Why did Justice Paul Green suddenly retire in the middle of his term from the Texas Supreme Court?

by Rick Casey

When Texas Supreme Court Justice Paul Green, a San Antonian, announced recently that he would retire this month, a little more than half way through his current term, chances are you didn’t think of disbarred attorney Ted Roberts.

And when Ted Roberts recently fought and lost a bid to have his criminal record erased, I strongly suspect you didn’t think of Justice Paul Green.

But whenever I think of Ted Roberts I think of Paul Green, and vice versa. Let me explain why.

Green is the second longest-tenured member of the state Supreme Court, having served 15 years. Prior to that he was president of the San Antonio Bar Association and a justice on the San Antonio-based Fourth Court of Appeals. It was in that role that I came to associate him with Roberts. Here’s the story.

Way back in May of 2002 when I was a columnist at the San Antonio Express-News I came back from lunch one day to a phone message from a Bexar County district judge. He gave me a case number of a lawsuit that was under seal. “You need to break the seal on this,” he said.

I called the newspaper’s attorney, Mark Cannan, who has done an excellent job of keeping me out of trouble over a period of more than 40 years, and we went to the courthouse to look at the file. Sure enough, all it contained was a docket sheet and an order sealing the rest of the file. But it took Cannan just a quick look at the docket sheet to see that the sealing order was invalid.

Texas law requires that courtrooms cannot be closed nor court files sealed without, among other things, holding a public hearing on the reasons for sealing. I wrote recently about just such a hearing involving the divorce of lawyer Thomas J. Henry.

Cannan raised the issue of the improper sealing of the file in a day-long hearing before District Judge Phylis Speedlin, a respected jurist who would join Green on the Fourth Court of Appeals for a brief period before he went to the Supreme Court. After hearing from both sides, Speedlin ruled that the records were improperly sealed and that I had a right to see them. But the other side, which turned out to include Roberts and his wife, Mary, had the right to appeal before the files were made public.

About an hour after the hearing, Mary Roberts, who had been at court with her husband, called me and said she would like to talk to me if I should win the appeal. I agreed to her request. In the meantime, I did some digging and learned something of what was in the file. It was more than a little scandalous.

The appeal at the Fourth Court was heard by a panel including Chief Justice Phil Hardberger, Green, and Justice Alma López. The appellate ruling wasn’t issued for more than a year, by which time Hardberger had retired and I had moved to the Houston Chronicle. Green wrote the opinion. Cannan told me he found it to be outrageous, but I didn’t read it in time. I was busy in Houston, where readers weren’t interested in a San Antonio case.

The Express-News appealed to the Texas Supreme Court. Nearly nine months later the Supreme Court formally declined to hear the case. Almost immediately someone anonymously gave the files to Express-News reporter Maro Robbins, with whom I had left my file on the case. The story he told not only hit the front page, it led to both Ted and Mary Roberts being indicted for what amounted to extortion.

The couple, who are no longer married, shared a law office and staff. Ted testified that one day he was looking for information on his wife’s computer when he came across emails showing that she had engaged in sexual liaisons with about half a dozen wealthy men. She had found them through a website aimed at the very prosperous.

Ted’s response was to send them all notices that he intended to sue them and make their indiscretions public not only to their families but also to their boards of directors or other business superiors. Mary, testimony showed, typed the letters and encouraged the men to give Ted what he wanted. Four of them did, for a total of about $150,000. He did not sue those who refused.

Lawyers for the Roberts argued that the threatening letters were an appropriate way for a lawyer to begin the process of filing lawsuits. Prosecutors made the case that they amounted to theft by deception and extortion. The jury and two courts of appeal agreed with the prosecutors. Ted and Mary were both convicted. Ted received a five-year prison sentence but was released on probation after six months. Mary was given 10 years probation.

If it weren’t for the leaker, Green’s decision would have had the effect of covering up the crime – admittedly to the appreciation of the men who reasonably thought they had bought silence but found themselves forced to testify in court.

I now have read Green’s opinion and understand what Cannan meant. It was outrageous.

Green agreed that the sealing was illegal, but he ruled that the emails and related documents were not part of the court file and therefore could be kept secret without a valid court order. Cannan had argued that the state’s Rule of Appellate Procedure 13.1 made it clear the exhibits were part of the file, with no legal sealing order protecting them.

To support his analysis, Green quoted Rule 13.1(b) that says the court reporter shall “take all exhibits offered during a proceeding and ensure that they are marked.”

Green then writes that “Appellate Rule 13.1 does not state “that any document tendered as an exhibit is considered ‘filed’ with the court.”

The problem is that there is a part (c) to Rule 13.1. It comes right after part (b), so it should not have been hard for Green to find. It requires the court reporter to “file all exhibits with the trial court clerk after a proceeding ends.”

If the rule requires the court reporter to “file all exhibits” how could Green argue that some of the exhibits sent by the court reporter to the clerk can be considered not to be filed?

Did Green simply make an honest mistake here? Did he not read Rule 13.1(c) or not consider it relevant? I guess I could entertain that possibility were it not for another case that Cannan brought to my attention years later.

It involved Green, a Republican, doing something Republican judges rarely do: overrule a district court by reinstating a lawsuit filed against the wrong company after the statute of limitations had run. To do so Green cited an earlier Texas Supreme Court ruling, but changed a single word in the quotation he took from it. The Supreme Court said if two “related” entities (say, subsidiaries of a parent corporation) shared the same lawyer, the corporation the plaintiff intended to sue might be considered to have “received constructive notice” and still be subject to the suit. Green, however, changed the word “related” to “unrelated.” That happened to fit the situation of the lawyer who made the mistake. That lawyer was Ted Roberts.

One such “mistake” could, I suppose, be unintended. But two that benefited the same lawyer? Let’s just say it makes me think of the judge and the felonious ex-lawyer jointly.

 

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