Lawyers in Paxton prosecution say their fight for fees is a matter of 'justice' Compensation for prosecutors at issue in appeal

Brian Wice, defense attorney and Channel 2 legal analyst, has won the 2016 ÂPercy Foreman Attorney of the YearÂ award. Brian Wice, defense attorney and Channel 2 legal analyst, has won the 2016 ÂPercy Foreman Attorney of the YearÂ award. Photo: Courtesy Photo: Courtesy Image 1 of / 3 Caption Close Lawyers in Paxton prosecution say their fight for fees is a matter of 'justice' 1 / 3 Back to Gallery

AUSTIN - A trio of attorneys tasked with building a case against Attorney General Ken Paxton haven't been paid in 18 months - and they persuaded the state's highest criminal court there could be a problem with that.

The Texas Court of Criminal Appeals this week agreed to look into whether three special prosecutors in Paxton's criminal trial should be paid $205,000 in back pay despite a ruling by a lower court that found another judge busted a local cap on how much money the attorneys can make.

If the high court agrees, it could hamper or kill the criminal case against Paxton, an embattled Republican attorney general facing a trifecta of felony securities fraud and registration charges that have overshadowed his first term as the state's top lawyer.

Legal experts say there's much more at risk for Texas' criminal justice system: whether qualified lawyers will be willing to take time-consuming appointments as special prosecutors or defense attorneys in complicated cases for little pay.

"We're really talking here about trying to make sure justice is done," said Geary Reamey a criminal law professor at St. Mary's University School of Law in San Antonio. "The way to best ensure that justice is done is to have lawyers on both sides who are equally resourced, equally experienced, equally capable."

At issue is whether lower level judges can pay the special prosecutors more than locally approved caps allow.

Three special prosecutors were assigned to Paxton's case after Greg Willis, Collin County's district attorney and a friend of Paxton's, recused himself from the case. Houston attorneys Brian Wice, Kent Schaffer and Nicole DeBorde were later appointed as special prosecutors in the case.

Collin County Local Administrative Judge Scott Becker agreed to pay the new appointees $300 an hour, tapping a rule that gives him discretion to set higher fees in special cases.

Question of discretion

Paxton's allies challenged their pay in court, arguing taxpayers shouldn't be on the hook for hefty attorneys' fees that exceed the county's caps. They argue the judge busted a Collin County limits of $1,000 for first degree felony pleas, $500 for third-degree pleas, $1,000 for pretrial work and $500 for each one-half day of trial.

The Dallas-based 5th Court of Appeals agreed last month, saying judges lack discretion to set higher fee schedules. The court voided an order for the payment, which dates back to January 2016.

On an appeal by Wice, one of Paxton's three special prosecutors, the Court of Criminal Appeals decided Monday night it was interested in the case and stayed further proceedings while it weighs the issue. The court, which is essentially the supreme court for criminal cases, is now soliciting responses from the 5th Court of Appeals and other interested parties for the next month.

"Left unchecked, the court of appeals' decision divesting trial judges of the discretion to control their dockets will have a chilling effect on their ability to appoint competent advocates willing to take on the most complex criminal cases," Wice said in a petition for a writ of mandamus against the Fifth Court of Appeals, adding attorneys willing to take on complex prosecutions against public officials will have to do so "on shoe-string budgets."

In his filing, he said two-thirds of all Texas counties - 168 out of 254 - passed rules that allow judges discretion to set a higher pay in special circumstances.

Precedent may be set

Most of the members of the high court were prosecutors at some point, said Reamy, who used to practice law in the Dallas area, and have some understanding of the time and expertise it takes to be a special prosecutor in a case like Paxton's. He said the members are likely interested what this case might do in the administration of criminal justice.

"It's going to be extremely hard in the future to find people who are willing to be special prosecutors and that doesn't serve the interests of justice in Texas at all," he said. He said the Dallas court's decision could undermine confidence the courts are trying to instill in the public that the criminal system generally works the way it's supposed to without favoritism to the powerful or the wealthy.

Paxton, who maintains his innocence, has employed a team of lawyers to defend him against the criminal charges and civil charges that were thrown out earlier this year. He has raised more than half of $1 million for his legal defense since 2015. Last year, he raised nearly $218,000 to pay his lawyers, spokesman and others building his defense strategy. In 2015, Paxton raised $329,000.

Paxton's spokesman and legal defense team declined to comment for this story, citing a gag order on the criminal case.

Should the court let the 5th Court of Appeals' decision stand, the three attorneys would not be paid for the last 18 months working on the Paxton case.

Asked for comment on this story, including whether the attorneys would work for free, Wice declined to comment.

The Collin County Commissioner's Court is also mulling whether to claw back some of the money it paid the special prosecutors late last year.

If that's the case, it won't be worth it for high-quality lawyers to take on appointments to complicated cases, said Quinton "Dwight" McDonald, an adjunct professor at Texas Tech University.

A high quality attorney shouldn't have to think about whether they will have to battle county commissioners or unhappy defense attorneys in separate lawsuits to ensure they're paid what they were promised, said McDonald who spent more than two decades practicing criminal law. That, in turn, could lead to fewer seasoned attorneys taking on appointments and weaken the judicial system.

"If you set that precedent, trust me, that does come up again," he said. "If you're not getting the best representation that you can on both sides, then this system does not work the way our forefathers wanted it to work."

The State Bar of Texas and the Texas Criminal Defense Lawyers Association, which represent lawyers across the state, declined to comment for this story.

Trial set for December

The case's accession to the state's highest criminal court is the latest twist in Paxton's criminal case which is now more than two years in the making and will likely delay it further. The court has reset his trial date twice and he is now scheduled to go to face trial in December.

Paxton is accused of securities fraud persuading people in his investment group to invest in Servergy, a North Texas tech company, without disclosing he would make a commission from the sales.

He sold $840,000 in investments in the company and was paid 100,0000 shares of stock worth $1 each. The transactions took place while Paxton was a member of the House of Representatives and are not entwined with his public service.

The U.S. Securities and Exchange Commission launched similar charges against the attorney general in federal civil court. A federal court judge tossed out those charges in March.

Conservative groups and publications have come to Paxton's aid in recent weeks, offering up editorials calling the case against him dubious, a waste of taxpayer money and a political witch hunt.