After a federal judge discredited their case against Texas Attorney General Ken Paxton by exonerating him of identical charges earlier this year, the Dallas Court of Appeals has now dealt another major setback to the trio of special prosecutors who are pursuing Paxton for alleged securities violations.

The appeals court ruled that Judge George Gallagher’s order to the Collin County Commissioners Court requiring the county to pay Houston criminal defense attorneys Brian Wice, Kent Schaffer, and Nicole DeBorde in excess of $200,000 for work prosecuting Paxton in 2016 is void and must be vacated. The court’s opinion also undermines the legal basis for an earlier order that caused the County to pay the attorneys in excess of $250,000 for work performed in 2015 and may support a claim by the County against the prosecutors for disgorgement of those fees.

At the crux of the court’s opinion is the conclusion that the handshake deal between Collin County Judge Scott Becker and the three criminal defense attorneys from Houston in which Becker agreed to pay the trio $300 per hour was unlawful.

Sources in the Collin County courthouse claim that Becker had no knowledge that he was limited by the Texas Fair Defense Act when he agreed to the hourly rates. When the act, which limits compensation for appointed special prosecutors to the same compensation available for attorneys appointed to represent indigent defendants, was brought to Becker and the prosecutors’ attention, they pointed to an exception found in Collin County’s fee schedule in order to justify the excessive rates.

But the Court of Appeals is now saying that exception itself violates state law. That means that Wice, Schaffer, and DeBorde should have been paid a maximum of $1000 for pre-trial work plus $1000 per day of trial, the same compensation available when defendants cannot afford an attorney.

The logic of the Texas Fair Defense Act is simple. Governments should not be able to enrich private attorneys by appointing them as prosecutors and paying them in excess of the compensation available for attorneys who represent indigent defendants. Judge Becker and Judge Gallagher violated the Act by attempting to pay Wice, Schaffer, and DeBorde such high rates.

That the payments in the Paxton case, which far exceed any compensation Collin County has paid out even in past capital murder prosecutions, are so high only puts a punctuation mark on the illegality.

The appointment of private attorneys to prosecute cases is rare and disfavored by the law. More often in cases in which a local district attorney is recused, a district attorney’s office from a neighboring county will take on the duties, often at no cost.

Now Collin County taxpayers and the Collin County commissioners will have to evaluate whether they can recover the fees they have already paid to Wice, Schaffer, and DeBorde. Indeed, now that the public is aware of Schaffer’s unsavory involvement with the Bandidos motorcycle gang, the trio’s rampant abuse of due process in the Paxton case, and their increasingly unhinged attitude towards the public as their case has unraveled, taxpayers may feel a greater sense of urgency in getting their money back.

Regardless of future developments, today’s ruling is a victory for the rule of law and a huge blow to those who seek to abuse the criminal justice system for political or personal financial gain. All that is left is for the courts to end the discredited Paxton prosecution once and for all and free an innocent man from falling victim to an ugly trend in Texas politics.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.