Stephen L. FELDMAN and the United States Government, Petitioners v. William J. MARKS, Sr., Respondent, 960 S.W.2d 613

PER CURIAM. After William J. Marks, Sr. was informed by the Office of Independent Counsel of the United States Government that he may have failed to file tax returns in certain years and that his tax returns in other years may have been incorrect, he attempted to obtain documents related to those returns from his former accountant, Stephen Feldman.

When Feldman refused to cooperate because of his own concerns about the OIC’s investigation, Marks, worried that Feldman was in ill health, petitioned the district court under Rule 187, Tex.R.Civ.P., to order Feldman’s deposition to preserve his testimony and obtain documents. The district court ordered the deposition as Marks requested, and Feld-man moved for reconsideration. At the hearing on the motion, OIC counsel appeared and urged the court to vacate its order so as not to interfere with an ongoing federal grand jury investigation.

Over Marks’ objection, the court agreed to hear OIC counsel in chambers, outside the presence of Marks and his counsel. A transcript was made of the discussion in chambers, and Marks requested a copy. The district court refused and sealed the transcript. Marks appealed the district court’s refusal to release the transcript under Rule 76a, TexR.Civ.P. The United States argued that the transcript was properly sealed because OIC counsel disclosed to the district court grand jury information made secret by Rule 6(e), Fed.R.Civ.P.

The court of appeals ordered disclosure of the transcript because “the general law does not support the government’s assertion that the secrecy of grand jury investigations required an ex parte-in camera hearing in this case”, and “the ex parte-in camera hearing the trial court held in this proceeding violates both the United States and Texas Constitutions, Texas rules and ease law.” 910 S.W.2d 73, 78. The United States applied to this Court for writ of error. We granted the application on April 12, 1996, 39 Tex. Sup.Ct. J. 451, and heard oral argument on September 4, 1996.

The appellate record does not contain the sealed transcript, despite Marks’ request that “the statement of facts of the hearing”, which should have included the sealed transcript, be made part of the appellate record. Marks learned of the omission while the case was pending in the court of appeals but did not move to supplement the record. Recognizing Marks’ burden as appellant “to see that a sufficient record is presented to show error requiring reversal”, Rule 50(d), Tex. R.App.

P., Marks’ counsel explained the omission to us at oral argument as follows: We designated that sealed material as a part of [the record] in this case. There is no dispute about that. What we later found when it did not come forward is that the trial judge secretly had sent it to the Office of Independent Counsel. No notice was given to us that it was so dispatched. Later we understand it might have been returned by the Office of Independent Counsel, but we have never seen that, we have never been given access to it, and the trial judge secretly sent it to the Office of Independent Counsel.

Although he was not present in chambers for the discussion between the district court and OIC counsel, Marks disputes the United States’ account of what occurred there. Asked at oral argument whether he was willing to concede that OIC counsel disclosed grand jury information to the district court, as the United States contends, Marks’ counsel answered, “No, Your Honor, certainly I am not.” He went on: What happened here went beyond an in camera submission of privileged documents'.

What went on was either argument treated as factual testimony by the judge, or factual testimony by the judge, and we were excluded from any participation. We had no right to cross-examine, no right to advocate our view, no right to make distinctions, no right to object. And this is critical I think: probably 90 percent of what that young lady [OIC counsel] had to say — and she’s a fine lawyer, by the way; this is not intended as criticism — probably 90% of what she had to say to the court was in no sense protected. But we couldn’t be there to assert that.

We had no way of knowing what was happening behind that closed door for 45 minutes. And what happened when the court exited was the judge said: counsel and I have developed a plan; we would like to offer you this plan. If an appellant fails to present a complete statement of facts on appeal, the appellate court must presume that the omitted portions are relevant and support the trial court’s judgment. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.1990) (per curiam); Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987); Murray v. Devco, Ltd., 731 S.W.2d 555, 557 (Tex.1987).

Without the sealed transcript, we are obliged to presume, as was the court of appeals, that the transcript contains grand jury information made secret by Rule 6(e), Fed.R.Civ.P., as the United States contends. Despite this presumption, Marks argues that he is entitled to see the transcript irrespective of what it contains because OIC counsel waived any claim of secrecy by requesting an ex parte hearing in chambers in violation of Texas procedure and Marks’ constitutional rights.

It is possible to decide Marks’ contentions without recourse to the sealed transcript, but we are wary of doing so, for our concern is not limited to the decision of this case. We must be mindful of the effect of this case on others. The procedure used by the district court was extraordinary.

The United States cites only a few cases allowing in camera, ex parte hearings: In re Grand Jury Proceedings, 33 F.3d 342, 351-353 (4th Cir.1994); In re John Doe, Inc., 13 F.3d 633, 636-637 (2nd Cir.1994); In re Grand Jury Proceedings, 867 F.2d 539, 540-541 (9th Cir.1989); In re Antitrust Grand Jury, 805 F.2d 155, 161-162 (6th Cir.1986); In re Eisenberg, 654 F.2d 1107, 1112 (5th Cir.1981). We do not say that these cases are all apposite to the present case, only that they show that the procedure was very unusual. Also, ex parte hearings are disfavored in this State as a rule. Remington Arms Co. v.

Canales, 837 S.W.2d 624, 626 n. 3 (Tex.1992); Barnes v. Whittington, 751 S.W.2d 493, 495 n. 1 (Tex.1988); Global Servs., Inc. v. Bianchi, 901 S.W.2d 934, 938 (Tex.1995). Again, we do not say that these cases are dispositive of the present one, only that they show that a procedure like the one used in this case is ordinarily improper. In these circumstances, we are reluctant to decide an issue involving the secrecy of federal grand jury proceedings and the right of a party to be present at court all proceedings based on presumptions.

Rule 55(c), Tex.R.App.P., states: Should it be apparent during the submission or afterwards that the ease has not been properly prepared as shown in the transcript, or properly presented in the brief or briefs, ... [the appellate court] may ... make such orders as may be necessary to secure a more satisfactory submission of the case.... We read this rule to authorize an appellate court to order an amendment to the appellate record when necessary to a proper presentation of the case.

See also Tex.R.App.P. 51(d) (“The appellate court on its own initiative may direct the clerk of the court below to send to it any original paper or exhibit for its inspection.”). For the reasons explained, we believe it is necessary to a proper submission of this case to direct the district court to transmit the sealed transcript to this Court. As we have said, the burden is ordinarily on the appellant — in this case Marks — to present a complete record in an unrestricted appeal, and appellant’s failure to discharge this burden ordinarily results in presumptions against appellant’s position.

We do not question the wisdom of this rule, but in extraordinary cases — as this one certainly is— the appellate court must have residual authority to complete the record to assure that justice is done. The dissent “admit[s] that there may be circumstances in which this kind of unusual action by our Court would be appropriate”, but complains that the “court gives no guidance about the circumstances under which it will take it upon itself to perfect the record when none of the parties have asked for it”, and “see[s] no reason to give this case special treatment.” Ante at 616.

The short answer to the dissent is that an appellate court may use the authority granted by Rule 55 “as may be necessary to secure a more satisfactory submission of the cause”. While we do not suggest that appellate courts should routinely reconstruct the record presented by the parties, in a ease like this one which has no close precedent in Texas law, which involves by all accounts a procedure that is extraordinary in any jurisdiction, and which involves fundamental interests of opposing parties, the appellate court need not rely on presumptions when answers are at hand.

Accordingly, the district court is directed to immediately transmit to the Clerk of this Court the sealed transcript in this ease.