Weird Developments With Special Prosecutors of Texas AG

Photo: Office of the Texas Attorney General

The prosecution of Texas Attorney General Ken Paxton has taken some weird turns this past week. A court of appeals ordered payments to the special prosecutors stopped, and in an unrelated criminal case, a federal judge removed one of the prosecutors from representing his client, a member of the Bandidos Motorcycle Club, because he had a conflict of interest.

The appellate court issued its order to stop the attorney fee payment after a Collin County taxpayer, Jeffory Blackard filed a petition for writ of injunction and emergency motion for temporary relief on Monday, January 30th. Blackard filed the petition on behalf of himself and the taxpayers of Collin County, Texas.

Using taxpayer monies to fund the prosecution against the AG has been a contentious issue because of the cost of the prosecution, questions about the legality of the payments, and/or because the case has been labeled a political witch hunt by political enemies of Paxton.

After Blackard filed a petition in the appellate court on Monday, the Dallas Court of Appeals temporarily stopped payments to the three special prosecutors in the criminal securities fraud case against the AG.

Breitbart Texas reported in October that some of the county officials in Collin County had knowingly or unknowingly taken inconsistent positions over the issue of a judicial court’s power to interfere with the governing powers of a commissioners court. They took one position in May in a brief to the Texas Supreme Court, but were at that time voicing the opposite position about complying with a court order to pay attorney’s fees in the prosecution against the AG – a decision that taxpayers say could end up being over a million dollars.

The Commissioners Court unanimously passed a resolution about how they would look at the attorney’s fees issue. The resolution was a policy shift for some of the commissioners. The action was taken after strong and sustained criticism by taxpayers, and after area state representatives and a state senator expressed their concerns about the costs. The Commissioners adopted a resolution promising to take “a careful review of future fee awards.” They also committed 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.”

As reported by Breitbart Texas, a county taxpayer and resident 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 told the Collin County Commissioners Court 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.

The latest bill submitted by the special prosecutors is over $205,000 and covers the last 13 months.

The special prosecutors were paid over $250,000 in 2015.

Blackard is trying to hamstring the prosecution of Paxton. “He’s just a rich stalking horse for Ken Paxton, They’re trying to starve the beast,” the lawyer for the special prosecutors, Dave Feldman, was reported by the Austin American-Statesman to say.

Blackard, who has a case pending at the appellate court, obtained the emergency order staying the fees after he argued that the Collin County Commissioners Court was set to decide, on that day, the district court’s second order on payment of the special prosecutor’s attorney’s fees. He urged that if the Commissioners Court approved the fees, his petition for writ of injunction, would be mooted as a matter of law.

The Dallas Morning News reported that the commissioners applauded the appellate court’s decision to temporarily put a stop to the attorney fee payments, and voted to request that the local court rules be changed to take out the provision that gives judge’s discretion to break the cap placed on such payments. Until the order staying the payment of the fees was issued by the Dallas Court of Appeals, the Commissioners Court was risking being in violation of a district court’s order after Monday if payment was not made.

Eddie Greim, one of Blackard’s lawyers responded to an inquiry by Breitbart Texas by emailing, “It’s unfortunate that every time the taxpayers try to argue the law in this case, the Attorneys Pro Tem resort to arguing politics and using the media to attack the defendant they’re trying to prosecute.”

Greim added:

Our case is based on the simple premise that attorneys’ fees are supposed to be fixed in advance so that they will apply equally to everyone, no matter who the defendants and prosecutors are. That was the system the Texas legislature created, and it is fair. It destroys this system, and it destroys the rule of law, for one judge to create his own special fees in secret after he knows who the defendants and prosecutors are. When we create ‘exceptions’ like this, we invite insiders to abuse the process. It adds insult to injury when the sword they wield turns out to be taxpayer dollars. If this is allowed to stand, it could happen to anyone, anywhere in Texas. Mr. Blackard felt it was time for someone to stand up for what is right.

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 special prosecutors were appointed after Collin County District Attorney, Greg Willis, recused himself because he is a long-time friend of Paxton’s.

The intermediate appellate court in Dallas has asked the parties to file any responses to the petition for writ of injunction by February 9th. The Fifth Court of Appeals in Dallas will be deciding whether they should issue a permanent block to the attorney fee payments. Blackard’s lawyer told Breitbart Texas that his client is looking forward to presenting his case to the court of appeals. He said the “convoluted history” of the case over 14 months shows why the Texas Supreme Court has recognized such taxpayer claims. “When governmental bodies do not perform their constitutional duty to make sure that taxpayer dollars are spent lawfully, then taxpayers must act to press the legal challenge that their elected officials lacked the courage to assert,” he said.

The Morning News reported that prosecutors have submitted bills for over $510,000 since the case’s onset. The Collin County auditor has reported $106,000 in related costs bringing the total to over $617,000 to-date for the prosecution against the Texas AG.

The criminal trial is set for May 1st.

In another criminal case, a judge in Bexar County (San Antonio) has removed one of the special prosecutors in the Paxton case, Kent Schaffer, from serving as the lawyer for the Bandidos president. The federal magistrate sided with prosecutors and agreed that Schaffer may have a conflict of interest that precludes him from representing the Bandidos leader, Jeffrey Fay Pike, of Conroe.

As reported by the San Antonio-Express News on Tuesday, Schaffer represented two Bandidos who are no longer members of the motorcycle club but are now government witnesses. These individuals reportedly claim that Pike and the second in command of the organization, John Xavier Portillo, allegedly ordered motorcycle club members to give Schaffer court documents so he could see who might be working against the organization. The judge wrote in his order that “the continued representation of Mr. Schaffer and [another lawyer] of Defendant Pike in this case presents an actual conflict of interest, or a serious potential conflict of interest.”

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.


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