was re-elected to office this November, beating Democrat Justin Nelson.

