Nos.416-81913-2015
416-82148-2015
416-82149-2015
THE STATE OF TEXAS

v.
WARREN KENNETH PAXTON,
JR.

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§
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§
§
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IN THE DISTRICT COURT
416th JUDICIAL DISTRICT
COLLIN COUNTY, TEXAS

RESPONSE TO STATE's MOTION FOR CONTINUANCE

To THE HONORABLE GEORGE GALLAGHER, PRESIDING JUDGE:

Now comes Warren Kenneth Paxton, Jr., by and through his attorneys of
record and pursuant to the Texas Code of Criminal Procedure presents this Response
to State's Motion for Continuance of Trial. The State's motion should be

de~ed,

and

as grounds therefore we would show the Court as follows:

I. INTRODUCTION
"It shall be the primary duty of all prosecuting attorneys, including any special
prosecutors, not to convict, but to see that justice is done."
TEX. CODE CRIM. PROC. ART 2.01
It appears the attorneys pro tern missed this vital portion of the Code of

Criminal Procedure while they were too busy emulating Cuba GoodingJr.'s incessant
shouts of "show me the money!" in Jerry Maguire. 1 Unfortunately for them, they did
not "have us at hello." Their request for continuance on the sole basis that they, as
1 JERRY MAGUIRE,

TriStar Pictures (1996).

1

 state employees, have not been paid their asking price of thirty pieces of silver is as
offensive to the conscience as it is irrelevant to our proceedings.

There is one thing, however, that the Defense will agree on with the Attorneys
Pro Tern on this case: this continuance is a matter of first impression. Never before
has a Texas prosecutor submitted a bill to the county he or she serves for over
$500,000.00 for a single case. Never before has a Texas prosecutor's payment for a
single case been so outrageous as to be stayed by the Court of Appeals. And never
before has a Texas prosecutor's response to that stay been an attempt to delay the
proceeding for which they were hired because a quarter of a million dollars wasn't enough

to get them in the courtroom. There is, as they say, a first time for everything.

II.

PAXTON'S AsSERTION OF RIGHT TO
SPEEDY AND PUBLIC TRIAL

Every citizen is entitled to their prompt day in court, and the fact that Mr.
Paxton holds political office should make him no different. Paxton has endured
eighteen months of public attacks, political backlash, and cries for blood from those
politically opposed to him.

He has been forced to attend meetings with counsel,

pretrial hearings, and countless phone conferences, all the while doing his duty
representing the citizens of Texas as their Attorney General. While the stress
accompanying any criminal charge cannot be understated, Paxton continues to fully
serve the people of this State and carry out all duties incumbent upon the Attorney
General. Thus the people of the State of Texas, likewise, have an interest in a speedy
trial in this cause. Paxton is ready for the opportunity to clear himself of these
2

 baseless allegations at trial. That the prosecutors hand-picked to pursue the matter
are not regularly employed public servants should not work to Prejudice Paxton in
this matter.

Paxton's own attorneys have worked diligently to ensure that justice is served in
this case. It would have been imprudent for his counsel to request an immediate trial
without the opportunity to review the countless documents in discovery. Indeed, the
attorneys pro tern have continually provided discovery to defense counsel as late as
February 2nd, 2017. Paxton's assertion of his right to a speedy trial comes not at a late
hour, but as soon as practically possible. Paxton requests the Court grant him that
right which he is guaranteed by Sixth Amendment to the Constitution of the United
States. See Barkerv. Wingo, 407 U.S. 514 (1972); Zamorano v. State, 84 S.W.3d 643, 647
(Tex. Crim. App. 2002)2. To do so is his right. The State's request for a continuance
to ensure their coffers are filled 3 dives headfirst outside the conventional realm of
Texas jurisprudence, common sense and procedure, and should therefore be denied.

III.

THE PROSECUTORS' PRO TEM REQUEST IS AS MERITLESS
AS IT IS MOTIVE-REVEALING

In order to determine the lack of "sufficient cause shown" as required by Art.
29.03, this Court need look only to the difference between the attorneys' pro tern
statements to the media before and their 'sufficient cause' after the realization that
2

It is important to note that one of the Barker factors is "the State's reason for the delay."
While reasons such as locating a witness or being unable to serve an arrest warrant on a
defendant have been found to satisfy this factor, a lack of a payment on a prosecutor's
request certainly does not.
3
Surely being "some of the most respected and veteran lawyers in Texas" they continually
self-gush about, the Attorneys Pro Tern know well and good that 'I haven't been paid yet'
has never been good cause for a continuance and never will be.
3

 this prosecution may not be as financially lucrative as when they agreed to undertake
it:
Pro Tern Media Sound Bites

'Sufficient Cause' alleged

''While one o f Mr. Paxton's prominent
supporters has filed a groundless and
gratuitous civil suit attempting to tell Judge
Gallagher how to run his courtroom, that is
no concern to us."4

" [I']his Court could not, indeed, should
not expect or order [Attorneys Pro Tern]
to work for free."

"At some point in their legal careers, the
Special Prosecutors have taken o n pro
bono cases where the facts,
circumstances, and client compelled the
conclusion that it was a worthy endeavor.
T his is not such a case."

''Because our statutory mandate as special
prosecutors is no t to convict, b ut to see that
justice is done, our commitment to these
bedrock prin ciples remains inviolate."5

It's certainly no t going to have any impact
o n the actual criminal trial. My clients are
going to continue to prosecute, regardless."6

"No one in a democratic society should
be expected to work for free."

Indeed, throughout this litigation their motto has certainly been 'do as I say, not
as I do.' T hey have consistently proclaimed that the litigation would remain
undeterred by the lawsuit regarding their fees. Now, having been paid hundreds of
thousands o f dollars for two court appearances, they suddenly claim hardship
proceeding to try the case .. .which is what they were hired to do. In another case in which
Mr. Schaffer and Ms. D eBorde were appointed prosecutors pro tern, Harris County

4

Miles, "Taxpayers Billed $240k+ for Special Prosecutors in Texas AG Case."
www.dfw.cbslocal.com, January 7'h, 2016.
5
Flo rek, "Texas Attorney General Ken Paxton Indicted by Grand Jury in Collin County."
www.dallasnews.com, August 2015.
6
Krochtengel, "Dallas Court Blocks Suit Over Pay for P axton Prosecutors."
www.law360.com, January 19'h, 2017) To be clear, this statement was made by Pro Tern's
Hired Counsel to defend their fees (which costs have also been paid by Collin County).

4

 District Clerk records reveal the fee bills for $175.00 per hour were submitted only

after the conclusion of the case, no t before. 7 Similarly, in a case in which Mr. Wice
has served as an attorney pro tern since May, 2014, no fee bills have yet been

submitted for his $175.00 per hour, though the case has concluded.s When one
looks to how the attorneys pro tern have dealt with this issue in the past, one must
wonder why should this case be any different?

It is clear that while the prosecutors pro tern have consistently denied any
motivation for this prosecution other than 'truth and justice' in the public view, they
sing a very different tune when their purse strings are tightened b y the taxpayers o f
Collin County. As the saying goes, if you give a mouse a cookie, he's going to ask for
a glass o f milk. In other words, enough is enough.

IV.

$254,908.81 IS NOT 'SUFFICIENT CAUSE SHOWN."

Article 29.03 provides that a criminal action may be continued "upon sufficient
cause shown; which cause sh all be fully set forth in the motion." Tex. Code Crim.
Proc. Art. 29.03. Paxton acknowledges that the granting or denial of a motion for
continuance rests in the trial court's sound discretion. Wha/on v. State, 725 S.W.2d
181, 185 (fex. Crim. App. 1986). However, a continuance "sh all not be granted as a
matter o f right." Heise/betz v. State, 906 S.W.2d 500, 511 (fex. Crim. App. 1995). It is
therefore telling that the sole portion of the Code of Criminal Procedure that
7

State v. Antho'!J Chiofalo, Case No. 1350388 in the 339'h Criminal D istrict Court of Harris
County, Texas. See records available at
http://www.hcdistrictclerk.com/edocs/public/search.aspx.
8
State v. Dustin Deutsch, Case No. 1449535 in the 183n1 Criminal D istrict Court of H arris
County, Texas. See records available at
http://www.hcdistrictclerk.com/edocs/public/search.aspx.

5

 specifically addresses continuance by motion of the state discusses continuance for
the absence of a material witness. Tex. Code Crim. Proc. art. 29.04.

In Heise/bet~ a defense counsel moved for continuance on the grounds that he
did not have near enough time to review a large amount of medical records
containing potentially mitigating evidence.

He£selbe~

906 S.W.2d at 511. The court

held that, absent a specific prejudice shown to the ability to present a defense, the
trial court was within its sound discretion to deny a continuance. Id. The bare
assertion of defense counsel did not rise to a showing of harm, and certainly not
"sufficient cause" as required in art. 29.03. Id.

Here, the State doesn't complain of a lack of time -they complain of a lack of

money. They make no showing of how the presentation of their case will be actually
prejudiced by a lack of interim payments. And, to be clear, the State of Texas is not
lacking in funds. The State of Texas has merely decided, through the

5 rh

Court of

Appeals, that these attorneys have had their fill. Indeed, no case in the history of
Texas courts has a budget of this magnitude ever been proposed for a single
prosecution. No Texas prosecutor has ever been paid even remotely close to this
amount for an entire docket's worth of cases, let alone one single matter. 9 Yet
despite being paid thus far the equivalent of the sum of an Aston Martin V8 Vantage
(Mr. Schaffer), a Mercedes GT (Mr. Wice), and a BMW 328i10, they claim that they

9

The yearly salary of the Collin County District Attorney is $140,000. This is to run an
entire office of attorneys, not for one single case. https://salaries.texastribune.org/statecomptroller-payroll/gregory-willis/830139 /
10
Ms. DeBorde's initial invoice was far more reasonable than Mr. Schaffer's or Mr. Wice's.
6

 cannot possibly 'pursue justice' without the benefit of an additional fortune.
Seriously?

Each Texas County must adopt a fee schedule "stat[ing] reasonable fixed rates
or minimum and maximum hourly rates" in regards to payment of appointed counsel.
Tex. Code Crim. Proc. art. 26.0S(c). The amount and manner of this payment under
said schedule applies equally to attorneys pro tern. Tex. Code Crim. Proc. art 2.07(c).
At all times, the Local Rules adopted by Collin County allow the payment of fees only
upon disposition of a case. 11 Save for the obscene amount the prosecutors pro tern
have billed the County, there is absolutely nothing about this case dictating it should
be treated any differently. And certainly not to the detriment of Paxton, who is eager
to proceed to trial. What the attorneys pro tern ask the Court is ludicrous: that they
be treated special, have their cake, and we be obliged to sit idly while they ensure they
are able to eat it too.

The State begins their plea by noting that "most criminal defendants don't have
millionaire pals, supporters, and donors." State's Motion for Continuance at 1. It
becomes incumbent upon us to note that neither do most prosecutors. 12 The State
goes on in their motion to state that they have not been paid since January 14th, 2016.

11

2016 Local Rules to Implement the Texas Fair Defense Act at §4.02. Accessible at
http://www.collinco untytx.gov/indigent defense/ Documents IFelonv T FDA.pdf
12
It would not appear that Mr. Schaffer's client base is void of those who have "millionaire
pals." According to Mr. Schaffer's firm website, he has represented people "from all walks of
life," including: R. Allen Stanford (currently serving a 110-year sentence for one of the
largest Ponzi schemes in history), Kevin Hannon (imprisoned for his role in the Enron
matter), James Prince (CEO and Founder of Rap a Lot Records), and rappers "Slim T hug,"
"Scarface," and "Pimp C" .. http://www.biresandschaffer.com/Attornevs/Kent-ASchaffer.shtml

7

 The irony in this statemen t lies in its reasoning. T he attorneys pro tern did no t
submit any bills on the matter for almost a year's time in order to avoid the inevitable
and justified backlash o f the citizens o f Collin County.

V.

A CONTINUANCE ON THESE GROUNDS WILL RESULT IN
FURTHER DELAYS

There is no reason to believe the fee litigation \vill be co mplete by Sep tember 1,
2017, or within sixty days o f a ruling by the Fifth Court o f Appeals. Even an
immediate ruling by the Fifth Court of Appeals in No. 05-17-00094-CV is likely to be
the subject of a mo tion for rehearing by the losing party, followed by a petition for
review by the Texas Supreme Court - to say nothing o f the underlying proceedings in
the trial court. T he Appellant's brief in that case was filed on February 27, 2017.13
T he Appellee's brief is due within twenty days or Monday, March 20, 2017. See Tex.
R. App. P. 38.6(b). O ral argument has not yet been scheduled and the cas'e has not
been set for submissio n. T here is no reason to believe the Fifth Court o f Appeals
\vill issue an opinion an opinion any time soon or that it \vill end the fee litigation.

Even were the Court o f Appeals to ultimately rule in the Special Prosecutors'
favor this Spring, under the Texas Rules o f Appellate Procedure and two generous
assumptions: i) no extensions o f time; and ii) swift rulings denying relief from those
Courts, the continuance requested would be inadequate and their payment issue \vill

13

See 5•h Court o f Appeals Docket in Case No. 05-17-00094-CV (consolidated) at
http: II www.search.txcourts.gov I Case.aspx?cn =05-17-00094-CV &coa = coa05
(last viewed March 10, 2017).

8

 remain unresolved. 14 The parties then have the right to seek review in the Texas
Supreme Court who may or may not grant review or take an unpredictable amount of
time deciding. Id. In sum, the fee litigation could go on for months while Paxton's
criminal case remains stagnant. Whether the Attorneys Pro Tern will prepare for trial
during the interim or withdraw in the face of an adverse ruling remains unanswered.

VI.

WHAT THIS IS REALLY ABOUT

The truth of the matter is that the attorneys pro tern know their case is
crumbling. This motion comes fresh off the heels of a federal judge twice dismissing
the closely analogous securities fraud charges in federal court. See Ser,: & Exch.

Comm'n v. Mapp eta/, 4:16-CV-246, 2017 WL 823559 (E.D. Tex. Mar. 2, 2017). After
nearly two years of publicly touting Mr. Paxton's supposed fraud, the attorneys pro
tern have already pushed back trial of the fraud charges in favor of the most benign
and the least punishable (under any statute alleged) -the failure to register count.
Even as to that charge, it appears the attorneys pro tern are desperate to get trial out
of the Collin County venue.

Despite their continued assault on Paxton who they accuse as being a master
manipulator of some giant scheme to taint both the jury pool and control the defunding of their case, they have yet to come close to a scintilla of evidence to that
effect. After filing a fifty-page motion to change venue and flying in witnesses at
Collin County's expense, the attorneys pro tern proved nothing of the sort. Worse

14

See Tex. R. App. P. 49 and 52.9 (15 days for either party to file a motion for rehearing);
Tex. R. App. P. 53.7(a) (45 days to file a petition for review in the Texas) Supreme Court);
Tex. R. App. P. 53.7(d) (30 days to file any response to a petition for review).

9

 yet, even after the Court made an express statement on the record that jury selection
would begin in Collin County on April 2Qth, 2017, the attorneys pro tern continued
their assault on taxpayer resources by filing a superfluous motion after the matter had
been decided. Their concern for "justice, fairness, and equity" and the allocation of
taxpayer resources seems to be solely contingent on their ability to continue to get
paid at historically high amounts.

CONCLUSION and REQUEST FOR RELIEF
The attorneys pro tern have already been paid approximately two hundred and
fifty thousand dollars. Whether or not they another quarter of a million in interim
fees should not affect the scheduling of this trial. If over the quarter of a million
dollars that has already been paid is not enough to garner their services, fine. We
invite them to withdraw from the case so that a more reasonably-priced prosecutor
may continue. Perhaps then, as a new prosecutor might not be paid to prosecute by
the hour, they may view the facts of this case in a more neutral light. Regardless, the
State's motion for continuance should be denied. It is neither justified under the
Code of Criminal Procedure nor by any basis allowed by Texas law.

10

 Respectfully submitted,

Dan Cogdell
Co-Lead Counsel
Cordt C. Akers
Cogdell Law Firm, L.L.C.
402 Main Street
Fourth Floor
Houston, Texas 77002
Telephone: (713) 426-2244
Facsimile: (713) 426-2255
dan@cogdell-law.com
cordt@cogdell-law.com

Isl Dan Cogdell

Philip H. Hilder
State Bar No. 09620050
Co-Lead Counsel
Q. Tate Williams
State Bar No. 24013760
Stephanie K. McGuire - of
Counsel
State Bar No. 11100520
819 Lovett Blvd.
Telephone: (713) 655-9111
Facsimile: (713) 655-9112
philip@hilderlaw.com
tate@hilderlaw.com
stephanie@hilderlaw.com

Terri Moore
300 Burnett St., Ste. 160
Fort Worth, TX 76102-2755
Telephone: (817) 877-4700
moore@terrimoorelaw.com

Bill Mateja
Polsinelli LLP
2950 N. Harwood St., #2100
Dallas, Texas 75201
Telephone: (214) 397-0030
mateja@polsinelli.com

Heather J. Barbieri
Barbieri Law Firm, P.C.
1400 Gables Court
Plano, Texas 75075
Telephone: (972) 424-1902
Facsimile: (972) 208-2100
hbarbieri@barbierilawfirm.com

J. Mitchell Little
Scheef & Stone, LLP
State Bar No. 24043788
2600 Network Blvd., Ste. 400
Frisco, TX 75034
Telephone: (214) 472-2100
Facsimile: (214) 472-2150
mitch.little@solidcounsel.com
OF COUNSEL
11

 ATTESTATION
THE STATE OF TEXAS

§

COUNTY OF HARRIS

§

BEFORE ME, the undersigned authority, personally appeared Dan Cogdell,
who, after being by me first duly sworn, on oath stated:
"My name is Dan Cogdell and I am the Attorney in this case. I have read the
foregoing motion, and all information contained therein is true and correct."

~---SUBSCRIBED AND SWORN to before me, the undersigned authority, on
this 13th day of March, 2017.

~
1:;:d
- - -'(A
- - _()(/!A
BELEN VARA
Notary Public
In and for The State of Texas

·" 111~ "'"•
1

BELEN VARA
~-~~
~~.~,:~ff MY COMMl.SSION EXPIRES
···!..;,.···;.~··'
Apnl 18, 2019
•lu?fi,,,

12

 CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of Defendant's motion has been
delivered to the District Attorney Pro Tern, Collin County, TX, by email, fax, or hand
delivery on the 13th day of March, 2017.

Isl Dan Cogdell
DAN L. COGDELL

13