Record of judge's admonishment tells a scary tale

As a dog returneth to its vomit, so a fool returneth to his folly. - Proverbs 26:11 – the opening statement in a dissenting opinion handed down by Chief Justice Tom Gray of the 10^th District Court of Appeals

Six Shooter Junction – Reading through the thick file on the public admonition of Chief Justice Tom Gray of the 10^th District Court of Appeals, one begins to feel like the Irishman who was kicked by the jackass.

He said, “Consider the source.”

By the time the morning of April 10, 2008, rolled around, relations among the three justices of the 10^th District Court of Appeals had deteriorated to the extent that people were walking up to two of them – often referred to as “the majority” - and asking how it felt to be “schizophrenic.”

According to the testimony of Justice Felipe Reyna, he was wearied by the unprecedented publicity generated by the increasingly hostile tone of dissenting opinions penned by Chief Justice Tom Gray, who routinely disagreed with he and Associate Justice Bill Vance - sometimes in the most pejorative and hostile terms.

In fact, Chief Justice Gray once wrote that he didn't mind the other two judges throwing out the rule book at times, but “...what I do mind is the majority's schizophrenic choice to apply them (rules) to some issues or proceedings, but not to others.”

A transcript shows that Judge Reyna was totally surprised to learn that the Chief Justice had repeatedly entered both his office and Judge Vance's to search for files he could not otherwise locate with the help of the Court's staff. He had no idea that the entire ongoing affair of Judge Gray's surreptitious entries through two sets of locked doors had been documented on video surveillance cameras.

He had, in fact, never entered a complaint against Judge Gray.

It's all part of a 400-page file of papers that reveal a portrait of a neoconservative Republican Chief Justice of one of the state's 14 intermediate courts of appeal, a man who was holed up in his office, incommunicado with his colleagues and staff members, suspected of carrying a gun into the building – a legal stricture from which judges are legally exempted for their own protection – and constantly authoring increasingly bizarre opinions, some of which had nothing to do with the points of law on appeal.

In a dissent he authored regarding a ruling by the majority that NFL player Bobby Blake Newton should be allowed to collect worker's compensation benefits following spinal surgery for injuries he sustained while playing professional football under a contract with The Dallas Cowboys, he devoted the entirety of his remarks to accusing Justice Reyna of lagging behind in his case load of reviewing legal matters assigned him in rotation. In fact, in his dissent, Judge Gray wrote of no other matters – none whatsoever.

Then there was the time the Chief Justice in the text of a dissenting opinion wrote a “letter” to the City of Waco regarding his disagreement with the court's holding in the case of a former Assistant Chief of Police, Larry Kelley, who, following a conviction for drunk driving in Austin, had been fired, then re-hired at the demoted rank of Sergeant. When the other two justices overruled the former opinion and said he should be re-hired as a “Commander,” Justice Gray wrote:

“Dear City of Waco, Sorry to put you through this, but you are going to have to go to the Supreme Court in Austin again...The 10^th Court of Appeals in Waco has some problems right now that I hope are fixed real soon. But, for now, you are in the appellate district that was reversed in 2006 more often than any other appellate court in Texas. I have done what I could by writing lots of dissenting opinions, but it has not really helped the situation any. Good luck on your trip to Austin.”

In fact, according to an article that appeared in the Waco “Tribune-Herald” at the time, Chief Justice Gray wrote 47% of all dissenting opinions among the state's 80 intermediate appellate justices.

These dissenting opinions had become an object of ridicule in the columns of the 18-county 10th district's two largest newspapers, “The Waco Tribune-Herald” and the “Bryan Eagle.” A statewide legal newspaper, “The Texas Lawyer,” had also taken up the cudgel, its editorial staff routinely writing sardonic accounts of Justice Gray's opinions.

In the official record of the proceedings that ultimately led to a Public Admonition of Chief Justice Gray's conduct in violation of two of the Canons of Judicial Ethics, no fewer than 11 such news articles are cited, all of them written with a tenor of bemused puzzlement as to what in the world was going on under the eaves, up there in the ornate old courtroom on the fourth floor of the McLennan County Courthouse.

It was a matter that had begun to wear increasingly thin in the close-knit world of lawyers and judges, where only a small percentage of cases on appeal are ever heard by the two highest courts, the Texas Supreme Court and the Texas Court of Criminal Appeals.

In fact, a Ms. Spalding who served as the Texas Commission on Judicial Conduct's legal counsel the day of the hearing, elicited testimony from the two majority judges that they were not really aware of whether or not during one extended absence the Chief Justice may have sought medical treatment.

Then there was the matter of the Chief Justice's unprecedented practice of simply snipping out the records of votes taken by the court. In the official record of the District Attorney's Office of Travis County's Public Integrity Unit, there is a notation “regarding your Court's practice of cutting, tearing, altering or otherwise removing certain information after it was written on printed court documents.”

Mr. Chief Justice Gray also often simply wrote adjunctive opinions on the rulings that were to be filed, thus defacing or marring the permanent record with handwritten notations.

His colleagues proposed attachment of new “Recommended Action Routing Slips” rather than the mutilation of official file-marked copies with such handwritten notes of dissent.

In an e-mail to Justice Reyna regarding the need for shampooing the carpet in the judges's chambers and in the courtroom, he wrote, “...I regularly see Bill (Associate Justice Vance) in Alan's office (a staff attorney). Thus, my worst fear came to pass, that Bill had surreptitiously co-opted your independent vote through his relationship with Alan, and, unknown to me at that time, his previous relationship with you...His position is not threatened. It should be...”

Justice Reyna responded in an e-mail of reply by saying that if he knew Felipe Reyna, he would know that “this B.S.” would not make any real impression on his mind.

In fact, in his testimony, he assured the Commission on Judicial Conduct that he is not a Republican Judge. “I am a judge.”

Finally, when it came time to file a Legislative Appropriation Request for fiscal year 2008-2009, he refused to request additional funding. This is the way courts are funded; without the request being routed to the Governor and the Supreme Court, there are no funds budgeted.

Justice Gray had refused, in part, to request funds for new carpet to replace stained and worn carpeting in the courtroom and in offices.

On deadline day, Justices Reyna and Vance worked up the appropriate paperwork and sent it on to Austin.

When the Chief Justice learned of this, according to their testimony, he became enraged with the court's accountant.

According to an e-mail written by Justice Vance to Judge Gray, a member of the Democratic Party, “I want you to know that from this day forward, I will be challenging acts that are disrespectful to any of our employees.”

It was one of the violations of judicial ethics for which Justice Gray received official public admonishment in 2009, that of failing to be patient with and courteous to all persons who come before the court, or work as staff members for the court.

The other is “A judge shall not allow any relationship to influence judicial conduct or judgment.”

As to the business of a dog returning to his vomit, Ms. Spalding queried “the majority” by asking, “Okay. Let's talk about the dog vomit case. I believe, that's Pena v. State from 2007. The dissent begins I believe, as follows, quote, 'As a dog returns to its vomit, so a folly – so a fool repeats his folly,' unquote. And this is referenced as Proverbs 26:11. Is that the dog vomit?”