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.