Prosecutors Hit New Roadblock in Texas AG’s Criminal Case

AUSTIN, Texas (CN) – Is that a Teflon suit, Mr. Paxton? Texas Attorney General Ken Paxton has been under indictment since 2015 on securities fraud charges, and the prosecution suffered another setback Wednesday when the state’s highest criminal court effectively shredded three special prosecutors’ $199,000 bill for their pretrial work on the case.

Texas Attorney General Ken Paxton speaks at a news conference in Dallas in June 2017. (AP Photo/Tony Gutierrez, File)

A Collin County grand jury indicted Paxton in July 2015, six months after he took over as Texas’ top law enforcement officer, on two securities fraud charges and one count of failing to register with the Texas securities board as an investment adviser.

If convicted, he could be sentenced to up to 99 years in prison. But that’s a big if, as three special prosecutors assigned to the case have signaled they might withdraw if Collin County does not pay their $199,000 tab for pretrial work.

Collin County commissioners approved the special prosecutors’ first bill of $242,000 for the case in January 2016.The county seat, McKinney, is 30 miles north of Dallas.

But the commissioners on the county’s executive board refused to pay the prosecutors’ second $199,000 bill in January 2017, and the Texas Fifth Court of Appeals in Dallas vacated an order directing the county to make the payment.

The appeals court ruled the prosecutors should only be paid “a fixed fee of $1,000 for pretrial preparation, and a fixed fee of $500 for each one-half day of trial” for felony cases, as set out in Collin County’s fee schedule.

The special prosecutors – Brian Wice, Kent Schaffer, and Nicole DeBorde, all of Houston – filed a mandamus petition in September 2017, asking the Texas Court of Criminal Appeals, or TCCA, to vacate the order so they can collect the $199,000.

They argued the order would have a “chilling effect” on trial judges’ ability to find competent private attorneys to take on complex prosecutions of public officials because they might be paid pennies on the dollar of their normal rates.

The TCCA denied the petition last November and denied the prosecutors’ motion for a rehearing Wednesday.

Wice declined comment when asked on the phone Wednesday afternoon if he’s decided whether to withdraw from the case. He emailed the following statement: “We’re disappointed that the court took six months to summarily deny our motion for rehearing without addressing any of the substantial legal issues it raised.”

Paxton’s office did not respond to a request for comment on the rehearing denial.

Criminal cases are typically handled by a county’s district attorney, but Collin County District Attorney Greg Willis recused himself because he is a college friend and business associate of Paxton’s.

But thanks to a new state law, another county’s district attorney would likely be appointed to take over Paxton’s prosecution if the special prosecutors withdraw, according to the Texas Tribune.

Signed by Governor Greg Abbott on June 10, Senate Bill 341 will take effect Sept. 1.

It mandates that if district attorneys are disqualified from a criminal case, recuse themselves, or are unavailable, then only other district attorneys, their assistants, or assistant Texas attorneys general can serve as special prosecutors. In other states, district attorneys are called state’s attorneys.

Though an attorney from Paxton’s office could potentially be appointed to prosecute him, conflict-of-issue concerns would make it a nonstarter.

Paxton’s trial has been delayed numerous times by the special prosecutors’ payment dispute and other issues. A date has not yet been set.

Even with the pending criminal charges, Paxton, 56, was re-elected in November, defeating Democrat Justin Nelson by more than 295,000 votes. Paxton can defend his seat in November 2022 because there are no term limits for Texas attorney general.

The charges date to 2011 when Paxton was a member of the Texas House of Representatives. He is accused of failing to tell investors in the tech firm Servergy, including former state lawmaker Byron Cook, he would earn commissions on their money and of lying to them that he was investing in the company.

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