*Updated on July 22 to reflect new requests from Attorney General Ken Paxton’s lawyers.

Even after the state’s top criminal court ruled and ruled again on a long-running side battle to the criminal case against Texas Attorney General Ken Paxton, a trial still seems distant. Both defense attorneys and prosecutors this week filed new legal motions with the potential to spell months of further delays.

The securities fraud case against Paxton has been stalled for years as attorneys duke out side battles, like a dispute over how much the prosecutors may be paid. That remains to be finally resolved, even after the Texas Court of Criminal Appeals last month reaffirmed its ruling that the $300-per-hour rate initially promised to the special prosecutors fell outside legal limits.

Prosecutors Brian Wice and Kent Schaffer — who have yet to be paid for work on the case completed as long ago as 2016 — had signaled they might withdraw if they could not be paid. But they made clear this week that they are not ready to give up the dispute, asking a Harris County judge for a private “ex parte” hearing over their fees — a meeting that would not include Paxton’s defense team.

Meanwhile, Paxton’s defense team has asked that the case be moved back to his hometown of Collin County, years after it was moved from there to Harris County. The case was moved hundreds of miles southeast after the prosecutors claimed that Paxton, a Republican who is well connected in that region and once represented it in the Texas Legislature, would not get a fair trial there.

But Paxton’s defense team argued this week that the judge who moved the case to Harris County two years ago didn’t have the authority to do so, as his term overseeing the case had elapsed.

Philip Hilder, one of Paxton’s defense lawyers, declined to comment on the motion Friday. Anthony Drumheller, the attorney for the special prosecutors, did not immediately return a request for comment.

That leaves Johnson, a Democratic judge overseeing the case, with several issues to mull before Paxton faces a jury. Johnson has not yet responded to either side’s motion.

On Monday, Paxton’s defense attorneys argued that if there is a hearing on the prosecutors’ fees, they should also be present — and asked that the judge rule on changing the venue before the pay issue.

It’s been nearly four years since a Collin County jury indicted Paxton on felony securities fraud charges, but he has yet to go to trial amid delays including the pay dispute. Paxton has been fighting charges that he misled investors in a company from before his time as attorney general. Paxton has pleaded not guilty to all the allegations and was cleared in a similar civil case at the federal level.

Late last month, one of the three prosecutors, Nicole DeBorde, moved to withdraw from the case, citing “a series of professional obligations over the past several months.” She did not indicate whether the pay ruling had motivated her decision.

The special prosecutors were appointed in 2015 after Collin County District Attorney Greg Willis recused himself from the investigation because he knew Paxton.

Amid his legal troubles, Collin County has remained an important base of support for Paxton, whose wife, Angela Paxton, now represents it in the Texas Senate.

Meanwhile, the Collin County Commissioners Court is considering a move to claw back payment already issued to the special prosecutors. The prosecutors received a six-figure payment for work completed on the case before 2016, though their next invoice has yet to be filed amid the legal dispute.

After the Court of Criminal Appeals ruled that prosecutors’ pay schedule fell outside legal limits, two commissioners said the county is considering whether, and how, to recoup the first payment. Commissioners discussed the matter in a private executive session earlier this month.

Commissioner Susan Fletcher said a lawsuit is one option on the table but that commissioners have not yet come to a decision.

“My duty is to the taxpayers,” she said.

October 2019 Update

Texas Attorney General Ken Paxton recuses himself from opinion, citing conflict of interest

A local official had asked Paxton for legal guidance on special prosecutor pay — a major question in the criminal case against Paxton himself.

Asked to weigh in on a legal matter close to his own personal criminal case, Texas Attorney General Ken Paxton this week recused himself from a request that could have constituted a conflict of interest.

Among the many duties of the Attorney General’s Office is to offer non-binding legal guidance to elected officials wrestling with a matter of law — a best estimate at what a court would decide, presented with the same question.

In June, Terri Sellars, the Wood County auditor, sought such an opinion from the agency regarding the payment of a “district attorney pro tem,” a special prosecutor appointed to take up a case after the district attorney has to be recused. The eight-page request referred repeatedly to an ongoing lawsuit — “State ex rel. Wice v. Fifth Judicial District Court of Appeals” — the long, dragged-out fight over how much local officials should pay the Houston prosecutors appointed to take Paxton to trial — and it involved a nearly identical issue.

Paxton was indicted in 2015 on felony securities fraud charges, but his case has yet to go to trial amid a slew of side fights, including a yearslong battle over how much the special prosecutors appointed to take him to trial may be paid. In June, when the question came in from Wood County, the state’s highest criminal court was mulling a motion to reconsider its own decision that payments to the Paxton prosecutors outside the schedule were illegal. Weeks later, the court re-affirmed its own decision.

Without referring to Paxton’s own criminal case, First Assistant Attorney General Jeff Mateer wrote Friday that “this office concludes there could be an actual or perceived conflict of interest such that the Attorney General has recused himself from any participation on the matter.” He did not elaborate on what that conflict of interest might be, and the Attorney General’s Office did not immediately return a request for comment.

The letter also included an April 2017 statement from Paxton himself, in which he writes that “I delegate my signature authority in the attorney general opinion process to the First Assistant Attorney General, Jeffrey C. Mateer, for those opinions in which I may have an actual or perceived conflict of interest or in which my involvement gives even the appearance of impropriety.”

Like lawyers for indigent defendants, appointed prosecutors are paid according to their local government’s designated fee schedule, some of which authorize judges to exceed standard limits under extraordinary circumstances. The Texas Court of Criminal Appeals ruled last year that those “opt out” provisions unlawfully exceed a judge’s authority. In Paxton’s case, a GOP judge had agreed that the prosecutors could be paid $300 per hour, but a Paxton donor sued, calling the rate excessive, and the Collin County Commissioners Court later refused to pay the bill.

The pay matter remains in dispute before the Harris County trial court set to hear Paxton’s case.

The opinion was also signed, as is customary, by agency attorneys who generally oversee the opinion-writing process. They informed Wood County officials that a provision allowing a judge to “opt out” of a mandatory fee schedule is “invalid” — effectively saying that deviating from a fee schedule’s fixed rates is impermissible.

The impacts of that guidance are difficult to predict. The Legislature this year quietly approved a law, Senate Bill 341, that bars private attorneys from serving as special prosecutors — a measure, author Sen. Joan Huffman, R-Houston said, that is in part intended to help counties save money on appointed prosecutors. Since Sept. 1, the only attorneys qualified to serve as “attorneys pro tem” are county attorneys, district attorneys and assistant attorneys general.

Paxton is accused of misleading investors into buying stock in a North Texas tech firm and failing to register with the state. The Texas State Securities Board fined him $1,000 in connection with one instance of soliciting clients without being registered; Paxton signed the order and did not dispute its findings. He has been cleared of related civil charges brought by the U.S. Securities and Exchange Commission. Paxton has denied the charges.

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— LawsInTexas (@lawsintexasusa) June 17, 2020