Todd P. Graves

Direct Dial: (816) 256-3181

Fax: (816) 817-0863

tgraves@gravesgarrett.com

September 7, 2015

VIA ELECTRONIC MAIL

Judge Keith Self

Commissioner Susan Fletcher

Commissioner Cheryl Williams

Commissioner Chris Hill

Commissioner Duncan Webb

Collin County Administration Building

2300 Bloomdale Rd., Suite 4192

McKinney, TX 75071

Email: keith.self@collincountytx.gov

sfletcher@collincountytx.gov

cdwilliams@collincountytx.gov

chill@collincountytx.gov

jdwebb@collincountytx.gov

Re: Expenditure of Taxpayer Funds for Attorneys Pro Tem

Dear Judge Self and Commissioners:

I write today on behalf of Jeffory Blackard, a taxpayer and real property owner in Collin County. It is

our understanding that the Collin County Commissioners Court is prepared to authorize an expenditure

from the general fund that is not lawful under the Texas Code of Criminal Procedure, the Texas Fair

Defense Act (“FDA”), and the Local Rules that Collin County passed to implement the FDA.

We intend to challenge this authorization should it be provided.

The pending expenditure is to pay for two or more attorneys pro tem (i.e., attorneys to take the place of a

district attorney) who work in private practice in another part of the state. Your action is needed to avoid

an unlawful use of taxpayer funds, and if taken promptly can save Collin County from additional costs

related to litigation of the taxpayer action we plan to bring in order to enforce the law.

Background

A criminal proceeding against Texas Attorney General Ken Paxton is pending in the Collin County

District Court. The proceeding relates to indictments by a Collin County grand jury in July and August

2015 for alleged violations of Texas security laws. Because Collin County District Attorney Greg Willis

recused himself in the proceedings, the “judge of the court in which [Willlis] represents the state” was

permitted to “appoint any competent attorney to perform the duties of the office during the absence or

disqualification...” Art. 2.07, Tex. Code of Crim. Proc. (“TCCP”). Such “competent attorneys” are

known under Texas law as attorneys pro tem.

An attorney pro tem is not a special prosecutor. Rather, attorneys under this designation litigate cases

entirely independent of local district attorneys and assistant district attorneys. In a case where neither a

district attorney nor his subordinates are available, the state allows a county to assign a district attorney

from another county. In that case, the commissioners courts of the two counties—often neighboring

counties—may and do simply reimburse each other for the district attorneys’ services.

If no district attorney or assistant district attorney can be assigned from another county, it is also

possible to appoint a “competent attorney” in private practice. Our review indicates that hundreds of

private attorneys are available within a 50-mile radius of Collin County to accept attorney pro tem

appointments (and indeed, many of these attorneys do accept appointments under the compensation rates

allowed by law).

In the case relating to Attorney General Paxton, Judge Scott Becker appointed Houston criminal defense

attorneys Kent Schaffer and Brian Wice rather than a district attorney from another county. The

attorneys hosted a press conference on April 22, 2015, to accept their appointments.

We do not, at least for now, challenge the selection of the special prosecutors. We do challenge the

Commissioners Court’s apparent plans to compensate attorneys Wice and Schaffer in excess of the rates

fixed by law.

The Basis for the Challenge

Our challenge is based on Texas statutes and your own Local Rules that fix the compensation of

indigent attorneys.

First, the attorney pro tem statute is clear regarding compensation:

If the appointed attorney is not an attorney for the state, he is qualified to perform the

duties of the office for the period of absence or disqualification of the attorney for the

state on filing an oath with the clerk of the court. He shall receive compensation in the

same amount and manner as an attorney appointed to represent an indigent person.

Art. 2.07(c), TCCP (emphasis added).

Second, payment for all such attorneys is governed under Article 26.05 of the Texas Code of Criminal

Procedure, which commits the fixing of fees to the counties:

(b) All payments made under this article shall be paid in accordance with a schedule

of fees adopted by formal action of the judges of the county courts, statutory county

courts, and district courts trying criminal cases in each county. On adoption of a

schedule of fees as provided by this subsection, a copy of the schedule shall be sent to the

commissioners court of the county.

(f) All payments made under this article shall be paid from the general fund of the

county in which the prosecution was instituted or habeas corpus hearing held and may be

included as costs of court.

Art. 2.07(b), (f), TCCP (emphasis added).

Collin County has adopted its own schedule of fees under these statutory requirements. See page 12 of

Exhibit A, attached. As of November 1, 2013, these guidelines allow for a total fee of $1,000 for pre-

trial preparation, and a total of $1,000 (figured in half-day increments) for trial. Within this cap, fees are

capped at $100 per hour, since this is a non-death penalty case. These amounts are non-negotiable

except for an additional flat fee of $1,000 that may be provided as part of a “per case” discretionary

adjustment.

These guidelines are binding under the TCCP as Collin County Local Rules and therefore do not allow

for the proposed authorization of $285,000 in taxpayer funds—or any amount remotely close to this—

for attorneys Schaffer and Wice. The reason for this is simple: the statutes intend that counties rely on

district attorneys and state attorneys—not private attorneys—as a preferred method to place prosecutions

in the trust of democratically accountable elected officials.

Please inform us of your intent to abide by the statutes as we have presented them, or of your intent to

proceed despite our views. While we intend to seek relief in the courts if the Commissioners Court

proceeds under its current plans, we are hopeful this will not be necessary.

Thank you for your time and attention to this urgent matter.

Sincerely,

s/Todd Graves

Todd P. Graves