458th
District Court of Fort Bend County No. 19-DCV-262220
ORDER
Richard Hightower, Justice
The
record in this case contains a reporter's record and a
clerk's record and a sealed supplemental clerk's
record. On October 23, 2019, appellee filed an opposed motion
to seal the appellate record, file, and briefs because the
trial court's order seals documents involving minor
children.
An
appellate court has no authority to seal records and so this
Court issued an order abating the appeal and remanding to the
trial court to determine whether any portion of the
clerk's record should be sealed under Texas Rule of Civil
Procedure 76a. The Court also requested a response from
appellant concerning appellee's request to seal this
Court's file and briefs.
On
November 5, 2019, appellant filed a response to
appellee's motion to seal, as well as a motion to
reinstate the appeal. Appellant first stated that he withdrew
his opposition to appellee's motion to seal and stated
that the hearing in the trial court was no longer necessary.
Appellant also asked that we clarify our order because the
appeal concerns an order sealing appellant's Supplement
to Verified Petition to Take Videotaped Deposition Pursuant
to Texas Rule of Civil Procedure 202, and the transcribed
audio record attached to the Petition as an exhibit.
Appellant contends that this Court's order could be
construed to permit the trial court to reconsider its sealing
order that is currently on appeal.
Clerk's
Record
Although
appellant asserts that he is unopposed to appellee's
motion to seal, only one document and its attachment are
currently sealed and all other documents in the clerk's
record remain unsealed. The Rules of Appellate Procedure do
not provide for an appellate court to make a decision
concerning sealing records, and "to permit full
consideration of the competing public policy interests
implicit in the procedural requirements of [Rule] 76a,"
we temporarily abated the appeal for the trial court to hold
a hearing on whether to seal any other trial court records.
Simply because appellant is unopposed to the motion to seal
does not relieve the trial court from conducting the required
review under Rule 76a. See Tex. R. Civ. P. 76a.
Therefore, the hearing in the trial court continues to be
necessary and the abatement is not lifted.
Appellant
also contends that this Court's order is unclear
concerning which court records the trial court must review
and urges us to clarify our order to explain that the trial
court is not to reconsider the July 19, 2019 order sealing
appellant's Supplement to Verified Petition to Take
Videotaped Deposition Pursuant to Texas Rule of Civil
Procedure 202, and the transcribed audio record attached to
the Petition as an exhibit. To the extent this Court's
order was unclear, we grant appellant's
motion and issue this order.
The
order issued on October 29, 2019, abating this appeal and
remanding to the trial court remains in effect. The Court
amends the order issued on October 29, 2019
to limit the trial court's review to the trial court
documents included in the unsealed clerk's record filed
in the appellate court. The deadline for the trial court to
hold a hearing and make a determination under Rule 76a about
the trial court documents included in the unsealed
clerk's record is extended until January 3,
2020.
Appellant's
and Appellee's Briefs
As for
this Court's file, the reporter's record, and the
briefs, appellee requested that we seal these documents and
appellant indicates that he is unopposed. This Court has no
authority to seal documents. But, a review of appellant's
brief, which has been received but not yet filed, reveals
that it includes information ordered sealed by the trial
court. The parties must discuss the sealed documents in their
briefs because the appeal is from an order sealing those
documents, but in order to carry out the trial court's
sealing order, this Court concludes that it must
order the briefs sealed. Accordingly, the
Clerk of this Court is ordered to file under
seal appellant's brief, which was received on October 18,
2019. Appellee's brief, and any further responsive
briefs, are also to be filed under seal.
Reporter's
Record
The
reporter's record from the hearing on the motion to seal
records also, of necessity, includes the sealed documents as
evidence and testimony concerning those sealed documents.
Accordingly, to carry forward the trial court's sealing
order, this Court also concludes that it must
order the reporter's record
sealed.[1]
Appellate
Court ...