In fiery filing, Ken Paxton prosecutors ask Texas court to undo "patently absurd result" in pay case

The state's highest criminal court must reconsider a November decision to ensure its proceedings "appear fair to all who observe them," prosecutors argued.

Special prosecutors Brian Wice, left, and Kent Schaffer enter the Collin County Courthouse during a pre-trial motion hearing for Texas Attorney General Ken Paxton on Tuesday, Dec. 1, 2015, in McKinney.

In a fiery filing that amounts to a legal Hail Mary, the attorneys appointed to prosecute Texas Attorney General Ken Paxton implored the state’s highest criminal court to take the unusual step of considering their case again because last month’s opinion yielded “a patently absurd result.”

The Texas Court of Criminal Appeals ruled in November that a six-figure payment originally approved for the special prosecutors was outside legal limits — a move that boosted Paxton and threatened to derail the case against him, as the prosecutors had indicated they might withdraw if they could not be paid. A month later, the prosecutors have asked the court to reconsider their decision in a crucial case “where the ‘x’ axis of justice and the ‘y’ axis of politics intersect.”

Rehearing, they argued in a filing last week, is critical for ensuring that the high court’s proceedings “appear fair to all who observe them.” [Read the filing here]

More than three years after Paxton was indicted, the state's top legal officer has yet to go to trial as courts handle side issues like the pay dispute.

Paxton was indicted in summer 2015 on allegations that he had recruited investors for a company without disclosing he was making a compensation. After the Collin County district attorney recused himself from the case, special prosecutors were appointed to prosecute Paxton and a judge agreed that they could be paid $300 per hour. In 2015, a local Paxton donor and taxpayer in the county sued, alleging that the prosecutors were being paid too much.

The resulting legal fight has dragged on for years, delaying Paxton’s prosecution. The pay case had been pending before the state’s highest criminal court for nearly a year before the all-Republican body handed down a ruling.

In the Dec. 21 filing, prosecutor Brian Wice wrote that the prosecutors “would never have accepted the formidable task of prosecuting the Texas Attorney General over the last three-plus years had they been able to look into the future and discern that their pay would come within a coat of paint of minimum wage.”

From the opening sentence, the 18-page filing doesn’t mince words.

“If you're fortunate enough to be Texas Attorney General Ken Paxton, you can lawfully create and endow a defense fund to pay for an armada of top-flight legal talent that most defendants can only dream of to defend yourself against three felony offenses,” Wice wrote.

In the motion for rehearing, which includes references to Atticus Finch, Shakespeare, Gilbert & Sullivan and the impending “Sword of Damocles,” the prosecutors implore the state’s highest criminal court to take the unusual step of considering their case again because last month’s opinion yields “a patently absurd result” that would pay the special prosecutors “unconscionable” rates.

Letting the ruling stand, Wice argued, would allow any local government in Texas “to derail what it sees as an unjust prosecution by de-funding it.” And that type of funding dispute can be influenced by major political players, he suggested.

“Make no mistake,” he wrote. “While it was the Commissioners who prevailed in this Court, Paxton first recognized that the best, indeed, the only way to derail his prosecution was to de-fund it by challenging [prosecutors’] fees three years ago.”

Paxton has been cleared twice of related civil charges brought by the U.S. Securities and Exchange Commission, and he has denied all the charges against him, calling them “politically motivated.” And he won re-election to a second term on Nov. 6, besting Democrat Justin Nelson, who had focused his campaign on Paxton’s criminal case.

The case before the high court is specific to Paxton; however, experts have expressed concern that the court’s decision last month could imperil the state’s system of paying lawyers for indigent defendants. That’s yet another reason for the Court of Criminal Appeals to rehear the case, Wice argued.

In Texas, judges have some discretion over the amount appointed prosecutors are paid; the system is based on the model for paying defense counsel for indigent defendants. Some experts worry the high court’s decision last month challenges judges’ discretion to pay appointed prosecutors more in cases that involve extraordinary circumstances — such as the long-running prosecution of a top state official, or a particularly complicated death penalty appeal.

In limiting judges’ discretion to pay appointed counsel more in extraordinary circumstances, some — including Judge Elsa Alcala of the Texas Court of Criminal Appeals — have argued that the court has made it more difficult for poor defendants to receive adequate representation in criminal trials.

That “decision to deny paying a reasonable fee to the special prosecutors in this case is effectively a decision to deny paying a reasonable fee to defense attorneys appointed to represent indigent defendants, and that will likely result in more cases of ineffective assistance of counsel,” Alcala wrote in a dissent on the pay case last month.

Wice echoed that concern, writing that a rehearing in this case is essential because the majority opinion “deprives indigent-defense counsel and attorneys pro tem of the funding essential if the constitutional guarantee of justice for all in our adversarial system means more than simply words on a page.”

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