A unanimous resolution this week promising to consider future action on legally questionable orders from an out-of-county judge would be “meaningless” unless Collin County Commissioners take swift action, a businessmen told them in an open letter this week.
McKinney businessman Jeff Blackard has sued the county over paying exorbitant legal bills, on the unchallenged order of Tarrant County Judge George Gallagher, to private-practice Houston attorneys recruited to prosecute the politically motivated case against Texas Attorney General Ken Paxton. (A version of the case brought by the Obama administration has already been dismissed by a federal judge.)
The Houston lawyers earlier this year charged Collin County, with Gallagher’s blessing, several hundred thousand dollars. They have yet to submit a new invoice. Blackard says the attorneys and Gallagher are holding the bill until such time as challenging it would create a “crisis.”
County Judge Keith Self had previously, and erroneously, claimed the county had no choice but to pay the bills funding the political assault against Paxton. Legal scholars maintain the county has both the right and obligation to challenge Gallagher’s order, which appears to violate the letter and spirit of state law restricting payments to private attorneys in criminal prosecutions.
In the letter copied below, Blackard notes that the attorneys appear to be purposefully withholding bills, likely to exceed hundreds of thousands of dollars.
Blackard’s letter was sent via email on Wednesday, October 26, to Self and the four commissioners, copying several dozen reporters and prominent political figures. (The “cc” line with email addresses has been redacted.)
From: Jeff Blackard
Date: October 26, 2016 at 2:15:24 PM CDT
To: [email protected] redacted, “[email protected] redacted, [email protected] redacted, [email protected] redacted, [email protected] redacted
Cc: < redacted >
Subject: Commissioners Resolution Regarding Paxton Bills
Dear Judge Self and Commissioners:
Your vote Monday was a tentative step in the right direction, but it requires immediate follow-up. If you do nothing, then Monday’s order will be remembered at best as a meaningless compromise, but more likely, as the first step in a new, cynical strategy to hide behind the “rule of law” and capitulate once the next massive invoice is presented.
Let me start with the part of the resolution that is a step in the right direction. For the first time, all five commissioners have openly repudiated the mistaken claim (which, in fairness, not all five commissioners endorsed) that commissioners are “staring down the barrel of a loaded gun” or will “go to jail” if they take steps to dispute the bills. No one ever really believed this. However, it is good to see all five members of the Commissioners Court now admitting that they do, in fact, have the power to challenge the billings if they are unreasonable.
But this by itself is not enough. Having now admitted that they have the power to review the bills, why would the Commissioners sit back and wait until there is a crisis? There is no question that a new bill is coming, and that it will be accompanied by another order that it be paid in short order under penalty of the court’s enforcement powers. The deadlines will be tight and it will be another emergency situation, just like it was when the last bill was submitted over the holidays at the end of 2015. We know the playbook will be the same in round two. Further, we know the bill will be even more massive this time around, with hundreds or thousands of hours of detailed billing descriptions requiring close review. Those descriptions are already recorded and are sitting now in the billing systems of the attorneys pro tem. The attorneys pro tem are biding their time, waiting for the right moment to spring their bills, but unless something changes, Collin County is doing nothing.
Is there a reason to wait? What are the unknowns? The Commissioners know that Judge Gallagher is approving the rate of $300 per hour for each and every lawyer who touches any civil or criminal matter relating to Ken Paxton, regardless of the type of case being litigated, the degree of difficulty, or the experience, skill, area of specialty, or seniority of the lawyers involved. The Commissioners also know that the lawyers have been working on the criminal case, amassing (as of today) almost 11 months of billings from the last bills that were submitted. The Commissioners also know that the attorneys pro tem keep their time on a daily basis, as attorneys are professionally obligated to do, keeping descriptions of every single task they perform in 6-minute increments. This billing detail is not some special analysis that needs to be laboriously created; it is presently existing within the attorneys’ time-keeping and billing software. The sum total will far exceed the last bill of $254,000.
Collin County knows right now that this massive billing relies on a so-called “exception,” or trap door, in the local indigent attorney fee guidelines. This trap door purportedly allows any rate and any fee whatsoever in the case of “unusual circumstances.” Even without knowing the amounts of time or fees being billed, Collin County can take decisive action right now. It can challenge the “unusual circumstances trap door” in the pending taxpayer lawsuit, or in a mandamus proceeding that it mentioned in Monday’s order. Why won’t it take this action? Instead, Collin County has chosen to pay another attorney pro tem, David Feldman, as well as its own attorneys, to fight that lawsuit so that it will take even longer, and be even more expensive, for a court to decide the legality of the trap door.
But Collin County has another argument. It may also want to challenge the fees because they are unreasonable and far too high, regardless of whether the “trap door” is valid. If that is Collin County’s intention, why wait? Why allow the attorneys pro tem to rack up bills for many more months, and then force the county into an emergency situation where it will be difficult to litigate the question? The attorneys pro tem will undoubtedly ask for sympathy from the reviewing court, as they will claim that in the absence of a judicial ruling to the contrary, they worked in “good faith,” believing that the secret, unwritten deal they brokered with another Collin County judge (Judge Becker) was still valid. Why delay, and thereby allow them to make this argument?
Collin County should not let the bills continue to accumulate, which lets the attorneys pro tem choose the time and place of battle. No reasonable business would do this if it knew of a looming multimillion dollar dispute with a vendor. Instead, it would begin to investigate the dispute, and obtain the information to which it is entitled as the person who is allegedly liable to pay the vendor’s accumulating billings. It would ask for the amounts of fees billed to date, the rate and time descriptions, and an estimate of what is yet to be billed. Further, it would ask a very simple question: what are the “unusual circumstances” that justify the rate and amount of time being expended?
Armed with this information, Collin County could undertake its review now. It could (and can) protect the taxpayers before the bills spiral even further out of control. It can litigate the issue at a time and place of its own choosing. At that point, there will be a fair opportunity for all sides to present their positions. The alternative puts Collin County in the same untenable position which caused it to fumble away its arguments in late 2015: having to make an emergency response to a massive invoice. We all know what the ensuing excuse will be from some Commissioners: that there simply “wasn’t time” to perform the work needed to mount a defense. No one will believe that excuse now. You have it in your means at this very moment, without waiting for a false emergency, to take the common-sense, easy-to-implement steps outlined in this letter.
To conclude, doing nothing is not a reasonable option. The Commissioners should not sit back and coast for several more months on whatever goodwill was generated by the sugar-coated order that was passed Monday, hoping that their “base” of constituents has been mollified and lulled into thinking that the matter is under control. If anything, a skeptic could view Monday’s order as a set-up—perhaps engineered by only a few of the Commissioners—to eventually conclude that there isn’t enough time or money to mount a challenge to the next bill. But if the order means what it says, the time to act is now. By taking these steps, the Commissioners will prove that the order means what it says, and is not a simple stop-gap to escape the glare of public oversight.
Thank you for your time,