AUSTIN — In a decision that could make or break the case against indicted Texas Attorney General Ken Paxton, the state's highest court has agreed to settle a fight over how much money the prosecuting lawyers should make.
The Court of Criminal Appeals took up the case Wednesday. It will decide whether a county judge flouted state law when he offered the special prosecutors $300 an hour for their work on the Paxton case. It could take weeks or even months for the court to rule, and the decision will determine when Paxton goes on trial and who will prosecute him.
If the court sides with the prosecutors, Collin County almost surely will owe them hundreds of thousands of dollars in back pay that's piled up over two years. It would also mean Paxton's case will remain on schedule, with the attorney general likely headed to trial in 2018.
If the court rules against them, the prosecutors have threatened to step down, a move that would derail the prosecution of the state's top lawyer just as he enters a re-election year.
'Gratified but not surprised'
The top court's decision to take up their appeal marked a win for the prosecutors, who will be able to fight for their next payday. Brian Wice, one of three prosecutors appointed to the case, said he was "gratified but not surprised" that the court agreed to hear their appeal.
Wice added that the prosecutors "remained convinced" the court will side with them. "Defense attorneys and special prosecutors willing to take on the most complex and high-profile criminal cases" deserve to be "fairly and adequately" compensated, he said.
The fight over the special prosecutors' pay rate goes back more than two years, when Paxton was first indicted for violating state securities laws. The allegations are unrelated to his elected office, and Paxton maintains his innocence, calling the prosecution politically motivated.
The charges were doled out by a grand jury in Collin County, where Paxton has lived and worked for decades, and taxpayers there must foot the case's bill.
Usually the local district attorney would handle the case, avoiding the need to fight over costs. But Collin County District Attorney Greg Willis, a longtime friend of Paxton's, recused himself, requiring the county to find a stand-in. A local judge tapped Wice and two other criminal defense attorneys in Houston, offering them the $300-an-hour rate.
But the Collin County Commissioners Court has refused to pay them, arguing that the rate violates pay caps for special prosecutors and other court-appointed attorneys. A lower court in Dallas agreed with the commissioners earlier this year, prompting the prosecutors to appeal to the high court.
'A landmark proceeding'
Its decision will break the logjam over the prosecutors' pay but also have implications beyond Paxton's case.
Court-appointed attorneys, including lawyers who defend poor Texans who can't afford their own, are paid according to the same rules as special prosecutors. If the high court upholds the principle that state law requires pay caps on these lawyers — and says judges have no discretion to break these caps — court-appointed attorneys argue it will hurt their ability to properly defend their clients.
Public defenders would be incentivized to take on more clients to make up the difference, and county commissioners could reduce caps to thwart prosecutions that they oppose because of personal or political reasons, some district attorneys have argued.
But county officials argue that pay caps protect local taxpayers from runaway prosecutions and keep budgets in check as the costs of indigent defense go up and as state funding implodes.
Wice, the prosecutor, called the decision that's before the top court "a landmark proceeding." Collin County Judge Keith Self has said he's simply fighting to uphold the law.
"We are fighting so that we don't have a precedent where the law is willfully ignored," Self told The Dallas Morning News this month. "Do we defend the law or do we not?"
Since Paxton was indicted 2 1/2 years ago, Collin County has paid the prosecutors once — in January 2016, when the county agreed to cut a check for $254,000. In the past 10 months, the county has spent $123,000 — one-fifth of the county's total legal fees budget — to keep from paying them again.
The commissioners have hired a private attorney to fight the prosecutors. His rate is $375 an hour.