Dallas Court of Appeals holds taxpayer suit to prevent payment to Paxton special prosecutors was moot and not ripe.

 Jeffory Blackard v. Attorney Pro Tem Kent A. Schaffer, et al.,05-16-00408-CV (Tex.App— Dallas, January 18, 2017)

A taxpayer sued Collin County, various County officials and the special appointed prosecutors assigned to represent the state in criminal matters against the current Texas Attorney General, Ken Paxton over payment of fees in the criminal matter. The Dallas Court of Appeals affirmed the dismissal of the suit.

After the Collin County Criminal District Attorney recused himself and his office from the criminal cases against the Texas Attorney General, several special prosecutors were brought in and appointed to represent the state. The court refers to them collectively as the Attorneys Pro Tem. They were to be paid set fees of $300 per hour for work performed in the Paxton cases.  One invoice from April to December of 2015 collectively totaled $254,908.85.  Blackard, an individual who pays property taxes in Collin County, originally filed a civil suit to enjoin the payments of fees at that rate, instead arguing the fees to be paid should be those paid to lawyers representing indigent defendants under the local rules. However, before obtaining any injunctive orders, the trial judge appointed in the Paxton cases signed an order approving payment for the Attorneys Pro Tem at the $300 rate. The Collin County Commissioner’s Court, by majority vote, issued payment.  The Attorneys Pro Tem and County (including officials) filed pleas to the jurisdiction which the trial court granted. Blackard appealed.

Taxpayers normally do not have a right to bring suit to contest government decision making without an individualized injury.  However, Texas has a list of long-standing exceptions to the general rule, including the illegal expenditure of public funds. A taxpayer may maintain an action solely to challenge proposed illegal expenditures, but may not sue to recover funds previously expended or challenge expenditures that are merely “unwise or indiscreet.” Since the December 2015 invoice was paid, claims based on it are moot. There are two exceptions to the mootness doctrine that confer jurisdiction regardless of mootness: (1) the “capable of repetition, yet evading review” exception; and, (2) the collateral consequences exception. Blackard posited that the Attorneys Pro Tem continue working on the Paxton cases and therefore will submit invoices in the future. However, that does not mean future invoices could evade review. The timing for authorization and payment is not something so traditionally set that it is expected to consistently evade review. As a result, the issue remains moot. Blackard asserts the “threat of future payments is sufficiently certain” that the taxpayer civil suit is not premature and is.  However, a case is not ripe if its resolution depends on contingent or hypothetical facts or upon events that have not yet come to pass.  On the record, no further invoices have been submitted and the aspects of the Paxton cases are uncertain. The timing of future requests for compensation by the Attorneys Pro Tem, the hourly rate that may be requested, the future amount the judge would approve as reasonable compensation, the action the Auditor would take in response to an order approving a future request, and the action the Commissioners Court would take are all purely hypothetical and speculative at this time. As a result, the claims for future payments are not yet ripe. The trial court properly granted the pleas.

If you would like to read this opinion click here. The Panel includes Justice Lang, Justice Fillmore, and Justice Schenck. Justice Fillmore delivered the opinion of the court. To see the representatives for the Appellant and Appellee click here for the Docket Page.