Fifth District Court of Appeals Opinion Released
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Fifth District Court of Appeals Issues
Opinion in Paxton Civil Case

     In January 2016, I came to you regarding my concerns over bills the court had received from the special prosecutors in the case against Texas AG Ken Paxton.  In fact, my exact words were, "Their compensation, and the process of how that is to be determined, continues to be a source of great controversy and interest.  Rest assured that as your commissioner, my goal is to follow the law and to be a good steward your hard-earned taxpayer dollars."  In the following months, as I periodically kept you up to date, I was resolute and remained steadfast in my opposition to these payments, based on my interpretation of current law.  Below are links to my previous blogs on this specific issue:
     Now, fast-forward to Monday, August 21, 2017.  Yesterday.  I am so very pleased to see the opinion released by the Fifth District Court of Appeals in Dallas regarding the county's civil case on the most recent order for payment of the special prosecutors.  Overall, our petition was granted, which sought relief through a writ of mandamus, compelling the trial court to vacate the order for us to pay these attorney fees. 

Personally, I will just say that it certainly does feel good to have my opinions that I have shared with you over the last 19 months validated by an appellate court.  What does this mean?  I will enumerate a few of the provisions and statements contained within the
11-page opinion written by Justice Molly Francis (click link to view the opinion):
  • Judge Becker inappropriately relied on section B of rule 4.01 in the local fee schedule (which wrongfully allows an individual judge to authorize payment which varies from the fee schedule) when he agreed to pay the attorneys pro tem a fee of $300 / hr. (twice the rate listed for a death penalty case.)
  • This action violated Article 26.05 of the Code of Criminal Procedure, which states the the fee schedule adopted "shall state reasonable fixed rates or minimum and maximum hourly rates, taking into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates . . . "
  • Fact:  When the legislature delegates rule-making authority and discretion, that discretion must be exercised within the standards formulated for guidance on the matter being regulated.
  • By requiring the judges to set both minimum and maximum hourly rates, it is clear the legislature was concerned not only with attorneys receiving a fair rate of payment, but also with counties not being forced to pay excessive fees.
  • The Collin County District Court judges adopted rule 4.01B, inappropriately allowing individual judges the discretion to disregard the previously determined schedule and set fees in any amount.  The plain language of article 26.05, however, limits the judges’ authority to only setting a fee schedule.  The statute does not permit the judges to expand on that authority by adopting what is essentially an “opt out” provision allowing a judge to individually set a fee rate that falls outside the range of what has been collectively agreed to as reasonable.
  • Rule 4.01B thwarts the objectives of the statute, which are to ensure by means of a duly adopted schedule that
    • (1) appointed attorneys––in this case the prosecutors pro tem––are paid a fair, but not excessive, fee, and
    • (2) the Commissioners Court, which is tasked with the responsibility of settling and directing payments of accounts against the county, can more accurately project the expenses of a fiscal year and budget accordingly. 
    • Collin County District Judges partially abdicated to the individual judges the responsibility delegated to them collectively, and exceeded the authority delegated to them under 26.05.
  • Consequently, Judge Gallagher’s second order of payment, which relies on rule 4.01B and deviates from the mandated fee schedule, is void.
  • Judge Gallagher had no authority to order payment of fees in violation of article 26.05.  Where a trial judge lacks authority to take a particular action, he has a ministerial duty to refrain from taking that action, to reject or overrule requests that he take such action, and to undo the action if he has already taken it.
     Therefore, I've compiled a list of actions that I believe the Commissioners Court should now consider:
  • Consider filing a disgorgement claim against the 3 Special Prosecutors for unjust payments made, which were NOT due. 
    • Additionally, as I’ve mentioned before, as per the local rules, it is not customary for anyone to receive payment until the case is concluded.
  • On behalf of the taxpayers of Collin County, consider a claim on “qualified immunity” – questioning Judge Gallagher's (and possibly others') actions and orders to pay bills, which were clearly outside of his (their) official capacity, according to this ruling.
  • Possible other actions, to be discussed with Commissioners Court counsel.
  • I am also now planning to submit a bill for a legal opinion that I personally obtained, as I felt compelled to have an alternate legal opinion on this matter.  Now that the court is officially FOLLOWING the recommendations contained within the opinion that I obtained, in addition to the latest opinion from the 5th COA, I believe it's quite relevant and important that this bill be considered by the court for payment.
    • If the court does agree to pay it, the cost of the opinion should be added to the legal fees we would be petitioning for under the qualified immunity case I suggested above.
  • Many of these actions must be measured against the cost of litigation… so we may properly determine an ROI for county funds.
     Regardless of where you stand on the issue, thank you for taking the time to read this update, and thank you for being an active participant in your county government. 
     As always, my door remains open, and if you have any questions or concerns, please contact me either by replying to this e-mail or through my county e-mail address:
Serving the citizens of Precinct 1 and Collin County,
fletch·er  noun \ˈfle-chər\   Defn:  Dating back to the middle ages, a “Fletcher” is a maker of arrows - and more specifically, the “fletching” of an arrow is the stabilizing mechanism, typically made from feathers, that causes the arrow to “shoot straight.”  Coupled with my commitment to provide you with timely, accurate data, and my strong support of our Second Amendment right to keep and bear arms, this became the inspiration for this publication’s namesake.

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Pol. Adv. paid for by Susan Fletcher Campaign.  Scott Harris Smith, Treasurer.
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