By Kyle Therrian, Attorney
By now, most are familiar with the never-ending, justice-delayed prosecution of Texas’ Attorney General Ken Paxton. Little known to the public, the Collin County Indigent Criminal Defense Plan could hold the key to it all.
Here is a quick recap of where we are.
- Spring of 2015 – A criminal case is filed, and our District Attorney Greg Willis recuses himself. A judge appoints special prosecutors and agrees to pay them $300 per hour.
- 2015-2016– Allies of Ken Paxton file a series of citizen lawsuits to shut down the prosecution.
- 2016 – The Dallas Morning News obtains text messages from Collin County Officials, Jeff Leach, Van Taylor, and Matt Shaheen indicating “Collin County lawmakers wanted to intervene in Paxton’s legal woes.”
- March 2017 – The prosecution is moved to Harris County because a judge determined that the prosecution team could not get a fair trial in Collin County.
- May 2017 – Collin County stops payment of special prosecutors and files a lawsuit challenging the legitimacy of the special prosecutor pay.
- June 2019 – Court of Criminal Appeals upholds Collin County Commissioners’ challenge to the legitimacy of special prosecutor pay.
- December 2019 – Ken Paxton team asks Harris County judge to move the prosecution back to Collin County.
It’s clear the strategy of the Paxton team and some Republican officials is to make this whole thing go away by defunding the prosecution. And, the Collin County Indigent Criminal Defense Plan could be the key.
According to Article 2.06 of the Code of Criminal Procedure, a special prosecutor is paid according to the indigent criminal defense plan of the county in which the prosecution is pending. Article 26 describes how such plans are to be crafted.
The Collin County plan in place at the time of the payment lawsuit permitted a judge to pay appointed attorneys (and thus special prosecutors) a discretionary hourly fee – in the case of the special prosecutors the judge exercised discretion to pay $300 per hour.
The successful lawsuit to defund the special prosecutors claimed this indigent defense plan was void. Article 26 did not permit judges to adopt plans with open-ended discretion. Instead the law required judges to adopt a flat fee system or a minimum and maximum hourly rate range. An open-ended discretionary hourly fee system did not meet this guideline.
An important question arising from the successful lawsuit challenging the plan is “how has our judiciary reacted?” This election season we have seven Democrats running for district benches. By all indications, our sitting judges are rising above the fray as well as Republican marching orders and choosing to attend forums and debates where both Republicans and Democrats are in attendance. Hopefully members of the public find this an opportunity to ask legitimate questions about how district judges and candidates will rise to the challenge of the Paxton prosecution potentially returning to Collin County.
- Could they have stopped the lawsuits by simply adjusting their indigent defense plan to conform with Article 26 and make provisions for paying the special prosecutors? Was this ever discussed in meetings of the Board of District Judges?
- Our new indigent defense plan adopted in November 2019 eliminated a previously lawful provision to pay attorneys $100 per hour. With minor exceptions, the plan is now a flat-fee system. Under the current plan, each special prosecutor could be paid no more than $12,000, assuming a 2-week trial. This will ostensibly be these lawyers’ salary for a year or more, from which they are compensated and pay overhead. Have they considered the dilemma of the prosecution coming back to Collin County? Are they considering new amendments to the plan should the prosecution return here?
The fate of the Ken Paxton prosecution could very well rest on the resolution of these questions.