Court of Appeals of Texas, First District, Houston
Edwin K. Hunter and Hunter, Hunter & Sonnier, LLC
Preston Marshall, Individually and Rusk Capital Management, L.L.C.
District Court of Harris County case number: 2015-35950
August 16, 2016, appellees, Preston Marshall and Rusk Capital
Management, L.L.C., filed a "Motion for Leave to File
In-Camera Documents in Connection with [Appellants']
Appeal and Emergency Motion to Stay, " in which they
requested "leave to supplement the appellate record-by
hand delivery to the Court-documents submitted to the trial
court, including in-camera documents, that relate directly
to" the emergency motion for stay and appeal filed by
appellants, Edwin K. Hunter and Hunter, Hunter & Sonnier,
that on September 1, 2016, we granted in part and denied in
part appellants' emergency motion for stay. Accordingly,
we DISMISS as moot appellees' motion for
leave to the extent that it relates to appellants'
emergency motion for stay.
regard to appellees' motion for leave as it relates to
appellants' appeal, appellees assert that on August 12,
2016, appellants requested that the trial court clerk prepare
a clerk's record in the instant case. However,
appellants' request excluded certain relevant documents,
particularly "documents filed with the trial court for
an in-camera review." Thus, appellees request that the
Court "grant [them] leave to supplement the record with
[such] documents, " which appellees have
"hand-delivered to the Court."
response to appellees' motion for leave, appellants
object to the inclusion in the record of any "in-camera
exhibits that were previously attached to" filings that
are "wholly irrelevant" to appellants' appeal,
including the in-camera exhibits attached to appellees'
motion to compel, appellees' response to expedite
ownership determinations, appellees' motion for expedited
special appearance hearing, and appellees' sixth amended
petition. See Tex. R. Civ. P. 120a(3). And although
appellants request that we deny appellees' motion for
leave, they note that they do not oppose the submission of a
supplemental sealed clerk's record containing the
in-camera exhibits that were attached to appellees'
response in opposition to appellants' special
appearances. See id.
the appellate record does not contain the in-camera exhibits
that appellees attached to their response in opposition to
appellants' special appearances. See id. "If a
relevant item has been omitted from the clerk's record .
. . any party may by letter direct the trial court clerk to
prepare, certify, and file in the appellate court a
supplement containing the omitted item." Tex.R.App.P.
34.5(c)(1); see also Tex. R. App. P. 34.5(c)(3)
("Any supplemental clerk's record will be part of
the appellate record."). And if a document that has been
designated for inclusion in the clerk's record has been
lost or destroyed, the parties may, by written stipulation,
deliver a copy of that item to the trial court clerk for
inclusion in a supplemental clerk's record. Tex.R.App.P.
when documents have been submitted for in-camera inspection,
a party must request that the exhibits be carried forward
under seal so that the appellate court can evaluate them.
Pope v. Stephenson, 787 S.W.2d 953, 954 (Tex. 1990);
Lesher v. Coyel, 435 S.W.3d 423, 431-32 (Tex.
App-Dallas 2014, pet. denied); see also Tex. R. Civ.
P. 76a; Envtl. Procedures, Inc. v. Guidry, 282
S.W.3d 602, 636 (Tex. App-Houston [14th Dist] 2009, pet.
denied) (appellate court does not have authority to seal
documents in appellate record). However, hand-delivering to
the appellate court a copy of the purported in-camera
documents, as appellees are attempting to do in the instant
case, is not sufficient. See Humphreys v. Caldwell,
881 S.W.2d 940, 944-45 (Tex. App-Corpus Christi 1994, orig.
proceeding) (party submitted package under cover letter from
attorney informing appellate court enclosed documents
submitted for in-camera inspection); see also Tex.
R. App. P. 34.5(c), (e); McGrath v. Baylor Univ. Med.
Ctr., No. 05-99-00457-CV, 2000 WL 1222039, at *3 n.6
(Tex. App-Dallas Aug. 29, 2000, pet. denied) (not designated
for publication) (noting where party "did not ask the
trial court to bring the subject documents forward under
seal, " appellate court "had no way of knowing
whether the documents in [party] 's possession were the
precise documents which the trial court reviewed in
camera"). Accordingly, we DENY
appellees' motion for leave to the extent that it relates
to appellants' appeal.
note, however, that the parties in the instant case are not
prevented from requesting that the trial court clerk prepare
and file a supplemental clerk's record containing the
in-camera exhibits, particularly those attached to
appellees' response in opposition to appellants'
special appearances, whose inclusion in the appellate record
appellants do not appear to oppose. See Tex. R. Civ.
P. 120a(3); Tex.R.App.P. 34.5(c); see also Tex. R.
App. P. 34.5(e); B. W.B. v. Eanes Indep. Sch. Dist,
No. 03-16-00710-CV, 2017 WL 4348215, at *1 (Tex. App-Austin
Sept. 29, 2017, no pet.) (mem. op.) (party to deliver to
trial court documents reviewed in camera and trial court
clerk to then forward such documents in supplemental
 Appellees tendered to the Court the
in-camera exhibits on August 16, 2016. The Court received
these documents, but they have not been filed by the Clerk of
the Court. We note that the clerk's record in this case
contains place-holder sheets for the in-camera exhibits that
appellees attached to ...