Opinion
NO. 14-17-00391-CV NO. 14-17-00380-CV
07-18-2017
In re Centennial Psychiatric Associates, LLC, Michelle Dahl, N.P., Robert Jack, M.D. & Michael Murphy, M.D. In re Centennial Psychiatric Associates, LLC, Michelle Dahl, N.P., Robert Jack, M.D. & Michael Murphy, M.D., Relators
On Appeal from the 164th District Court Harris County, Texas
Trial Court Cause No. 2017-16896 ORIGINAL PROCEEDING WRIT OF MANDAMUS
164th District Court Harris County, Texas
Trial Court No. 2017-16896
ORDER
Relators/appellants Centennial Psychiatric Associates, LLC, Michelle Dahl, N.P., Robert Jack, M.D., and Michael Murphy, M.D. (collectively, the "Centennial Parties") filed an unopposed motion to file a document under seal in connection with their petition for writ of mandamus. On June 6, 2017, this court issued an order allowing the parties twenty days from the date of the order to provide an order from the trial court permitting the filing of the document under seal in that court and to supplement the mandamus record with a copy of the trial court order. We further advised the Centennial Parties and real party in interest/appellee Ryan O. Cantrell that failure to do so would result in the denial of the Centennial Parties' motion, unless, within that time frame, the parties presented briefing to this court establishing a valid legal basis on which this court may maintain the document under seal without an order sealing the document in the trial court.
On June 22, 2017, Cantrell filed an unopposed motion to maintain a document under seal, stating that the parties entered into an agreement under Texas Rule of Civil Procedure 11 and positing that the Rule 11 agreement suffices to permit the sealing of the document.
Court records are presumed to be open to the general public. Tex. R. Civ. P. 76a(1). The sealing of a record must meet the procedural requirements of Texas Rule of Civil Procedure 76a. Davenport v. Garcia, 834 S.W.2d 4, 24 (Tex. 1992) (orig. proceeding). "A court may not escape the strict obligations of those rules by tacitly closing the record through an unwritten order." Id. The parties may not enter a Rule 11 agreement to skirt the requirements of Rule 76a. Cf. Stroud v. VBFSB Holding Corp., 917 S.W.2d 75, 83 (Tex. App.—San Antonio 1996, writ denied) (holding that stipulation and protective order was not a Rule 76a sealing order because it did not comply with the rule's procedures even though it contained protection and disclosure requirements similar to those that would be included in a sealing order). Cantrell has not established a legal basis for filing the document under seal in the absence of a Rule 76a sealing order from the trial court.
Cantrell requests that this court "enable" him to seek relief in the trial court under Rule 76a. See Tex. R. Civ. P. 76a. It is Cantrell's apparent belief that the trial court does not have jurisdiction to enter a sealing order under Rule 76a while the appeal is pending in this court.
"As a general rule the perfection of an appeal or writ or error terminates the authority of the lower court pending the appeal, in respect of all matters which trench upon appellate functions, so that the lower court may not thereafter proceed in the cause, at least as to the subject matter of the appeal or writ." Ex parte Travis, 73 S.W.2d 487, 489 (Tex. 1934) (internal quotations and citations omitted); see also In re Lesikar, No. 14-06-01041-CV, 2007 WL 1624965, at *2 (Tex. App.—Houston [14th Dist.] June 7, 2007, orig. proceeding) (mem. op.) (stating that once an appeal has been properly perfected, the appellate court has exclusive jurisdiction over the subject matter of the appeal and this exclusive jurisdiction terminates the trial court's power of the subject matter of the appeal during the pendency of the appeal).
The subject matter of the appeal and the original proceeding is the order quashing the commission and subpoena. A determination by the trial court of whether to seal a document does not "trench" on this court's appellate jurisdiction.
Accordingly, the parties may seek relief in the trial court under Rule 76a. We will withhold our ruling on the parties' motions and will not post the document to court's website at this time. The parties have twenty-one days from the date of this order to provide an order from the trial court permitting the filing of the document under seal in the trial court and to supplement the mandamus record in this court with a copy of that order. Failure to do so will result in the denial of the parties' motions and the immediate posting of the document to the court's website.
PER CURIAM Panel consists of Chief Justice Frost and Justices Jamison and Busby.