Judicial Discretion VS. Separation of Powers
It has been said that discretion is the better part of valor, but when it comes to judicial discretion, how much latitude is appropriate? Let's take attorneys' fee schedules regarding indigent defense, for instance. Are there situations that occasionally warrant a variance from the norm? Possibly. However, it then becomes necessary to have a policy in place that will both allow for that limited amount of judicial discretion, while at the same time, protect the taxpayers with some sort of checks and balances.
But regardless, these fee schedules are outside of the powers and duties for Commissioners Courts. When it comes to county government, the Commissioners Court is responsible for budgeting approximately 90% of your county budget, including the funding of our jail, our courts and their operations. This also includes our constitutional mandate to fund defense attorneys representing indigent persons accused of a crime. The Commissioners Court is not responsible for drafting the policy or setting the fees, but rather that duty is left to the local judicial boards.
Over the course of 2016, the Commissioners Court has become aware of deviations from the Indigent Defense Policy that are beyond the current allowances. While most are minimal, others have been much higher than the policy allows. The question is one of principle - how much discretion do individual judges have when it comes to awarding fees above the policy limits? While I realize that no one can be clairvoyant about the situations our judiciary may be faced with while executing their duties of office, the Commissioners Court is tasked with preparing our county budget, which funds these operations. We must anticipate our needs, and we depend on our judiciary to follow their own policy regarding the approval of pay sheets for appointed attorneys. In other words, how can the Commissioners Courts effectively carry out our own budgeting duties if we cannot properly anticipate the projected costs?
In addressing this important topic, I want to be very clear that I have great respect for our judiciary, as well as my colleagues. We all have a job to do, and my comments are not intended to be critical of any particular individuals, but rather they are discussion points, and questions regarding the balance of power - from administrative operations and budgeting, to delivering justice in our courts. As most of you are aware, I have written about this issue in previous posts. If you would like to refer back to those posts, I will provide the links here (click):
- Oct. 13, 2016 - Status of Special Prosecutor Payments
- Oct. 23, 2016 - To Challenge, or Not to Challenge
Again, this is a matter of principle, and now that the Commissioners Court has become aware of these overpayments, we have had several discussions regarding what may be ensure that we are paying according to the fee schedule set by our judiciary. This discussion by the Commissioners Court (and discovery of overpayments) was only brought about when we learned that the special prosecutors in the case against Texas Attorney General Ken Paxton were promised an hourly rate that far exceeded the fee schedule in place. By Texas statute, attorneys pro-tem (special prosecutors) are to be paid the same as attorneys who are appointed to indigent defense cases.
I give you this background to make this point. Words matter. The rule of law matters. Checks and balances, and the separation of powers matter. So it has become necessary for the Commissioners Court to consider our options, in order to obtain a ruling regarding the limits of judicial discretion. Not only for the Paxton case (in which we will likely be ordered to spend $2 million dollars of taxpayer dollars - above and beyond the amount currently allowed by our policy), but also in general, moving forward, in other areas such as indigent defense.
In order to receive a ruling, the Commissioners Court voted on Monday (3-2) to move forward in challenging a current bill for indigent defense in which the attorney was awarded approximately $3,000 above the stated fee schedule. While I agree, in principle, that these charges are not in line with the policy, I personally voted "no" on moving forward with the challenge - as I was not convinced this was the RIGHT bill to challenge. Here's my reasoning:
- First and foremost, after discussing this issue in executive session with an attorney, I came away with even more questions than I had going in. I was simply not prepared to encumber the county to fees that could total $50,000 - $100,000, prior to further consideration and additional research. *I did suggest delaying the decision.
- I believe this particular bill is a poor substitute for the much more egregious bills that we have previously seen, as well as others we know are on the horizon. It is possible that a judge may not see the gravity of a $3,000 overage, but may feel quite differently about a $2 million dollar overage. If we are going to take the lead on answering the question of judicial limits across the state, we should choose a bill that is more suitable for the argument.
- Fiscally, as a steward of your taxpayer dollars, it just doesn't make sense to challenge a $3,000 overage by spending $50,000-$100,000. I realize that in aggregate, we have already surpassed that amount, but my point remains. If we are spending that amount to potentially save $2 million dollars, that makes more sense.
- I believe that if there are any unforeseen problems with this choosing this particular bill, and should we not prevail in court, the outcome could "pave the way" for future variances of the fee schedule, to an even greater degree, ultimately costing taxpayers more money.
- Even if we prevail, the ruling may not be applicable in our challenge to oppose the fees paid to special prosecutors.
- We have been advised that the projected trial date in the Paxton case is for Spring of 2017. We expect to receive orders to pay the bills for the special prosecutors soon after, which will far exceed the limits set forth in the Texas Fair Defense Act guidelines. In my opinion, these bills much better illustrate the problem we are facing, with crippling fees that would likely bankrupt any of Texas' smaller counties. Of course, if there are any other bills on the horizon that are grossly out of line with the limits of the Texas Fair Defense Act guidelines, those could also be considered as appropriate bills to challenge.
- The time frame to litigate and get a ruling on this bill could potentially put us in a situation where we don't yet have an answer to our legal inquiry prior to receiving the much larger bill in the Paxton case. We would then be left to challenge those bills as well, costing taxpayers an additional $50,000-100,000.
- Although I was not in favor of moving forward in this particular case, I do look forward to the eventual answer that we will receive, as this will become the test case state-wide for judicial discretion. While I may have concerns about using this particular bill, I am glad that the entire Commissioners Court is committed to determining both the boundaries and fiscal limitations of the parties involved.
So where does this leave us? The Commissioners Court will now begin the process of choosing an attorney to represent us in this matter. I'm sure you will hear a great deal about this in the coming weeks and months. Stay tuned. If you would like to watch the discussion on video, you may do so by clicking HERE, and clicking on "Any action resulting from the executive session" at the bottom of the agenda (or by scrolling to the 2:00:00 time stamp).
In addition to the above matter, I also pulled an item on the Consent Agenda for discussion to express my concern over encumbering the county through contracting for professional services to provide a legal opinion, prior to a majority vote of the court. While the item in question was approved by a 3-2 vote, I believe it's important for each of us to be aware of the action, and a majority of the court to approve the action prior to engagement, as well as to be involved in the process of selection. After receiving the opinion that was requested by the court, I decided to obtain my own opinion, at my own expense, and interestingly enough, it was contradictory to the original opinion. While I don't have the personal funds to continue obtaining additional legal opinions, my greater point is that until the case in question is actually tested in court, skilled and learned attorneys may have differing opinions regarding legal strategies and potential actions. But an opinion is just that - an opinion. You may watch the discussion HERE, and clicking on item Consent Agenda item 4.f.1. or by scrolling to the 10:50 time stamp.
In closing, I would like to thank the voters in Collin County Precinct 1 for the honor of electing me to my first full term as your representative on the Collin County Commissioners Court. This campaign season has been unlike any we have ever experienced, and after all of the dust settles, it will likely go down as one of the most significant elections in American history. May God give wisdom to all of our newly elected leaders, and may they govern with grace as we navigate this transition.
Thank you for taking an interest in your county government. My door remains open, and I look forward to the final resolution of this case.