Davenport v. Garcia, D-1558

Citation834 S.W.2d 4
Decision Date17 June 1992
Docket NumberNo. D-1558,D-1558
PartiesValorie W. DAVENPORT v. The Honorable Carolyn GARCIA.
CourtSupreme Court of Texas

Valorie W. Davenport, Houston, for appellant.

Marty R. Akins, B. Lee Ware, Russell B. Serafin, Tom L. Pettiette, Houston, for appellee.

OPINION

DOGGETT, Justice.

In this mandamus proceeding, we address three issues: (1) the ability of a judge to suppress speech with a "gag order;" (2) whether Relator was impermissibly denied access to court records; and (3) the appropriate standard for removal of a guardian ad litem. Applying our state constitutional

guarantee of free expression to invalidate the trial court's unconstitutional prior restraint on speech, we grant this part of the petition for writ of mandamus. Because the trial court did not otherwise abuse its discretion, the remainder of the petition is denied

A guardian ad litem was appointed to represent two hundred and thirteen children among numerous persons who brought suit concerning toxic chemical exposure at the Brio Dump site in Harris County. In a 1987 settlement the adults released all claims to future medical benefits for their children, and in 1989 the ad litem withdrew. In February 1990 Judge Alice Trevathan, then the presiding judge, appointed Valorie Davenport, Relator herein, as guardian ad litem.

After eighteen months of work, Davenport submitted a bill for her services on August 21, 1991. At a hearing two days later, Judge Carolyn Garcia, who had become the presiding trial judge, on her own motion, questioned the continued need for a guardian ad litem. Additionally, the court entered an oral injunction, described as a "gag order," instructing the ad litem, parties and counsel to "cease and desist any discussion of this case outside the court hearing" and prohibiting any "communications with any other lawyer or discussion at all about the matters that have transpired in this case."

On September 10 the trial court dismissed Davenport, concluding that because the parents were no longer seeking either individual recovery or expense reimbursement, no conflict of interest existed to justify continuation of the ad litem. The court also found unnecessary ad litem oversight of a medical monitoring program proposed by defendants as part of a settlement. While noting that the parents' counsel had "competently handled [this] litigation" in "secur[ing] a generous settlement proposal for the minor children," Judge Garcia did not specify any change in circumstances following Judge Trevathan's appointment of Davenport. The next day, again on its own motion, the court entered a protective order requiring that:

1. Counsel in this case, present and former, are expressly ORDERED to refrain from discussing or publishing in writing or otherwise, any matters of this case with any persons other than their clients, agents, or employees in the necessary course of business in this case.

2. Counsel is ORDERED to refrain from any public comment, casual or otherwise concerning the facts of this case or the conduct of counsel in this case other than in a court hearing.

3. Counsel is ORDERED to inform their clients, witnesses, agents and representatives that this ORDER extends to each of them and is subject to a finding of contempt by this court from disobedience, direct or indirect comment intended to violate this ORDER. Counsel was and is directed to communicate with their clients only, and advise each that they are directed to refrain from discussing the case except with counsel.

I. The Gag Order

The trial court correctly characterized as a "gag order" its oral injunction of August 23, which prohibited all discussion of the Brio case outside the courtroom. Personally informed by the judge that she was "relieved of responsibility," and that she had "been ordered by the Court not to discuss the case with anyone," Relator risked contempt should she speak either in public or even in private to any of the children whose interests she had represented. Nor did the order permit any party to discuss the case or the pending settlement with a family physician, medical expert, or another attorney.

These limitations were reiterated in the written protective order of September 12, which prohibited any public comment or discussion of the litigation with anyone not involved in the "necessary course of business of this case." Counsel were also directed to inform their clients of the order's applicability to each of them. The sole reason given for this sweeping injunction was the finding that "conflicts between counsel and the parents of the minor children were resulting in miscommunications

with the parents of the children and with the media and general public."

We consider whether the court's gag orders violate the guarantee of free expression contained in article I, section 8 of the Texas Constitution, which provides in pertinent part:

Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege....

The history of this provision is a rich one, and its language demonstrates Texas' strong and longstanding commitment to free speech. By the plain language of our constitution, this fundamental liberty "shall forever remain inviolate." Tex. Const. art. I, § 29.

From the outset of this state's history, freedom of expression was a priority. As rural communities developed from the wilderness in the young region, Mexico passed the Constitutive Act of 1824, uniting Coahuila and Texas into one Mexican state. Already integrated into the government and with nine times the population of Texas, Coahuila predominated. After unsuccessful efforts to have the new state government forward their written complaints or remonstrances to the central government, 1 dissatisfied Texans sought in 1833 a Mexican state constitution separate from Coahuila. This first proposed constitution incorporated the strong desire of Texans to speak without fear of governmental repression:

The free communication of thoughts and opinions, is one of the inviolable rights of man; and every person may freely speak, write, print, and publish, on any subject, being responsible for the abuse of that liberty.

Proposed Constitution for the State of Texas (1833) art. 16, reprinted in Documents of Texas History, at 80 (Ernest Wallace ed. 1963). As an early advocate of a strong state constitution, 2 Stephen F. Austin was jailed for his outspokenness in personally carrying this proposed charter and other remonstrances to Mexico City. 3 The authoritarianism and unresponsiveness of Mexico to these attempts to exercise and establish protection of free speech were a contributing factor to Texas' revolution and independence. 4

Although the 1836 Texas Independence Constitution in general closely tracked the wording of the United States Constitution, different language was chosen to protect speech:

Every citizen shall be at liberty to speak, write, or publish his opinions on any subject, being responsible for the abuse of that privilege. No law shall ever be passed to curtail the liberty of speech or of the press; and in all prosecutions for libels, the truth may be given in evidence, and the jury shall have the right to determine the law and fact, under the direction of the court.

Constitution of the Republic of Texas, Declaration of Rights § 4 (1836). 5 Rather than
a restriction on governmental interference with speech such as that provided by the First Amendment of the United State Constitution, Texans chose from the beginning to assure the liberties for which they were struggling with a specific guarantee of an affirmative right to speak. This language of the Texas Independence Constitution became the model for all of our subsequent state constitutions

At the 1845 constitutional convention, after renewed deliberation concerning the terms of the free speech provision, 6 the 1836 language was kept largely intact. 7 What had been the Declaration of Rights was, as otherwise revised, renamed the Bill of Rights and moved to a place of overriding prominence, at the outset of the Constitution. The next three constitutions in 1861, 1866, and 1869 retained this language amidst intense public debate over secession 8 and reconstruction.

The drafters of the 1876 Constitution began their convention with a heightened sensitivity of the need for a strong state constitution. 9 While major changes in the Bill of Rights were not initially anticipated, 10 vigorous debate ensued. 11 Delegate McLean's efforts to tie freedom of speech to "good motives" in the libel section was disapproved. 12 Additionally, a proposal to replace the existing free expression provision with alternative language more similar to that of the First Amendment of the United States Constitution was explicitly rejected. 13 By substituting the word "person" for the prior "citizen" in the current language of article one, section eight, "[e]very person shall be at liberty to speak, write, or publish his opinions on any subject," the delegates removed any citizenship requirement. Compare Tex. Const. of 1845, art. I, §§ 5-6. In their careful attention to its language, Texans once again chose protection in article one, section eight that is highly distinct from the First Amendment. Continued inclusion of an expansive freedom of expression clause and rejection of more narrow protections indicates a desire in Texas to ensure broad liberty of speech.

Consistent with this history, we have recognized that in some aspects our free speech provision is broader than the First Amendment. O'Quinn v. State Bar of Texas, 763 S.W.2d 397, 402 (Tex.1988) (noting that "Texas' free speech right [has been characterized] as being broader than its federal equivalent," the court concluded that "it is quite obvious that the Texas

Constitution's affirmative grant of free speech is more broadly worded than the first amendment"); Channel 4, KGBT...

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