Ken Paxton. Photo: Diego M. Radzinschi/ALM

In their quest to get paid, three Houston lawyers working as court-appointed special prosecutors in the criminal case against Texas Attorney General Ken Paxton have asked Texas’ highest criminal court to compel a Dallas appeals court to vacate an order that’s holding up their pay.

Houston lawyers Brian Wice, Kent Schaffer and Nicole DeBorde filed a motion on Sept. 19 asking the Court of Criminal Appeals (CCA) to grant their writ of mandamus. They want the CCA to compel the Fifth Court of Appeals in Dallas to vacate its Aug. 21 order that directs Judge George Gallagher to vacate his Jan. 4 order to pay them about $205,000.

The appeals court concluded that the order requiring payment was void.

In a 52-page brief written by lead counsel Wice, the special prosecutors argue that the Dallas appeals court’s ruling in August threatens the ability of Texas judges to have discretion in what appointed lawyers are paid in unusual cases. They argue that the court of appeals “clearly abused its discretion.”

“The court of appeals’ resolution of an issue of first impression will have a chilling effect on the ability of trial judges to appoint qualified lawyers – defense attorneys and special prosecutors alike—willing to take on the most complicated and serious cases,” the special prosecutors argue in the petition.

Wice is a solo practitioner, while Schaffer and DeBorde are partners at Bires Schaffer & DeBorde.

In 2015, Judge Scott Becker, the local administrative judge of Collin County, appointed the special prosecutors after Collin County District Attorney Greg Willis recused his office from prosecuting Paxton for alleged violations of state securities laws. Becker agreed to pay each of the special prosecutors in the Paxton case a $300-an-hour rate.

In 2016, Collin County paid the first pay order issued by Judge George Gallagher of Tarrant County, which totaled $254,908 for pretrial work. But in January, instead of making a second payment ordered by Gallagher, the Collin County Commissioners Court sought a writ of mandamus to force the trial court to vacate the payment order.

Clyde Siebman, a partner at Siebman, Burg, Phillips & Smith in Sherman who represents the commissioners court, said the Dallas appeals court was correct in its Aug. 21 opinion and its analysis and interpretation of Texas law. He said the CCA will reach the same conclusion.

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 with 100,000 shares.

The criminal case is set for trial in December in Houston.