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Kent Schaffer

Paxton denies whistleblower allegations

Pretty standard response.

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The Texas attorney general’s office will pay outside counsel $540 an hour to defend the state agency against accusations that it was retaliating against top aides when it fired them just weeks after they reported their boss, Ken Paxton, to authorities for possibly breaking the law.

William Helfand, a Houston attorney with Lewis Brisbois Bisgaard & Smith LLP, will make $540 per hour for his work on the case while an associate attorney and a paralegal will make $350 and $215 per hour, respectively, according to a contract with the agency.

They filed the agency’s first official response Monday to a lawsuit filed by four of eight whistleblowers who left the agency after leveling the accusations. Paxton’s attorneys roundly rejected pages and pages of allegations of wrongdoing and retaliation in just a few brief sentences.

The agency “generally denies each and every claim and allegation” made by the whistleblowers, attorneys for the state wrote in the brief filing.

“Any action Plaintiffs allege to be an adverse employment action was the result of each Plaintiff’s own misconduct, lack of competence, and/or disloyalty to the Office,” the outside attorneys for the agency wrote.

Paxton is reportedly being investigated by the FBI over the allegations raised by the aides.

Separately, he has been under indictment since 2015 on felony securities fraud charges but has yet to stand trial amid side issues over venue and prosecutor pay. Notably, his defense team and political allies have loudly objected to the special prosecutors in the case making $300 per hour — far lower than the pay scale for the outside attorneys in the whistleblower case.

That point was not lost on Brian Wice, one of the special prosecutors, who said it was “ludicrous for Paxton to believe that a seven-year attorney, not to mention a paralegal, should be paid more for defending him than two lawyers with over 80 years of combined experience should be paid for prosecuting him.”

“And it is outrageous that the taxpayers of Texas will be obligated to pay the legal fees for defending Paxton’s alleged misconduct that has reportedly triggered an FBI investigation,” Wice added.

See here and here for some background. Even I recognize this as Basic Lawyering 101, nothing new or unusual to see here. Where it gets exciting is in discovery, where Paxton will have to start coughing up some documents. As for how much the defense attorneys are being paid, as a theoretical matter the office of Attorney General deserves competent representation in matters like this. But the same is very much true for the special prosecutors, who have had to deal with a huge amount of political interference on Paxton’s behalf just to get paid. Surely if Paxton’s defense attorneys are worth that kind of fee, then we ought to see Brian Wice and Kent Schaffer as relative bargains. At least if Paxton does eventually get busted by the FBI, it’ll be the feds paying for that trial. In this case, we know Ken Paxton is going to raise money off of his latest legal travails. If the plaintiffs win, he can damn well kick in some of that loot to pay for the defense of his misdeeds.

Paxton trial move back to Collin County on hold

Delay is the natural state of being in this saga. I don’t know why we’d ever expect anything else.

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A Houston appeals court has pressed pause on a ruling that would have allowed Texas Attorney General Ken Paxton to stand trial for felony securities fraud in his hometown of Collin County.

That Oct. 23 ruling came three years after the case was first sent to Harris County, with prosecutors arguing they could not get a fair trial prosecuting Paxton in a part of the state where he and his wife, state Sen. Angela Paxton, are deeply politically connected.

Paxton is accused of persuading investors to buy stock in a technology firm without disclosing he would be compensated for it. He has maintained his innocence and dismissed the charges as politically motivated.

The 1st Court of Appeals in Houston has, for now, blocked the case from resuming in Collin County — likely further delaying the five-year-old case — as it considers the issues.

See here for the previous update. The Chron adds a few details.

The case was moved to Harris County after a judge ruled in 2017 that Paxton’s Republican political connections in Collin County would give him an unfair advantage at trial. But that decision has been under judicial review now for three years as Paxton’s defense team and the special prosecutors appointed in the case battle over the venue.

The prosecutors applauded the latest decision by 1st Court of Appeals Judge Gordon Goodman, a Democrat elected in 2018 as his party swept judicial races.

“The ruling of the court was not unexpected as the law and facts are very straightforward,” said Kent Schaffer, one of the prosecutors. “We are optimistic that the Court of Appeals will do the right thing, and Ken Paxton will face justice in front of a Houston jury.”

[…]

Paxton’s lawyers had argued that the case should have never been moved in the first place, because the judge made the decision after his assignment to the case had expired.

In June, Harris County state District Judge Robert Johnson ruled in Paxton’s favor and moved the case to Collin County. But the 1st Court of Appeals struck that order about a month later, after Johnson recused himself from the case because Paxton’s office is representing him in a separate suit.

The case was then reassigned to Harris County Jason Luong, a Democrat and former prosecutor with the Harris County District Attorney’s office.

Luong agreed the case should be sent back to Collin County based on his interpretation Johnson’s ruling, and he did not discuss where he believed Paxton would receive a fair trial.

The prosecutors had argued in their appeal that Luong misinterpreted the law.

Just to recap, and I’m totally relying on this Chron story rather than spending an hour digging through my own archives, but the case was first moved from Collin County to Harris County because the judge at the time, a Tarrant County jurist who had been appointed as a visiting judge precisely because no Collin County judge could handle the initial hearings, agreed with the prosecutors’ argument that Paxton would get preferential treatment in his home county. All the arguments since then have been about technicalities. It’s surely a safe bet that this current dispute will wind up before the Court of Criminal Appeals, just as the previous ones did. It’s not at all far-fetched to think that Paxton’s more recent legal troubles will see the inside of courtroom before this case does.

Idle yet hilarious thought: How much do you think Paxton will want to move the case back to Collin County if it flips blue and votes for Joe Biden this year?

Anyway. Settle in, or stay settled in if you never bothered to settle out. This will take awhile.

Judge sends Paxton case back to Collin County

Pending appeal, of course.

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A Harris County judge on Friday moved Attorney General Ken Paxton’s criminal case to Collin County, handing Paxton a major win by placing the case in his hometown, where legal experts say he’s more likely to face a sympathetic judge or jury.

Judge Jason Luong ruled that he did not have the authority to move the case, deferring to an earlier order moving the case to Collin County.

Special prosecutors Brian Wice and Kent Schaffer said Friday that they plan to appeal. Paxton’s attorneys could not immediately be reached.

The decision adds yet another layer of complication — and likely more delays — to a case that has dragged on for more than five years over numerous issues unrelated to the substance of the accusations against Paxton.

I’m going to jump in here to remind everyone that Judge Robert Johnson had ordered the case back to Collin County in June, agreeing with Paxton’s defense team that the judge who had sent the case to Harris County in the first place did not have the authority to do so. Johnson then recused himself from the case, because the AG’s office is representing the criminal district court judges in the felony bail reform lawsuit, though it is not clear that he had to do so, since Paxton is not directly involved in that case and the judges who are defendants are being sued in their official capacity, not as plain old citizens. The First Court of Appeals set that order aside in July (the technical legal term is “abated”), on the grounds that the new judge, Jason Luong, needed to have an opportunity to review Judge Johnson’s order and either agree with it or vacate it. (Team Paxton later tried to get Judge Luong removed, but that motion was denied and subsequently mocked.)

In his ruling Friday, Luong added that even if a higher court rules that he does in fact have authority, he agrees with Paxton’s lawyers that the judge who allowed the case to move to Harris in the first place lacked authority as well, meaning the case would remain in Collin County.

As it was explained to me, the same mandamus that had been filed with the First Court of Appeals to challenge Judge Johnson’s ruling will now be taken up for Judge Luong’s ruling. I should note that the First Court’s abatement was supposed to be for 45 days, but as with everything related to this Paxton case, things took longer than that. Lord only knows when the next thing will happen. In the meantime, of course, there is now the Nate Paul shitshow, and if that does not have an effect on this case somehow at some point, I will be puzzled and very, very disappointed – like, Susan Collins clucking her tongue at Donald Trump-level disappointed. What the world needed now, when not much else is happening, is some more Ken Paxton news, am I right? The Trib has more.

Nate Paul strikes back

Just when I think this can’t get any better.

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When Ken Paxton announced Friday his office was dropping the investigation into an Austin real estate investor’s claims of mistreatment during a federal raid of his home and business, the attorney general may have hoped the questions swirling around his relationship with Nate Paul would dissipate.

But a letter released late Sunday by Paul’s attorney that appears to be laying the foundation for a lawsuit against Paxton’s office dispelled any notion the controversy would go away soon.

[…]

Until now, Paul and his attorney, Michael Wynne, have remained mostly silent. But Sunday’s letter, in which Wynne demands that the attorney general’s office preserve documents related to the investor’s contact with Paxton’s office, flips that narrative.

In it, Wynne asserts that, far from helping his client’s cause, deep dysfunction inside Paxton’s office scuttled his client’s legitimate claim of abuse at the hands of federal investigators and has led to “A chaotic public spectacle of allegations.”

In Wynne’s telling, investigators’ behavior during the August 2019 raid against Paul were “among the most egregious examples of inappropriate behavior by government officials that I have witnessed in my professional experience.” The searchers tampered with records and then gave testimony contradicted by documents, he wrote.

Paul took his complaints to District Attorney Margaret Moore, who advised him that Paxton’s office was the correct agency to conduct any investigation of wrongdoing on the part of the searchers, including the FBI. But when Paul detailed his complaints, Paxton’s staff was dismissive and abusive, Wynne wrote.

At a July meeting, Paul’s team was “met with open hostility,” Wynne wrote. Paxton’s director of law enforcement, David Maxwell, “berated and insulted my client for bringing the complaint.”

Wynne said additional meetings with Paxton’s staff yielded the same “hostile attitude.”

Paxton personally attended a third meeting, Wynne wrote. At it, Paul demonstrated that the attorney general’s review of his complaint had been cursory and contained several errors, and that “this appeared to be an embarrassment to your office,” Wynne recounted in the letter.

Oh, my. Paul and his attorney are mad about the way Paxton’s office handled his demand for an investigation into the way he was treated by the feds, whom you will recall were investigating him for various alleged financial misdeeds. The seven senior members of Paxton’s staff found Paul’s complaint to be without merit, and the fact that Paxton proceeded – including the hire of the inexperienced and unqualified Brandon Cammack – is what led to them sending Paxton a letter alleging that he was taking a bribe. Maybe this is Paul’s way of saying he expected better service at that price.

The Trib adds some details.

Wynne’s letter places the blame for the debacle on the attorney general’s office, alleging top aides there failed to investigate his client’s claims as they should have and “deprived [Paul] of a proper review.”

“The mishandling of this complaint as outlined below has risen to an alarming level,” Wynne wrote in the letter, which also demands that the agency retain all related documents and files in preparation for potential litigation.

[…]

Wynne questioned the attorney general’s office’s basis for closing the inquiry, accused employees in the attorney general’s office of making “numerous inappropriate and false statements to the media” and said their handling of Paul’s complaint culminated in a “chaotic public spectacle of allegations, mudslinging, and an apparent power struggle” within the agency last week.

Top aides to Paxton have said internal investigations showed that Paul’s complaint lacks “any good-faith factual basis” and have accused their boss of serving a donor’s interest by hiring an outside attorney to pursue it.

Wynne said the circumstances of the federal search were “among the most egregious examples of inappropriate behavior by government officials” that he had witnessed.

In May 2020, Paul “sought guidance on the protocol for reporting a complaint” about the search and was told by Paxton to file it with the Travis County district attorney’s office.

The next month, the district attorney’s office referred the complaint back to Paxton’s agency after determining it would be “inappropriate” to send it to the Department of Public Safety, which was named in the complaint.

Wynne said “seven weeks of inaction” were followed by a series of meetings between him, Paul and officials in the attorney general’s office, whom he accused of being “hostile.”

At a meeting on July 21, the attorney general’s director of law enforcement, David Maxwell, “berated and insulted” Paul for bringing the complaint and attempted to intimidate them into dropping the matter, Wynne alleged.

He wrote that Maxwell and another top official — Mark Penley, one of the signatories on the letter about Paxton — attended a second meeting, in which Maxwell at one point yelled at Paul and asked “who [does] he think he is?”

At a third meeting, personally attended by Paxton, the review was found to be flawed and “appeared to be an embarrassment to your office,” Wynne alleged.

The Karen-like “I want to speak to your manager” energy out of this is strong, isn’t it? I’m dying for them to file a lawsuit against the AG’s office over this, because discovery is sure to be a hoot. The capacity this scandal has had to surprise and amaze me has been quite the source of joy these past few days.

And speaking of Brandon Cammack, the Paxton special prosecutors have some thoughts – and a motion – about how much Paxton paid him.

Texas Attorney General Ken Paxton has argued that $300 an hour is too much to pay the two special prosecutors appointed to take him to trial in a long-running felony securities fraud case — but that’s the rate his agency is paying the inexperienced attorney Paxton hired last month to investigate a complaint by a political donor.

[…]

The prosecutors, Brian Wice and Kent Schaffer, pointed out that irony in a spirited filing Friday before Harris County District Judge Jason Luong, asking that they be compensated at the same rate as Cammack, whom they dismissed as “an untested and unqualified rookie.”

“If this hourly rate sounds familiar, it should: it is the very rate the Pro Tems were promised when they were appointed,” they wrote in a Friday filing. “If the defendant’s choice to pay Cammack $300 an hour appears to be disingenuous, it is only because it is: in successfully derailing this prosecution by spearheading a concerted effort to defund it, the defendant has repeatedly referred to the Pro Tem’s $300 hourly rate in his filings as unreasonable and unwarranted.”

Wice and Schaffer, who told the court that between them, they have 80 years of experience in the criminal justice system, questioned why they should not be entitled to the same sum as Cammack, “whose own experience, training and expertise, compared to the Pro Tems, is virtually microscopic.”

Paxton can “run but not hide” from his “concession that $300 an hour is reasonable,” Wice and Schaffer argued.

In their own filing to the court, Paxton’s defense attorneys told the judge that Cammack’s contract is irrelevant to the issue of pay for the prosecutors.

[…]

The issue of prosecutor pay in the securities fraud case against Paxton was raised by a Paxton donor, Jeff Blackard, in December 2015, when he sued, calling the fees exorbitant. Since then, the issue has dragged through the courts for years, bouncing all the way up to the Texas Court of Criminal Appeals, the state’s highest court for criminal matters.

Paxton’s defense attorneys told Luong he should rely on the high court’s ruling — which found the $300 hourly rate fell outside legal limits — in determining how much Wice and Schaffer should be paid.

Nothing in the prosecutors’ filing, “which contains unsubstantiated gossip about an irrelevant matter and no legal argument, authorizes this court to disregard the holding of the CCA and grant the relief requested by the pro tems,” Paxton’s attorneys wrote.

I don’t know if Wice and Schaffer’s motion can be a justification to essentially overturn that CCA ruling, but it certainly shows (again) why that ruling was ridiculous, and why the current system for hiring special prosecutors is fundmentally flawed. They may not be able to do more than score political points, but even just a reminder of how much Paxton has been coddled and protected by his political buddies all these years is useful. The Chron and Rick Casey, who notes a connection between Michael Wynne and Brandon Cammack, has more.

Here, have a Paxton scandal roundup

At first I couldn’t decide if I wanted to put the juiciest bit up front or at the end. I decided to put it at the end, to hold your interest throughout.

From the Trib, life and business tries to go on at the AG’s office.

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It had already been a difficult fall for the Texas attorney general’s office.

The sprawling agency, which employs some 4,000 people in more than 100 offices across Texas, has for months had to contend with the added challenges of the coronavirus, many staff members working from home and others deployed as legal backup to Gov. Greg Abbott in coronavirus-related lawsuits on everything from abortion rights to business closures.

Communications director Marc Rylander departed more than a month ago, and Nick Moutos, an assistant attorney general, lost his job at the agency in early September after revelations that he had shared racist rhetoric and QAnon conspiracy theories on social media. Meanwhile, top state attorneys are juggling a handful of fast-moving election-related lawsuits — When will early voting begin? Will Texas ballots allow for straight-ticket voting? — and gearing up for a Nov. 10 argument before the U.S. Supreme Court, the culmination of a yearslong effort to strike down the Affordable Care Act.

But things hit a fever pitch this weekend as seven of the agency’s most senior staff members accused their boss, Texas Attorney General Ken Paxton, of crimes including bribery and abuse of office, as the Austin-American Statesman and KVUE-TV first reported Saturday night. One of the whistleblowers, Jeff Mateer, abruptly resigned his position as Paxton’s top aide Friday after telling a human resources administrator at the agency that he and other aides “have a good faith belief that the attorney general is violating federal and/or state law including prohibitions related to improper influence, abuse of office, bribery and other potential criminal offenses.”

But Paxton, who has pledged to forge ahead as attorney general, pointed the finger back at the seven aides.

“Despite the effort by rogue employees and their false allegations I will continue to seek justice in Texas and will not be resigning,” Paxton said.

Now, agency staff will have to juggle coordinating child support payments, open-records requests and major court dates under the cloud of fresh allegations against their boss, without Mateer, and with an internal battle quietly raging between Paxton and many of the most senior aides who remain.

Yes, so many distractions they must deal with as they work so hard to take away your health care and restrict your access to the ballot box. I don’t know how they manage to do it all.

A spokesperson for the agency, Kayleigh Date, said Saturday that the top aides made the allegations against Paxton “to impede an ongoing investigation into criminal wrongdoing by public officials including employees of this office.”

And she seemed to suggest that state officials hope to investigate or even prosecute the whistleblowers.

“Making false claims is a very serious matter and we plan to investigate this to the fullest extent of the law,” Date added.

Date declined to provide any further details about the investigation or how the agency will run amid the chaos. She also did not respond to questions about how many of the seven remain employed at the agency.

For his part, Paxton worked Monday to signal business as usual, appointing Brent Webster, a former assistant criminal district attorney in Williamson County, to replace Mateer in the critical role of first assistant attorney general.

Paxton also had lunch at an Austin barbecue restaurant with Bill Miller, a friend and longtime lobbyist, who said Paxton was surprised and puzzled by the allegations and maintains that he has not done anything wrong.

Miller said Paxton hadn’t heard from law enforcement or retained an attorney on the matter and pointed out that the aides leveling accusations against Paxton have yet to publicly show evidence: “There’s a lotta smoke; where’s the fire?”

Paxton doesn’t understand where the claims came from, and “he isn’t going anywhere,” Miller said, but is committed to forging ahead with the agency’s work with Webster as the new first assistant.

Yes, it would be nice to know what if anything is happening with these accusations. As per usual custom, there won’t be any comment from the FBI or US Attorney’s office, so unless someone leaks to the press, or until people with badges and search warrants show up at the office, all we can do is wait and speculate. I hate to say it, but there may not be much news on this for awhile.

The Chron goes into the politics and gets some detail on one of the more alarming charges.

Texas political analyst Mark Jones of Rice University, who has studied the felony case that has been hanging over Paxton for five years now, said these allegations are different.

“This isn’t an accusation that comes completely out of left field regarding a public servant who has an unblemished track record,” Jones said. “This is someone, from when he arrived in the state House, moved to the state Senate, moved to the office of the attorney general, has had a trail of questionable ethical behavior.”

Jones added: “We’re talking about the chief law enforcement official in the second-largest state in the country.”

Most state Republicans, watching as Paxton has weathered such allegations in the past, have backed him or stayed silent over the years. This time likely will be different, Jones said.

Hearst Newspapers reported Sunday that Houston lawyer Brandon Cammack, whom Paxton hired as a special prosecutor, issued grand jury subpoenas last week targeting “adversaries” of Paul, according to a senior attorney general’s office official. There were 37 subpoenas that targeted actions of federal authorities in an August 2019 raid of Paul’s home and offices, the Austin American-Statesman reported Monday.

One of the signatories on the letter accusing Paxton, deputy attorney general for criminal justice J. Mark Penley, filed a motion in state District Court in Austin to halt the subpoenas. The motion to quash them was granted Friday, records show.

Many questions remain about the nature of the alleged bribery and how Cammack came to work for the office in a move that has been opposed by half of Paxton’s executive staff.

Paxton has not responded to questions about any contract the office had with Cammack, when he was hired, how much he is being paid or any other details.

Hearst Newspapers has filed open records requests for records of payments to Cammack as well as any agreement the office had with him.

This right here is what I want to know more about, and it won’t be dependent on any loose lips or federal action. Let’s get those records and see what they tell us.

The Chron also has a timeline of Paxton’s malfeasance and pettifoggery. The MontBlanc pen episode is probably my favorite of them. The Trib reminds us that AGs in Texas often go on to run for other things, though not always with success. I don’t see much of a future in higher office for Paxton, but he went from the House to the Senate to the AG’s office pretty quickly, so it’s not like it couldn’t happen.

And finally, the bit you’ve been waiting for, from Law.com:

Appointed prosecutors who have been pursuing felony securities fraud charges against Texas Attorney General Ken Paxton for five years are researching new allegations that Paxton committed crimes in office.

If Paxton gets charged with new crimes, the prosecutors would seek to revoke his bond.

[…]

“We’re making contact with the individuals involved to determine what exactly happened and what evidence exists that suggests he was involved in misconduct,” said Kent Schaffer, one of the appointed prosecutors in Paxton’s pending case.

If Paxton does get charged with new criminal offenses, the prosecutors in his current felony case would file a motion to revoke Paxton’s bond, explained Schaffer, partner in Schaffer & Carter in Houston.

“When you’re under indictment in a felony case and you’re on bond, if you get a new violation, then your bond can be revoked and you can be held without bond,” he noted. “I’m not saying it’s going to happen. So far, we don’t have any evidence. He is not charged in a new case.”

Also, if Paxton eventually goes to trial in the securities fraud case, and he were also charged for crimes related to the new allegations, then Schaffer said the prosecutors would tell the jury about the new alleged crimes during the sentencing phase of the trial in order to argue for a harsher sentence.

Now, this could all be many months off, if it happens at all, but still. Enjoy the thought for a moment. You deserve it.

More details emerge about the latest Paxton allegations

The Chron advances the ball.

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The top state officials who staged a mutiny against Attorney General Ken Paxton warned that he was using his office to benefit campaign donor Nate Paul, an embattled Austin real estate investor.

Paul, a once high-flying businessman whose offices were reportedly raided by the FBI last year, gave Paxton $25,000 ahead of the attorney general’s hard-fought re-election battle in 2018.

The No. 2 official in the attorney general’s office, First Assistant Attorney General Jeff Mateer, put Paul at the center of allegedly illegal activities by Paxton in a text message sent Thursday. Mateer, who resigned Friday, joined six other high-ranking employees in accusing Paxton, the state’s top law enforcement officer, of abuse of office, bribery and improper influence.

“Each of the individuals on this text chain made a good faith report of violations by you to an appropriate law enforcement authority concerning your relationship and activities with Nate Paul,” Mateer wrote in the text message, which was obtained by Hearst Newspapers.

The group requested an immediate meeting with Paxton, but the attorney general said he was “out of the office” and asked them to email him with their concerns. The Austin American-Statesman, which first reported on the allegations against Paxton, published a letter the officials sent to the attorney general’s human resources office on Oct. 1.

Neither Paul nor his attorney returned calls or messages left on their voicemail.

Paxton said in a statement Sunday: “The Texas attorney general’s office was referred a case from Travis County regarding allegations of crimes relating to the FBI, other government agencies and individuals. My obligation as attorney general is to conduct an investigation upon such referral. Because employees from my office impeded the investigation and because I knew Nate Paul, I ultimately decided to hire an outside independent prosecutor to make his own independent determination. Despite the effort by rogue employees and their false allegations, the AG’s office will continue to seek justice in Texas.”

The uprising against Paxton crystallized when a special prosecutor he appointed, Houston lawyer Brandon Cammack, issued grand jury subpoenas last week targeting “adversaries” of Paul, a senior AG official told Hearst Newspapers.

The official who spoke with Hearst Newspapers said those subpoenas spurred the seven top deputies in the attorney general’s office into action. One of the signatories on the letter accusing Paxton, deputy attorney general for criminal justice J. Mark Penley, filed a motion in state district court in Austin to halt the subpoenas. The motion to “quash” them was granted on Friday, records show.

In filing the subpoenas, Cammack “represented that he was acting on behalf of the office of the Attorney General as a Special Prosecutor,” Penley’s motion said. “He is not properly authorized to act as a Special Prosecutor, and … has no authority to appear before the grand jury or issue grand jury subpoenas.”

See here for the background. The information about the special prosecutor appointed by Paxton who’s been issuing subpoenas that “target adversaries” of this Nate Paul character is what really made my hair stand on end. If there is any truth to that, then this is a massive violation of the AG’s office and I can see why his top lieutenants rebelled the way they did. Greg Abbott and Dan Patrick are quoted in the story issuing “this sounds bad but let’s wait an see” statements – which, in all honesty, is reasonable enough for now – but the pressure is going to be on them, too.

There’s more in the story about Nate Paul, who sounds like a typical “more money than brains or ethics” sort, and I’ll leave that to you to read. This is the other bit that had me going “hmmmm”:

Kent Schaffer, a special prosecutor in [the long-running financial fraud case against Paxton], said Saturday that the latest accusations, if they leads to charges, could imperil Paxton’s odds of securing any kind of deal to resolve the criminal case.

“We were trying to get this case resolved, but if this guy’s out committing crimes while he’s on bond, then it’s going to become an extremely serious matter,” Schaffer said. “I’m not saying that he has — I don’t know the specifics, (but if he has) then it’s game on.

“Maybe the people that reported him are not shooting straight, but I want to hear from both sides, if possible. We’re going to do what we can to investigate.”

Schaffer said he contacted the Texas Rangers on Saturday immediately upon hearing the news. He declined to comment on whether the agency mentioned any existing investigation on the matter.

Paxton has also been accused by his staff of accepting bribes in the past.

Those 2016 bribery allegations did not lead to charges, though they did give us all a momentary thrill. The idea that the special prosecutors in the current case against Paxton might be able to get some leverage against him from this scandal-in-the-making is also giving me a thrill. I should know better by know, but I can’t help myself.

The revelations over the weekend appeared to have shaken the agency, where Ryan Bangert, deputy first assistant attorney general and one of the seven officials who reported Paxton to the authorities, sent out a letter of reassurance to staff.

“I write to assure you that the executive team remains committed to serving you, this office and the people of Texas,” Bangert wrote. “Your work, your sacrifice, and your dedication to this office inspire us all.”

Jordan Berry, Paxton’s political adviser, said he resigned after news of the allegations broke.

Watch what the people around Paxton do. We could be in for a mass exodus. I will try to stay on top of things. The Statesman has more on Nate Paul, and there’s national coverage from Bloomberg and CNN.

Smoots-Thomas takes a plea

A sad but hardly unexpected end to this story.

The ex-judge in an orange jail uniform stood before a judge in black robes, swore to tell the truth and tried to make sense of her predicament.

“My world truly turned upside down,” Alexandra Smoots-Thomas, a former Harris County civil judge, told federal Judge Lynn N. Hughes on Thursday, enumerating the heartbreaks amid tears. Her husband’s unemployment. A house in foreclosure. Her cancer treatments. Her father’s cancer diagnosis. Two divorces. A child’s suicide attempt.

“I regret wholeheartedly leaving such a terrible stain at what is the end of a wonderful and rewarding 18-year legal career,” she said. “I truly apologize for my actions. I apologize for the stain that this has placed on my family and even my former colleagues on the bench.”

The 44-year-old pleaded guilty to using campaign funds to pay personal expenses, capping off a turbulent year that included chemotherapy, remission, a failed bid to reclaim her former bench and criminal charges last month alleging she fired a shotgun at her husband’s girlfriend. The government dropped six remaining counts of wire fraud.

Her plea agreement details how she siphoned off campaign money to purchase a Zales engagement ring and two Prada handbags, and to make two mortgage payments and cover private school tuition for her two sons. As a convicted felon, she will no longer be permitted to practice law, the only career she’s ever known, according to her lawyer in the assault case.

Hughes took into consideration her admission of guilt, her hardships and her likelihood of re-offending, and sentenced her to the 36 days she’d just spent in jail for a bond violation connected to the shooting charges, as well as three years of supervised release.

He ordered her released from federal lockup in Conroe, and made off-handed remark to a deputy U.S. marshal to make sure she got a ride back into Houston.

Prosecutor Ted Imperato, of the U.S. Attorney’s public corruption unit, challenged the “unreasonableness” of the sentence. The judge responded, in his trademark snarky bluster, that the sentence was “pure wisdom.”

The prosecutor had requested a sentence within the guideline range of 18 to 24 months in prison, saying the defendant abused her power and authority as a sitting judge.

Imperato noted that rather than agree to a deal where she would leave the bench, “She thumbed her nose at us, and, with these charges pending, ran for re-election.”

See here and here for the background. As I’ve said before, I know Smoots-Thomas and I feel terrible for the things she has gone through. I truly hope she is able to get the help she needs to get her life back on track. I hope her children are doing all right – the story goes into more detail about the effect this has had on their lives, and it was not good. I’m also glad she lost her primary election – I voted against her in both rounds. And I hope the next time we see her name in the news it’s for something positive.

On a side note, we can certainly have a debate about the prosecutor’s complaint that the sentence she received was too light. One could argue that the guideline range is too harsh, or too limited, or that we should just let judges have the discretion to sentence defendants as they see fit. Perhaps the problem is not that she got off too easy, but that other, less prominent, defendants in her position get sentences that are overly severe. It’s a good debate to be having in many contexts.

Giving a motion its proper due

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As you know, Ken Paxton really really wants to get his securities fraud case moved back to what he assumes are the warm and friendly confines of Collin County. The case was originally moved out of Collin County on the grounds that it would be hard to get a sufficiently impartial jury there, and so it has been in Harris County for the last million years, give or take a century. Then it looked like Paxton had scored a win, when Harris County Criminal Court Judge Robert Johnson ruled in favor of a Paxton motion to send the case back to Collin County, while also recusing himself from the case due to a potential conflict of interest, as the Attorney General’s office is representing the Harris County Criminal District Court judges in the bail practices lawsuit, for which they are named defendants. Johnson stepped down and fellow jurist Jason Luong was put on the case while Johnson’s ruling to move the case back to Collin County was appealed by prosecutors.

This presented a problem for Paxton, because prosecutors could ask Judge Luong to reconsider Judge Johnson’s ruling, and thus possibly rule instead to keep the case in Harris County. So, Team Paxton moved to have Judge Luong recused from the case (he declined to recuse himself) on the grounds that the same potential conflict of interest that Judge Johnson cited in his own recusal would apply to Judge Luong as well. The prosecutors objected, on the grounds that there really isn’t a conflict of interest here, in part because the AG’s office is representing the Criminal District Court judges as an entity not as individuals – they are being sued in their official capacity, not as private citizens – and also because Paxton himself is not involved in the bail litigation. Last Friday, Administrative Judge Susan Brown ruled for the prosecutors, denying Paxton’s motion to remove Judge Luong from the case, and thus allowing Luong to revisit Johnson’s ruling to move it.

I assume this ruling can and will be appealed, but in the meantime, Team Paxton has filed a motion asking Judge Brown to reconsider her ruling. This is the legal strategy of saying “Are you sure you meant to rule that way? Here, let me give you the same set of facts and arguments as before but maybe emphasize them a little differently, and you’ll see it my way this time, right?” This means that the prosecutors have to respond to this motion, and so they did, with the tone of voice and general tenor one might expect in such a circumstance. When you start with a quote from the movie Dumb and Dumber and conclude with the canonical definition of the word “chutzpah”, it’s safe to say you feel confident in your position. In between, the prosecutors remind everyone that both Paxton and his lawyer have stated that 1) the AG’s office has been “working to remove [Paxton] from ‘active participation in matters in which a conflict may exist’” and 2) “[Judge Johnson] did not need to recuse himself on the matter since it had been ordered back to Collin County and the allegations against Mr. Paxton do not involve his official capacity but rather his individual capacity that predates his election to that office.”

Now, assuming that Judge Luong does stay on the case so that he can rule on the motion to reconsider Judge Johnson’s ruling to send the case back to Collin County (*), and assuming that he rules that Judge Johnson erred in his ruling and that the case should stay here, will the question of Judge Luong needing to be recused come up again? Probably, but we’ll cross that bridge when we get there. In the meantime, enjoy this little exercise in the fine legal art of saying “You’ve got to be kidding me” as only lawyers can.

(*) It’s quite standard for a new judge to revisit consequential rulings made by a previous judge on a case. That’s why having Judge Luong reconsider Judge Johnson’s ruling is not in the same category as asking Judge Brown to reconsider her own ruling.

No new judge for Paxton

Sorry, Kenny.

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Texas Attorney General Ken Paxton, who is still fighting five-year-old felony securities fraud charges, has failed in his bid to kick a Democratic Harris County judge off his ongoing criminal case.

An administrative judge in Houston, Susan Brown, denied Paxton’s motion to recuse Judge Jason Luong from the case, the Dallas Morning News first reported Friday.

It’s a loss for Paxton’s team in the long-running prosecution, which has yet to go to trial amid side fights over venue and prosecutor pay that have spanned years and bounced between numerous courts across the state. Paxton, a Republican, has maintained his innocence in the case, in which he is accused of persuading investors to buy stock in a technology firm without disclosing that he would be compensated for it.

[…]

“We’re gratified that Judge Brown found that Paxton’s motion to recuse Judge Luong was baseless,” said Brian Wice, one of the prosecutors taking Paxton to trial. “We’re confident that Judge Luong will find that Paxton’s motion to keep from being tried in Harris County is cut from the same cloth.”

See here and here for the previous updates. Here’s that DMN story.

Luong, a Democrat, is the fourth judge to preside over Paxton’s case since the attorney general was charged in July 2015. The first judge to preside over the case recused himself early on. Paxton successfully argued for the recusal of the second judge, Tarrant County Republican George Gallagher, over his objections. The third judge to preside over the case, Harris County District Court Judge Robert Johnson, recused himself last month because the attorney general is representing him and several other judges in a lawsuit challenging the region’s cash bail system.

Paxton’s lawyers argued that Luong should be removed from the case for this same reason. The prosecutors, however, said Paxton wanted to recuse Luong because he could reverse Johnson’s decision, made just before his recusal, to move the case out of Harris County. The case was moved from Collin to Harris County in 2017 after the prosecutors argued that they would be unable to ensure a fair trial in Paxton’s backyard.

All righty then. What is unclear to me from these stories is whether or not Team Paxton can appeal this ruling. I’m sure if they can they will, all previous nattering about wanting to get their guy his day in court aside, but that is not addressed and they did not comment. I’m sure we’ll find out soon enough. I also assume any ruling Judge Luong may make on where the trial should be will wait until that happens, if it does. So we don’t yet know how much more time is on the clock before something substantial happens.

Paxton (again) wants another judge on his case

Round and round they go.

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Defense attorneys for Texas Attorney General Ken Paxton — whose indictment for felony securities fraud is now more than five years old — are again asking for a different judge to oversee the case. It’s the latest turn in a long-delayed prosecution that has bounced all the way from a trial court in North Texas to the state Supreme Court in Austin, and now sits in legal purgatory in Houston.

Paxton’s attorneys wrote Thursday that Judge Jason Luong should recuse himself from the case because the attorney general’s office is representing him — among a group of about 20 Harris County district court judges — in an unrelated lawsuit over bail practices. Robert Johnson, who oversaw the case until recently, voluntarily recused himself from the case for that reason earlier this summer. A Houston appeals court reassigned the case to Luong late last month.

“Judge Luong’s impartiality might be reasonably questioned” because Paxton is defending him, Paxton’s attorneys argued in a filing this week.

[…]

The prosecutors appointed to take Paxton to trial shot back Friday, arguing that Luong should remain on the case.

“Because Paxton’s palpable fear that Judge Luong will follow the law and keep these felony cases in Harris County does not come within a time zone of meeting the Draconian burden required for recusal, his motion is without merit and should be denied,” prosecutors Brian Wice and Kent Schaffer wrote.

And they noted that last month, Paxton’s attorney Philip Hilder told the Houston Chronicle that Johnson “did not need to recuse himself on the matter since … the allegations against Mr. Paxton do not involve his official capacity but rather his individual capacity.”

See here for the previous update. I don’t think the Paxton argument about a potential conflict of interest due to the bail lawsuit is completely without merit, but I do agree that it’s a thin reed. I mean, the AG’s office is basically defending the office of Criminal District Court Judge in this lawsuit, and Jason Luong just happens to be in that category. It’s Jason Luong in his official capacity, not Jason Luong, person of Texas. It’s true that Judge Robert Johnson agreed to recuse himself on those grounds, but that doesn’t mean other judges would agree with that position. It’s also true that the question could be made moot, either by Judge Luong making like Chuck Silverman and Brian Warren and filing a motion in agreement with the plaintiffs, or by the presiding judge in the bail case granting the motion to dismiss that was recently filed. Of course, a ruling on that motion could take months, and we needn’t wait that long. The point is, though, that there are other ways to resolve this conflict, if one agrees that there is a conflict.

And I too would point out that Team Paxton was just the other day talking about how their guy is ready for his day in court and that the prosecutors should quit fighting the effort to move the case back to Collin County so we can get this show on the road already. Funny how one’s perspective can change on that. It’s been pretty much entirely the work of Team Paxton and his political supporters that have caused this case to drag on for now more than five years. The DMN, in its reporting on this latest action, provides a handy timeline.

The prosecutors, Paxton’s lawyers added, are improperly trying for a do-over on this change-of-venue decision.

“It simply defies belief that the State can get two bites at the apple on the critical jurisdictional issue that Judge Johnson already properly ruled on by allowing a new judge who is similarly situated with Judge Johnson (i.e., both represented by the Texas Attorney General in the same case) to review Judge Johnson’s prior ruling. This is the ultimate appearance of impropriety.”

In their response, the prosecutors said Paxton’s own lawyers already undercut their argument when they told the Houston Chronicle last month that Johnson never needed to step off the case.

“He did not need to recuse himself on the matter since it had been ordered back to Collin County and the allegations against Mr. Paxton do not involve his official capacity but rather his individual capacity that predates his election to that office,” Paxton attorney Philip Hilder told the Chronicle.

A Collin County jury indicted Paxton in July 2015. Since then, his case has been repeatedly delayed by fights over where the trials should take place, how much the prosecutors should make and what judge should preside. Paxton’s defense team spent more than a year attempting to have the charges against their client thrown out. They failed.

Hurricane Harvey also delayed the case and many others in Houston. The COVID-19 pandemic could further push any possible trial back.

Paxton is charged with two first-degree felonies over allegations that he persuaded friends to invest in a McKinney technology company called Servergy Inc. without telling them he received 100,000 shares of stock. He also is charged with a third-degree felony, accused of funneling clients to a friend’s investment firm without being registered with the state. The Texas State Securities Board reprimanded and fined Paxton $1,000 for this failure to register in 2014.

If found guilty, Paxton could face two to 10 years in prison for the third-degree felony and five to 99 years for each of the first-degree felonies, as well as fines. He has pleaded not guilty to all of the charges.

When I started writing this post, I began with the post title, and I was pretty sure that it was Paxton who had demanded a new judge in the past, but I wasn’t sure and I knew it would take a lot of archive-diving find an answer. I’m thankful the DMN did that work for me. Who wants to bet this case will still be active when the voters go to choose an AG in 2022?

A whole lot of Paxton case news all of a sudden

Brace yourselves.

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A Houston appeals court on Monday abated a recent decision to move the criminal cases against Attorney General Ken Paxton from Harris to Collin County, giving a new judge on the case the chance to revisit that order.

The abatement is a win for special prosecutors Kent Schaffer and Brian Wice. It will also allow the judge, Jason Luong, to consider whether to reinstate pay to the prosecutors, who have not been paid since 2016. The prosecutors confirmed the appeals court decision to The News but declined to speak to the matter further.

Paxton’s lawyers said they were “disappointed” and “troubled” that the appeals court ruled without giving them a change to respond.

“Mr. Paxton’s response brief on the merits of returning the case to Collin County was due today and filed after the Court had already decided to abate the case,” Paxton defense attorney Bill Mateja told The News in a statement. “As such, we intend to ask the Court of Appeals to reconsider its ruling.”

I did not know that it was in play for the First Court of Appeals to “abate” the ruling that moved the Paxton case back to Collin County. (I also don’t exactly know what “abate” means here, and how it differs from “overturns or “reverses”. You lawyers out there, please chime in.) I did know that Robert Johnson, the judge in Harris County who ruled that the case should go back to Collin, then recused himself because the AG’s office will be representing criminal district court judges in Harris in the latest bail reform lawsuit. I had not known that a new judge – who, it should be noted, is in the same boat as Judge Johnson in re: the bail lawsuit, unless he decides to make like Chuck Silverman and side with the plaintiffs. I’m putting all that in here so as not to quote the whole damn story. Now back to the excerpt:

Paxton’s legal team applauded the decision [to move the case back to Collin County] at the time and said the attorney general is ready to have his day in court.

“We are gratified by the Court’s ruling and look forward to getting Mr. Paxton’s case back on track. This case has gone on far too long,” Paxton lawyer Dan Cogdell said in an emailed statement that day. Bill Mateja added: “The Prosecutors need to let Judge Johnson’s decision stand and allow Mr. Paxton to have his day in court.”

The special prosecutors appealed his decision.

In early July, the 1st Court of Appeals delayed moving the cases to Collin County until it could rule on the merits of the prosecutors’ arguments that they remain in Houston. Now, the prosecutors say the court has abated Johnson’s decision and allowed Luong, a Democrat, to revisit the move back to Collin County.

Luong, who is also being represented by Paxton’s office in the same separate case as Johnson, has not answered questions about whether he too will recuse himself from this case.

Did you know that the original Paxton indictments are now five years old? Let’s just say I don’t believe Attorneys Cogdell and Mateja in their assessment of how long this has taken and their client’s desire to see the inside of a courtroom, even one in front of a presumably friendly judge. It ain’t the not-paid-since-2016 special prosecutors who have dragged this out for so long. I have no idea what issue there may be for Judge Luong to decide in re: their pay, but 1) they deserve to be paid, and 2) any further action on that front will for sure drag this out until the heat death of the universe. In the meantime, the ball is literally in Judge Luong’s court, and we’ll see what the next action item is. The Chron has more.

UPDATE: I have been given the following explanation of what an “abatement” is:

A Texas appellate court “abates” a case when it decides that there is some action a trial judge must take before the case goes forward. The same word is used in other circumstances but it almost always means a court is pausing proceedings.

This is a mandamus in which the prosecutors are challenging Judge Johnson’s transfer order. A mandamus is technically a suit against the trial judge in their official capacity. The First Court’s order yesterday abated the case because it had learned Judge Johnson had recused himself and Judge Luong is the new judge. The case against Judge Johnson can’t proceed because there’s a new judge who must be given an opportunity to either agree or to vacate Judge Johnson’s order. If Judge Luong agrees with Judge Johnson, the mandamus will proceed against the new judge. If he vacates, it will be up to Paxton’s defense counsel to try the case here or appeal the new judge’s order.

This type of abatement is not unusual and is all but mandatory when there is a change in judges in the middle of a mandamus. It’s unfortunate that the appellate brief was filed after the abatement, but that happens sometimes. It would be unusual if the court of appeals had not abated the mandamus to allow Judge Luong time to rule.

That makes sense to me, and as you can see from the court order, the abatement is for 45 days. So, in the next six weeks or so we should know if the ruling to move the case back to Collin County is still in place or if it has been vacated. (This is assuming Judge Luong doesn’t recuse himself, in which case I presume the main effect would be to push the timeline further back, because sure, why not.) Once we have that, we’ll know who’s appealing what. Isn’t this fun?

Move to Collin County on hold, Paxton judge recuses himself

Stay with me here.

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The Harris County state district judge who handed Attorney General Ken Paxton a big win by moving his criminal case back to Collin County two weeks ago is now recusing himself because Paxton’s office is representing him in a separate suit.

Now Judge Robert Johnson’s quick exit is leading the attorneys prosecuting Paxton to question the decision to move the case back to Paxton’s home county.

Johnson, who did not respond to requests for comment, made the venue change decision on June 25. A day later, he and all 22 other Harris County felony judges were added as defendants in a lawsuit alleging that the region’s bail practices discriminate against poor defendants.

The Attorney General’s Office represents state agencies and individual employees of the state and officially became counsel to Johnson and 19 other judges on July 1.

[…]

Prosecutors in the case have appealed the move to Collin County, and the First Court of Appeals on Tuesday granted a motion for a stay of the proceedings during the appeal.

One of the prosecutors, Kent Schaffer, says the recusal raises questions about when Johnson knew he had a potential conflict of interest. He said he plans to look into the issue and will continue to push for the venue change to be voided.

“If we can show that he was already in conversations with the AG about representation, he should have recused himself at that point,” Schaffer said. “If he had a conflict, he shouldn’t have ruled on it to begin with.”

Johnson said in court documents on Monday that he was recusing himself out of a concern that his “impartiality might reasonably be questioned,” citing from the Texas Rules of Civil Procedure.

Philip Hilder, an attorney for Paxton, said Tuesday that he has no doubt that Johnson’s decision to move the case should stand.

“The judge’s ruling was completely based in following the law and facts and (he) made the right decision by sending the case back to Collin County,” Hilder said. “He did not need to recuse himself on the matter since it had been ordered back to Collin County and the allegations against Mr. Paxton do not involve his official capacity but rather his individual capacity that predates his election to that office.”

Johnson had agreed with Paxton that the judge who moved the case to Harris County in 2017 did so after his term had expired and the decision therefore should not stand.

The case is out of Johnson’s hands for now until the appellate court rules — either upholding the move to Collin County or sending it back to his courtroom.

See here for the background. I agree that the addition of district criminal court judges to the bail reform lawsuit, for which they will be represented by the Attorney General’s office, is a complicating factor, and that it would have been better if Judge Johnson had either ruled or recused himself before that happened. I can’t quite articulate what the conflict of interest may be here, but as a matter of general principle it would be best to separate the two cases. Given the reasons why the case was moved in the first place, maybe moving it to Bexar or Fort Bend or some other large-but-not-Collin county is the better way to go; I’d guess no one was advocating such a position, however. As usual, this case gives me a headache, so I’m just going to leave this here and wait till the First Court of Appeals makes its ruling.

Back to Collin County for the Paxton trial

Where it all began.

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Years after it was sent to Harris County, the criminal case against Texas Attorney General Ken Paxton will move back to his native Collin County, a Harris County judge ruled Thursday.

Paxton, a Republican, was indicted in 2015 on felony securities fraud charges, but the case has yet to go to trial as side battles persist over the venue where he will be tried and the amount the special prosecutors will be paid.

A judge moved Paxton’s case to Harris County years ago, after prosecutors said they could not get a fair trial in Collin County, Paxton’s home and former district from his time in the state Legislature. His wife, state Sen. Angela Paxton, R-McKinney, now represents the region.

But Ken Paxton’s defense team argued last year that the judge who initially ordered the move to Harris County did not have the authority to do so, as his time overseeing the case had elapsed. The two attorneys prosecuting Paxton, Brian Wice and Kent Schaffer, disputed that at a December hearing and said the case belongs in Harris County. But Judge Robert Johnson, a Democrat, agreed with Paxton’s defense team in an order this week.

Wice pledged to appeal the decision.

“The only thing more wrong than the judge’s ruling is that it took him almost a year to make it,” he said. “We’re confident the court of appeals will set it aside and keep venue in Harris County where it belongs.”

See here for the previous update, and here for a full timeline of L’Affaire Paxton. Judge Johnson had said at that December hearing that he’d rule by the end of the month. I have no idea what happened with that, but here we are. As I said then, the only sure thing in all this is that it will eventually end up before the Court of Criminal Appeals. I don’t even have it in me to make a joke at this point. The Chron and the DMN have more.

Will the Paxton case move back to Collin County?

Team Paxton is asking for that to happen.

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A Harris County judge said Tuesday he will rule by the end of next month on Attorney General Ken Paxton’s request to move his felony securities fraud case back to his home county.

Judge Robert Johnson avoided getting into other issues raised in the case until he decides whether to send it back to Collin County, where it originated nearly four years ago.

Special prosecutor Kent Schaffer — who opposed Paxton’s motion to move the case — said after Tuesday’s hearing that he thinks Johnson “will make the right decision” and that he believes “with a high degree of certainty” that Paxton will go to trial by spring 2020.

[…]

The case has been delayed for nearly four years now for reasons ranging from the change of venue request to courtroom damage due to Hurricane Harvey to an ongoing disagreement between Collin County officials and special prosecutors over what they ought to be paid for their work.

It was Paxton’s political influence in Collin County that led a judge to move the case to Harris County in the first place. In 2017, Judge George Gallagher sided with prosecutors who argued that Paxton could not receive a fair trial in the county where many of his friends and political allies live and hold positions of power.

The Collin County District Attorney, for example, recused himself from the case because of a friendship with Paxton, a former state legislator.

Paxton’s lawyers argue that Gallagher exceeded his authority in changing the venue in the first place because his temporary assignment to the case had expired months before he made the decision.

They’ve also said that public attention on Paxton’s indictment has waned since 2016 when the case was the talk of “blogs, media and Facebook posts.” Plus, Collin County is better-equipped to take the case as well, they say, because the Harris County court system is already overburdened.

See here, here, and here for the background. Paxton’s argument seems pretty self-serving here, but in some sense it doesn’t matter. We all know Judge Johnson’s ruling will get appealed, all the way to the CCA, and that whole rigamarole will take a couple more years. We’re all going to be old and gray before this case is resolved.

Smoots-Thomas suspended from the bench

What you’d expect.

Alexandra Smoots-Thomas

A district court judge in Harris County has been suspended after she was indicted on federal wire fraud charges for allegedly misspending campaign donations.

Judge Alexandra Smoots-Thomas, 44, will be removed from her bench without pay until the State Commission on Judicial Conduct determines otherwise, the oversight board said Tuesday, the same day it was presented with the indictment and ordered her suspension.

“We’re not surprised, but we’re still very disappointed that the state chose to take that action,” Smoots-Thomas’ attorney, Kent Schaffer, said. “It just adds to the fight that we have before us.

[…]

The State Commission on Judicial Conduct has the authority to suspend judges, but can only recommend their removal to the Texas Supreme Court after conducting an investigation, according to the commission’s procedures.

Smoots-Thomas has rarely sat on her bench this year, Schaffer said, because she has breast cancer and has undergone several rounds of treatments.

See here for the background. I guess I can understand being disappointed in this entirely expected decision, but I don’t know what else might have happened. I can’t imagine a scenario in which a judge in similar circumstances would not be suspended. If nothing else, anyone appearing before her might reasonably question whether she could be on her game, since there would obviously be bigger things on her mind than whatever case was being argued.

I know that Judge Smoots-Thomas is collecting signatures to get on the ballot next year. I don’t know at this time if anyone else is doing the same. I’ll be surprised if that isn’t the case, but stranger things have happened. In the meantime, we’ll see how long this investigation takes.

District Court Judge Smoots-Thomas accused of wire fraud

Yikes.

Alexandra Smoots-Thomas

A Harris County judge is facing federal charges that accuse her of using campaign donations for personal expenses, including for mortgage payments, private school tuition and travel.

Judge Alexandra Smoots-Thomas, 44, is charged with wire fraud charges, according to federal prosecutors. She turned herself in to U.S. Magistrate Peter Bray, appearing before him with chains wrapped around her waist and ankles.

She pleaded not guilty to the charges, and the magistrate set a pre-trial conference for Jan. 6.

Wearing a gray and black suit, she kept her head down for most of the arraignment. Smoots-Thomas has breast cancer, and had a round of chemotherapy on Thursday, attorney Kent Schaffer said.

Schaffer denied the charges after the proceeding, alleging that the U.S. Attorney’s Office, under Ryan Patrick, was targeting Smoots-Thomas because she is a black female Democrat.

“She has not defrauded anybody,” he said.

Patrick’s office has been contacted for comment on Schaffer’s allegations.

A federal grand jury on Oct. 24 returned a seven-count indictment against Smoots-Thomas, who presides over the 164th District Court and has jurisdiction over civil cases within Harris County. The indictment was unsealed on Friday.

[…]

The indictment alleges Smoots-Thomas of soliciting campaign contributions on the premise the money would be used to help facilitate her re-election campaigns in 2012 and 2016, prosecutors said. She concealed the expenses from her campaign treasurer and the Texas Ethics Commission by filing false campaign finance reports, according to the charges.

Obviously, this is bad and upsetting. She is of course innocent until proven guilty, but federal prosecutors tend to prefer bringing charges in cases they feel confident about winning.

Judge Smoots-Thomas was first elected in 2008. She was known as Alexandra Smoots-Hogan then; I know she had gotten divorced, and I presume remarried. There’s always a question about whether elected officials who are accused of crimes should resign when that happens. This is where I point out that Ken Paxton is still Attorney General, and I have not called for his resignation because he has not yet been convicted of anything. I’m inclined to believe that Kent Schaffer’s allegation about Assistant US Attorney Ryan Patrick is more defense lawyer strategy than anything else, but if all it took was an indictment to force someone out of office, then it’s certainly possible to imagine a politically motivated prosecutor filing sketchy charges as a partisan tactic. Plenty of people have been unjustly prosecuted in other contexts, after all. It’s a terrible look and I’m sure Republicans are rubbing their hands with glee over the potential attack ads, but even public officials get their day in court.

Paxton wants to move his case back to Collin County

Of course they do.

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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.

[…]

That leaves [Judge Robert] 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.

The Team Paxton motions were in response to the prosecutors’ motion to confer with Judge Johnson – just them, Team Paxton is not invited – regarding their pay. I can understand that motion, but as the Observer notes, the argument to move the case back to Collin County is a rehash of the same arguments they made when the case was originally moved. That was seen at the time as a win for Paxton, since his team had moved to boot the original judge from the case. It seems unlikely to me that Judge Johnson will agree to just hand the case back to Collin County, but it’s a lead pipe cinch that Team Paxton will appeal that ruling and thus accomplish their main goal, which is delaying this trial from now until the heat death of the universe. Either way, they get something they want. The DMN has more.

We return once again to the Paxton prosecutor pay fight

This is an interesting argument.

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The prosecutors appointed years ago to take Texas Attorney General Ken Paxton to trial will continue to fight over their pay rate, lengthening a dispute that has already delayed the case for well over a year.

[…]

Prosecutors Brian Wice and Kent Schaffer had signaled they might withdraw from the case if they could not be paid. Instead, they are now asking a Harris County judge for a private, “ex parte” hearing over their fees — a meeting that would not include Paxton’s defense team. In a filing this week, they asked Judge Robert Johnson to “issue a new order for payment of fees.”

“The Attorneys Pro Tem’s payment is now an administrative matter for the trial court to decide,” an attorney for Wice and Schaffer wrote. “The Court of Criminal Appeals’ decision provides the court with the parameters necessary for the court to use its discretion in discharging its administrative duties.”

They added that “there is no authority suggesting that an adversarial hearing regarding the payment of fees … should be held” — arguing that Paxton’s defense lawyers should not be present for the hearing.

The judge has not yet responded to the request. A spokesman for Paxton did not return a request for comment.

See here for the last update. I’m glad they waited till after the legislative session to advance this argument, as I can easily imagine a hastily-written bill to cut this off at the knees getting rammed through. I’ve no idea if this brief, let alone the assertion that there doesn’t need to be a response from Team Paxton, has any merit or has ever been tried before. But it sure isn’t boring, and I can’t wait to see how Judge Johnson rules. The DMN has more.

Will Ken Paxton ever be prosecuted?

At this point, I’d have to say it’s very unlikely.

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After mulling the question for nearly six months, the nine Republican judges on Texas’ highest criminal court will not reconsider their 2018 ruling that threatens to imperil the criminal case against Texas Attorney General Ken Paxton.

In November, a fractured Texas Court of Criminal Appeals ruled that a six-figure payment to the special prosecutors appointed to take Paxton to trial for felony securities fraud fell outside legal limits for what such attorneys may be paid. A month later, the attorneys asked the high court to reconsider that decision in a spirited legal filing that went unanswered until this week.

The court did not provide any reason for rejecting the motion, nor did any judges write dissenting opinions. Few expected that the high court would reconsider its own ruling.

Payments for special prosecutors are based on strict fee schedules, but judges are permitted to approve payments outside those strictures in unusual circumstances, as a North Texas GOP judge did for the prosecutors in the Paxton case. But after Jeff Blackard, a Paxton donor, sued in December 2015, claiming that the fees were exorbitant, the Dallas Court of Appeals voided the prosecutors’ invoice and the payment has been in question. Meanwhile, the trial itself has been derailed again and again.

Wednesday’s ruling threatens the long-delayed prosecution of Texas’ top lawyer, as the prosecutors —unpaid in years — have signaled they may withdraw from the case if they cannot be paid. The prosecutors have also argued that the pay ruling, in limiting how much attorneys may be paid even in cases of extraordinary circumstances, threatens the state’s ability to adequately compensate lawyers representing indigent defendants.

See here, here, and here for the latest updates, and here for even more, if you want to do a deeper dive. We should all have friends as steadfast as Ken Paxton has in Collin County, both on their Commissioners Court and in the person of Jeff Blackard. Friends help you move, real friends help you game the criminal justice system to effectively quash felony indictments.

At this point, either the existing prosecutors decide to stick it out and maybe extract a bit of revenge via jury verdict, or they throw in the towel and the whole thing starts over with new prosecutors. Which in turn would open a whole ‘nother can of worms, thanks to the Lege.

Under Senate Bill 341, which moved quietly and without controversy through the Texas Legislature, only county attorneys, district attorneys and assistant attorneys general would be qualified to serve in the high-stakes, often high-profile affairs that require specially appointed prosecutors. Currently, judges may appoint “any competent attorney,” which some have argued is an insufficient standard.

The author of that bill, Houston Republican Sen. Joan Huffman, has presented it as a cost-saving effort for counties — special prosecutors will now be government attorneys who would not require additional funds — and also as a way to raise the bar of qualifications for special prosecutors.

That would limit the selection pool from the more than 100,000 practicing attorneys in Texas to a much smaller group of several hundred elected prosecutors or attorneys employed by the agency Paxton runs. The replacement for Wice and Schaffer would have to be either a Democratic district attorney, who might be seen as overly aggressive in her prosecution of a Republican statewide official; a Republican district attorney, who could be seen as overly sympathetic to a leader of his own party; or an assistant attorney general, who would be an employee of the defendant.

That law goes into effect September 1. This law does make some sense, and if the Paxton prosecution had been handed off to a DA or County Attorney there would not have been an issue with payment. I for one would argue that this case should absolutely be turned over to a big urban county DA’s office – Harris, Dallas, Bexar, or (oh, the delicious irony) Travis – since an aggressive prosecution is exactly what is needed, and the DAs in those counties will have less to fear from the voters than, say, the Denton or Tarrant or Montgomery County DAs would. I will be very interested to see what the presiding judge decides to do, if it comes to that. In the meantime, we need the voters of Collin County to start voting out members of their Commissioners Court, and the voters of Texas to start electing better jurists to the CCA. You want a lower-level cause to get behind in 2020, there’s two of them for you.

Paxton prosecutors take their shot at a do-over

Good luck.

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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]

[…]

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.”

See here and here for the background. I mean, the prosecutors are 100% right on the merits, and they lay it out with utter clarity. I maintain that the Legislature can and should fix this by making the state pick up the tab for prosecutions like this, but that won’t help here, even if we could be sure that a bill to address this would pass. We need the Court to do the right thing, which they failed to do the first time around. It’s either that or they show that they don’t care about the law when one of their own is on the sharp end of it.

Paxton prosecutors want another shot

Good luck.

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The attorneys appointed to prosecute Texas Attorney General Ken Paxton indicated in a court filing this week that they aren’t giving up a long-running fight to take the state’s top lawyer to court — at least not yet.

The filing follows a Nov. 21 ruling from the Texas Court of Criminal Appeals that six-figure payments to the special prosecutors were outside legal limits. The prosecutors, who have not been paid since 2016, had in the past suggested that if they did not get paid, they might leave the case, which has dragged on for more than three years.

Brian Wice, one of those prosecutors, on Monday filed a document with the Texas Court of Criminal Appeals seeking more time to ask the court to rehear the case. If the court grants his request, prosecutors would have until Dec. 21 to try and convince the high court to reconsider their case. Wice declined to comment on Tuesday.

On the Wednesday before Thanksgiving, the fractured court handed down a total of six opinions, including three dissents. The all-Republican court will welcome one new member, Michelle Slaughter, in the new year.

See here for the background. I know asking for a re-hearing is a normal thing, though I have no idea how often it works. Maybe with a new judge coming on board there’s a chance of a different outcome, I don’t know. Maybe because the opinions were all over the place the justices themselves might be open to reconsidering. It can’t hurt. I just don’t expect much to change. The DMN has more.

CCA may have killed the Paxton prosecution

Ugh. Just, ugh.

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The Texas Court of Criminal Appeals on Wednesday potentially imperiled the long-delayed criminal prosecution of Texas Attorney General Ken Paxton, ruling that payments to special prosecutors were outside legal limits.

If they cannot get paid, the prosecutors have suggested they could withdraw from the case against Paxton, a three-year-long legal saga that has dragged on in fits and starts amid side fights like the dispute over legal fees.

In its opinion Wednesday, the state’s highest criminal court said a lower trial court was wrong last year to approve a six-figure payment to the three special prosecutors handling the Paxton case. The prosecutors’ invoice was rejected by commissioners in Collin County — Paxton’s home county — touching off the legal fight that made its way to the Court of Criminal Appeals.

“Here, the trial court exceeded its authority by issuing an order for payment of frees that is not in accordance with an approved fee schedule containing reasonable fixed rates or minimum and maximum rates,” the opinion said.

The Court of Criminal Appeals invalidated the payment and ordered the lower court to re-issue it in accordance with the fee schedule.

“While we are disappointed with the majority’s ruling and are exploring all legal options available to us, it does not alter the fact that Ken Paxton remains charged with three serious felony offenses,” the prosecutors said in a statement responding to the ruling.

See here, here, and here for the background. I have no idea what happens next. A copy of the opinion is here, and the Observer has some thoughts. Maybe the prosecutors stick it out – maybe now Collin County will agree to pay them something reasonable, now that they can dictate the terms more. Maybe they step down and some other prosecutors step in. Maybe it all goes up in flames. The fact that we’re having this conversation at all is a scandal that needs to be addressed by the Lege. The possibility that Paxton may end up skating because the system as designed was not capable of finding a prosecutor for the charges against him is too gruesome to contemplate, so I’m not going to think about it any more today. Have some turkey or turkey-alternative, watch some football, and quit griping about how it’s Christmas season already. Happy Thanksgiving to you and yours.

Don’t expect a Ken Paxton trial to happen this year

Delays, delays, nothing but delays.

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Texas Attorney General Ken Paxton was indicted for fraud nearly three years ago but is unlikely to go on trial before Election Day.

Paxton’s trials are on hold while the Texas Court of Criminal Appeals decides whether the prosecutors on the case are being overpaid. The court went on summer recess Wednesday, and won’t hear any cases or issue any major opinions before the fall.

This means they won’t announce a decision in the pay case until September, at the earliest, which experts said will delay Paxton’s trial dates until after the Nov. 6 election — and probably into next year.

“I just don’t see there’s any way it gets tried before the election,” said Rusty Hardin, a Houston attorney who has represented everyone from Enron employees to athletes and TV stars. “I would have doubted that the trial would have happened before the election even if the Court of Criminal Appeals would have decided today.”

There’s more, so read the rest. Just for a sense of the timeline here, the 5th Court of Appeals in Dallas halted the special prosecutors’ pay last February, then ruled they had to give a bunch of it back to Collin County in August. The CCA then stayed that ruling pending any action it would take in September, and after giving everyone 30 days to respond to the prosecutors’ appeal of the 5th Court’s ruling, they agreed in December to formally review that ruling. At that time, it delayed the actual Paxton trial, which was originally set to start on December 11, to this year. More than six months later, the CCA has not scheduled oral arguments for that appeal, and so here we are. There are other factors at play here – the damage done to the Harris County courthouse by Harvey greatly complicates things, for example – but either until this lawsuit gets resolved, nothing else will happen. And just any ruling won’t get us back on track, because if the CCA lets the 5th Court’s ruling stand, the special prosecutors will resign, and we’ll have to start more or less from scratch. Ken Paxton could well be collecting his state pension by the time this sucker gets to a courthouse.

You’ve heard the expression that “justice delayed is justice denied”. Usually, that applies to the defendant, who is entitled by the Constitution to a fair and prompt trial. In this case, as Democratic nominee for AG Justin Nelson says in a statement, Ken Paxton is benefiting from the unending delays, with the assistance of his legislative cronies. You’d think a guy who loudly proclaims his innocence would want to get this over with, but not Ken Paxton. It would seem he’s just fine with putting this off, at least until after the election. Feel free to speculate as to why that might be.

CCA to review Paxton prosecutors pay case

Good.

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The state’s highest criminal court agreed Wednesday to take a closer look at prosecutors’ long-running fight to get paid for their handling of the securities fraud case against Texas Attorney General Ken Paxton.

The move by the state’s Court of Criminal Appeals could have a major impact on the separate case against Paxton. The prosecutors have suggested they will bail if they cannot get paid, likely imperiling the more than two-year case against the state’s top lawyer.

“We are gratified but not surprised by the Court of Criminal Appeals’ decision to formally hear this landmark proceeding, one that impacts trial judges, prosecutors, and defense attorneys across Texas,” the prosecutors said in a statement Wednesday.

Prosecutors asked the Court of Criminal Appeals in September to reverse a ruling from a lower court that voided a six-figure invoice for work that goes back to January 2016. The prosecutors said the decision by the Dallas-based 5th Court of Appeals — spurred by a legal challenge to the invoice by Collin County commissioners — was a “clear abuse of discretion.”

Days after the prosecutors appealed to the Court of Criminal Appeals in September, it put the lower-court ruling on hold. But the court waited until Wednesday — nearly two months later — to announce its decision to review the ruling.

See here and here for the background. All of this jousting over paying for the prosecutors has pushed the trial back into 2018, with the next court date awaiting the disposal of this case. You know how I feel about this, so let’s hope for once that the CCA’s infamous pro-prosecutor tendencies will be a force for good for once. The Chron has more.

In support of the Paxton prosecutors

Good to see.

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In an unusual step, six prosecutors and Texas’ criminal defense attorneys association have joined a continuing legal storm over how much the special prosecutors overseeing the criminal case against Attorney General Ken Paxton should get paid.

Preventing the three special prosecutors in Paxton’s case from getting paid would thwart justice, according to Bexar County District Attorney Nicholas “Nico” LaHood, Travis County District Attorney Margaret Moore, Fort Bend County District Attorney John Healey Jr., Travis County Attorney David Escamilla, former State Prosecuting Attorney Lisa McMinn and Enrico Valdez, a Bexar County assistant district attorney. The group intervened late Friday with the state Court of Criminal Appeals.

[…]

In a separate filing with the appeals court, the Texas Criminal Defense Lawyers Association argues much the same thing, saying that courts have previously ruled that proper compensation for appointed prosecutors is necessary and that the Collin County Commissioner’s Court should honor the payments to the three special prosecutors in the Paxton case.

“We’re gratified that prosecutors and defense attorneys with almost 200 years of collective experience agree how very important this case is, and that we’re entitled to the relief we seek in the Court of Criminal Appeals,” Houston attorney Brian Wice, one of the special prosecutors in the case, said in a statement Sunday.

See here and here for the background. A copy of the prosecutors’ brief is here, and the TCDLA brief is here. Friday was the deadline for all to submit documents in support of or opposition to the Fifth Court’s ruling. The Statesman adds details.

The Texas Criminal Defense Lawyers Association, in a brief filed recently with the Court of Criminal Appeals, argued that unless the ruling is reversed, it will place strict limits on legal fees, “effectively preventing the judiciary from being able to appoint qualified lawyers in difficult cases.”

“All of the gains made and all of the advances and improvements accomplished in indigent defense in Texas over the last 20 years will fall to the wayside,” the association argued. “Texas will return to the days of sleeping lawyers and otherwise unemployed insurance lawyers taking court appointments in criminal cases.”

A second brief by six current or former prosecutors — including Travis County District Attorney Margaret Moore and County Attorney David Escamilla — also urged the appeals court ruling to be overturned, arguing that it undermines the pursuit of justice in cases, like Paxton’s, where outside prosecutors are appointed after a local district attorney steps aside for a conflict of interest or similar reason.

Judges must have the discretion to set higher fees for unusual or difficult cases, they told the court.

“After all, it is often the unusual cases that require the most skilled and qualified attorneys, and these are the very attorneys who are most likely to decline the representation without adequate compensation,” said the prosecutors, who included former State Prosecuting Attorney Lisa McMinn and Fort Bend County District Attorney John Healey Jr., a Republican.

[…]

“Without the ability to pay a reasonable market rate in these rare circumstances, courts are effectively without power to fulfill their constitutional obligation,” the defense lawyers group told the Court of Criminal Appeals.

According to the brief from the Travis County prosecutors and others, the lower-court ruling also undermines the ability of court-appointed prosecutors to do a complicated and taxing job that often includes seeking warrants, handling grand juries, responding to defense motions, interviewing witnesses, reviewing evidence and preparing for trial.

In addition to discouraging qualified lawyers from serving as prosecutors, the prosecutors’ brief complained that the ruling allows politics to invade criminal justice decisions — such as in Collin County, where commissioners have voiced support for Paxton while seeking to limit payments to those prosecuting him.

“It creates a situation where the local county commissioners can effectively stop a criminal prosecution,” the brief said.

I’ve been saying a lot of these things myself, so I’m glad someone with actual legal credentials is making those arguments formally. Galveston Count and the County Judges and Commissioners Association of Texas filed briefs in support of Collin County, since all they really care about is the financial impact. I’ll say again, the state could solve this very easily by picking up the tab in these cases. It’s a small amount of money in that context, and it would avoid all these problems. Someone needs to file a bill to this effect in 2019.

Paxton trial delayed again

This will happen some day. I hope.

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Attorney General Ken Paxton’s trial has been put off for a third time.

The judge in the securities fraud case against Paxton sided Wednesday with prosecutors who had been pushing for another trial delay because of a long-running dispute over their fees. The decision by Harris County District Court Judge Robert Johnson scrapped Paxton’s current Dec. 11 trial date and left the new one to be determined, possibly at a Nov. 2 conference.

Paxton had been set to go to trial on Dec. 11 on the least serious of three charges he faces. The date for that trial had already been pushed back twice because of pretrial disputes, first over the venue and then the judge.

[…]

In a feisty hourlong hearing Wednesday, the prosecutors and Paxton’s lawyers sparred over a familiar subject: whether they should hold off on a trial until the prosecutors could collect a paycheck — an issue currently tied up in a separate legal battle. Earlier this year, when the case was before a different judge, he denied the prosecutors’ first request to delay the trial until they could get paid.

Johnson had a different take Wednesday, granting the prosecutors’ latest motion for continuance. He asked both sides to come up with a new trial date, preferably in late February or early March. After some back and forth — a Paxton lawyer proposed a new trial date on March 6 — they all agreed to continue the discussion at the Nov. 2 pretrial conference.

The prosecutors had been seeking to put off the trial until the state’s highest criminal court, the Texas Court of Criminal Appeals, could sort out the payment issue. Last week, the Court of Criminal Appeals stepped into the dispute over the prosecutors’ pay, issuing a stay of a lower-court ruling last month that invalidated a six-figure paycheck for them. In its decision, the Court of Criminal Appeals gave all sides 30 days to respond to the prosecutors’ contention that the lower court, the Dallas-based 5th Court of Appeals, overstepped its authority when it voided the payment.

If the Court of Criminal Appeals ultimately rules against the prosecutors — effectively leaving them without pay for the foreseeable future — they will move to withdraw from the case, Wice said.

Paxton’s team had none of it. His lawyers contended the prosecutors were seeking to undermine Paxton’s right to a speedy trial and repeatedly pointed to the prosecutors’ previous failures to get the trial delayed due to the payment issue.

“It’s time,” Paxton lawyer Dan Cogdell said. “It’s time to try the case.”

See here for some background. The first I’d heard of this motion was Tuesday when the Trib and the Chron reported on it. You know where I stand on this, and while I agree with Team Paxton that I’d like to get on with this already, I would note that it is well within their power to ask Paxton’s buddies Jeff Blackard and the Collin County Commissioners Court to drop their vendetta against the prosecutors, since that is the main stumbling block at this time. I really don’t see how anyone can object to them wanting to get paid what they were told they would be paid, nor can I see how anyone would expect them to work for free. The solution is simple if they want it to happen. Until then, we await the November 2 hearing at which everyone argues over a new court date.

CCA stays Paxton prosecutor pay ruling

A bit of sanity at last, though we’re not out of the woods yet.

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Texas’ highest criminal court has stepped into the long-running dispute over the prosecutors’ pay in the securities fraud case against Attorney General Ken Paxton, putting on hold a lower-court ruling that voided a six-figure invoice.

In a decision Monday, the Court of Criminal Appeals issued a stay of an Aug. 21 ruling by the Dallas-based 5th Court of Appeals that had invalidated the $205,000 payment, which covered work going back to January 2016. Last week, the prosecutors asked the Court of Criminal Appeals to reverse that ruling, calling it a “clear abuse of discretion.”

In its order Monday, the Court of Criminal Appeals gave all sides 30 days to respond to the prosecutors’ arguments.

[…]

“We’re extremely gratified that, after a thoughtful and careful review of our writ, at least five judges on the Court of Criminal Appeals recognized that we were entitled to a stay of the Fifth Court of Appeals’ order,” prosecutor Brian Wice said in a statement. “We’re cautiously optimistic that the Court will ultimately conclude that the Fifth Court’s unwarranted decision to scuttle the fee schedules of over two-thirds of all Texas counties was a clear abuse of discretion.”

See here, here, and here for the background. This isn’t a ruling in the case, just basically a stay on the 5th Court order pending oral arguments. The CCA could still uphold the lower court’s ruling, which would be bad. But at least there’s now a chance we could affirm the principle that private citizens should not be able to derail prosecutions. The Chron and the DMN have more.

Paxton prosecutors officially petition the CCA over their pay

Last chance.

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The special prosecutors in the securities fraud case against Attorney General Ken Paxton are asking the state’s highest criminal court to help them get paid.

On Tuesday, the prosecutors asked the Court of Criminal Appeals to reverse a ruling from a lower court last month that voided a six-figure invoice for work that goes back to January 2016. The prosecutors said the decision by the Dallas-based 5th Court of Appeals was a “clear abuse of discretion.”

The ruling “will have a chilling effect on the ability of trial judges to appoint qualified lawyers — defense attorneys and special prosecutors alike — willing to take on the most complicated and serious cases,” the prosecutors wrote.

The Court of Criminal Appeals must now decide whether it will hear the prosecutors’ case. Prosecutor Brian Wice asked for oral arguments.

It is a high-stakes moment for the trio of Paxton prosecutors, made up of Houston attorneys Nicole DeBorde, Kent Schaffer and Wice. If the Court of Criminal Appeals turns them down, they will likely have to make a decision about whether to continue working for free.

See here, here, and here for the background. You know where I stand on this. It’s a travesty this has even gotten this far. If the CCA doesn’t put an end to this nonsense, it’s a get out of jail free card for Paxton. Winning in court is one thing, winning by forfeit is another altogether. Don’t screw this up, CCA. The DMN has more.

Paxton prosecutors to petition CCA

Last chance to get paid.

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The state’s highest criminal court will get a chance to decide whether the special prosecutors appointed in the criminal cases against Texas Attorney General Ken Paxton can be paid the $300-an-hour rate they were promised.

Kent A. Schaffer, one of the three special prosecutors in Texas v. Paxton, said the trio will file for a writ of mandamus with the Court of Criminal Appeals to vacate the Fifth Court of Appeals decision Monday to void the judge’s order authorizing an approximately $205,000 payment.

“It’s not over yet,” said Schaffer, a partner in Bires Schaffer & DeBorde in Houston.

[…]

Collin County paid the first order issued by Judge George Gallagher of Tarrant County to pay the special prosecutors $254,908 for pretrial work, but county commissioners balked at making the second payment ordered by Gallagher in January. Instead, the commissioners filed for a writ of mandamus to compel the trial court to vacate its order requiring payment.

According to the Fifth Court’s opinion in In Re Collin County, Texas, Commissioners, Rule 4.01B adopted by Collin County’s judges authorizes payments of pro tem attorneys to deviate from the schedule adopted by the judges. The three-judge panel of the Fifth Court, which heard the commissioners’ petition for a writ, noted in its opinion that Rule 4.01B appears to thwart the objective of Texas Code of Criminal Procedure Article 26.05, which requires district judges to adopt a schedule of reasonable fees for appointed attorneys.

See here for the background. After all this time, I confess I’m a little unclear on what happens if the special prosecutors lose. Does this mean they will then have been paid all they’re ever going to be paid, or does it mean their pay will be recalculated and readministered based on a much lower hourly rate? In either case, this is ridiculous and will indeed make it impossible to find qualified special prosecutors in future situations. You know my answer to this – the state should pick up the tab when a state official is involved. That ain’t happening any time soon, so let’s hope the CCA makes it all go away, at least for now.

5th Court of Appeals screws Paxton prosecutors

Ugh.

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The prosecutors pursuing charges against Attorney General Ken Paxton haven’t been paid in more than a year and a half — and they will continue to wait on a payday.

On Monday, the 5th Court of Appeals in Dallas voided a $205,000 invoice dating back to January 2016, saying state laws and local rules did not allow the three special prosecutors to be paid the $300-an-hour rate they were promised.

[…]

[David Feldman, attorney for the special prosecutors,] argued state law and local rules gave Collin County district judges, who decide how much to pay special prosecutors, discretion to stray from fee rules in unusual circumstances. He called it “honorable” that his clients continued to prosecute the case when they hadn’t been paid in 19 months.

But the Dallas court on Monday sided with the commissioners, saying Texas law requires counties to “set both minimum and maximum hourly rates” in these cases. By adopting local rules that allowed them to exceed their own maximum fees, the court said “the judges exceeded their authority.

“The statute does not prevent the judges from taking into consideration the possibility of ‘unusual circumstances’ in setting the range of reasonable fees allowed,” Justice Molly Francis wrote for the court. “But the legislature intended each county to have an agreed framework that sets out the specific range of reasonable fees that could be paid.”

See here and here for some background. I will say again, this basically amounts to a get-out-of-jail-free card for state officials who are accused of crimes in their home counties. The state should be responsible for the cost of such prosecutions, wherever they occur, and they should cover the going pay rate for attorneys who are qualified to handle a high-profile case. It’s the only way to avoid these shenanigans.

First Paxton trial hearing in Harris County

Not much happened, but there are some big questions to address.

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The securities fraud case against Texas Attorney General Ken Paxton kicked off Thursday in Harris County with no new trial date being set.

Instead, the new judge in the case, Robert Johnson, asked both sides to come back July 27 to continue discussing a potential schedule. Prosecutors pushed to hold off setting a trial date until they can get paid – an issue currently tied up in a Dallas appeals court.

Paxton has had two previous trial dates scrapped due to legal disputes – first over the venue, then over the judge. The hearing Thursday was the first time Paxton appeared before Johnson, the new judge, in the relocated venue of Harris County.

[…]

The issue of the prosecutors’ pay has long consumed the case. Collin County commissioners voted last month not to approve payments to the prosecutors and to instead take the dispute to the Dallas-based 5th Court of Appeals, where it has not yet been resolved.

“As long as they continue to sue us, our hands our tied,” said one of the prosecutors, Brian Wice. “This is an unprecedented attempt to defund and ultimately derail the prosecution.”

Paxton’s lawyers countered that the payment case could take much longer than the prosecutors were letting on.

“Whether they get their money is not our problem,” Paxton lawyer Dan Cogdell said, adding that the citizens of Texas also deserve a speedy trial. “He is the sitting attorney general.”

See here and here for some background. As the DMN notes, the 5th Court of Appeals says it will issue a ruling in the Paxton prosecutors pay lawsuit sometime after July 19. How much after, we don’t know. Maybe the issue will be moot by the time July 27 rolls around. Modulo further appeals, of course. Judge Johnson has asked both parties to submit procedural timelines of the case by July 7, for that July 27 hearing. Maybe we’ll get some of these questions answered then. The Chron has more.

Collin County would like us to pick up the Paxton prosecutor tab

I’ll bet they would.

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As Attorney General Ken Paxton’s legal troubles head into their third year, there’s another question aside from whether he’ll beat the rap — who will pay for it all?

Taxpayers in Collin County, where Paxton was indicted on three felony charges, have had to pick up the tab. This hasn’t gone over well in McKinney, a conservative stronghold where the Republican attorney general is not only a well-known resident but also the first statewide official elected from the area in almost 150 years.

After months of pressure and multiple lawsuits from Paxton loyalists to halt funding to the case, local officials recently voted to stop paying the prosecutors at all.

Then, late last week, after months of mulling the idea, county leaders finally took their grievances to court. One is even hoping the county can rid itself of the case and its price tag altogether by getting taxpayers in Houston, where Paxton will stand trial, to pick up the rest of the tab.

It’s been 18 months since the prosecutors were paid. With a brand-new judge presiding over the case and multiple related lawsuits pending, when, how much and who will pay them is more a mystery than ever before.

[…]

In a brief filed with the 5th Court of Appeals in Dallas, the county commissioners argued the prosecutors’ pay was “outrageously high” and illegal. Their fees violate a state law, they said, that requires counties to adopt “reasonable fixed rates or minimum and maximum hourly rates” for compensating special prosecutors.

They want the court to throw out the prosecutors’ last paycheck — which topped $205,000 — and have voted to reject paying the bill until in the meantime. This last invoice, filed in January, covers all of 2016.

David Feldman, the prosecutors’ lawyer, said his clients’ decision to continue while not being paid “shows a commitment to serving the public good.” The three prosecutors — Nicole DeBorde, Kent Schaffer and Brian Wice — are criminal defense attorneys who charge many times this rate in their private practices.

“It’s honorable that they’re continuing to invest time in the prosecution because this is not something they went out and asked for.

[…]

Harris County Criminal District Court Judge Robert Johnson, a Democrat elected last year, was chosen this week to replace Gallagher. Johnson could choose to hike or slash the prosecutors’ paychecks as he sees fit.

On Wednesday, he declined to comment on the fight over the case’s cost. But depending on Collin County’s future decisions, he may be forced to weigh in.

County Judge Keith Self, one of the five Collin County commissioners, wants to discuss whether there’s a way to push the case’s costs onto Harris County. The commissioners haven’t discussed this proposal, he said, but he’s “hopeful” they’ll be open to the possibility.

Commissioner Duncan Webb said they should wait until the Dallas court makes a decision.

“I want to get the issue resolved, the quicker the better, and do what we’re legally supposed to do and pay what we’re legally supposed to pay,” Webb said. “I don’t know whether Harris County’s going to get involved with this or not. That’s way out there at this moment.

See here, here, and here for the background. I’m sure our Commissioners Court will be delighted to hear about this. Remember how I’ve said that it would probably make more sense for the state to pay for special prosecutors in cases like this, if only to avoid these shenanigans? I still think that’s the right idea. In the meantime, it may be awhile before the 5th Court gets involved again.

A Texas appellate court [last] Friday said without a live controversy, it doesn’t have jurisdiction in a fight to block payment for the special prosecutors appointed to handle the felony securities fraud case against Texas Attorney General Ken Paxton.

The Fifth Court of Appeals in Dallas dismissed real estate developer Jeff Blackard’s bid to enjoin the Collin County Commissioners Court from paying a trio of special prosecutors under a $300 hourly rate agreement, citing the county’s recent vote against paying an invoice from the prosecutors. Blackard had argued the county’s local court rules require appointed prosecutors to be paid under a limited flat fee schedule, and his quest to block hefty payments to the prosecutors raised what the appeals court referred to as unusual and challenging procedural issues.

Blackard had requested the appellate court abate his suit indefinitely, based on the possibility the county might in the future approve payment of a fee invoice at a time and in an amount that he contends is illegal, according to the opinion. But the court doesn’t have jurisdiction over contingent future events that may not occur, and the matter is not ripe for resolution, a panel of the court said.

“Because the Commissioners Court has rejected the invoice and has authorized counsel to challenge the district court’s order, no pending ‘illegal’ expenditure of public funds currently exists for Blackard to seek to enjoin,” the court said.

I don’t really know what any of this means. I’m just trying to keep track of it all.

More on the attack on the Paxton special prosecutors’ pay

From Texas Lawyer.

Best mugshot ever

As courtroom twists go, this one is practically unheard-of: On the brink of bringing Texas’ attorney general, Ken Paxton, to trial on felony securities fraud charges, the government’s prosecutors are threatening to bail out of the case unless they get paid.

Whether one of the biggest criminal cases in Texas finally goes before a jury is now in limbo over what prosecutors contend is a deliberate effort by rich supporters of Paxton, an up-and-coming firebrand in Republican legal circles, to delay justice by challenging their paychecks. So far, the tactic is working.

[…]

Supporters of Paxton have made an issue of the $300-an-hour fees being charged by the special prosecutors, who are paid by the Dallas suburban county where the trial will be held. A three-judge panel of a Dallas appeals court agreed to halt payments on the $200,000 in legal bills while it considers a lawsuit filed by Jeff Blackard, a wealthy Dallas developer and onetime Paxton political donor, who has argued that the fees were excessive and costing taxpayers too much.

“Everyone in the courtroom is being paid except for us,” one of the appointed prosecutors, Brian Wice, has said. “No one expected us to work for free.”

Firing back, Paxton’s attorneys earlier this month accused prosecutors of being “financially self-serving” and argued they don’t have a right to be paid until the case is over. As of last year, Paxton had raised more than $300,000 from private sources to pay his own high-powered defense team.

Legal observers say they’ve never seen a case jeopardized quite like this.

“It’s outrageous that the prosecution should be derailed by the defendant somehow, or the defendant’s supporters or friends, defunding the prosecution,” said Joe Turner, a veteran Austin attorney who helped Willie Nelson and Matthew McConaughey beat drug busts years ago.

[…]

Blackard’s attorney denies that the lawsuit is a ploy to keep Paxton from facing a jury.

“It’s not about whether Paxton is or is not prosecuted. It’s about whether the taxpayers’ money is spent properly,” said attorney Eddie Greim, who is based in Kansas City, Missouri.

Prosecutors told a judge in court documents that Blackard “has already succeeded in shutting down this prosecution” and warned that having to appoint replacements will only drag the case out further.

Most of this, which was written before the decision by Judge Gallagher that delayed the trial until the prosecutor pay dispute gets resolved, is stuff we know. As a matter of law, the suit may have merit, but as a matter of common sense it’s completely ridiculous. It simply cannot be the case that a private citizen can derail a prosecution like this. I maintain that the funding for cases like these should be the state’s responsibility. Indeed, it was the state’s responsibility until the 2011 Legislature kneecapped the Public Integrity Unit of the Travis County DA’s office. Whatever you think of that action, it created a problem for which there is no current solution. It won’t affect this case, but the Lege really should address this. Ken Paxton will not be the last elected official to cause this issue for a county Commissioners Court.

Paxton case gets moved out of Collin County

Well, well, well.

Best mugshot ever

Attorney General Ken Paxton’s upcoming trials will be moved out of Collin County, the judge presiding over his criminal fraud case decided Thursday.

The ruling is a major victory for the prosecutors, who have for months argued that Paxton’s friends and political allies have sought to malign them in the court of public opinion here, where the attorney general has lived and worked for decades.

Judge George Gallagher ruled the trials should be moved out of Paxton’s backyard but did not set a location for where they would take place. The trials, which were to kick off May 1, will be delayed until a new venue is set.

Both the prosecutors and Paxton’s attorneys denied to comment on the ruling. Gallagher imposed a strict gag order on the parties Wednesday, saying there would be “no more statements to the press.”

In his ruling, Gallagher did not elaborate on why he sided with the prosecution. He also denied Paxton’s request to have his indictments thrown out.

See here for the background on the venue change. Judge Gallagher also denied the special prosecutors’ motion to delay the trail until the lawsuit over their pay is resolved. The hearing that led to all these rulings happened on Wednesday, and this story has some details about how that went.

During Wednesday’s hearing, Paxton’s attorneys rejected claims of a concerted effort in Collin County — where Paxton has lived and worked for years — to malign the prosecutors and skew public opinion in Paxton’s favor. They also released a poll, done by longtime Republican pollster Glen Bolger, that they said showed Paxton had no “home team advantage.”

Bolger’s poll showed that of the 400 people surveyed, a majority were aware that Paxton had been indicted, but few said they had enough facts to decide whether he was guilty or innocent. Of those who knew about the indictments, 14 percent thought he was guilty and 9 percent innocent, and more people now believed he is guilty than they did when he was first charged.

“If there’s been a campaign, it’s been pretty darn ineffective,” Bolger, who said he was paid $12,000 to take the poll, told the court. “People’s attitudes are not being significantly impacted by what has happened so far.”

Also on Wednesday, prosecutors submitted several new pieces of evidence that they said showed the trials should be moved, including a new lawsuit aimed at blocking their pay — which has been on hold since earlier this year — and an invitation to a fundraiser for Paxton co-hosted by four Collin County commissioners and a handful of state lawmakers.

The event took place at the McKinney home of Keresa and JR Richardson in December 2013, a year and a half before Paxton was indicted. At the time, Paxton was a state senator running for the Republican nomination for attorney general.

As the Wednesday hearing was wrapping up, Gallagher questioned the ethical implications of the fundraiser, saying he was concerned about lawsuits filed “by folks that have a great deal of control in this county.”

“We may have a problem here,” said Gallagher. “We may have an ethical problem.”

Collin County Judge Keith Self, one of the fundraiser’s honorary co-hosts, told The News on Thursday that the event was “not germane” to Paxton’s criminal case because it took place well before his 2015 indictment.

“This was 18 months prior to the indictment being released, and Ken Paxton at the time was a sitting state senator,” Self said, adding it would “have been strange” if they hadn’t supported his bid for attorney general.

So the bottom line is, there will be a trial – the latest motion to have the charges thrown out had to do with some allegations by the defense regarding the grand jury; that part of the hearing was done in chambers, so as to preserve the secrecy of the grand jury process – it will not begin on May 1, and it will be someplace else. When we know where it will be, we ought to know when it will be as well. Stay tuned. A statement from the Lone Star Project is here, and WFAA and the Trib have more.