Status of Special Prosecutors Payments
by Susan Fletcher on October 13, 2016 at 11:41 AM
This week, I've received several calls asking for my position on the payment of special prosecutors. As most of you are aware, the Collin County Commissioners Court has received several orders over the course of 2016 for legal fees associated with the prosecution of Texas Attorney General Ken Paxton. As your representative on the court, I believe it's important for me to continue to report back to you regarding how I voted, and why. I have consistently voted "no" and will continue to do so, unless I am compelled directly by a higher court to pay them. Below is my reasoning.
While I respect my colleagues, our own Collin County judiciary, and the authority of Judge Gallagher, the District Judge from Tarrant County overseeing the Paxton case, I continue to question the appropriateness and legitimacy of these expenditures, due to what I believe is an arbitrary and capricious hourly rate set by a singular District Judge from Collin County, which is in direct conflict with the Collin County Indigent Defense Policy in place at the time of the special prosecutors’ appointments. Why is that important? I’m glad you asked. Statute makes it clear that appointed prosecuting attorneys pro tem are to be paid in the same manner in which we pay appointed attorneys for our Indigent Defense cases. Collin County's Indigent Defense plan is on file, and interestingly enough, this policy has been modified since the special prosecutors were originally hired, to give additional discretion to our judges.
While I may read AG opinions and case law on the topic, I am of the mindset that they are still opinions, and judicial process, including appeals and rulings of a higher court, take precedence. From the beginning, I have advocated for the Commissioners Court to contest these orders by appealing to the Fifth District Court of Appeals. In doing so, we would have legally “tested” the legitimacy of the orders – and if the court didn’t agree with us, we would have been able to SHOW the taxpayers of Collin County that we have exhausted all of our options prior to paying the bills. However, that’s not what happened.
While the rule of law should certainly be followed, this is why we have a court system - to interpret and clarify the law, and the merits of the case in question, according to the law. Due to the unique nature of this case, I believe it is my fiduciary duty, as an overseer of the county budget, to appeal to a higher court to determine the validity and appropriateness of these (and future) payments, which I believe are out of compliance with state law, as well as the county's policy. I may stand alone, but I remain steadfast in my opposition to paying these invoices, including the defense of the special prosecutors, unless and until I am compelled by a higher court to pay them. Additionally, I believe that the civil case filed by a local Collin County resident for temporary relief would not have been necessary if the Commissioners Court had appealed the orders ourselves. This would have, in fact, also answered the question this local citizen was asking. As it stands, although his case was filed in the Fifth District COA, it was not styled in such a way that my own questions about the case and the court’s responsibility could be answered. So regardless of the answer from the Fifth District COA, we are still left wondering. Before I can vote to approve ANY payment using taxpayer dollars, I need to know for certain that the expenditure is appropriate and legal. While the Commissioners Court certainly sought advice from counsel, the only way to determine our legal obligation to pay would be to appeal to a higher court to rule on it.
I am deeply disturbed that as the legislative body responsible for budgeting and oversight 90% of your county tax dollars, we are, in effect, writing a blank check, and do not have any control whatsoever over these massive costs. When you compare the stated policy at $1,000 pre-trial and $1,000 per day in court vs. a potential cost of $2M ($300 for EACH attorney per hour, with no maximum - not to mention lodging, meals and travel), I believe that's a significant difference, and I would certainly categorize it as unreasonable.
For background, I have been opposed to the hiring of out-of-town special prosecutors from the beginning. My opposition is directly on behalf of the taxpayers that I represent, as a steward of your tax dollars, and has nothing to do with the personalities involved or the politics of the situation. In other words, it's NOT about the defendant, but it's about DEFENDING the TAXPAYERS. In addition to the fee schedule in our Indigent Defense policy, it also clearly states that appointed attorneys are to reside within Collin County. Why is this important? Again, I'm glad you asked. To start with, hiring prosecutors from 250 miles away necessitates lodging, meals and travel expenses. In addition, there are no provisions for interim payments. But since no other options for prosecution were sought (such as having a neighboring District Attorney's office(s) fulfill the role of special prosecutor), the Collin County Local Administrative District Judge (at that time) independently appointed two special prosecutors, and agreed to pay them $300 per hour – and in doing so, unilaterally bound the county to these payments. Again, I want a legal ruling regarding whether or not that is appropriate before I agree to spend taxpayer dollars.
Finally, I've also asked this rhetorical question in court during our discussions... What if this exact situation were replicated in a small, rural Texas county such as San Jacinto County - or Hays County? Answer: It would completely and utterly bankrupt the county. Possibly, they could double, triple or quadruple the tax rate for the following fiscal year - but I ask you, is it right to over-burden the taxpayers of an individual county in this manner? Especially when there are other means to appoint special prosecutors through partnerships with other local District Attorney's offices. What if the projected fees were not $2M, but $20M, or $200M. Just because we are a large, generally affluent urban county, should our citizens be more "on the hook"? What figure would be considered "too much" for the citizens to bear - and how do you determine that figure? If this situation is not addressed legislatively, it WILL happen again somewhere. While we must be careful not to hamstring justice, I believe it is our collective duty, as your elected officials (including the Commissioners Court as well as the Board of District Judges who control roughly 10% of the county budget), to ensure that county operations are run as efficiently as possible - and we should make every effort to use your county tax dollars wisely.
Regardless of your position on the issue, 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.