The Court of Criminal Appeals has refused to overturn a ruling that’s preventing the three Houston attorneys appointed as special prosecutors in the criminal case against Texas Attorney General Ken Paxton from getting paid.
The attorneys, Brian Wice, Kent Schaffer and Nicole DeBorde, filed a writ of mandamus last year seeking to overturn a ruling by Dallas’ Fifth Court of Appeals that vacated an order by trial Judge George Gallagher to pay the lawyers about $205,000 for prosecuting the case based on a $300 hourly fee rate.
Paxton was indicted in July 2015 by a Collin County grand jury on three felony charges. He has denied the prosecutors’ allegations that he misled investors he personally recruited in 2011 for a high-tech startup that allegedly paid Paxton 100,000 shares.
Wice, Schaffer and DeBorde were appointed to handle the case. The Collin County District Attorney’s Office recused itself from the matter, but the Collin County Commissioners Court opposed Gallagher’s order requiring them to pay the attorneys’ bill because it conflicted with Collin County’s fixed-rate fee schedule. They later won a ruling from the Fifth Court voiding the payment—a decision that the CCA upheld in its recent decision.
“The commissioner’s court is correct that we are not called upon to determine whether the payment ordered in this case is reasonable. We are only asked to determine whether the applicable statute limits the trial court’s ability to approve an hourly rate when the fee schedule approved by the local judges prescribes a fixed rate,” wrote CCA Judge David Newell.
“This is the business we’ve chosen. We agree with the commissioner’s court that the statute in question limits the trial court’s authority, and we agree with the court of appeals that the … order for payment should be vacated,” Newell wrote.
Wice, who handled the mandamus action for the attorneys, said they are considering their next move.
“While we are disappointed with the majority’s ruling and are exploring all legal options available to us, it does not alter the fact that Ken Paxton remains charged with three serious felony offenses,” Wice wrote in an e-mail.
Wice had previously argued that the Fifth Court’s decision abused its discretion by blocking the special prosecutor’s payment—a ruling he alleged will have a chilling effect on the ability of trial judges to appoint qualified lawyers to take on complicated and serious cases.
Clyde Siebman, a partner in Sherman’s Siebman, Burg, Phillips & Smith who represents the Collin County Commissioners Court in the case, also did not return a call for comment.