The Collin County Commissioners Court put that question back on the agenda Monday afternoon with a closed-door discussion of whether to sue for repayment of fees paid under an arrangement that was later deemed illegal by the courts.
The commissioners didn’t offer any hints as to whether they will follow up on the discussion with a vote at their next meeting.
Commissioner Susan Fletcher, who has led the fight against overpaying the prosecutors, has said that she would need to weigh the cost of a new lawsuit against the likelihood of recovering the fees.
In May 2017, the Commissioners Court voted not to pay a $205,000 invoice from special prosecutors Brian Wice, Kent Schaffer, and Nicole DeBorde, setting off a court battle that’s run longer than the underlying Paxton case, which went into deep freeze while the pay got sorted out.
An appeals court ruled in Collin County’s favor within months, finding that state law and local rules allowed for just a few thousand dollars’ pay. But the Court of Criminal Appeals, which has the last word in criminal cases, took 21 months to sign off on that decision.
While the high court ultimately voided the $205,000 invoice and blocked future payments, it did not rule on whether payments already made were legally valid, leaving the door open for more litigation.
The year before the lawsuit, the Commissioners Court was obliged to pay the prosecutors $255,000 for a year of work in the Paxton case, and then pay another six figures for a fourth $300-an-hour attorney whose job was to defend the $300-an-hour rates in court. Visiting Judge George Gallagher ordered the commissioners to pay the rates he had approved, and threatened to use “all sanctions available to the Court” to force the commissioners to obey him.
That all came to a total bill for taxpayers of $387,881.48, according to Brian Newman, the president of Collin Strong, a conservative activist group.
“I’m here to advocate and encourage you get a refund for the taxpayers for those monies,” Newman told the commissioners. “They were illegally obtained.”
Newman cited fiscal conservatism and the rule of law as reasons for pursuing a “clawback” of the money.
“I would hate to encourage anybody else, hate for it to be an encouragement for others if they got to keep anything,” Newman said.
Newman sent out emails calling on residents to speak at the meeting, but only one person responded, suggesting that local passions may have cooled some during the long freeze.
Al Wertz of Plano echoed Newman’s argument.
“Part of the problem is there has to be some type of accountability to keep things like this from happening in the future,” he said. “We the people need to send a message.”
The Commissioners Court voted on this issue in August 2017, unanimously approving then-Commissioner (now County Judge) Chris Hill’s motion to instruct county lawyers to begin drawing up papers to pursue “disgorgement” of the fees paid. But it made little sense to file a lawsuit until the high court finally invalidated the prosecutors’ deal last month.
At the time of that vote, Fletcher gave two other reasons she didn’t think the order to pay the prosecutors for year one was valid.
“The local rules… clearly state that attorneys are not to be paid until the end of the trial, and I don’t see anywhere in the local rules that allows for more than one special prosecutor overall.”
Indeed, the case may end up with one special prosecutor.
Schaffer tells anyone who asks that he’s not working for free. DeBorde has formally requested to withdraw from the case. She’s busy representing former Houston narcotics cop Gerald Goines, who led a fatal no-knock drug raid that exploded into a department-wide scandal that could result in hundreds of convictions being overturned.
Wice hasn’t said whether he will press on alone.
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Jon Cassidy is a reporter for The Texan. He has been an investigative reporter for Watchdog.org and an editor and reporter for The Orange County Register. His work has also appeared in The Wall Street Journal, City Journal, The Federalist, Fox News, Chronicles, Reason, and other publications. He was a 2014 Robert Novak Journalism Fellow, and is a graduate of the University of Southern California. He and his wife Michelle live just outside Houston with their two children.