Attorney General Ken Paxton at the 2016 Texas GOP Convention.

With Texas Court Ruling, Ken Paxton’s Felony Case May Fizzle

In a Thanksgiving-eve ruling, the Texas Court of Criminal Appeals defanged Paxton’s prosecutors, putting his felony prosecution in jeopardy.


Ken Paxton
Attorney General Ken Paxton  Patrick Michels

Attorney General Ken Paxton and his allies have taken the buckshot approach to his legal woes, at various times blaming his three felony indictments on liberal agitators, GOP infighting or a shadowy conspiracy hatched by a Rick Perry-appointed judge.

Their most successful strategy, however, has been suing to starve Paxton’s prosecution, effectively derailing the case for years and holding any trial at bay before his re-election in November. On Wednesday, Team Paxton scored big with that approach. In a ruling released a day before Thanksgiving, the Texas Court of Criminal Appeals blocked payments to the private attorneys hired to prosecute Paxton. There’s no telling when, or even if, Paxton’s case will ever move forward.

The consequences of Wednesday’s ruling could extend far beyond Paxton’s case. In a dissent, outgoing Judge Elsa Alcala warned that the court’s decision would ultimately make it harder for courts to appoint qualified attorneys in complex cases, especially for indigent defendants. She also accused the majority of “legislating from the bench to create a new policy resulting in manifest injustice.”

As I wrote last month, Paxton’s criminal charges — two first-degree counts of securities fraud and one third-degree count of failing to register as an investment advisor — stem from allegations that have haunted him ever since the bruising 2014 GOP primary that ushered the tea party darling into the attorney general’s’ office. When the case ultimately landed in Paxton’s home turf in Collin County, the local DA, a friend and sometimes business partner of Paxton’s, recused himself. A local judge turned to three high-profile attorneys from Houston to prosecute Texas’ top lawyer. The judge set a $300-an-hour rate for the three special prosecutors.

Then Team Paxton went to work. Paxton leveraged the support of his rich friends, donors and out-of-state benefactors, amassing a legal defense fund war chest to pay for his top-dollar defense team. But it was Jeffory Blackard, a Paxton acolyte and multimillionaire real estate developer, who pioneered the defang-the-prosecution strategy.

Developer Jeffory Blackard, left, is an acolyte of former U.S. Senator Rick Santorum.

In December 2015, Blackard sued the all-Republican Collin County Commissioners Court to stop paying the prosecutors, arguing that, per the county’s standard rules for appointed attorneys, any pretrial work should be capped at $1,000 each, total; the three prosecutors on the case, by contrast, have filed invoices totaling nearly half a million dollars for their first two years of work on the case. Blackard asked the courts to invalidate a local rule giving judges discretion to ignore those pre-determined attorneys fees in unusual or high-profile cases — a rule in use by nearly two-thirds of Texas counties, according to court records.

The courts wouldn’t give Blackard standing to inject himself in Paxton’s criminal case, but he got the ball rolling. Soon enough, North Texas conservatives and tea party activists flooded Collin County Commissioners Court meetings, demanding officials sue to block the prosecutors’ payments, which they ultimately did.

A year and a half later, the Paxton allies got Texas’ highest criminal court to side with them. In a majority opinion Wednesday, signed by five of the court’s nine judges, the all-Republican Court of Criminal Appeals determined that state law doesn’t give judges the discretion to “opt out” of pre-set fee schedules for appointed attorneys. It largely sidestepped concerns by defense lawyers who have said limiting judges’ discretion could have devastating effects on indigent defense and effectively prevent judges from hiring lawyers who are qualified to handle complex or unusual cases.

Judge Elsa Alcala accused the majority of “legislating from the bench to create a new policy resulting in manifest injustice.”

On Wednesday, Blackard deferred comment to Edward Greim, the conservative Missouri lawyer who led the legal fight against Paxton’s prosecutors. “When Jeff Blackard first stepped up to protect the rule of law in the criminal justice system, he stood alone,” Greim wrote in an email. “Three years later, this decision is a testament to the power of persistence and the importance of having judges who apply the plain letter of the law instead of their own policy preferences.”

The special prosecutors, who didn’t immediately respond to a request for comment on Wednesday, have said in the past that they’ll quit if they can’t get paid. If they do, the trial judge on Paxton’s case will have to find new lawyers willing to jump into the three-year legal mess. Keith Self, the outgoing Collin County judge, said it’s not yet clear how much the attorneys can be paid under the court’s ruling.

When asked whether the ruling might indefinitely delay Paxton’s criminal case, Self responded, “No comment, no idea. For the Collin County Commissioners Court, this is a dispute over whether a single district court judge can grant an unlimited amount of taxpayer funds.” A Paxton spokesperson told the Dallas Morning News that the attorney general was “extremely grateful for the court’s decision.”

In her dissent, Judge Alcala wrote that Wednesday’s ruling “will likely affect an overwhelming number of criminal cases in Texas” and could even trigger a raft of ineffective assistance of counsel claims in the future.