Opinion issued August 27, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00813-CV ——————————— MICHAEL FALLON, M.D., Appellant V. MD ANDERSON PHYSICIANS NETWORK AND MICHAEL W. BROWN, AS PRESIDENT AND CHIEF EXECUTIVE OFFICER OF MD ANDERSON PHYSICIANS NETWORK, Appellees
On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2017-36113
MEMORANDUM OPINION
Appellant, Michael Fallon, M.D., challenges the trial court’s sealing orders in
Fallon’s suit against appellees, MD Anderson Physicians Network and Michael W.
Brown, as President and Chief Executive Officer of MD Anderson Physicians Network (collectively, the “Physicians Network”), for a writ of mandamus and a
declaratory judgment.1 In five issues, Fallon contends that the trial court erred in
ordering that certain summary-judgment exhibits be filed “in camera [and] under
seal” and be “permanently sealed” and in denying him access to such exhibits.
(Internal quotations omitted.)
We affirm.
Background
In his first amended petition, Fallon alleges that he is an individual residing in
New York and the Physicians Network is a “governmental body” of the State of
Texas. Fallon also alleges that the Physicians Network is a subsidiary of The
University of Texas MD Anderson Cancer Center (the “Cancer Center”) and the
Physicians Network maintains communications with the Cancer Center.
Previously, Fallon, pursuant to the Texas Public Information Act (“PIA”), 2
served the Cancer Center with a public information request, seeking nine categories
of information, including certain “electronic communications.” It is undisputed that
the Cancer Center is a “governmental body” under the PIA.3 Although the Cancer
1 See TEX. GOV’T CODE ANN. § 552.321 (“Suit for Writ of Mandamus”); TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011 (“Uniform Declaratory Judgments Act” (the “DJA”)). 2 See TEX. GOV’T CODE ANN. §§ 552.001–.353. 3 See id. § 552.003(1).
2 Center produced some information responsive to Fallon’s request, it also informed
him that “certain electronic communications from September 2013 to [the]
present . . . were maintained by a . . . non-governmental body,” i.e., the Physicians
Network.
On July 11, 2016, Fallon, pursuant to the PIA, served the Physicians Network
with a public information request, seeking eleven categories of information. After
Fallon clarified his public information request, the Physicians Network sought an
opinion from the Attorney General as to whether it constituted a “governmental
body” under the PIA, whether it was subject to the PIA’s disclosure requirements,
and whether certain exceptions to disclosure applied.4 The Attorney General issued
an open records letter ruling, concluding that the Physicians Network is not a
“governmental body” and not subject to the PIA or its disclosure requirements.5
(Internal quotations omitted.)
However, because Fallon believes that the Physicians Network is a
“governmental body” that is subject to the PIA and that the information that he seeks
in response to his public information request constitutes “public information,” Fallon
4 See id. §§ 552.301–.309 (“Attorney General Decisions”). 5 See Tex. Att’y Gen. OR2016-22964.
3 seeks a writ of mandamus to compel the Physicians Network to produce the
information responsive to his request.6 Fallon also seeks certain declarations.7
The Physicians Network answered, generally denying Fallon’s allegations and
asserting certain affirmative defenses.
Fallon then filed a combined no-evidence and matter-of-law
summary-judgment motion, arguing, inter alia, that the Physicians Network is a
“governmental body” under the PIA that is subject to the PIA’s disclosure
requirements. Fallon attached exhibits to his motion.
The Physicians Network filed a response and a cross-motion for a
matter-of-law summary judgment, asserting, inter alia, that it did not constitute a
“governmental body” under the PIA as a matter of law. The Physicians Network
attached exhibits to its response and cross-motion.
In connection with its response and cross-motion for summary judgment, the
Physicians Network filed a Motion to File Summary Judgment Exhibits In Camera,
pursuant to the PIA, asserting that four of its summary-judgment exhibits contained
confidential and proprietary information that belongs to the Physicians Network and
requesting that it be permitted to file its exhibits in camera with the trial court.8 The
6 See TEX. GOV’T CODE ANN. § 552.321 (“Suit for Writ of Mandamus”). 7 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011. 8 See TEX. GOV’T CODE ANN. § 552.3221 (“In Camera Inspection of Information”).
4 four exhibits that the Physicians Network sought to have reviewed in camera by the
trial court in connection with the parties’ summary-judgment proceedings are: (1) an
unredacted copy of the Physicians Network’s Attorney General request, (2) an
unredacted copy of the Physicians Network’s reply brief submitted to the Attorney
General, (3) the bylaws of the Physicians Network’s Quality Management
Committee and Credentialing Committee, and (4) the affidavit of Kimberly Bergen,
the Physicians Network’s Vice President and Chief Financial Officer.
In response to the Physicians Network’s motion to file its four
summary-judgment exhibits in camera, Fallon argued that in camera review of the
exhibits was not warranted because the exhibits did not meet the requirements for
information to be filed in such a manner under the PIA.9
In its reply, the Physicians Network asserted that the trial court had not yet
made the determination of whether the Physicians Network constituted a
“governmental body,” the Physicians Network was permitted to protect their
confidential and proprietary information in accordance with the PIA, and the four
summary-judgment exhibits were previously submitted to the Attorney General, in
accordance with Texas Government Code section 552.301, and thus, were entitled
to protection from disclosure.
9 See id. § 552.3221(a) (“In any suit filed under [the PIA], the information at issue may be filed with the court for in camera inspection as is necessary for the adjudication of the case.”), (e) (defining “information at issue”).
5 On October 10, 2017, the trial court granted the Physicians Network’s motion
to file the four summary-judgment exhibits in camera pursuant to the PIA.10 On
October 31, 2017, the trial court then granted the Physicians Network’s cross-motion
for summary judgment and denied Fallon’s summary-judgment motion, ruling that
the Physicians Network is not a “governmental body” under the PIA.
In an earlier filed, but related, appeal to this Court (“Fallon’s
summary-judgment appeal”), Fallon challenged the trial court’s rendition of
summary judgment in favor of the Physicians Network and the denial of his
summary-judgment motion. See Fallon v. MD Anderson Physicians Network, No.
01-17-00882-CV, slip. op. at 1–2, 10 (Tex. App.—Houston [1st Dist.] Aug. 27,
2019, no pet. h.). In connection with Fallon’s summary-judgment appeal, the
Physicians Network filed a motion with this Court, which Fallon opposed, for leave
to file its four summary-judgments exhibits that it had previously filed with the trial
court in camera because the exhibits had not been included by the Harris County
district clerk as part of clerk’s record on appeal.11 The Physicians Network attached
to its motion the four summary-judgment exhibits that it wished to have filed in
camera with this Court so that we would have a complete appellate record in Fallon’s
10 See id. § 552.3221. 11 See TEX. R. APP. P. 34.1 (appellate record consists of clerk’s record and, if necessary to appeal, reporter’s record), 34.5(a) (listing items to be included in clerk’s record).
6 summary-judgment appeal. We, however, denied the Physicians Network’s motion
for leave, explaining that “hand-delivering to the appellate court a copy of the
purported in-camera [exhibits] is not a viable way to add them to the [appellate]
record.” We further clarified that “[i]f a relevant [exhibit was] omitted from the
clerk’s record [then] . . . any party may . . . direct the trial court clerk to prepare,
certify, and file in the appellate court a supplement containing the omitted [exhibit],”
and “if a[n] [exhibit] that [was] designated for inclusion in the clerk’s record [was]
lost or destroyed . . . the trial court [must] . . . determin[e] what constitutes an
accurate copy of the missing [exhibit] and order it to be included in the clerk’s record
or a supplement.”12 (Fourth alternation in original) (Internal quotations omitted.)
After we denied the Physicians Network’s motion for leave, the Physicians
Network filed, in the trial court, a Motion to Determine that Copies of Lost or
Destroyed In Camera Exhibits are Accurate, requesting that the trial court, pursuant
to Texas Rule of Appellate Procedure 34.5(e), find that the four summary-judgment
exhibits submitted to the trial court in camera were accurate copies of the four
summary-judgment exhibits that were previously submitted in camera and
considered by the trial court in connection with the parties’ summary-judgment
proceedings.13 Further, the Physicians Network filed a Motion to Permanently Seal
12 See TEX. R. APP. P. 34.5(c)(1), (3), (e). 13 See TEX. R. APP. P. 34.5(e).
7 In Camera Summary Judgment Exhibits to ensure that the four summary-judgment
exhibits submitted to the trial court in camera were sealed so that they could be
forwarded to this Court for consideration in connection with Fallon’s
summary-judgment appeal. The Physicians Network noted that its request was in
accordance with the trial court’s October 10, 2017 order, which had granted the
Physicians Network’s motion to file its four summary-judgment exhibits in camera
pursuant to the PIA.14 Fallon opposed both of the Physicians Network’s motions.
On August 21, 2018, the trial court granted the Physicians Network’s Motion
to Determine that Copies of Lost or Destroyed In Camera Exhibits are Accurate,
finding that the four summary-judgment exhibits submitted by the Physicians
Network along with its motion constituted accurate copies of the four
summary-judgment exhibits that had been previously filed in camera in connection
with the parties’ summary-judgment proceedings.15 That same day, the trial court
also granted the Physicians Network’s Motion to Permanently Seal In Camera
Summary Judgment Exhibits, ordering that the four summary-judgment exhibits be
filed “in camera and under seal” and that the exhibits be “permanently sealed.” On
November 19, 2018, the trial court ordered the Harris County district clerk to send
the four summary-judgment exhibits to our Court “in camera and under seal” as part
14 See TEX. GOV’T CODE ANN. § 552.3221(a)–(c). 15 See TEX. R. APP. P. 34.5(e).
8 of a supplemental clerk’s record so that the exhibits could be reviewed by this Court
in connection with Fallon’s summary-judgment appeal.16
Standard of Review
We review the trial court’s sealing order and its decision to review documents
in camera for an abuse of discretion. See Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520,
526 (Tex. 1998); In re Strategic Impact Corp., 214 S.W.3d 484, 488 (Tex. App.—
Houston [14th Dist.] 2006, orig. proceeding [mand. denied]); Wood v. James R.
Moriarty, P.C., 940 S.W.2d 359, 361 (Tex. App.—Dallas 1997, no writ). A trial
court abuses its discretion when it acts in an unreasonable or arbitrary manner or
when it acts without reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Gray v. CHCA
Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
When we review matters committed to the trial court’s discretion, we may not
substitute our judgment for that of the trial court. Bowie Mem’l Hosp. v. Wright, 79
S.W.3d 48, 52 (Tex. 2002); Wood, 940 S.W.2d at 361. Even if we would decide the
issue differently, we may not disturb the trial court’s decision unless it is arbitrary
and unreasonable. Wood, 940 S.W.2d at 361; see also Gray, 189 S.W.3d at 858
(Tex. App.—Houston [1st Dist.] 2006, no pet.) (“A trial court does not abuse its
16 See TEX. GOV’T CODE ANN. § 552.3221(a)–(c); see also TEX. R. APP. P. 34.5(c), (e).
9 discretion merely because it decides a discretionary matter differently than an
appellate court would in a similar circumstance.”).
Summary-Judgment Exhibits
In his first, second, third, and fourth issues, Fallon argues that the trial court
erred in ordering that the Physicians Network’s four summary-judgment exhibits be
filed “in camera [and] under seal” and that such exhibits be “permanently sealed”
because the Physicians Network did not provide evidence to support its request to
seal the four summary-judgment exhibits as required by Texas Rule of Civil
Procedure 76a; Fallon, as a party to the litigation, cannot be prohibited from
accessing the four summary-judgment exhibits under Texas Rule of Civil Procedure
76a; the four summary-judgment exhibits do not constitute information that is
permitted to be viewed in camera by the trial court under the PIA; and the PIA cannot
serve as a basis for sealing the four summary-judgment exhibits. (Internal quotations
omitted.) See TEX. GOV’T CODE ANN. § 552.3221 (PIA provision permitting in
camera submission to trial court and in camera submission and transmission to
appellate court); TEX. R. CIV. P. 76a (“Sealing of Court Records”). In his fifth issue,
Fallon asserts that the four summary-judgment exhibits that were permitted to be
filed in camera with the trial court constitute improper ex parte communications.
In the trial court below, Fallon filed suit seeking a writ of mandamus to
compel the Physicians Network to produce information responsive to his public
10 information request and a declaratory judgment. After the Physicians Network
answered, Fallon filed a combined no-evidence and matter-of-law
summary-judgment motion. The Physicians Network then filed a response and a
cross-motion for a matter-of-law summary judgment. The Physicians Network
attached exhibits to its response and cross-motion. The Physicians Network also
filed a Motion to File Summary Judgment Exhibits In Camera, requesting that it be
permitted to file four of its summary-judgment exhibits in camera with the trial court
pursuant to the PIA. See TEX. GOV’T CODE ANN. § 552.3221. Specifically, the
Physicians Network requested, pursuant to the PIA, that it be allowed to file its four
summary-judgment exhibits in camera for the trial court to consider in connection
with the parties’ summary-judgment proceedings and that the trial court prevent the
release of or access to the four summary-judgment exhibits by any person other than
the trial court or a reviewing appellate court. See id. § 552.3221(a)–(c).
Although Fallon opposed the Physicians Network’s Motion to File Summary
Judgment Exhibits In Camera, the trial court, on October 10, 2017, granted the
Physicians Network’s motion in its entirety, permitting the Physicians Network to
file its four summary-judgment exhibits in camera for the trial court to review in
connection with the parties’ summary-judgment proceedings and preventing the
release of or access to the four summary-judgment exhibits by any person other than
the trial court or a reviewing appellate court. See id.
11 Subsequently, on October 31, 2017, the trial court signed its final judgment,
granting the Physicians Network’s cross-motion for summary judgment and denying
Fallon’s summary-judgment motion. Fallon then filed his notice of appeal, seeking
to appeal the trial court’s October 31, 2017 final judgment. Fallon did not indicate
in his notice of appeal that he also sought to appeal the trial court’s October 10, 2017
order pertaining to the summary-judgment exhibits that had been filed in camera.
See TEX. R. APP. P. 25.1(a), (d) (notice of appeal must “state the date of the judgment
or order appealed from”), 26.1 (notice of appeal must be filed within thirty days of
judgment); see also Izen v. Ryals, Trustee of E. Tex. Invs. Trust, No.
14-17-00431-CV, 2019 WL 1716253, at *14 (Tex. App.—Houston [14th Dist.] Apr.
18, 2019, no pet.) (appellant did not preserve any available appeal from trial court’s
order where appellant did not state in his notice of appeal that he was appealing from
such order); Parrish v. Rutherford, 159 S.W.3d 114, 117 (Tex. App.—Corpus
Christi–Edinburg 2004, no pet.) (where appellants’ notice of appeal did not specify
they were appealing order awarding attorney’s fees, issue not preserved).
Further, in his summary-judgment appeal, Fallon, in five issues, asserted that
the trial court erred in granting the Physicians Network summary judgment and
denying him summary judgment. See Fallon, slip op. at 1, 10. Notably, Fallon did
not raise any issues, make any argument, or request any relief regarding whether the
trial court properly granted the Physicians Network’s Motion to File Summary
12 Judgment Exhibits In Camera.17 See slip op. at 1–46; see also TEX. R. APP. P. 38.1(f),
(i), (j); see also Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex.
App.—San Antonio 2011, no pet.) (failure to provide substantive analysis of issue
or cite appropriate authority waives complaint on appeal); Tesoro Petroleum Corp.
v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.]
2002, pet. denied). In other words, Fallon did not appeal the trial court’s October
10, 2017 order, which permitted the four summary-judgment exhibits to be filed in
camera for the trial court to review and prevented the release of or access to the four
exhibits by any person other than the trial court or a reviewing appellate court
pursuant to the PIA.
In connection with Fallon’s summary-judgment appeal, the Physicians
Network did, however, seek to have its four summary-judgment exhibits, which the
trial court had ordered to be filed in camera and to not be released to or accessed by
any person other than the trial court or a reviewing appellate court, filed in this Court.
See TEX. R. APP. P. 34.1 (appellate record consists of clerk’s record and, if necessary
17 To the extent that Fallon, in his reply brief filed in his summary-judgment appeal, appears to assert that the trial court improperly reviewed the Physicians Network’s four summary-judgment exhibits in camera pursuant to the PIA, the Texas Rules of Appellate Procedure do not allow the inclusion of a new issue in a reply brief that was not raised in an appellant’s original brief. See TEX. R. APP. P. 38.3; M Scott Constr., Ltd. v. Mireles, No. 14-15-00701-CV, 2016 WL 6990046, at *8 (Tex. App.—Houston [14th Dist.] Nov. 29, 2016, no pet.) (mem. op.); McAlester Fuel Co. v. Smith Int’l, Inc., 257 S.W.3d 732, 737 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
13 to appeal, reporter’s record), 34.5(a) (listing items to be included in clerk’s record);
see also Tavira v. Tex. Dep’t of Criminal Justice, No. 07-14-00046-CV, 2014 WL
1674080, at *1 (Tex. App.—Amarillo Apr. 23, 2014, order) (“An appellate court
may generally not consider matters outside the appellate record.”). To achieve this,
we informed the Physicians Network that “[i]f a relevant [exhibit was] omitted from
the clerk’s record [then] . . . any party may . . . direct the trial court clerk to prepare,
certify, and file in the appellate court a supplement containing the omitted [exhibit].”
(Fourth alteration in original) (Internal quotations omitted.) See TEX. R. APP. P.
34.5(c)(1), (3). Further, we explained that if the exhibit that was omitted from the
clerk’s record was “lost or destroyed,” the trial court must determine “what
constitutes an accurate copy of the missing [exhibit] and order it to be included in
the clerk’s record or a supplement.” (Internal quotations omitted.) See TEX. R. APP.
P. 34.5(e).
In accordance with this Court’s order, the Physicians Network then filed in
the trial court, a Motion to Determine that Copies of Lost or Destroyed In Camera
Exhibits are Accurate, requesting that the trial court, pursuant to Texas Rule of
Appellate Procedure 34.5(e), find that the four summary-judgment exhibits
submitted to the trial court in camera were accurate copies of the four exhibits that
were previously submitted and considered by the trial court in connection with the
parties’ summary-judgment proceedings. See id. The Physicians Network also filed
14 a Motion to Permanently Seal In Camera Summary Judgment Exhibits to ensure that
the four summary-judgment exhibits submitted to the trial court in camera were
sealed so that they could be forwarded to this Court for consideration in connection
with Fallon’s summary-judgment appeal. The Physicians Network noted that its
request was in accordance with the trial court’s October 10, 2017 order which had
granted the Physicians Network’s motion to file its four summary-judgment exhibits
in camera and prevented the release of or access to the exhibits by any person other
than the trial court or a reviewing appellate court pursuant to the PIA. See TEX.
GOV’T CODE ANN. § 552.3221(a)–(c).
In its first August 21, 2018 order, the trial court granted the Physicians
Network’s Motion to Determine that Copies of Lost or Destroyed In Camera
Exhibits are Accurate, finding that the four summary-judgment exhibits submitted
by the Physicians Network along with its motion constituted accurate copies of the
four summary-judgment exhibits that had been previously filed in camera in
connection with the parties’ summary-judgment proceedings.18 See TEX. R. APP. P.
34.5(e). In its second August 21, 2018 order, the trial court granted the Physicians
Network’s Motion to Permanently Seal In Camera Summary Judgment Exhibits,
ordering that the four summary-judgment exhibits be filed “in camera and under
seal” and “permanently sealed.” See TEX. GOV’T CODE ANN. § 552.3221(a)–(c). On
18 Fallon does not challenge on appeal this order of the trial court.
15 November 19, 2018, the trial court ordered the Harris County district clerk to send
the four summary-judgment exhibits to our Court “in camera and under seal” as part
of a supplemental clerk’s record so that the exhibits could be reviewed by this Court
in connection with Fallon’s summary-judgment appeal. See id.; TEX. R. APP. P.
34.5(c), (e); see also Vackar v. Mem’l Bank, No. 01-00-01033-CV, 2002 WL
1303424, at *1 (Tex. App.—Houston [1st Dist.] June 13, 2002, no pet.) (not
designated for publication) (trial court has authority to determine, on party’s motion,
whether items identified in motion constitute accurate copies of items missing from
clerk’s record and to order such items be included in supplemental clerk’s record).
The PIA permits certain information or documents to be filed with a court for
in camera inspection. Specifically, Texas Government Code section 552.3221
states: “In any suit filed under [the PIA], the information at issue may be filed with
the court for in camera inspection as is necessary for the adjudication of the case.”
TEX. GOV’T CODE ANN. § 552.3221(a); see also Paxton v. City of Dallas, No.
06-18-00095-CV, 2019 WL 2119644, at *4 (Tex. App.—Texarkana May 15, 2019,
pet. filed) (mem. op.). Further, upon receipt of such information for in camera
inspection, “the court shall enter an order that prevents [the] release to or access by
any person other than the court, a reviewing court of appeals, or parties permitted
to inspect the information pursuant to a protective order.” See TEX. GOV’T CODE
16 ANN. § 552.3221(b) (emphasis added). Still yet, the information that is filed with
the court for in camera inspection shall be:
(1) appended to the order and transmitted by the court to the clerk for filing as “information at issue”;
(2) maintained in a sealed envelope or in a manner that precludes disclosure of the information; and
(3) transmitted by the clerk to any court of appeal as part of the clerk’s record.
See id. § 552.3221(c) (emphasis added); see also Paxton, 2019 WL 2119644, at *4
& n.5 (information previously filed in camera in trial court pursuant to the PIA,
subsequently filed under seal in appellate court).
In its October 10, 2017 order, the trial court permitted the Physicians Network
to file its four summary-judgment exhibits in camera for the trial court to review in
connection with the parties’ summary-judgment proceedings and it prevented the
release of or access to the four summary-judgment exhibits by any person other than
the trial court or a reviewing appellate court. The trial court issued its order pursuant
to the PIA. See TEX. GOV’T CODE ANN. § 552.3221(a)–(c). As previously noted,
Fallon did not challenge the trial court’s October 10, 2017 order in his
summary-judgment appeal. See Fallon, slip. op. at 1–46. A party that fails to
challenge an order in his initial appeal waives the right to challenge that order in a
subsequent appeal. See Wight Realty Interests, Ltd. v. City of Friendswood, 433
S.W.3d 26, 35 n.9 (Tex. App.—Houston [1st Dist.] 2013, pet. denied); Women’s 17 Clinic of S. Tex. v. Alonzo, No. 13-12-00537-CV, 2013 WL 2948413, at *2 (Tex.
App.—Corpus Christi–Edinburg June 13, 2013, pet. denied) (mem. op.) (“Where
error exists at the time of an initial appeal, an appellant waives [his] right to complain
in a subsequent appeal of the error [that he] failed to present in the initial appeal.”);
Harris Cty. v. Walsweer, 930 S.W.2d 659, 666 (Tex. App.—Houston [1st Dist.]
1996, writ denied) (by failing to assign error in first appeal, appellant waived
opportunity to appeal issue). This is because allowing appeals from the same case
in a “piecemeal fashion” “would be in clear violation of the dictates of public policy
striving to prevent useless, repetitious, and multifarious litigation and appeals.”
Barrows v. Ezer, 624 S.W.2d 613, 617 (Tex. App.—Houston [14th Dist.] 1981, no
writ). Thus, in the interest of public and judicial economy, all issues should be
brought on appeal at the very first opportunity. Barrows, 624 S.W.2d at 617.
In his third and fourth issues in the instant appeal, Fallon asserts that the PIA,
specifically Texas Government Code section 552.3221, “cannot serve as a basis” for
sealing the Physicians Network’s four summary-judgment exhibits and the exhibits
“do not meet the requirements for protection” under section 552.3221 or are “not
within the scope” of section 552.3221. In his fifth issue, Fallon asserts that the four
summary-judgment exhibits that were submitted to the trial court for consideration
in connection with the parties’ summary-judgment proceedings constituted
“improper ex parte communications.” These issues were decided by the trial court
18 on October 10, 2017 when the court granted the Physicians Network’s Motion to
File Summary Judgment Exhibits In Camera, permitted the Physicians Network’s
four summary-judgment exhibits to be filed in camera for the trial court to review in
connection with the parties’ summary-judgment proceedings, and prevented the
release of or access to the four summary-judgment exhibits by any person other than
the trial court or a reviewing appellate court. See TEX. GOV’T CODE ANN.
§ 552.3221(a)–(c). More importantly, these issues should have been raised by
Fallon in his summary-judgment appeal as a challenge to the trial court’s October
10, 2017 order. However, because Fallon did not seek appellate review of the trial
court’s October 10, 2017 in his summary-judgment appeal, he may not attempt to
raise the aforementioned issues in this subsequent appeal. See Wight Realty
Interests, 433 S.W.3d at 35 n.9; Women’s Clinic of S. Tex., 2013 WL 2948413, at
*2; Walsweer, 930 S.W.2d at 666; Barrows, 624 S.W.2d at 617. Accordingly, we
hold that Fallon has waived his third, fourth, and fifth issues.
We note that Fallon asserts that he has not waived his third, fourth, and fifth
issues because he is not challenging the trial court’s October 10, 2017 order in the
instant appeal, rather he is challenging the trial court’s August 21, 2018 order that
granted the Physicians Network’s Motion to Permanently Seal In Camera Summary
Judgment Exhibits and ordered the four summary-judgment exhibits be filed “in
camera and under seal” and be “permanently sealed.” And he is challenging the trial
19 court’s November 19, 2018 order which instructed the Harris County district clerk
to send the four summary-judgment exhibits to our Court “in camera and under seal”
as part of a supplemental clerk’s record so that the exhibits could be reviewed by
this Court in connection with Fallon’s summary-judgment appeal.
In Texas, when exhibits are submitted to the trial court in camera, a party must
request that the exhibits be carried forward under seal so that an appellate court can
review the exhibits and evaluate the issues presented on appeal. See Pope v.
Stephenson, 787 S.W.2d 953, 953 (Tex. 1990); In re Trujillo, No. 08-13-00185-CV,
2015 WL 799439, at *1 (Tex. App.—El Paso Feb. 25, 2015, orig. proceeding) (mem.
op.); Lesher v. Coyel, 435 S.W.3d 423, 431–32 (Tex. App.—Dallas 2014, pet.
denied); Humphreys v. Caldwell, 881 S.W.2d 940, 944–45 (Tex. App.—Corpus
Christi–Edinburg 1994, orig. proceeding); see also Dominguez v. Gilbert, 48 S.W.3d
789, 794–95 (Tex. App.—Austin 2001, no pet.) (in context of PIA, where trial court
reviews information in camera, party who submitted information to trial court in
camera, has burden to ensure appellate court is able to review such information on
appeal). This is because the contents of the exhibits which have been protected must
be made available to the appellate court in order for it to determine whether error
has occurred. See Pope, 787 S.W.2d at 953. Simply put, without a record containing
the in camera exhibits, we have nothing to review. See Lesher, 435 S.W.3d at 431–
20 32; see also Tavira, 2014 WL 1674080, at *1 (“An appellate court may generally
not consider matters outside the appellate record.”).
Here, after we denied the Physicians Network’s motion for leave, preventing
the Physicians Network from filing its four summary-judgment exhibits directly with
this Court, the Physicians Network filed, in the trial court, its Motion to Permanently
Seal In Camera Summary Judgment Exhibits in order to ensure that its four
summary-judgment exhibits could be transmitted to this Court for review in
connection with Fallon’s summary-judgment appeal. See Pope, 787 S.W.2d at 953;
In re Trujillo, 2015 WL 799439, at *1; Lesher, 435 S.W.3d at 431–32; Humphreys,
881 S.W.2d at 944–45. The trial court then granted the Physicians Network’s motion
and entered its August 21, 2018 and November 19, 2018 orders, ruling that the four
summary-judgment exhibits be filed “in camera and under seal” and be
“permanently sealed” and requesting that the Harris County district clerk send the
four summary-judgment exhibits to our Court “in camera and under seal” as part of
a supplemental clerk’s record. See Pope, 787 S.W.2d at 953; In re Trujillo, 2015
WL 799439, at *1; Lesher, 435 S.W.3d at 431–32; Humphreys, 881 S.W.2d at 944–
45.
Importantly, the trial court has a responsibility to ensure that an appellate
record is filed in the appellate court. See TEX. R. APP. P. 35.3(c); Watts v. Nathan,
No. 02-14-00406-CV, 2015 WL 5451179, at *1 n.3 (Tex. App.—Fort Worth Sept.
21 17, 2015, no pet.) (mem. op.); Aguero v. Aguero, 225 S.W.3d 236, 237 (Tex. App.—
El Paso 2006, no pet.); B.T. Health Care, Inc. v. Honeycutt, No. 07-04-0084-CV,
2004 WL 2029698, at *1 (Tex. App.—Amarillo Sept. 10, 2004, order), disp. on
merits, 196 S.W.3d 298 (Tex. App.—Amarillo 2006, no pet.). And there is even a
presumption that the trial court is anxious to aid any party in obtaining the action of
the appellate court to which the party may be entitlement. Wright v. Valderas, 575
S.W.2d 405, 407 (Tex. App.—Fort Worth 1978, orig. proceeding).
In its October 10, 2017 order, the trial court permitted the Physicians Network
to file its four summary-judgment exhibits in camera for the trial court to review in
connection with the parties’ pending summary-judgment proceedings and it
prevented the release of or access to the four exhibits by any person other than the
trial court or a reviewing appellate court. See TEX. GOV’T CODE ANN.
§ 552.3221(a)–(c). The trial court’s August 21, 2018 and November 19, 2018 orders
from which Fallon now attempts to appeal are simply orders entered by the trial court
to effectuate its previous October 10, 2017 order, which has not been challenged by
Fallon in his summary-judgment appeal. See Fallon, slip. op. at 1–46. In other
words, the trial court entered the August 21, 2018 and November 19, 2018 orders,
at the Physicians Network’s request, in order to ensure that an accurate appellate
record was before this Court in Fallon’s summary-judgment appeal. Essentially, the
trial court is carrying out its responsibility to ensure that a complete appellate record
22 is filed in this Court and attempting to aid the parties in obtaining any action by this
Court to which they may be entitled. See TEX. R. APP. P. 35.3(c); Watts, 2015 WL
5451179, at *1 n.3; Aguero, 225 S.W.3d at 237; B.T. Health Care, 2004 WL
2029698, at *1; Wright, 575 S.W.2d at 407; see also Pope, 787 S.W.2d at 953; In re
Trujillo, 2015 WL 799439, at *1; Lesher, 435 S.W.3d at 431–32; Humphreys, 881
S.W.2d at 944–45. This is not uncommon for a trial court to do when exhibits have
be submitted to the trial court for in camera inspection pursuant to the PIA and then
must be transmitted to an appellate court for review. See, e.g., Paxton, 2019 WL
2119644, at *4 & n.5 (information filed under seal and submitted it to trial court for
in camera inspection pursuant to Texas Government Code section 552.3221;
information then filed under seal in appellate court); Hilburn v. City of Hous., No.
07-15-00158-CV, 2016 WL 269164, at *2 (Tex. App.—Amarillo Jan 21, 2016, pet.
denied) (mem. op.) (after party submitted information to trial for in camera
inspection, pursuant to Texas Government Code section 552.3221, trial court entered
order sealing information); Tex. Appleseed v. Spring Branch Indep. Sch. Dist., No.
01-11-00605-CV, 2012 WL 1379649, at *1 (Tex. App.—Houston [1st Dist.] Apr.
11, 2012, order), disp. on merits, 388 S.W.3d 775 (Tex. App.—Houston [1st Dist.]
2012, no pet.) (noting record in PIA case sealed at trial and on appeal); Abbott v. N.
E. Indep. Sch. Dist., 212 S.W.3d 364, 365 n.1 (Tex. App.—Austin 2006, no pet.)
(noting document at issue in PIA case remained under seal on appeal); Dominguez,
23 48 S.W.3d at 794–95 (where trial court reviews information in camera in PIA case,
“the material must be segregated and produced for the [appellate] court” on appeal;
case remanded to trial court for “further proceedings in which the documents c[ould]
be filed under seal and inspected in camera” and complete record could be available
for appellate review); Hart v. Gossum, 995 S.W.2d 958, 961 (Tex. App.—Fort
Worth 1999, no pet.) (in PIA case, when appellate record filed did not contain
document tendered for in camera review in trial court, trial court clerk asked to
prepare supplemental clerk’s record containing sealed document; trial court held
hearing and found document was accurate copy, document then filed under seal, and
document became part of appellate record); see also 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.) (in PIA case, because appellate record did not contain documents filed
in camera with trial court, appellate court abated appeal and remanded to trial court
to have in camera documents returned to trial court and to have trial court clerk
forward such documents to appellate court in supplemental clerk’s record).
Based on the foregoing, we hold that the trial court did not err in entering its
August 21, 2018 and November 19, 2018 orders in accordance with its October 10,
2017 order and the PIA. See TEX. GOV’T CODE ANN. § 552.3221(a)–(c).
24 Due to our disposition, we need not address Fallon’s first and second issues.19
See TEX. R. APP. P. 47.1.
Conclusion
We affirm the trial court’s August 21, 2018 order, titled “Order to
Permanently Seal Court Records,” and its November 19, 2018 order.
Julie Countiss Justice
Panel consists of Justices Lloyd, Landau, and Countiss.
19 We note that the trial court’s August 21, 2018 order, ruling that the Physicians Network’s four summary-judgment exhibits should be filed “in camera and under seal” and that such exhibits be “permanently sealed,” does reference Texas Rule of Civil Procedure 76a. However, the trial court also stated in its order that the “Physicians Network also ha[d] a right to have [its four summary-judgment exhibits] sealed pursuant to [s]ection[] . . . 552.3221 of the [PIA] as noted in the [trial] [c]ourt’s [o]rder [g]ranting [the Physicians Network’s] Motion to File Summary Judgment Exhibits In Camera issued on October 10, 2017.” It is unnecessary to address the propriety of the trial court’s additional reference to Rule 76a. See TEX. R. APP. P. 47.1.