The Honorable Paul Green

Bill Harris is a featured author on The RED REPORT. He was a very well respected prosecutor for Bexar County and among his case load were white collar crimes, juvenile and capital offenses including death penalty cases. He has had over 1,000 trials and has reviewed thousands of cases in this position. Before retiring he was a solo practitioner in Criminal Defense, practicing mostly in Bexar and Comal counties.

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As Election Day for the 2016 Republican Primary approaches, I am increasingly concerned about the contest for the Texas Supreme Court, Place 5. The

As Election Day for the 2016 Republican Primary approaches, I am increasingly concerned about the contest for the Texas Supreme Court, Place 5. The incumbent, Paul Green, has served honorably in that position for more than ten years. Prior to that, Justice Green was on the Fourth Court of Appeals in San Antonio for more than eleven years. During that time, the two courts have reviewed thousands of cases and have decided hundreds, if not thousands, of those cases.

The challenger, Rick Green (coincidence or design?) has plucked one decision, State v Naylor, and has either misread or purposely misinterpreted the ruling in that case to brand Justice Green and the majority of the Court as activist judges. Nothing could be further from the truth.

It is Rick Green, in fact, and his supporters who are advocating that the Texas Supreme Court should have become an activist court and not followed the strict letter of the law in this particular case.

Briefly, the Naylor case involved two women who married legally in Massachusetts, moved to Texas, adopted a child and started a business. They decided to split up and filed for divorce. The District Court reluctantly accepted the case and when the parties agreed on custody matters and a division of property, the Court granted the divorce. The Attorney General of Texas, aware of the pendency of the case, waited until the final judgment was entered, then decided he ought to get involved. The AG tried to intervene, but was denied because the rules state that a party must intervene before judgment is entered. They appealed to the Third Court of Appeals who ruled that the attempt to intervene came too late and that they had no jurisdiction. The state appealed to the Supreme Court who in a 5-3 decision, upheld the lower court’s ruling.

The rules of procedure are promulgated for a reason: to provide that the business of the courts is conducted in an orderly manner. Time limits are a necessary part of the judicial system. Don’t take my word for it. Consider the opinions of Scott A. Brister and Dale Wainwright, both former conservative justices of the Texas Supreme Court who wrote a piece for National Review online, ‘A Debate among Conservatives on the Texas Supreme Court’, on February 1, 2016 defending the majority vote in Naylor. They said, in summary, that the case was properly decided on a procedural matter: standing, and not on the subject matter of the case.

Mark Pulliam in an article, ‘Disputed Texas Case Exemplified Judicial Restraint, Not Activism’, in the American Spectator on February 8, 2016, observed “...in Naylor the court dismissed the appeal on procedural grounds and did not reach the merits of whether a Texas court should or even could grant a divorce to a same-sex couple...” He also stated that “...the Naylor majority’s tight view of its jurisdiction, its strict adherence to the principles of judicial restraint, and its refusal to give in to the temptations of judicial activism gave Texas’s ban on same-sex marriage the best protection possible...” and “...its ruling was absolutely correct on the law and a model of judicial restraint.” I totally agree!

Shame on Rick Green for trying to deceive the citizens of Texas when, according to Pulliam in the same article, he stated in campaign materials that “just prior to the US Supreme Court’s decision in favor of homosexual marriage last summer, the Texas Supreme Court also had five of our Justices hand down a decision that was in favor of homosexual marriage. Can you imagine that? Here in conservative Texas we have five judicial activists on the state Supreme Court?”

I can’t imagine that because it’s not true. The decision had nothing to do with favoring or not favoring same-sex marriage/divorce. The decision clearly states that the Court did not reach the subject matter of the case because the party attempting to intervene (Attorney General) was too late and, therefore had no standing to appeal. In other words, they followed the law!

Bill Harris