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County Flip-Flops Over Paying Legal Fees in Prosecuting Texas AG

It seems that some county officials in Collin County, Texas, knowingly, or inadvertently, have taken inconsistent positions over the power of the judiciary to interfere with their governing powers. They took one position in May in a brief to the Texas Supreme Court, but some of them are now taking the opposite position when making a decision about paying what could end up being over a million dollars for prosecuting the Texas Attorney General.

General Paxton was indicted by a Collin County grand jury last summer for two counts of securities fraud and one count for failing to register with the Texas State Securities Board. Breitbart Texas has reported about the substance of the charges, the parties and witnesses involved, and the re-indictments after special prosecutors asked for a dismissal of two indictments. The charges are all felonies.

The criminal case against Paxton is pending in Collin County, and as reported by Breitbart Texas, two special prosecutors were appointed by then-Local Administrative Judge Scott J. Becker. Becker had the option of utilizing a reciprocity agreement with a number of counties contiguous to Collin County. That option would not have resulted in Collin County taxpayers being saddled with the financial burden of Paxton’s prosecution as has been the case with the special prosecutors.

Plano lawyer Hiram Sasser, a Collin County resident and taxpayer told Breitbart Texas, “The reciprocity agreement between counties to provide for prosecutions between counties is routine. There was no reason to spend a penny on this case.”

Collin County Commissioner Susan Fletcher asked Judge Becker for an explanation for his uncommon decision and Becker refused to give her an explanation.

Sasser added, “Collin County must follow the law, and they must follow the legal position they took with the Texas Supreme Court in May 2016 when they filed their brief.”

The question before the Collin County Commissioners Court is whether they must pay attorneys fees that are the subject of a district judge’s order, or whether, to quote the brief filed by Collin County in the Texas Supreme Court in May, doing so “allows a District Court to impermissibly overreach into the legislative budgeting functions of the Commissioners Court in instances when the District Court simply disagrees with the financial decision of the Commissioners Court.” The case at the Texas Supreme Court involves paying the compensation of a county employee.

Here the North Texas County is being hit for $300 an hour for two special prosecutors and another lawyer to prosecute the case involving the Texas AG, as well as the fees to pay another set of lawyers in a civil case filed by a taxpayer. The special prosecutors have been paid at least $254,000, reported the Dallas Morning News on Friday. It has also reported that the cost of the litigation in the taxpayer civil lawsuit has reached over $80,000.

Collin County taxpayer Jeffory Blackard filed a lawsuit to challenge paying the special prosecutors. Blackard lives in Hopkins County but also has land in Collin County, reported the Texas Tribune. He was reported to say that the $300 an hour fees “‘would constitute an illegal expenditure of taxpayer funds’ because they would eclipse fees typically paid to attorneys appointed to represent poor defendants.”

In saying that Collin County officials have taken conflicting legal positions, Sasser referred to the County’s brief filed in a case styled The Honorable Mark Henry, County Judge of Galveston County v. The Honorable Lonnie Cox, Judge of the 56th District Court of Galveston County, (cause number 15-0992). The amicus curiae (Latin for friend of the court) brief filed on behalf of Collin County can be found at this link and is attached below.

Excerpts from the brief argue:

 Collin County believes the Court of Appeals decision is erroneous insofar as it allows a District Court to impermissibly overreach into the legislative budgeting functions of the Commissioners Court in instances when the District Court simply disagrees with the financial decision of the Commissioners Court involving the compensation of a county employee. Although District Courts have limited powers to exercise supervisory authority over actions of a Commissioners Court, in this instance the undisputed facts reflect no illegal, unreasonable or arbitrary conduct to support the exercise of such authority.

Unwarranted interference by the judiciary into fiscal decisions made by the Commissioners Court threatens the separation of powers between the judicial and legislative branches of county government. Such interference erodes the powers and statutory duties of the Commissioners Court regarding the control and expenditure of County funds, and if such interference is allowed to stand, could plausibly result in a dramatic shift power to the judicial branch.

Moreover, such actions remove the taxpayers from having any input or voice in the political process. Rather, the decisions of the District Court, as evidenced in this instance, were made at the District Court’s sole discretion and without any rights afforded to the public to participate. Further, the Court of Appeals decision conflicts with legal precedent, including opinions of this Court. 

The much reported on case began in Galveston County when a district court judge signed an order requiring Galveston County Judge Mark Henry to reinstate the employment of Bonita Quiroga as the Director of Justice Administration. The legal brief filed by counsel for Galveston County Judge Mark Henry in the State’s highest court cites a 1992 Texas Supreme Court case holding “while the district court may order the commissioners court to carry out its constitutional duty to set a reasonable salary, the district court cannot substitute its discretion for that of the commissioners by making that determination itself.”

The Texas Association of Counties, the County of El Paso, Bexar County, Brazoria County, the Texas Conference of Urban Counties, and Harris County, among others, also filed briefs in support of Galveston County Judge Mark Henry.

Hiram Sasser shared his opinion with County Judge Keith Self in a comment to Self’s Facebook post of October 11th.

As can be seen from his post, Sasser told the County Judge “You have an obligation to test the legal legitimacy of a questionable order. And the order is in violation of state law.”

Sasser then cites Texas Code of Criminal Procedure Art. 2.07(c) governing the appointment of an attorney pro tem (pro tempore or temporary). It provides, “(c) If the appointed attorney is not an attorney for the state, he is qualified to perform the duties of the office for the period of absence or disqualification of the attorney for the state on filing an oath with the clerk of the court. He shall receive compensation in the same amount and manner as an attorney appointed to represent an indigent person.”

Sasser linked the Collin County Indigent Defense Plan to his post, http://www.collincountytx.gov/…/Documents/Felony_TFDA.pdf, and said the “maximum you can authorize, by law, for the payment of pre-trial preparation in this matter is $1,000. So far you have authorized hundreds of thousands of dollars illegally.”

The lawyer from Collin County also said in his comment to the County Judge’s Facebook post, “Continuing to do so just because one judge ordered such is no excuse. You have an obligation to appeal the order to the Dallas Court of Appeals. If the appellate court agrees, then it is debatable whether you must appeal further. But continuing to authorize the payment without appealing the questionable order is simply not defensible. And it should not matter who the person is being prosecuted. The reason we have an appellate process in this country is to preserve freedom and ensure fairness is not arbitrarily dismissed based on the opinion of a single person. I believe this should be the standard regardless of who is involved.”

Breitbart Texas was told that there is a $1,000 cap on attorney fees for pretrial matters unless there is an exception. The cap where there is an exception is $2,000. In capital murder death penalty cases attorneys are paid $150 an hour, and in capital murder cases not involving the death penalty, they are $100 an hour.

“If anyone votes for further paying these bills, then I believe they must send a letter to the Texas Supreme Court and tell the justices they made a false statement to them. A vote to pay these bills is completely inconsistent with the position that they took in their official capacities with the Texas Supreme Court just a few months ago,” Sasser told Breitbart Texas.

Conservative Republican elected officials in Collin County have been concerned about the fees and were apparently planning to discuss the matter with county officials. They were the subject of an open record request for their text messages, reported the Dallas Morning News. 

The Morning News reported that Texas State Representative Matt Shaheen (R-Plano) texted, “I’ll ask Keith [Self] if they lowered the fees and discuss options to stop payment.” “Perfect,” Rep. Jeff Leach (R-Plano) texted back. “Let him know we are here to help — not hurt. If Keith got sent to jail for this — I’d be the first to bail him out.” State Rep. Scott Sanford (R-McKinney) and State Senator Van Taylor (R-Plano) were on the text string but were reported to have said little during the conversation. Rep. Jodie Laubenberg (R-Parker) wrote, “I’m just asking what is best method. I am not going to start attacking fellow republicans until I have all the information.” The texts were sent in October.

“Ken Paxton has always proved himself to be a man of integrity to me, and it’s clear that the charges against him are politically motivated,” Rep. Shaheen said in a statement to the Morning News. “Any resources spent on this case are a waste of the government’s time and a drain of taxpayer money.”

Rep. Leach was reported to say, “There are substantive concerns and legitimate questions about the application of Texas law in this situation, and taxpayers deserve clear answers. Especially in light of the recent dismissal of the federal charges brought against General Paxton, I strongly believe that every avenue should be explored before Collin County citizens are forced to write a blank check to continue to fund this politically driven prosecution. I will never apologize for fighting for justice and for the taxpayers, as they expect, demand and deserve for me to be their voice.”

Precinct One Commissioner Susan Fletcher sent an email newsletter with the heading “YOUR MONEY: Status of Special Prosecutors Payments.” In it she wrote, “I have consistently voted ‘no’ and will continue to do so, unless I am compelled directly by a higher court to pay them.”

While I respect my colleagues, our own Collin County judiciary, and the authority of Judge Gallagher, the District Judge from Tarrant County overseeing the Paxton case, I continue to question the appropriateness and legitimacy of these expenditures, due to what I believe is an arbitrary and capricious hourly rate set by a singular District Judge from Collin County, which is in direct conflict with the Collin County Indigent Defense Policy in place at the time of the special prosecutors’ appointments.

She added, “From the beginning, I have advocated for the Commissioners Court to contest these orders by appealing to the Fifth District Court of Appeals.  In doing so, we would have legally “tested” the legitimacy of the orders – and if the court didn’t agree with us, we would have been able to SHOW the taxpayers of Collin County that we have exhausted all of our options prior to paying the bills.”

The next meeting of the Collin County Commissioners Court is on Monday, October 24th at 1:30 p.m.

Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.

Collin County Amicus Brief at Texas Supreme Court

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