Appeals court voids $205K invoice paying Paxton's prosecutors

If found guilty in criminal court, Texas Attorney General Ken Paxton could face 99 years in prison and thousands of dollars in fines. If found guilty in criminal court, Texas Attorney General Ken Paxton could face 99 years in prison and thousands of dollars in fines. Photo: Jon Shapley, Houston Chronicle Photo: Jon Shapley, Houston Chronicle Image 1 of / 1 Caption Close Appeals court voids $205K invoice paying Paxton's prosecutors 1 / 1 Back to Gallery

AUSTIN -- Special prosecutors who have been waiting more than a year to get paid while building a criminal case against Attorney General Ken Paxton will have to keep waiting after a Dallas-area appeals court voided their payment.

The 5th Court of Appeals issued an opinion Monday voiding an order for a $205,000 payment to three Houston-area special prosecutors assigned to Paxton's securities fraud case. The invoice for payment dates back to January 2016.

Brian Wice, one of the lead special prosecutors of the Paxton case, is expected to appeal the court's ruling to the Court of Criminal Appeals in the next few weeks.

In the opinion, the court recognized the courts have the responsibility of appointing qualified attorneys, but acknowledged "attorneys appointed will likely be paid a fee much less than a retained attorney would command."

Lawsuits have tied up the special prosecutors' payments since then amid a dispute launched by Jeffory Blackard, a Paxton donor and political ally in Collin County -- and later the Collin County Commissioners Court -- arguing the attorneys' $300 per hour fee was too much and exceeded local caps.

The appeals court agreed, and said the judge overseeing the case at the time agreed to too high a fee schedule.

The ruling deals a win to Paxton, a tea party Republican who is under indictment for two first-degree felony charges of securities fraud and one third-degree felony charge of failing to register as an investment adviser.

While state law gave Collin County criminal district court judges power to set a standard fee schedule for attorneys, the opinion found the judges exceeded their authority when they created a provision allowing judges to disregard that schedule in "unusual circumstances" or where the fee would be "manifestly inappropriate."

It was this law that Judge Scott Becker, a local administrative judge, tapped when negotiating a $300 per hour fee for Kent Schaffer, Nichole DeBorde and Wice to serve as criminal district attorneys pro tem in Paxton's criminal case.

According to court records, attorneys are supposed to be paid fixed fees of $1,000 for first-degree felony pleas, $500 for third-degree pleas, $1,000 for pre-trial preparation and$500 for each one-half day of trial.

The attorneys submitted an invoice for $242,000 for pretrial work at the $300 rate in December of 2015, which was OK'd by the Collin County Commissioner's Court and paid the next month. But the subsequent bill by the special prosecutors -- which included nearly $200,000 in attorneys fees and was submitted in January 0f 2016 -- has gone unpaid.

The Texas Fair Defense Act ensures the court has appropriate standards for appointed counsel in criminal cases and mandates counsel be pad a "reasonable attorney's fee" for services.

In 1987, the Texas legislature eliminated a state-dictated mandatory fee schedule and gave that power to the county and district criminal court judges to adopt their own fee schedules that "reflects the customary and reasonable fees in their jurisdiction," according to the ruling.

The problem is the Collin County criminal district court judges exceeded their authority when they created a provision allowing a judge to disregard a pay schedule in "unusual circumstances" or where the fee would be "manifestly inappropriate," according to the court of appeals.

The special prosecutors have twice asked the court to delay Paxton's criminal trial until they can get their pay resolved. Prosecutors' attorney David Feldman did not respond to a request for comment early Tuesday. Wice, who is expected to take over the case, declined to comment.

Paxton's long awaited trial is scheduled for the end of the year. Prosecutors are expected to try him first on failing to register with the state as an investment adviser and later on the first-degree charges of securities fraud for failing to tell investors he would make a commission off their investment in Servergy, a North Texas tech company.

A federal judge dismissed similar charges against him early this year. Paxton is scheduled to go to trial on the state charges in Houston in December.

Paxton maintains his innocence and contends he is the victim of a political witch hunt. He is expected to seek reelection in 2018.

Andrea Zelinski covers politics and education for the Chronicle. Follow her on Twitter and Facebook. Send her tips at andrea.zelinski@chron.com.