The commissioners court in Collin County, Texas unanimously passed a resolution which governs how the court will look at attorney fees in the prosecution case of the Texas Attorney General. The resolution is a policy shift for some of the commissioners. The action was taken after persistent and strident outcry by taxpayers, and after concern was expressed by area state representatives and a state senator.
Breitbart Texas reported on Sunday that it seemed that of the commissioners knowingly, or inadvertently, had 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 were taking the opposite position when deciding whether they had to automatically pay attorneys fees that were the subject of a court order.
Taxpayers say that the attorneys fees in the case could end up being in the millions of dollars.
The resolution came on Monday at the Collin County Commissioners Court meeting (video at this link). The Court went directly to the agenda item governing the issue and let taxpayers and concerned citizens speak during the meeting.
Last December, Collin County taxpayer Jeffory Blackard filed a lawsuit to challenge paying the special prosecutors and discussion of the issue was #6 on the agenda. He sued the judge presiding over General Paxton’s criminal case, the county judge, the county auditor, and three of the county commissioners. His lawsuit was dismissed in March after a district court judge found that he lacked jurisdiction to file the case. His appeal is set to be heard in the Dallas Court of Appeals on December 6th. Blackard lives in Hopkins County but has land in Collin County. He spoke first at the meeting.
Jeffory Blackard told the commissioners, “Where we are right now is failure to register. It’s like failure to not get a drivers license that year.” He added that hundreds of other attorneys failed to register that year because of Dodd Frank. “It’s just so sad that they only pick one person out of that whole thing, and he [Ken] actually went forward and talked to them, and paid a thousand dollars.”
Texas Attorney General Ken 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.
Two special prosecutors were appointed by then-Local Administrative Judge Scott J. Becker, as reported by Breitbart Texas. Judge Becker had the option of utilizing a reciprocity agreement with a number of counties contiguous to Collin County. Instead of paying special prosecutors, a district attorney in one of the neighboring counties could have prosecuted the case. As reported by Breitbart Texas, lawyer taxpayer Hiram Sasser has argued that this agreement is frequently used.
Blackard told the commissioners that taxpayers, the Tea Party, and others are now to “starting to wake-up.” He said that people from the county and all of the state “are absolutely irate.” He asked about the “special circumstances” for paying in this manner and said the issue would be decided in the appeal of his taxpayer lawsuit.
As reported by Breitbart Texas, a county taxpayer and resident has cited the Texas Code of Criminal Procedure (Art. 2.07(c)) arguing that the special prosecutors “shall receive compensation in the same amount and manner as an attorney appointed to represent an indigent person.” Hiram Sasser told Breitbart Texas that the use of the word “shall” by the legislature is a mandate and removes any discretion about the matter. He also said that the Collin County Indigent Defense Plan provides that the maximum that can be authorized by law for pre-trial preparation is $1,000. He argues that the money that has been paid thus far has been illegal.
Blackard correctly noted during his time at the podium that the county had spent $354,000 on the criminal case, and another $80,000 for the civil litigation about the attorney fees. He said that the county received the last bill nine months ago and speculated that the next bill was going to be “a half million dollars.” “So, we’ll all be asking why have you spent $900,000, or $2 million dollars, of our taxpayer money, on failure to register?”
Another speaker, Mr, Maxwel said, “I believe in the rule of law, and I believe that all lawful court orders should be followed.” He added, “That being said, if there is any legal, ethical and practical way to contest the court order that would benefit the citizens of Collin County, that should be done.”
Ms. Sampson, speaking for herself and as a member of Grassroots McKinney, told the Court that they had a fiduciary duty to not pay the bill if they do not have to. She noted the concern expressed by area lawmakers State Rep. Scott Sanford (R-McKinney), State Senator Van Taylor (R-Plano), and Rep. Jeff Leach (R-Plano), over the attorney fee issues. She asked the court to not blindly follow any “special and excessive fees” that might reach $3 million. She demanded that the commissioners follow Commissioner Chris Hill’s Resolution.
Sampson also noted the controversies surrounding the indictment of Paxton, including a lawyer’s tactics in contacting grand jury members, the trial court judge’s statements to grand jurors, and the “judge’s wife sharing and reveling about a sealed indictment to her friends.”
Breitbart Texas has reported about these controversies, and about the fact that Collin County Judge Chris Oldner, recused himself from the case on July 29, 2015, after his wife Cissy Collier Oldner, was reported to be communicating about the Paxton indictments that were still sealed. The alleged breach of grand jury secrecy by the judge resulted in his wife’s discussing the grand jury’s indictment with Susan Fletcher, one of the Collin County commissioners. Mrs. Oldner later took to social media to seemingly criticize Paxton by asking a question that would suggest to a reporter, a legal remedy regarding any hurdle in immediately getting information.
After calling the attorney fees set by Judge George Gallagher “special and excessive fees,” and against the Texas Fair Defense Act and the guidelines in Collin County, she touted accomplishments of General Paxton in his role as AG. She then urged, “Let’s step ahead, put aside fears, and legally do the right thing for the best AG we’ve ever had, instead of playing into the hands of those, who wish to destroy everything we believe in.” She told the commissioners that people would be watching and, “We want you to know, that we aren’t going to go away.”
Mike Giles said, “Obviously, this case has become an albatross.” He told the Commissioners that he thought they were “honest, sincere, conscientious, public servants and you are all doing what you think is right” but that they need to make a change about how they were “going about this.”
He urged, “For most of us this is an obvious witch hunt on Attorney General Paxton, and trying to get it resolved and out of the way as fast as possible is the way to go.” He said although an appeal might cost tens of thousands of dollars, it would be a good investment of tax dollars. The Grassroots McKinney activist added, “And as far as I can tell from all of this, the only people that think this is a good deal, is the three lawyers and the two judges. Everyone else thinks it’s a bad deal.” He urged them to appeal and mentioned that the county has a reciprocity agreement with other counties and the case could have been handled that way.
Sharon Albertson of Plano said, “You all know, you all know, that we elected you to protect the taxpayers, and in this case it’s certainly isn’t looking that way at present.” She referenced the provision that the fee scheduled where it says “without exception” and said the one-page list states that it “is a definite number.”
Lawyer and taxpayer Hiram Sasser told the Court, “I just wanted to reiterate what some other people have said. That, which is, these bills are outlandish.” He said the costs had already exceeded the legal limits, and added that this is a “two investor case,” and that it was ridiculous to spend this kind of money on this type of case. He noted the apparent inconsistency in the arguments that the Commissioners Court made in a brief at the Texas Supreme Court in May, as reported by Breitbart Texas. He cited a 1975 Attorney General Opinion (H-499) for the proposition that a county may resist paying bills they do not agree with. He said the procedure to follow is that you do not pay the bills and you fight it in the appellate courts.
A look at H-499 shows that then-Texas AG John L. Hill answered the question, “Whether a commissioners court is required to pay a fee awarded an attorney for representation of an indigent defendant.” The facts presented were that two attorneys from the same law firm had been appointed in a capital murder case. The judge set a fee of $10,000 – $4,000 for one lawyer, and $6,000 for the other. The Commissioners Court in Midland County had initially budget $10,000 for budget year 1974 to pay court appointed counsel in criminal matters.
The Midland county attorney asked AG Hill, “Is the order of the Trial Judge conclusive on the County insofar as the amount of the fee he set? If not, by what procedure and by whom may it be reviewed?” H-499 concluded, “The commissioners court of a county is under a duty to budget and order paid the amount of any reasonable attorney’s fee properly set by a criminal court judge pursuant to article 26.05. Tex. Code Grim. Proc., for the representation of indigent defendants. The trial judge’s order can be overturned only on a showing that it was so arbitrary, unreasonable and capricious as to amount to an abuse of discretion. This office cannot resolve disputed fact issues of this type which involve the question of the reasonableness of the fees set.”
Hiram told the Commissioners that the issue must be appealed and that there is a $1,000 cap on attorney fees for pretrial matters unless there is an exception. As reported by Breitbart Texas, 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. He told the Commissioners that $300 hour is paying twice what is generally paid in death penalty cases. He contrasted Paxton’s prosecution saying that his kind of case is generally resolved by by paying a $1000 civil fine. He called the matter, an “outrageous proposition.”
After the public comment session, the Commissioners went into Executive Session to discuss the case. They were in executive session for over an hour.
When they returned, the County Auditor told those in attendance that the county has had 29 capital murder cases that exceeded $100K for each case. He said one case had even reached $880,000.
Precinct 3 Commissioner Chris Hill spoke first and said that a fine line must be drawn between the politics of the case, and the justice of this case. He called their duty “administrative in nature” and the politics “irrelevant” to that duty. He said while it would be “inappropriate” to interfere with judicial decisions, the Court was charged with being financial stewards of taxpayer dollars. He noted however, that he had expressed his opinion about the politics of Paxton’s prosecution on social media.
Hill noted that there had been no justification given why an exception of this level should ever be made. He also noted that presently there was no order for attorneys fees pending. They had already been paid. The precinct 3 Commissioner also said he was confident about the integrity of his colleagues even when they vote differently.
County Judge Keith Self remarked that there are times when legislative bodies have differences of opinion and this is one of them. He said here there were mixed politics and law, and the Court has to be very careful “being seen to, or even attempting to, place our thumb on the scales of justice in this case.”
Precinct One Commissioner Susan Fletcher seconded the motion after noting that she had already expressed her concerns about the prosecution of General Paxton as well as about the attorney fees. As reported by Breitbart Texas, she has called the fees “arbitrary and capricious.”
The Commissioners adopted a Resolution promising to take “a careful review of future fee awards,” and to take “the necessary steps to protect our opportunity to seek appellate review of an order exceeding the local rules to implement the Texas Fair Defense Act which may include a formal request to stay any such excessive order and filing for a writ of mandamus with the Court of Appeals.”