The DALLAS MORNING NEWS and Public Citizen, Relators, v. The FIFTH COURT OF APPEALS, Respondent, 842 S.W.2d 655

OPINION ACCOMPANYING ORDER OVERRULING MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS AND MOTION FOR TEMPORARY RELIEF GONZALEZ, Justice. This original proceeding derives from a lawsuit by William R. Freeman and others against the Upjohn Company, alleging that Upjohn’s drug, Halcion, caused Freeman to shoot and kill a close acquaintance.

Months before trial, Upjohn sought protection from the dissemination of certain documents provided to the plaintiffs during discovery in a “Motion for Rule 166b Protective Order or, Alternatively, Rule 76a Sealing Order.” Pending in the court of appeals is an appeal of the trial court’s refusal to grant the Upjohn Company’s motion for limitation of disclosure of certain documents under rule 76a of the Texas Rules of Civil Procedure.

The court of appeals issued a temporary order limiting disclosure of the documents to those persons involved in preparing the case for trial, until further order from the appellate court. The case reached trial before the disposition of the rule 76a appeal, and the record is silent as to whether any party requested a continuance. The trial court ruled that there would be no limitation of access to any documents introduced into evidence. Upjohn sought an order from the court of appeals to continue to protect that court’s jurisdiction over the rule 76a appeal.

The court of appeals granted the motion and issued an order limiting disclosure of the documents to those involved in trying the case, (the court, and the jury), and set oral argument on the 76a appeal for November 9, 1992. The Dallas Morning News, Inc. and Public Citizen now seek a writ of mandamus to force the court of appeals to withdraw its order limiting access of the trial exhibits. The press and the public have a right to be present at all proceedings in the trial of the underlying case, and to report all that they observe. There is every indication that relators have availed themselves of this right.

Relators do not complain of any infringement of these rights. Rather, relators assert that they have an absolute right to immediate physical access to inspect and copy any and all exhibits introduced into evidence in the underlying trial of the case. They challenge the order of the court of appeals that temporarily denies them access to these exhibits.

Thus, the focus in this case, despite the dissent’s attempt to cast it elsewhere, is whether the court of appeals abused its discretion in temporarily staying access to trial exhibits while it considers the merits of the appeal in the rule 76a dispute currently pending in the court of appeals. In other words, the issue in this case is whether the court of appeals is authorized to issue an order to protect its jurisdiction over an appeal pursuant to rule 76a of the Texas Rules of Civil Procedure. The court of appeals has such power.

For the above reasons, I join in the Court’s decision to overrule relators’ motion for leave to file petition for writ of mandamus. In order to evaluate whether the court of appeals abused its discretion, we would need to consider what was before the court of appeals when it issued the order now before this Court. The record from that appeal is not before us and the parties differ in their description of the issues entailed in that appeal. We cannot say that the court of appeals was precluded from taking notice of the record in its own pending appeal when it issued the order in question.

It is relators’ burden to bring forward an adequate record to show a right to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992). Having failed to bring forward all that is necessary to establish their claim for relief, relators failed to meet their burden for the issuance of a writ of mandamus. The Texas Constitution provides that the courts of appeals have such appellate and original jurisdiction as prescribed by law. Tex.Const. art. V, § 6.

The Government Code provides that a “court of appeals ... may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court.” Tex.Gov’t Code Ann. § 22.221(a) (Vernon 1988). A court of appeals may issue such a writ to prevent an appeal from becoming moot. Madison v. Martinez, 42 S.W.2d 84, 86 (Tex.Civ.App.—Dallas 1931, writ ref’d). Relators claim that this matter will not become moot because not all of the documents involved in the appeal will be introduced into evidence.

There appears to be no dispute that the documents to be introduced into trial are a subset of the documents on appeal, and the record before us does not show if the documents in dispute have been offered into evidence by the plaintiffs or defendants in the suit. While perhaps the appeal will not be moot as to all documents, it will be moot as to any document that is introduced at trial. The right to appeal only unimportant or irrelevant documents is no right at all. The dissent gives no consideration to the power, and indeed the necessity, of the courts of appeals to protect their jurisdiction.

Courts of appeal routinely assert their right to safeguard jurisdiction. See, e.g., Tanner v. Axelrad, 680 S.W.2d 851, 852 (Tex.App.—Houston [1st Dist.] 1984, writ dism’d) (issuing writ to protect jurisdiction); Becker v. Becker, 639 S.W.2d 23, 24 (Tex.App.—Houston [1st Dist.] 1984, no writ) (“court is empowered to grant injunction relief for the purpose of protecting its jurisdiction over a pending appeal and to preserve the subject matter of the litigation so that its decree will be effective”); Texas Employment Comm’n v.

Norris, 634 S.W.2d 85, 86 (Tex.App.—Beaumont 1982, no writ) (“This Court is authorized to issue such writs as may be necessary to protect the jurisdiction of this Court and to prevent the case from becoming moot”); Mote Resources, Inc. v. Railroad Comm’n of Texas, 618 S.W.2d 877, 878 (Tex.Civ.App.—Austin 1981, no writ) (“A Court of Civil Appeals may issue such writs as are necessary to protect its jurisdiction by preserving the subject matter of the lawsuit pending a hearing in the appeal”). The power of the courts of appeals to protect their jurisdiction is essential for the orderly administration of justice.

Relators claim a right of unfettered access to all exhibits as they are introduced into evidence under their right of freedom of the press under the United States Constitution, citing United States v. Mitchell, 551 F.2d 1252 (D.C.Cir.1976), reversed on other grounds sub nom Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). However, as the Supreme Court noted in Nixon, the right of access is not paramount over all other rights: It is uncontested, however, that the right to inspect and copy judicial records is not absolute.

Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not “used to gratify private spite or promote public scandal” through the publication of “the painful and sometimes disgusting details of a divorce case.” ...

Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption, ..., or as sources of business information that might harm a litigant’s competitive stand-ing_[Citations omitted, emphasis added.] 435 U.S. at 598, 98 S.Ct. at 1312. The issue in that case was whether Warner Communications was entitled to copy for broadcast and sale certain tapes entered into evidence at a criminal trial.

The Court held that the right of the press to report what occurs in open court does not include “guaranteeing] the press ‘access’ to — meaning the right to copy and publish — exhibits and materials displayed in open court.” Id. at 609, 98 S.Ct. at 1317. Relators also argue that they are entitled to the exhibits under the broad protection of speech and press found in

article I,

section 8 of the Texas Constitution. Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992); Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 58 (Tex.1992). Assuming the test announced in Davenport is applicable, the need to protect the right of appeal more than justifies the order of the court of appeals. The test set out in Davenport is: (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm. Davenport, 834 S.W.2d at 10.

The loss of the right to appeal is clearly an imminent and irreparable harm to the judicial process. There has been no suggestion of any lesser measure which would keep the right of appeal intact. The relators have not complained that they have been barred from being present in the courtroom, from observing all proceedings, and from reporting their observations. They merely complain that the exhibits offered into evidence are sealed from public view.

Relators contend that Upjohn was required to make a complete rule 76a showing for any documents that would be introduced into evidence, in addition to the rule 76a proceedings currently on appeal. First of all, we cannot evaluate whether Upjohn satisfied the requirements of rule 76a in the proceedings now on appeal. Neither the documents nor pleadings from the 76a appeal are before us, and, in any event, jurisdiction over those issues remains in the court of appeals.

Second, relators’ arguments are premised on the claim that the only issue in the appeal is whether the documents are court records, which is conclusively established since exhibits introduced into evidence are a fortiori court records. However, as we understand Upjohn’s argument, it is seeking protection on several grounds, including that the documents are protected from disclosure because they involve trade secrets and confidential business information.

Finally, and most importantly, it is not necessary to conduct a hearing under rule 76a in order to insure the trial court’s compliance with an outstanding order from the court of appeals forbidding disclosure. All persons were required to respect the court of appeals’ order until set aside or modified, and Upjohn was not required to do anything more than bring the order to the attention of the trial court.

The dissent is apparently of the view that the press and the public have an absolute right to immediate physical access to all exhibits introduced into evidence and that this right is paramount over all other rights. This is simply not true. If this were so, we would not have exempted all documents filed in an action arising under the Family Code when we promulgated rule 76a, nor would we have denied the request of the television show “A Current Affair” when it requested to copy a surreptitiously recorded video tape introduced into evidence in Boyles v. Kerr, 806 S.W.2d 255 (Tex.App—Texarkana 1991, writ granted).

Also, access to records in juvenile proceedings are limited by statute. See Texas Family Code § 51.14. In sum, there is nothing in our Constitution, laws, or procedure that gives the press and public unlimited access to trial exhibits. Here an open trial is being conducted in the trial of the underlying ease. No one is being denied access to the proceedings. Anyone, including the press, can witness the proceedings, take notes and report anything he or she observes. Thus a contemporaneous review in the public forum is being provided.

Just like the trial court in In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1307 n. 8 (7th Cir. 1984), the case the dissent cites with approval, the court of appeals here has stayed access to relators pending a review of the merits of the rule 76a appeal. The dissent concludes that the court of appeals’ temporary stay of disclosure pending appeal violated the relators’ constitutional rights, and in doing so, necessarily reaches and decides the merits of the appeal.

It decides these weighty issues, and finds the intermediate court lacking, without any acquaintance with the issues and evidence that confronted that court in the appeal. Relators have not presented this Court with the record that was before the court of appeals, or, for that matter, with the record that was before the trial court when it issued the ruling that led to the appeal. Relators, in fact, have provided very little in the way of exhibits.

Upjohn has stated that its proprietary rights and trade secrets are in issue; it is not clear that relators argue to the contrary, but at the very least Upjohn’s contentions raise a disputed issue of fact precluding mandamus relief. Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex.1990). The dissent then necessarily makes its decision without any way of knowing what factors the court of appeals may have weighed. Perhaps it deems a right of access to be absolute, and therefore regards such factors irrelevant.

Under that analysis, rule 76a would be unconstitutional on its face because it purports to allow some records to be sealed, either because they involve family law matters, or because they involve a “specific, serious, and substantial interest” which clearly outweighs the presumption of openness and any adverse effect on the general public health, which interest could not be protected by means less restrictive than sealing the records. See Tex.R.Civ.P. 76a.

If no such balance could be struck by a lower court, if the right of access is absolute, then there would have been little purpose in this Court denying the request for the “sex tape” and shuttling the request for access to the videotape in Boyles to the trial court. No doubt, the dissent would apply the rule to this Court as well. Thus, if the court of appeals had promptly decided the rule 76a appeal, and the issue had been further appealed to this Court, this Court could not reach the merits of the appeal if the underlying case went to trial in the interim.

And, no doubt, little purpose would be served by suing based on a theft of trade secrets or invasion of privacy because the litigation itself would guarantee that both interests would be destroyed. The statute allowing a pseudonym for a rape victim, which was not actually in issue in Star Telegram, would also be constitutionally suspect, since it in effect limits “access” to the main witness. For all of these reasons, I join in the denial of the issuance of this extraordinary writ. PHILLIPS, C.J., and COOK, HECHT, and CORNYN, JJ., join this opinion. SEPARATE OPINION November 11, 1992. PHILLIPS, Chief Justice.

My opinion of October 21, 1992, is withdrawn, and the following is substituted in its place. Although I join in Justice Gonzalez’ Opinion Accompanying Order Overruling Motion for Leave to File Petition for Writ of Mandamus and Motion for Temporary Relief, I write separately to express my regret over the necessity for such a writing, which was issued solely in response to an opinion dissenting from the Court’s decision not to grant leave to file a petition for writ of mandamus.

For most of its existence, this Court has performed its judicial functions without published dissents or concurrences regarding decisions as to the composition of its docket. I believe this tradition has served us well. Whatever personal, institutional or societal benefits might be gained by such utterances are far outweighed by their deleterious effects on the currency of our docket, the orderly development of the law, and the harmonious workings among the justices. I do not challenge the right of any justice to publish a dissent from any action of the Court.

No written court rule, either external or internal, prohibits such action, and no vote was taken by the Court as to the propriety of this action. I express no opinion as to whether the Court could suppress such a writing. See O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (1992) (Phillips, C.J., concurring). Moreover, I in no way question the validity or wisdom of dissenting or separate opinions in general. This Court issued its first concurring opinion in the ninth case decided in its initial term, Winfried v. Yates, Dallam 364 (1840) (Rusk, C.J., Hemphill, Mills, JJ., concurring).

The first dissent was recorded the following term, Fowler v. Poor, Dallam 401, 403 (1841) (Baylor, Hutchinson, JJ., dissenting), and has been an accepted practice ever since. Their value to the orderly development of the law and the workings of this Court in particular, and the American judicial system as a whole, is undeniable. See O’Con-nor, 837 S.W.2d at 96. These attributes are not found in a dissent or concurrence from a court docket order, however, for several reasons. First, this Court’s decision to decline to hear a case is not an adjudication on the merits.

The only meaning of the ruling is that the case will not be heard. Thus, a dissent to such an order ultimately fails to join issue on any substantive legal point. Moreover, a published dissent from such an order has no meaningful disciplining effect on a court opinion. “The prospect of a dissent or separate concurring statement pointing out an opinion’s inaccuracies and inadequacies ... heightens the opinion writer’s incentive to ‘get it right.’ ” Ruth Bader Ginsburg, Remarks on Writing Separately, 65 Wash.L.Rev. 133, 139 (1990). When a case is not accepted for review, this rationale disappears.

Likewise, a dissent from a preliminary order does not benefit from a contemporaneous majority opinion. Thus, in addition to failing to discipline, it suffers from a lack of discipline. Although some members of the majority may respond to the separate opinion, as has been done today, the opinions inevitably do not reflect the considered deliberation present in a decision on the merits. Far from serving a useful benefit, such a dissent may do significant harm.

It may force other justices, whether in the majority or not, to disclose their own votes and the reasons therefor, a destruction of the “confidentiality [that] is especially valuable in the exercise of the kind of discretion that must be employed in processing the thousands of ... petitions that are reviewed each year.” Singleton v. Commissioner, 439 U.S. 940, 946, 99 S.Ct. 335, 339, 58 L.Ed.2d 335 (1978) (Stevens, J., separate opinion). It leaves a dissenter with three choices: (

a) say nothing and potentially be counted with the majority, (

b) join the dissent and assent to the dissenter’s reasoning, or (

c) dissent separately from the first dissenter with a separate opinion, thus revealing his or her conference vote and writing another unnecessary opinion. A justice in the majority is put to a similar election of having his or her views portrayed solely by the dissenting justice or justices, joining another responding opinion, or preparing a separate writing. This has the practical and pernicious effect of allowing a determined dissenter to alter the Court’s agenda, forcing one or more writings on a case the Court has, pursuant to its own rules, decided to decline.

Our rule of four votes to grant an application for writ of error or five votes to grant leave to file writ of mandamus can thus become a rule of one. This tyranny of the minority is particularly unwelcome at a time when some justices publicly assert that the Court is not timely disposing of the cases it does accept. See Greathouse, Indep. Ex’x. v. Charter Nat’l. Bank-Southwest, 35 Tex.S.Ct.J. 1017, 1020, 1992 WL 379408 (July 1, 1992) (Dog-gett, J., concurring); Delaney v. The University of Houston, 835 S.W.2d 56, 61 (1992) (Doggett, J., concurring).

Only once before in the history of our Court have such opinions been issued with any frequency. Between 1916 and 1919, Associate Justice William E. Hawkins issued a number of dissenting or concurring opinions to decisions of the Court not to grant application for writ of error. See, e.g., State Nat. Bank of San Antonio v. East Coast Oil Co. S.A., 109 Tex. 510, 212 S.W. 621 (1919) (Hawkins, J., dissenting from denial of application for writ of error and overruling of motion for rehearing); Hicks v.

Faust, 109 Tex. 481, 212 S.W. 608 (1919) (Hawkins, J., dissenting from denial of application for writ of error and overruling of motion for rehearing); Scott v. Shine, 109 Tex. 412, 202 S.W. 726 (1918) (Hawkins, J., dissenting from overruling of motion for rehearing on application for writ of error and to recall from committee of justices of courts of civil appeals); Terrell v. Middleton, 108 Tex. 14, 191 S.W. 1138 (1917) (Hawkins, J., concurring in refusal of application for writ of error); Beaty v. Missouri, K. & T. Ry.

Co. of Texas, 108 Tex. 82, 185 S.W. 298 (1916) (Hawkins, J., dissenting from overruling of motion for rehearing of denial of application for writ of error); El Paso & S. W. Co. v. La Londe, 108 Tex. 67, 184 S.W. 498 (1916) (Hawkins, J., concurring in overruling of motion for rehearing of denial of application for writ of error). See also In re Subdivision Six of Supreme Court Jurisdiction Act of 1917, 201 S.W. 390 (1918) (Hawkins, J., dissenting). These opinions ended when Hawkins lost to William Pierson in 1920, becoming the first member of our Court to be denied re-election by the voters.

It is ironic that this relapse comes now that the Legislature has restored greater discretionary jurisdiction to this Court. See Tex.Govt.Code § 22.001(a)(6); Ted Z. Robertson & James W. Paulsen, Rethinking the Texas Writ of Error System, 17 Tex.Tech.L.Rev. 1 (1986). As we no longer serve primarily to correct the errors of lower courts, there is even less justification for opinions- such as those issued in this case. . It is not our usual practice to write opinions explaining why we overrule motions for leave to file petition for writ of mandamus.

But for the dissenting opinion in this case, this opinion would not be necessary. I am compelled to write because the dissenting opinion does not tell the whole story and misstates the law in several respects. . Undoubtedly, it would be preferable to resolve a rule 76a appeal before conducting a trial on the merits. Any party may request expedited treatment from the court of appeals. See Tex. R.App.P. 42(b).

Even when every effort is made to resolve the rule 76a appeal with dispatch, there will certainly be instances when the appeal cannot be resolved before the trial on the merits. .As previously noted, oral argument in the court of appeals is only three weeks away. . The applicability of the Davenport test to situations not involving a gag order in civil judicial proceedings has not been conclusively established by this Court. The United States Supreme Court recognizes the difference between the right of access and the right to be free from prior restraint. Gannett Co. v.

DePasquale, 443 U.S. 368, 391-393 & n. 25, 99 S.Ct. 2898, 2911-12 & n. 25, 61 L.Ed.2d 608 (1978); Nixon v. Warner Communications, Inc., 435 U.S. at 608-09, 98 S.Ct. at 1317; see also Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 432-33 (5th Cir.1981). . See Texas Rules of Civil Procedure 76a 2(a)(3). . See 815 S.W.2d 545. .

One contemporary scholar called Hawkins "one of the ablest judges who has served upon the Supreme Court of Texas in recent years,” concluding: “The numerous opinions written by him disclose the superior judicial attainments, clear analysis, careful and painstaking research, forceful, convincing reasoning, and mature judgment which have characterized the learning of the greatest jurists who have served in that exalted tribunal.” J.A. Davenport, The History of the Supreme Court of the State of Texas 275 (1917). But he authored frequent, sometimes lengthy dissents, see, e.g., San Antonio & Aran-sas Pass Ry. Co. v.

Blair, 108 Tex. 434, 441-555, 196 S.W. 1153, 1153-1198 (1917), and relationships among the justices became strained. See, e.g., Allen v. Pollard, 109 Tex. 536, 539-40, 212 S.W. 468, 469 (1919) (Hawkins, J.) . I have located only one other such opinion prior to 1990, Mutual Life Ins. Co. of New York V. Hayward, 88 Tex. 315, 30 S.W. 1049 (1895) (Alexander, J., special associate justice, dissenting from granting of application for writ of error), but I assume that other examples may exist. See El Paso & S. W. Co. v.

La Londe, 108 Tex. at 68, 184 S.W. at 498. .Tex.Govt.Code § 22.001(a)(6) currently reads in part: "The supreme court has appellate jurisdiction ... in ... any other case in which it appears that an error of law has been committed by the court of appeals, and that error is of such importance to the jurisprudence of the state that, in the opinion of the supreme court, it requires correction ...” From 1927 to 1987, the

section accorded jurisdiction over “an error of substantive law” that "affects the judgment ...” Tex.Govt.Code § 22.001 (Vernon 1985), Acts 1985, 69th Leg., ch. 480, § 1; see Tex.Rev. Civ.Stat.Ann. art. 1728(6) (Vernon 1962), Acts 1927, 40th Leg., ch. 144, § 1. From 1917 to 1927, the

section accorded jurisdiction over “an error of law ... of such importance to the jurisprudence of the State, as in the opinion of the Supreme Court requires correction....” Tex.Rev.Civ.Stat.Ann. art. 1728(6) (1925), Acts 1917, 35th Leg., ch. 75, § 1.