Texas Attorney General Ken Paxton's lawyers and the prosecutors handling the securities fraud case against him are preparing to debate a familiar topic Wednesday: whether his trial should be delayed — for a third time — until the prosecutors can get paid.
Both sides are due in Houston for a hearing on the prosecutors' latest effort to push back the trial amid a long-running legal battle over their compensation — a fight that recently reached the state's highest criminal court, the Texas Court of Criminal Appeals. Earlier this year, when Paxton's case was before a different judge, the prosecutors were unsuccessful in a prior attempt to delay the trial until they could collect their paycheck.
Currently, Paxton is set to go to trial Dec. 11 on the less serious of three charges he faces. The date for that trial has already been pushed back twice due to pretrial disputes, first over the venue and then the judge.
In a recently filed motion, the prosecutors asked the judge in the Paxton case to further delay the trial until the Court of Criminal Appeals can sort out of the payment issue — "a process which could take many months." That ongoing litigation, coupled with logistical difficulties created by Hurricane Harvey, "make a trial date in December impossible" for the prosecutors, they wrote.
Paxton's team scoffed at that ask in a response Tuesday, saying the prosecutor pay battle is "wholly irrelevant to the trial."
"If 'a trial date in December [is] impossible,' for the attorneys pro tem as they state in their brief, then their remedy is not further degradation of Paxton's right to a speedy trial — it is withdrawal," Paxton's lawyers wrote. "Should they wish to do so, Paxton will not lodge any objection."
Last week, the Court of Criminal Appeals intervened in the dispute over the prosecutors' pay, issuing a stay of a lower-court ruling last month that voided a six-figure paycheck for them. In its decision, the Court of Criminal Appeals gave all sides 30 days to respond to the prosecutors' argument that the lower court, the Dallas-based 5th Court of Appeals, overreached when it invalidated the payment.
The issue of the compensation of the prosecutors on the case stems from a series of lawsuits from Jeff Blackard, a supporter of the attorney general, who has sought to limit the payments by the Collin County Commissioners Court, arguing excessive taxpayer money is going toward prosecuting Paxton. The commissioners ultimately took up the fight, asking the 5th Court of Appeals to cut off the prosecutors' pay.
For over two years, Paxton has been fighting charges that he misled investors in a company from before his time as attorney general. The Dec. 11 trial deals with the charge that Paxton failed to register with the state securities board.
Paxton has pleaded not guilty to all the allegations. He has already been cleared in a similar, civil case at the federal level.
Paxton will not attend the hearing Wednesday.
"Attorney General Paxton is traveling on official business to meet some long standing commitments that were made prior to the hearing," Matt Welch, a spokesman for the Paxton campaign, said in a statement. "Both the judge and the special prosecutors agreed to waive his appearance requirement."