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Lawsuit has judges in Paxton case playing defense

By   /   January 5, 2016  /   News  /   No Comments

Part 5 of 17 in the series The Problematic Paxton Prosecution
Official portrait

Scott Becker is judge of the 219th District Court in Texas.

Should the special prosecutors pursuing Attorney General Ken Paxton on charges of securities violations be paid hundreds of thousands of dollars for their efforts?

Paxton’s attorneys don’t think so, and filed a motion last week to derail a promised payday. A private citizen also filed a lawsuit seeking a restraining order to block payment.

The tactical reasons for trying to cut off an opponents’ funding are obvious, but the legal question comes down to a basic principle of law.

Like God, the law is said to be no respecter of persons. The point of that legal maxim, writes Bryan A. Garner in A Dictionary of Modern Legal Usage, “is not that the law disrespects persons, but that it pays no special regard to one’s station in life: speaking ideally (if not idealistically), the law treats a homeless person with the same respect it would a bishop.”

Yet in Paxton’s case, Collin County District Judge Scott Becker decided that a law meant for homeless people ought to get a special interpretation in Paxton’s case – that Paxton should be singled out for special disrespect, as it were.

The special prosecutors Becker appointed are supposed to be paid according to the county’s fee schedule for indigent defendants. That is, state law holds that they “shall receive compensation” in the “same amount and manner” as a court-appointed lawyer defending a homeless person.

That’s not much in this case: $1,000 for pre-trial work, $1,000 a day for trial, with a possible $1,000 bump if a judge deems it appropriate.

That schedule was amended last year to state that it should be followed “without exception.”

The question is whether the local Board of District Judges really meant “without exception,” as there’s some language in the court rules left over from an earlier policy that would allow an exception in “unusual circumstances.”

While discussing a different case in May, Judge Chris Oldner wrote to his colleagues that his understanding was that the “without exception” policy had superseded the “unusual circumstances” language.

“This language seems to have more flexibility, but I recall our agreement was to strictly follow the fee schedule,” wrote Oldner, who is not known as a Paxton partisan.

District Judge Ray Wheless, who supports Paxton, wrote his colleagues on the Collin County bench that, “It is clear that all of us, and specifically Judge Oldner, agreed as recently as May 25, 2015, that the fixed fee schedule was to be followed.”

In another email, Wheless wrote that the “language that says ‘no exceptions’ was adopted after the discretionary language. I believe a court would construe the document to give effect to what the parties intended and that was to require all court appointed cases would be paid only the flat fees with no exceptions.”

Now a court will have to decide who’s right.

The petition for a restraining order by Jeffory Blackard points out that the fee schedule has been amended several times over the last 14 years, and each amendment “increasingly restricted the discretion of district judges to vary from the fixed rates and fees that can be paid.”

In 2009, for example, the judges eliminated the right of an attorney to appeal to the board for a higher fee, although it retained a rule that “a Judge may still bring an exceptional fee request to the attention of the Board.”

So even before the “no exceptions” policy, a judge had to get board approval to pay special rates to court-appointed attorneys. But in the Paxton case, it was Becker, acting as presiding judge, who approved a secret $300-an-hour rate for the Houston attorneys serving as special prosecutors.

As those prosecutors – Brian Wice, Kent Schaffer and Nicole DeBorde – say they’ve already worked hundreds of hours, that arrangement could send legal expenses well into six figures.

That “grossly exceeds the published rates of the Collin County indigent defense plan, even for those facing the death penalty,” Paxton’s attorneys write. It’s also hundreds of times more than the county would pay for the defense of somebody facing the same charges as Paxton.

“Certainly, were Paxton indigent, his counsel would be held to these strict compensation limits in the published plan,” his attorneys write.

In a half-dozen other cases since 2010 involving securities law, Collin County has simply asked “the attorneys of the Texas State Securities Board (to) prosecute,” Paxton’s attorneys write.

So far, none of the judges have offered any public explanation as to what makes Paxton’s case — he was reprimanded by the Texas State Securities Board for soliciting investment clients without being registered as an investment adviser —  unusual enough to justify the additional expense.

The special prosecutors “may believe their case to be extraordinary, and may have been promised lucrative fees, but there is no legal basis for a fee payment to occur prior to disposition of the case or for an amount higher than the amount permitted in the fee schedule,” Blackard’s attorney writes.

Paxton’s station as attorney general is unusual, of course, but the judges can hardly declare that they are expending all this effort and money for that reason alone – to imprison an attorney general because he’s the attorney general.

RELATED: Court may be bending rules for Paxton prosecutors

But the most thing unusual thing about the case itself is that it was filed at all.

The Texas State Securities Board almost never files criminal charges over simple registration violations, according to statements by both State Securities Commissioner John Morgan and Deputy Securities Commissioner Ronak Patel.

In an interview with two Travis County prosecutors who decided not to bring charges, Morgan said that the Paxton case “has turned into a political football. I mean, the facts are unremarkable here. … We have brought actions for registration violations, but they were typically done in the context of individuals who refused to stop, that were part of a systemic fraudulent scheme.”

Patel said that in cases of “isolated” registration violations, the board’s response is typically, “OK. Well, now get registered. Let’s move forward.”

Patel said he’d never even worked on a solicitor registration case, so he had to dust off “some of these old cases, then I also talked to securities regulators in other states … and everyone is like, ‘Yeah, a small fine, make them disclose it in the future,’ which is basically what we did in this case.”

The board fined Paxton $1,000.

Yet now, Wice tells the Houston Chronicle that “Mr. Paxton’s insistence on limiting our pre-trial fees to $1,000” is “frivolous.”

If Wice is correct — if nobody would dispute that a grand is in fact trifling — that raises another question.

If Paxton’s apparent violation is a trifling affair to state regulators, and a trifling affair by the written standards of the Collin County Board of District Judges, then how could it also be more important than, for example, a death penalty case, which would be governed by the county fee schedule? How do the anti-Paxton judges justify spending so much over so little?

The judges will now have to explain what’s so important about this case. And they’ll need to find a better answer than, “Paxton is.”

Contact Jon Cassidy at [email protected] or @jpcassidy000.

Part of 17 in the series The Problematic Paxton Prosecution

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Jon Cassidy was a former Houston-based reporter for Watchdog.org.