Times Herald Printing Co. v. Jones
| Decision Date | 05 August 1986 |
| Docket Number | No. 05-85-00301-CV,05-85-00301-CV |
| Citation | 717 S.W.2d 933 |
| Parties | TIMES HERALD PRINTING COMPANY, Appellant, v. Wayne C. JONES, M.D., Wayne C. Jones, a Professional Corporation and Carolyn Tuttle, Appellees. |
| Court | Texas Court of Appeals |
Charles L. Babcock, Fred D. Wilshusen, Dallas, for appellant.
John H. Martin, Judy C. Norris, Dallas, for appellee, Wayne C. Jones, M.D.; Robert H. Mow, Jr., Bruce W. Collins, Dallas, of counsel.
Timothy E. Kelley, Dallas, for appellee Carolyn Tuttle.
Before the court en banc.
ON MOTION FOR REHEARING
On motion for rehearing, the court, sitting en banc, withdraws its former opinion and substitutes this one.
The Times Herald Printing Company seeks reversal of a trial court's judgment sealing the records of a civil suit in which the parties to the suit settled the suit without trial, conditioning their settlement upon the sealing of the records. The Times Herald contends, in numerous points of error, that the sealing order abridges its rights guaranteed under Article 1, Section 8 of The Texas Constitution, violates the First Amendment to the United States Constitution, and denies it the common law right of access to judicial records for the purpose of inspecting and copying. In conjunction with these contentions the Times Herald argues that there was no evidence, or insufficient evidence to justify the sealing order.
Appellees counter these points, and by way of cross-points contend that this appeal should be dismissed because the trial court had no jurisdiction to grant the relief sought by the Times Herald; first, because the Times Herald was not a party to the original suit; and second, because the trial court had lost its plenary power over the case before the Times Herald entered the case, seeking an unsealing of the records.
We conclude that we have jurisdiction of this appeal; we disagree with the arguments advanced by the Times Herald. Accordingly, we affirm the judgment of the trial court.
In the original action an individual sued a physician in his individual capacity and his professional corporation, seeking damages. The physician answered, filed special exceptions, sought a protective order limiting disclosure of the contents of depositions taken, and filed a motion for partial summary judgment. Other matters were filed and heard such as motions to compel answers, pleas in abatement, and motions for continuance. Finally, on November 29, 1983, before trial, an agreed final judgment signed by the parties and their attorneys, providing that "the records of this case be sealed from public access and disclosure" except as to the parties to the suit, was submitted to and entered by the court.
On June 7, 1984, some five months and several days after the entry of the judgment, the Times Herald filed its motion to unseal court records and to remove restrictions on the press. The motion was filed in the original cause seeking access to "pleadings, discovery and other court records" in the case. The contention advanced to the trial judge was essentially that the record contained information of importance to the public. On appeal, the Times Herald has abandoned its quest for access to the depositions and discovery in the case and seeks only access to the "Orders, opinions and non-discovery pleadings" filed with the District Clerk and to remove any restraint upon publication of all or a portion of these public records. Additionally, on appeal, the thrust of the Times Herald's argument in favor of unsealing the records is so that the public might be more informed, and thus more capable of evaluating the performance of a certain judge, for purposes of re-election.
First we address the question of the trial court's and this court's jurisdiction in the posture in which the appeal reaches us. Appellees' argument as to jurisdiction is two-fold: first, the question of the Times Herald's standing is placed in issue, because it was not a party of record to the original action; and second, the trial court's plenary power to change or alter the judgment is questioned. Appellees rely on Hubbard v. Lagow, 559 S.W.2d 133 (Tex.Civ.App.--Austin 1977), rev'd on other grounds 567 S.W.2d 489 (1978), on remand, 576 S.W.2d 163 (1979); and Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex.1965). We agree with appellees that generally non-parties of record have no standing to appeal a trial court's judgment. We also agree that the trial judge had lost plenary power to alter or to change the judgment. However, the part of that judgment sealing the records did affect the rights of Times Herald; therefore, it may attack that portion by direct or collateral proceedings. See Dean v. First National Bank of Athens, 494 S.W.2d 222, 226 (Tex.Civ.App.--Tyler 1973, writ ref'd n.r.e.) (citing Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387 (1946)); Standard Oil Co. v. State, 132 S.W.2d 612, 614 (). See also Meyer v. Wichita County Water Improvement Dist., 265 S.W.2d 660, 665 (Tex.Civ.App.--Fort Worth 1954, writ ref'd n.r.e.); Bussan v. Donald, 244 S.W.2d 271, 273 (Tex.Civ.App.--Fort Worth 1951, writ ref'd n.r.e.). We treat Times Herald's motion to unseal as a new cause of action brought by the Times Herald for the sole purpose of gaining access to the records previously sealed, and not to change or affect the settlement of the parties. All parties to the original suit as well as the Times Herald were before the court, just as though service of citation had been perfected in a new and independent cause.
Thus, we conclude that the trial court had jurisdiction to entertain the Times Herald's motion to unseal, and that the Times Herald had duly perfected its appeal from the trial court's action on its motion to this court. Appellees' cross-points of error are overruled.
The Times Herald argues that it has a common-law right of access to court records. Although no Texas authority is cited for this proposition, and we have found none, we agree generally with this contention.
The United States Supreme Court, in Nixon v. Warner Communications, Inc. 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), recognizes a general common-law right to copy and inspect public records and documents, including judicial records and documents, yet holds that each court has supervisory power over its own records and files, including the right to deny access to the court's files where such files might become a vehicle for improper purposes. The Court goes on to state that the common-law right of inspection has bowed before the power of a court to insure that its records are not used to gratify spite, promote public scandal, or for the publication of "the painful and sometimes disgusting details of a divorce case." Warner, 435 U.S. at 598, 98 S.Ct. at 1312 (quoting In re Caswell, 18 R.I. 835, 836, 29 A. 259 (1893)). Perhaps the most significant language to be found in Warner, insofar as this case is concerned, is in the following quote:
It is difficult to distill from the relatively few judicial decisions a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate. The few cases that have recognized such a right do agree that the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.
Id. 435 U.S. at 599, 98 S.Ct. at 1312 (footnotes omitted). We conclude that, although as a general proposition, a common-law right of inspection and copying judicial records exists, this right is not absolute, and must bow to the discretion of the trial judge in making a decision based upon the facts of a particular case. In this case the trial judge chose to seal the records in compliance with the parties request, and finding no abuse of discretion, we decline to disturb the trial court's action.
The Times Herald argues Article 1, section 8 of the Texas Constitution is even broader than the First Amendment to the United States Constitution in its treatment of access to court records. Philosophical argument as to the necessity of openness of court proceedings are made, citing general authority extending back to the Virginia Bill of Rights in 1776. The arguments are persuasive as to general canons of law, but are not persuasive in the context of this case. Most of the cases cited address criminal trials; only one addresses a civil trial, and its context is of a criminal nature; i.e. the detention and release of criminals from prison--a subject matter of considerable importance to the public. However, no case, in this or any other jurisdiction, has been offered to address the question of the propriety of unsealing records of a suit in which, before trial on the merits but after certain pre-trial motions have been heard and ruled upon, the parties have reached a settlement conditioned upon the sealing of the records.
Most of the cases cited concern the right of the press to publish information in its possession, cases concerning "freedom of expression" rather than the press's "right of access" to judicial records. Those cases dealing with the "right of access" concern criminal proceedings. Houston Chronicle Publishing Co. v. Shaver, 630 S.W.2d 927 (Tex.Crim.App.1982); Houston Chronicle Publishing Co. v. McMaster, 598 S.W.2d 864 (Tex.Crim.App.1980). We do not find the historical practice and the intertwining aspects of public policy consideration underlying the recognition of this "right of access" to criminal proceedings to be present in the case before us. Accordingly, we decline to construe Article 1, section 8 of the Texas Constitution as providing a greater right of access than does...
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