Texas

Author

Thomas S. Leatherbury
Vinson & Elkins LLP
Trammell Crow Center
2001 Ross Avenue, Suite 3900
Dallas, TX 75201
tleatherbury@velaw.com

Peter T. Thomas
2200 Pennsylvania Avenue NW
Suite 500 West
Washington, DC 20037
petethomas@velaw.com

Last updated January 30, 2020

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Open Courts Compendium

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I. Introduction: Access rights in the jurisdiction

The Texas state court system has two co-equal courts atop its appellate hierarchy.

The Supreme Court of Texas is the court of last resort for civil and juvenile cases, and the Court of Criminal Appeals is the court of last resort for criminal cases.  In all cases except death penalty cases, which are appealed directly to the Court of Criminal Appeals from the trial level, the high courts hear appeals from the fourteen intermediate courts of appeals.

The courts of appeals have regional jurisdiction across Texas and serve as intermediate appellate courts, similar to the Circuit Courts in the federal court system.

There are two categories of courts whose decisions are appealed to the courts of appeals, the district courts and the county courts.  The district courts have overlapping original jurisdiction over civil actions with the county courts for civil actions worth over $500, and additionally have jurisdiction over felony cases and juvenile matters.  In more populous counties, some district courts are specialized for criminal or other matters.  There are three types of county courts: Constitutional county courts; Statutory county courts, and Statutory probate courts.  The Constitutional county courts have original jurisdiction over civil cases valued at between $200 and $10,000 ($20,000 beginning September 1, 2020), as well as jurisdiction over probate and guardianship matters, misdemeanors with jail sentences or possible fines of at least $500, and juvenile matters.  The Constitutional county courts also hear de novo appeals from the local courts.  The Statutory county courts have jurisdiction mirroring the Constitutional county courts, except that the courts have jurisdiction over civil cases ranging from $500 to $200,000 ($250,000 beginning September 1, 2020) or higher.

The Statutory probate courts handle probate and guardianship matters.

There are two categories of local courts: Justice courts and the Municipal courts.  The Justice courts are not courts of record, and have jurisdiction over civil actions valued at $10,000 or less, small claims, and misdemeanors that do not carry a sentence of imprisonment.  The Justice courts also conduct magistrate functions.  The Municipal courts are mostly not courts of record, and have jurisdiction over misdemeanors that do not carry a sentence of imprisonment, municipal ordinance criminal cases, and some limited civil jurisdiction.  The Municipal courts also conduct magistrate functions.

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A. The roots of access rights

The First Amendment of the U.S. Constitution, as applied to the States by the Fourteenth Amendment, protects the public’s presumptive right of access to criminal proceedings in Texas.  See Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 103 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982)); Express-News Corp. v. McRae, 787 S.W.2d 451, 452 (Tex. App.—San Antonio 1990, orig. proceeding); Ex parte F.T.K., No. 13-16-00535-CV, 2018 WL 2440545, at *2 (Tex. App.—Corpus Christi–Edinburg May 31, 2018, no pet.) (mem. op.).  As the United States Supreme Court has noted, this right obligates courts to “take every reasonable measure to accommodate public attendance at criminal trials.”  Presley v. Georgia, 558 U.S. 209, 215 (2010) (per curiam).  As the right of access lies with the public, it exists even when no party to the proceeding asserts it.  See id. at 214.

The Supreme Court of Texas and the Court of Criminal Appeals have likewise recognized a constitutional right of public and media access to the judicial process under the Texas Constitution.  See Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 56 (Tex. 1992) (citing Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992)); Houston Chronicle Publ’g Co. v. Shaver, 630 S.W.2d 927, 933–34 (Tex. Crim. App. 1982) (en banc); see also Tex. Const. art. I, § 8 (“Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press”).

In addition to the Texas Constitution’s protections, the Texas Code of Criminal Procedure protects the public’s right of access to criminal proceedings.  See San Antonio Express-News v. Roman, 861 S.W.2d 265, 267 n.1 (Tex. App.—San Antonio 1993, orig. proceeding) (noting that “the media cannot be prevented from publishing accounts of judicial proceedings” and citing to Article 1.24 of the Texas Code of Criminal Procedure); see also Tex. Code Crim. Proc. Ann. art. 1.24 (“The proceedings and trials in all courts shall be public.”).  Along these lines, Article 1.24 of the Texas Code of Criminal Procedure manifests “a lasting expression of the legislative will . . . that a right of access to ‘proceedings and trials in all courts’ in the public in general and the press in particular prevails.”  Shaver, 630 S.W.2d at 932.  However, public access to criminal proceedings is limited in certain contexts, such as jury deliberations, grand jury proceedings, and in camera reviews.  See Roman, 861 S.W.2d at 267 n.1.

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B. Overcoming a presumption of openness

In the First Amendment context, an intermediate Texas court of appeals has recognized that “to pass constitutional muster and overcome the presumption of openness, a trial court must: (1) identify an overriding or compelling interest; (2) make findings, sufficiently specific for review, that the exclusion of the public and/or media is essential to preserve higher values; and (3) consider whether alternatives to total exclusion or closure are available in order to narrowly tailor the solution to serve the identified interest or value.”  Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 105 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509–11 (1984)).  For closure to survive review, the trial court must do more than merely articulate the interest that it is attempting to protect through closure, but must instead explain how closure would protect that interest.  See id. at 105–06.  Likewise, the court must entertain alternatives to closure on the record.  See id. at 106.

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C. Procedural prerequisites to closure

In the First Amendment context, an intermediate Texas court of appeals has recognized that “to pass constitutional muster and overcome the presumption of openness, a trial court must: (1) identify an overriding or compelling interest; (2) make findings, sufficiently specific for review, that the exclusion of the public and/or media is essential to preserve higher values; and (3) consider whether alternatives to total exclusion or closure are available in order to narrowly tailor the solution to serve the identified interest or value.”  Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 105 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509–11 (1984)).  For closure to survive review, the trial court must do more than merely articulate the interest that it is attempting to protect through closure but must instead explain how closure would protect that interest.  See id. at 105–06.  Likewise, the court must entertain alternatives to closure on the record.  See id. at 106.

Interested parties, of course, can consider filing an intervention for the limited purpose of seeking access.  Such an intervention may more squarely tee up questions of standing, the right to be heard, and the right to challenge on appeal any adverse trial court ruling.

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II. Procedure for asserting right of access to proceedings and records

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A. Media standing to challenge closure

In general, standing under Texas law requires “[1] a real controversy between the parties[;] which [2] will be actually determined by the judicial declaration sought.”  In re Fort Worth Star Telegram, 441 S.W.3d 847, 850 (Tex. App.—Fort Worth 2014, orig. proceeding) (quoting Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (parentheses omitted)).

As a general rule, members of the public, including the press, “must be given an opportunity to be heard on the question of their exclusion” when a court seeks to close proceedings to public access.  Globe Newspaper Co. v. Superior Court 457 U.S. 596, 609 n.25 (1982) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)).  Along these lines, “[c]ourts have routinely recognized that members of the press possess standing to seek relief from orders barring them from a courtroom.”  In re Fort Worth Star Telegram, 441 S.W.3d at 850.

Mootness poses a standing problem to courtroom closure challenges by members of the press, given that the closed proceedings are likely to have concluded before relief from a reviewing court is possible.  However, closure may fall under the mootness doctrine’s capable-of-repetition-yet-evading-review exception.  See, e.g., id. at 852; Texas A&M University-Kingsville v. Yarbrough, 347 S.W.3d 289, 290 (Tex. 2011) (noting that the capable-of-repetition-yet-evading-review exception is “rare”).  To prevail under this exception, challengers “must establish both that the challenged act is of such short duration that the issue becomes moot before review may be obtained and that a reasonable expectation exists that the same complaining party will be subjected to the same action again.”  In re Fort Worth Star Telegram, 441 S.W.3d at 852.

Thus, media challengers to a courtroom closure have qualified for standing under this mootness exception after showing that (1) the trial court issued its closure orders sua sponte without relying on evidence in the record; (2) the trial court had issued similar orders before; and (3) the hearings subject to the closure orders concluded the same day they began.  See id.  In another case, a similarly situated challenger to a courtroom closure satisfied the exception’s requirements because (1) the proceedings in question often resolved quickly; and (2) the trial court had incorrectly stated that it “was entitled to exclude the media from voir dire” proceedings.  Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 101–02 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding).

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B. Procedure for requesting access in criminal cases

There is not a specific Texas Rule of Criminal Procedure governing third party access to criminal court proceedings.  However, in at least one criminal case, a trial court ruled on a third party’s written objection to a court’s decision to exclude members of the public from criminal proceedings.  See Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 101 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding).  Given that the Supreme Court has said members of the public “must be given an opportunity to be heard on the question of their exclusion” from court proceedings, Globe Newspaper Co. v. Superior Court 457 U.S. 596, 609 n.25 (1982) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)), Texas trial courts may entertain non-party motions for access to the courtroom or motions to reconsider a decision to close the courtroom to the public.

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C. Procedure for requesting access in civil matters

While Texas Rule of Civil Procedure 76a(3)-(4) provides that “any person” may, “as a matter of right,” “intervene and be heard concerning the sealing of court records,” there is not a similar rule regarding intervening to access court proceedings in civil matters.  However, in at least one criminal case, a trial court ruled on a third party’s written objection to a court’s decision to exclude members of the public from criminal proceedings.  See Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 101 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding).  Given that the Supreme Court has said members of the public “must be given an opportunity to be heard on the question of their exclusion” from court proceedings, Globe Newspaper Co. v. Superior Court 457 U.S. 596, 609 n.25 (1982) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)), Texas trial courts may entertain non-party motions for access to the courtroom or motions to reconsider a decision to close the courtroom to the public.

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D. Obtaining review of initial court decisions

At least in the criminal context, pursuing a writ of mandamus is the appropriate procedure to challenge a wrongful exclusion from court proceedings.  See Houston Chronicle Publ’g Co. v. Shaver, 630 S.W.2d 927, 934 (Tex. Crim. App. 1982) (en banc); In re Fort Worth Star Telegram, 441 S.W.3d 847, 853 (Tex. App.—Fort Worth 2014, orig. proceeding); Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 101 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding).  The challengers in a mandamus action, called relators, must prove (1) that there is no adequate remedy by appeal of the action subject to challenge; and (2) that the trial court abused its discretion.  See Crapitto, 907 S.W.2d at 102.

Texas courts of appeals have consistently recognized that the press has no remedy by appeal when it is excluded from a courtroom, thus satisfying the first mandamus element.  See id.; In re Fort Worth Star Telegram, 441 S.W.3d at 853.

Under the abuse of discretion standard of the second mandamus element, a reviewing court may intervene only if the trial court’s decision was “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.”  See Crapitto, 907 S.W.2d at 102 (quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)).  A court abuses its discretion when it fails to “(1) identify an overriding or compelling interest; (2) make findings, sufficiently specific for review, that the exclusion of the public and/or media is essential to preserve higher values; and (3) consider whether alternatives to total exclusion or closure are available in order to narrowly tailor the solution” based on the interest at stake before closing the courtroom.  Id. at 105 (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509–11 (1984)).

In civil cases, Texas Rule of Civil Procedure 76a(8) creates a right to immediately appeal the trial court’s decision on sealing court records:

Any order (or portion of an order or judgment) relating to sealing or unsealing court records shall be deemed to be severed from the case and a final judgment which may be appealed by any party or intervenor who participated in the hearing preceding issuance of such order. The appellate court may abate the appeal and order the trial court to direct that further public notice be given, or to hold further hearings, or to make additional findings.

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III. Access to criminal proceedings

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A. In general

The Court of Criminal Appeals has recognized that the public and media have a right to attend criminal court proceedings under the Texas Constitution and Texas law.  See Houston Chronicle Publ’g Co. v. Shaver, 630 S.W.2d 927, 933–34 (Tex. Crim. App. 1982) (en banc) (finding that courts are “not authorized effectively to close out the public and media from the proceeding[s] that our State law commands shall be open”).  The Texas Constitution provides that “[e]very person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”  Tex. Const. art. I, § 8.  Further, the Texas Constitution, similar to the federal Constitution, protects a defendant’s right to a “speedy public trial.”  Id. art. I, § 10 (emphasis added).  Accordingly, Article 1.24 of the Texas Code of Criminal Procedure, which requires proceedings and trials in all courts to be public, manifests “a lasting expression of the legislative will . . . that a right of access to ‘proceedings and trials in all courts’ in the public in general and the press in particular prevails.”  Shaver, 630 S.W.2d at 932; see also Tex. Code Crim. Proc. Ann. art. 1.24 (“The proceedings and trials in all courts shall be public”).

There are some limitations on the public’s right of access to criminal proceedings.  First, public access is generally not permitted in proceedings where access would not be appropriate, such as jury deliberations, grand jury proceedings, and in camera reviews.  See Roman, 861 S.W.2d at 267 n.1.  Second, the right of access is circumscribed by the media’s responsibility for any “abuse of the privilege.”  See Shaver, 630 S.W.2d at 933; Tex. Const. art. I, § 8.

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B. Pretrial proceedings

Texas courts of appeals have recognized that the presumptive right of access applies to pretrial proceedings. See Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 103 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (citing to U.S. Supreme Court cases applying the media’s right of access to preliminary hearings); Houston Chronicle Publ’g Co. v. Dean, 792 S.W.2d 273, 274 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding) (pre-trial motion to transfer venue).

The Texas Court of Criminal Appeals has similarly ruled that Court of Inquiry proceedings must remain open to the public, as required specifically by Article 52.07 of the Texas Code of Criminal Procedure.  See Eagle Printing Co. v. Delaney, 671 S.W.2d 883, 887–88 (Tex. Crim. App. 1984) (en banc); see also Tex. Code Crim. Proc. Ann. art. 52.07 (“All evidence taken at a Court of Inquiry shall be transcribed by the court reporter and all proceedings shall be open to the public”).  The court declined to weigh competing interests against the public’s right of access to criminal proceedings, noting that there were competing Sixth Amendment and First Amendment interests in federal cases where courts engaged in a balancing analysis.  See Eagle Printing, 671 S.W.2d at 887.  Later receiving a transcript “is no substitute for public presence during the proceedings.”  Id. at 888.

While not controlling over Texas state courts, federal precedent may be referenced as persuasive precedent where helpful when interpreting the Texas Constitution.  See Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex. 1992).  The Fifth Circuit’s opinion in United States v. Chagra determined that the First Amendment right of access applies to pretrial criminal proceedings and bail reduction hearings.  See 701 F.2d 354, 363–64 (5th Cir. 1983).  That court based its decision on the modern importance of pretrial procedure and reasoned that the lack of historic importance of these proceedings did not preclude a right of access to these hearings.  See id. at 363.

A federal district court sitting in Texas has further refined the right of pretrial access by differentiating between pre-indictment and post-indictment proceedings. See United States v. Ketner, 566 F. Supp. 2d 568, 587 (W.D. Tex. 2008).  In that case, the would-be intervenor asked the court to unseal all plea agreements and open all plea hearings in the case.  See id. at 571.  The court, reasoning that pre-indictment plea agreements are tools used in prosecutors’ regular exercise of prosecutorial discretion, concluded that there is no right of public access to proceedings associated with an investigation, even after a plea agreement is reached.  See id. at 587.

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C. Criminal trials

The Court of Criminal Appeals has recognized that the public and media have a right to attend criminal court proceedings under the Texas Constitution and Texas law.  See Houston Chronicle Publ’g Co. v. Shaver, 630 S.W.2d 927, 933–34 (Tex. Crim. App. 1982) (en banc).  The Texas Constitution provides that “[e]very person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”  Tex. Const. art. I, § 8.  Further, the Texas Constitution, similar to the federal Constitution, protects a defendant’s right to a “speedy public trial.”  Tex. Const. art. I, § 10 (emphasis added).  Accordingly, Article 1.24 of the Texas Code of Criminal Procedure, which requires proceedings and trials in all courts to be public, manifests “a lasting expression of the legislative will . . . that a right of access to ‘proceedings and trials in all courts’ in the public in general and the press in particular prevails.”  Shaver, 630 S.W.2d at 932; see also Tex. Code Crim. Proc. Ann. art. 1.24 (“The proceedings and trials in all courts shall be public.”).

Trial courts are “without power to prohibit the publication of testimony presented during the trial of a criminal case.”  Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 57 (Tex. 1992) (citing Ex parte Foster, 71 S.W. 593 (Tex. Crim App. 1903)).  Thus, it was improper for a court to exclude the public from a hearing that took place during the course of trial.  See Shaver, 630 S.W.2d 927 (conducting part of a hearing in camera during a trial violated the public’s right of access).  It was similarly improper for a court to exclude the public from voir dire proceedings at the outset of trial absent a sufficient articulation of a consideration outweighing the public’s right of access.  See Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 103, 105 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (collecting U.S. Supreme Court cases and permitting court access to voir dire proceedings and similarly applying constitutional protections to voir dire).

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D. Post-trial proceedings

The Court of Criminal Appeals has accordingly determined that hearings associated with a postconviction petition for habeas corpus constitute proceedings which must be public, and closure of such proceedings is “[m]anifestly” contrary to Article 1.24 of the Texas Code of Criminal Procedure.  See Houston Chronicle Publ’g Co. v. McMaster, 598 S.W.2d 864, 866 (Tex. Crim. App. 1980) (en banc).  In addition to the statutory requirements that such proceedings be open, the McMaster court recognized, as a secondary public policy justification, that “[i]f the system failed [the defendant], it at once surely disserved the public. In demonstrating that failure before their very eyes, if he can, [the defendant] will provide the public with some information on which to base adjustment or reform in the criminal justice system.”  Id. at 867.

While not controlling over Texas state courts, federal precedent may be referenced as persuasive precedent where helpful when interpreting the Texas Constitution.  See Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex. 1992).  The Fifth Circuit has agreed with other federal Circuit Courts that the First Amendment protects the public’s right to access sentencing proceedings.  See In re Hearst Newspapers, L.L.C., 641 F.3d 168, 176 (5th Cir. 2011).  The Hearst Newspapers court considered a number of factors in support of its conclusion that the public has a right of access to these proceedings, including that sentencing hearings were historically open to the public and that public presence can serve as a check on impulsive sentencing decisions.  See id. at 177–86.

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E. Appellate proceedings

The Court of Criminal Appeals of Texas has recognized that the public and media have a right to attend criminal court proceedings under the Texas Constitution and Texas law.  See Houston Chronicle Publ’g Co. v. Shaver, 630 S.W.2d 927, 933–34 (Tex. Crim. App. 1982) (en banc).  The Texas Constitution provides that “[e]very person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”  Tex. Const. art. I, § 8.

In the habeas corpus context, the Court of Criminal Appeals recognized a public policy interest in open post-trial proceedings.  See Houston Chronicle Publ’g Co. v. McMaster, 598 S.W.2d 864, 866 (Tex. Crim. App. 1980) (en banc).  Namely, the court noted that “[i]f the system failed [the defendant], it at once surely disserved the public. In demonstrating that failure before their very eyes, if he can, [the defendant] will provide the public with some information on which to base adjustment or reform in the criminal justice system.”  Id. at 867.

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IV. Access to criminal court records

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A. In general

There is very little direct authority in Texas on public access to criminal court records.  Courts may, however, look to cases addressing other areas of law, such as the Texas Public Information Act (“PIA”).  In a civil case about the public disclosure of documents under the PIA, the Supreme Court of Texas recognized a presumptive right of public access to judicial records.  See Paxton v. City of Dallas, 509 S.W.3d 247, 259 (Tex. 2017) (“[A] court’s discretion to seal records is bounded by a long-established legal tradition of the presumptive right of the public to inspect and copy judicial documents and files” (citation omitted)); see also Ex parte F.T.K., No. 13-16-00535-CV, 2018 WL 2440545, at *2 (Tex. App.—Corpus Christi–Edinburg May 31, 2018, no pet.) (mem. op.) (“It is constitutionally presumed that judicial records are open to the public.”); Express-News Corp. v. McRae, 787 S.W.2d 451, 452 (Tex. App.—San Antonio 1990, orig. proceeding) (“The public’s right to public trials under the First and Fourteenth Amendments to the United States Constitution includes a presumption that judicial records will be open to inspection by the press and public.”); Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177, 186 (Tex. App.—Houston [14th Dist.] 1975), writ ref’d n.r.e., 536 S.W.2d 559 (Tex. 1976) (per curiam) (“We hold that the press and the public have a constitutional right of access to information concerning crime in the community, and to information relating to activities of law enforcement agencies.”).  In another civil case about the publication of information heard in a criminal trial and entered into the court’s public record, the Texas Supreme Court agreed with the United States Supreme Court that “[a] trial is a public event.  What transpires in the court room is public property.”  Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 57 n.5 (Tex. 1992) (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)).

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B. Arrest records

In a case under the Texas Public Information Act (“PIA”), one Texas court of appeals has held that there is a constitutional right to access basic information about crime.  See Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177, 186 (Tex. App.—Houston [14th Dist.] 1975), writ ref’d n.r.e., 536 S.W.2d 559 (Tex. 1976) (per curiam); see also City of Carrollton v. Paxton, 490 S.W.3d 187, 199 (Tex. App.—Austin 2016, pet. denied) (tracing the history of Section 552.108(c) in the Texas Public Information Act and noting that the Supreme Court of Texas has neither rejected nor endorsed the holding in Houston Chronicle Publ’g Co. v. City of Houston).  Texas courts defer to the legislature for balancing the public’s right of access to non-judicial government records against abuses of such access.  See Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 675 (Tex. 1976).  The current statute on the public’s right of access to government records (but not court records) is the Texas Public Information Act (“PIA”).

Under the PIA, the public is entitled to basic information in police records about arrests and arrested persons.  See Tex. Gov’t. Code Ann. §§ 552.108(c), 552.021.  “Basic information includes an arrestee’s name, alias, social security number, race, sex, age, occupation, physical condition, name of arresting officer, and the charge, as well as a detailed description of the offense.”  Thomas v. Cornyn, 71 S.W.3d 473, 479 (Tex. App.—Austin 2002, no pet.) (citing Tex. Att’y Gen. ORD-127 (1976)).  However, detailed criminal histories, or “rap sheets,” that list each of a person’s arrests are generally not subject to disclosure because of common-law privacy concerns.  See City of Carrollton v. Paxton, No. 03-13-00838-CV, 2016 WL 1566400, at *3 n.22 (Tex. App.—Austin Apr. 4, 2016, no pet.) (collecting a line of cases noting the privacy issues with publicly disclosing detailed criminal histories).

The expungement statute is a “narrow” exception to the general presumption of openness for arrest records and allows individuals to erase records of wrongful arrests.  See Ex parte F.T.K., No. 13-16-00535-CV, 2018 WL 2440545, at *2 (Tex. App.—Corpus Christi–Edinburg May 31, 2018, no pet.) (mem. op.) (citing In re State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014)); see also Tex. Code Crim. Proc. Ann. art. 55.01(a).  Accordingly, courts adhere strictly to the expungement statute’s requirements.  See Ex parte F.T.K., 2018 WL 2440545, at *2.

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C. Dockets

While no published Texas court opinion has expressly recognized a public right of access to court dockets, the general presumptive right of public access to judicial records likely applies to dockets with the same force as other public judicial records.  Cf. Paxton v. City of Dallas, 509 S.W.3d 247, 259 (Tex. 2017); see also Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 665 (Tex. 1992) (Doggett, J., dissenting); Ex parte F.T.K., No. 13-16-00535-CV, 2018 WL 2440545, at *2 (Tex. App.—Corpus Christi–Edinburg May 31, 2018, no pet.) (mem. op.); Express-News Corp. v. McRae, 787 S.W.2d 451, 452 (Tex. App.—San Antonio 1990, orig. proceeding); Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177, 186 (Tex. App.—Houston [14th Dist.] 1975), writ ref’d n.r.e., 536 S.W.2d 559 (Tex. 1976) (per curiam).

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D. Warrants, wiretaps and related materials

Ordinarily, an affidavit accompanying a search warrant application becomes a public record once the warrant is executed.  See Tex. Code Crim. Proc. Ann. art. 18.01(b).  Generally, there are no exceptions to this rule.  See Houston Chronicle Publ’g Co. v. Edwards, 956 S.W.2d 813, 817 (Tex. App.—Beaumont 1997, no pet.).  However, courts may seal search warrant affidavits for 31 days, subject to a 30-day extension, in felony proceedings where the state’s attorney shows that public disclosure would contravene a compelling state interest by (1) threatening the safety of a witness or the destruction of evidence; or (2) disclosing information from an authorized wiretap that is still in effect.  See Tex. Code Crim. Proc. Ann. art. 18.011.  These rules also apply to warrants targeting electronic data stored in the cloud by an electronic communications service provider.  See id. art. 18B.354.

Arrest warrants are public records that must be publicly disclosed upon execution.  See id. art. 15.26.

Applications and orders issued to authorize the use of Pen Registers, Esn Readers, Trap and trace devices, and similar equipment must be sealed.  See id. art. 18B.105.  Similarly, recordings of wiretaps made during the period of a court-authorized interception order must be sealed upon the expiry of that order.  See id. art. 18A.453.

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E. Discovery materials

The Texas Public Information Act (“PIA”) controls the disclosure of public information held by law enforcement authorities.  However, information relating to the detection, investigation, or prosecution of crimes that is held by prosecutors or other law enforcement agencies is exempt from public disclosure under the PIA if (1) the disclosure would interfere with law enforcement activities; (2) the information deals with a case where there was no conviction or deferred prosecution; (3) the information relates to a threat against a peace officer or detention officer; or (4) it is a state’s attorney’s work product.  See Tex. Gov’t. Code § 552.108(a).

Generally, the defense may not publicly disclose any discovery materials produced by the state, unless those materials are already public, or the court orders public disclosure after a hearing and upon a showing of good cause, considering the privacy interests of the victim or witness.  See Tex. Code Crim. Proc. Ann. art. 39.14(e).

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F. Pretrial motions and records

A Texas court of appeals ruled that a court could not seal the transcript of a hearing on a motion to transfer venue that the public was barred from attending.  See Houston Chronicle Publ’g Co. v. Dean, 792 S.W.2d 273, 274 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding).  The court relied on the public access requirement of Article 1.24 of the Texas Code of Criminal Procedure in its decision, noting simply that the provision requires criminal trials and proceedings to be public.  See id.

Once filed with a court, an indictment becomes part of the public record.  See Star-Telegram, 834 S.W.2d at 57 & n.4 (citing Tex. Code Crim. Proc. Ann. art. 1.24).  However, when a grand jury presents an indictment for an individual not already in custody or under bond, the indictment may not become public or entered into the court’s record until the defendant is in custody or has made bond.  See Tex. Code Crim. Proc. Ann. art. 20.22(a)–(b).

Subpoenas in criminal proceedings may or may not be filed under seal.  See id. art. 24.01(d).  On the other hand, an attachment, which is a writ commanding a peace officer to bring a witness before a court, magistrate, or grand jury in order to testify, must be filed under seal.  See id. art. 24.11.

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G. Trial records

There is very little direct authority in Texas on public access to criminal trial records.  But in a civil case about the publication of information heard in a criminal trial and entered into the court’s public record, the Texas Supreme Court agreed with the United States Supreme Court that “[a] trial is a public event.  What transpires in the court room is public property.”  Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 57 n.5 (Tex. 1992) (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)).  In one civil case, the Supreme Court of Texas determined that an indictment, motion in limine, and jury charge became part of the public record once filed with the court in a criminal case.  Star-Telegram, 834 S.W.2d at 57 & n.4 (citing Tex. Code Crim. Proc. Ann. art. 1.24).  In that case, the victim allowed the prosecution to use her real name, as opposed to a pseudonym, during trial to increase the likelihood of a conviction.  See id. at 56.  This permission was conditioned upon the State’s promise to seal the court record afterwards to protect the victim’s privacy.  See id.  A member of the press challenged the eventual protective order.  See id. The Supreme Court granted the challenger’s writ of mandamus and determined that trial court’s post-trial protective order closing the court records and expunging a victim’s name from them “could not retroactively abrogate the press’ right to publish public information properly obtained from open records.”  Id.

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H. Post-trial records

Nothing limits the application of the general presumption of access to criminal post-trial motions or other similar records filed with the court.

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I. Appellate records

The Texas Rules of Appellate Procedure provide that sensitive data, such as bank account numbers or social security numbers, generally must be redacted, unless a court orders otherwise.  See Tex. R. App. P. 9.10.  There are a number of exemptions to this general prohibition, such as if the filing is an arrest or search warrant.  See Tex. R. App. P. 9.10(c).  Further, materials sealed pursuant to statutory requirements must be treated according to the applicable statute.  See Tex. R. App. P. 9.10(g).  Courts may order that documents be filed under seal without redaction, and later unseal or order a redacted version be supplied for the public record.  See id.

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J. Other criminal court records issues

Nothing further to report.

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V. Access to civil proceedings

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A. In general

The Supreme Court of Texas has recognized the press and the public’s right to attend civil court proceedings.  See Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 657–660 (Tex. 1992) (recognizing that the press and public have the “right to be present at all proceedings in the trial of the underlying case, and to report what they observe”); Star-Telegram, Inc. v. Walker 834 S.W.2d 54, 56 (Tex. 1992) (recognizing that its test prohibiting prior restraints in civil proceedings preserves “the press’ constitutionally sanctioned right of access to the judicial process”).

Federal precedent may be referenced as persuasive precedent where helpful when interpreting the Texas Constitution and the right of access.  See Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex. 1992).  Numerous federal circuit courts have determined that the First Amendment of the U.S. Constitution protects a public right of access to civil proceedings, just as it protects a right of access to criminal proceedings.  See, e.g., Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984); Westmoreland v. CBS, Inc., 752 F.2d 16, 23 (2d Cir. 1984); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1984); see also Doe v. Santa Fe Indep. Sch. Dist., 933 F. Supp. 647, 650 (S.D. Tex. 1996).  Under the Texas Constitution, the right of access is circumscribed by the media’s responsibility not to abuse its privileges.  See Tex. Const. art. I, § 8.

Accordingly, the three-step test to overcoming closure in a criminal case, see Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 105 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding), should apply to civil cases as well.  Under that test, proceedings must be open to the public unless the trial court “(1) identif[ies] an overriding or compelling interest; (2) make[s] findings, sufficiently specific for review, that the exclusion of the public and/or media is essential to preserve higher values; and (3) consider[s] whether alternatives to total exclusion or closure are available in order to narrowly tailor the solution to serve the identified interest or value.”  Id. (quoting Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 509–11 (1984)).  For closure to survive review, the trial court must do more than merely articulate the interest that it is attempting to protect through closure but must instead explain how closure would protect that interest.  See id. at 105–06.  Likewise, the court must entertain alternatives to closure on the record.  See id. at 106.

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B. Pre-trial proceedings

In the criminal context, Courts of Appeals of Texas have recognized that the presumptive right of access applies to pretrial proceedings. See Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 103 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (citing to U.S. Supreme Court cases applying the media’s right of access to preliminary hearings).  The principles underlying the right to access pretrial proceedings in the criminal context should apply equally to civil cases.

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C. Trials

The Supreme Court of Texas has recognized the press and the public’s right to attend civil court proceedings, including trials.  See Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 657, 660 (Tex. 1992) (recognizing that the press and public have the “right to be present at all proceedings in the trial of the underlying case, and to report what they observe”); Star-Telegram, Inc. v. Walker 834 S.W.2d 54, 56 (Tex. 1992) (recognizing that its test prohibiting prior restraints in civil proceedings preserves “the press’ constitutionally sanctioned right of access to the judicial process”).  Dallas Morning News was an original proceeding before the Texas Supreme Court where the “relators” sought a writ of mandamus to challenge an appellate court order that limited public access to documents used in a civil trial.  See 842 S.W.2d at 657.  The defendant in the underlying case, after losing its motion before the trial court, obtained an order from an appellate court limiting public disclosure of documents entered into evidence during trial.  See id.  The relators, a media outlet and an advocacy group, sought a writ of mandamus from the Texas Supreme Court to compel the appellate court to withdraw that order.  See id.  While explaining in its opinion that the case is about public access to documents filed in open court, the Court states that the press and the public have the “right to be present at all proceedings in the trial of the underlying case, and to report what they observe.”  Id.

One federal district court in Texas has determined that there is a presumption of the public’s right to access civil trials grounded in both the First Amendment and the common law.  See Doe v. Santa Fe Indep. Sch. Dist., 933 F. Supp. 647, 649–50 (S.D. Tex. 1996).  That court based its decision on the Fifth Circuit’s suggestion to that effect in Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981), and the express holdings of the Third, Second, Sixth, and Seventh Circuits.  See id.  The Third Circuit, in particular, explained the historic functioning of the civil trial in the English and American judicial systems when arriving at the conclusion that the public right of access extends to civil trials.  See id.

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D. Post-trial proceedings

The same principles governing the presumption of public access to criminal post-trial and other civil proceedings should apply equally to civil post-trial proceedings.

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E. Appellate proceedings

One Texas appellate court has recognized a general right of public access to court proceedings in reference to an oral argument scheduled before it.  See 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, no pet.) (mem. interloc. order).  That court granted the parties’ joint motion to close oral argument, reasoning that the entire proceeding below had been under seal because it dealt with information protected from public disclosure by the Texas Public Information Act.  See id.

The Fifth Circuit has specifically recognized that the public’s right of access extends to oral arguments before an appellate court.  See BP Exploration & Production, Inc. v. Claimant ID 100246928, No. 18-30375, 2019 WL 1434936 (5th Cir. Mar. 29, 2019).  In that case, the Tampa Bay Buccaneers sought to seal oral arguments in the team’s appeal from confidential settlement claim proceedings relating to the Deepwater Horizon oil spill.  See id. at *1.  The court refused to do so, recognizing that “shutting the courthouse door poses an even greater threat to public confidence in the justice system” than sealing court records.  Id.

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VI. Access to civil records

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A. In general

Texas courts recognize that civil court records are presumptively open to the public.  See Davenport v. Garcia, 834 S.W.2d 4, 23–24 (Tex. 1992); In Interest of M.A.M., No. 05-14-00040-CV, 2015 WL 5863833, at *4 (Tex. App.—Dallas Oct. 8, 2015), reh’g overruled (Nov. 30, 2015) and review denied (Feb. 26, 2016) (mem. op.) (citing Times Herald Printing Co. v. Jones, 717 S.W.2d 933, 936 (Tex. App.—Dallas 1986), vacated and dismissed on other grounds, 730 S.W.2d 648 (Tex. 1987) (per curiam); Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex. App.—Houston [1st Dist.] 1989, no pet.)).

However, under Texas law, there is no “paramount right to immediate access to court records.”  Oryon Techs., Inc. v. Marcus, 429 S.W.3d 762, 764 (Tex. App.—Dallas 2014, no pet.) (emphasis added) (citing Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 659 (Tex. 1992)).

Texas Rule of Civil Procedure 76a, which has governed the procedure for sealing most civil court records since 1990, states that no court opinion or order may be sealed, and that all other court records are presumptively available to the public.  See Tex. R. Civ. P. 76a.  Rule 76a’s definition of “court records” encompasses “all documents of any nature filed in connection with any matter before a civil court,” subject to a few exceptions.  Id. at 76a(2).  Documents are filed when “tendered to the clerk, or otherwise put under the custody or control of the clerk” of a civil court.  Biederman v. Brown, 563 S.W.3d 291, 303 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (quoting In re Srivastava, No. 05-17-00998-CV, 2018 WL 833376, at *4 (Tex. App.—Dallas Feb. 12, 2018, orig. proceeding) (mem. op.)).

To seal or otherwise limit the distribution of filed records, courts must identify “a specific, serious and substantial interest which clearly outweighs” the general presumption of openness and any adverse consequences that sealing the document would have.  Tex. R. Civ. P. 76a(1).  Further, there must be no available less restrictive means of adequately protecting the identified interest.  See id. at 76a(1)(b).

A court can only seal court records upon a written motion, which itself must be publicly available, and after public notice and an open hearing.  See Tex. R. Civ. P. 76a(3)–(4).  Any person may intervene during this process and appear at the public hearing.  See id. at 76a(3)–(4), (7).

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B. Dockets

While no published Texas court opinion has expressly recognized a public right of access to court dockets, the general presumption of access to judicial records in civil cases should apply with equal force to court dockets.  Cf. Davenport v. Garcia, 834 S.W.2d 4, 23–24 (Tex. 1992); In Interest of M.A.M., No. 05-14-00040-CV, 2015 WL 5863833, at *4 (Tex. App.—Dallas Oct. 8, 2015), reh’g overruled (Nov. 30, 2015) and review denied (Feb. 26, 2016) (mem. op.) (citing Times Herald Printing Co. v. Jones, 717 S.W.2d 933, 936 (Tex. App.—Dallas 1986), vacated and dismissed on other grounds, 730 S.W.2d 648 (Tex. 1987) (per curiam); Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex. App.—Houston [1st Dist.] 1989, no pet.)).  However, Texas courts do not recognize a “paramount right to immediate access to court records.”  Oryon Techs., Inc. v. Marcus, 429 S.W.3d 762, 764 (Tex. App.—Dallas 2014, no pet.) (citing Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 659 (Tex. 1992)).

To seal or otherwise limit the distribution of court records, courts must identify “a specific, serious and substantial interest which clearly outweighs” the general presumption of openness and any adverse consequences that sealing the document would have.  Tex. R. Civ. P. 76a(1).  Further, there must be no less restrictive means of adequately protecting the identified interest available.  See id. at 76a(1)(b).

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C. Discovery materials

For documents that have not been filed, courts must first determine whether those documents are “court records” for the purposes of Rule 76a, then must determine whether they should be sealed as described above.  See BP Prods. N.A. v. Houston Chronicle Publ’g Co., 263 S.W.3d 31, 34 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Gen. Tire v. Kepple, 970 S.W.2d 520, 523 (Tex. 1998)).  The burden is on the party claiming that documents are “court records” to prove so by a preponderance of the evidence.  See BP Prods., 263 S.W.3d at 34 (citing Eli Lilly & Co. v. Biffle, 868 S.W.2d 806, 808 (Tex. App.—Dallas 1993, no writ)).  Further, Rule 76a allows non-parties to intervene and claim that unfiled discovery is a “court record” before this threshold determination is made, though the Rule only requires a hearing on sealing if the court determines that the unfiled discovery is in fact a “court record.”  See Kepple, 970 S.W.2d at 525.

Discovery that is not filed with the court still qualifies as a “court record,” for purposes of a presumption of access under Rule 76a, if it concerns a matter with a potential adverse effect on public health and safety or the operation of government, excepting trade secrets or other intangible property rights.  See Tex. R. Civ. P. 76a(2)(c).  Similarly, unfiled settlement agreements, excluding reference to monetary consideration, are considered court records if they “seek to restrict disclosure of information concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.”  Id. at 76a(2)(b).

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D. Pre-trial motions and records

Courts have not generally recognized a right of access to unfiled discovery outside of what is permitted by Rule 76a(2)(c).  For example, the court in Houston Chronicle Publ’g Co. v. Hardy stated in its protective order that “third parties have no constitutional nor common law right of access to pretrial documents obtained through the discovery process in a civil case” where those documents had never been offered as evidence.  678 S.W.2d 495, 509 (Tex. App.—Corpus Christi 1984, no writ).

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E. Trial records

Texas courts recognize that civil court records are presumptively open to the public.  See Davenport v. Garcia, 834 S.W.2d 4, 23–24 (Tex. 1992); In Interest of M.A.M., No. 05-14-00040-CV, 2015 WL 5863833, at *4 (Tex. App. Oct. 8, 2015), reh’g overruled (Nov. 30, 2015) and review denied (Feb. 26, 2016) (mem. op.) (citing Times Herald Printing Co. v. Jones, 717 S.W.2d 933, 936 (Tex. App.—Dallas 1986), vacated and dismissed on other grounds, 730 S.W.2d 648 (Tex. 1987) (per curiam)); Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex. App. 198)).  This presumption is further cemented in Texas Rule of Civil Procedure 76a.  See Tex. R. Civ. P. 76a(1).  Documents filed during a trial are court records unless they are excluded from the definition in Rule 76a or are otherwise protected from disclosure.  See Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 659 (Tex. 1992).

If a party seeks to seal trial exhibits post-trial, the court must apply the presumption of access set forth in Rule 76a.  See Title Source, Inc. v. Housecanary, Inc., No. 04-18-00509-CV, 2019 WL 2996974, at *6 (Tex. App.—San Antonio July 10, 2019, pet. filed) (mem. op.) (holding that trial court abused its discretion when, post-trial, it sealed trial exhibits without applying the standards and procedures required by Texas Rule of Civil Procedure 76a).

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F. Settlement records

Filed settlement agreements fit within the definition of “court records,” to which the presumption of access applies under Rule 76a.  See Tex. R. Civ. P. 76a(2)(a).

Unfiled settlement agreements may also qualify as “court records” where the agreements “seek to restrict disclosure of information concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.”  Tex. R. Civ. P. 76a(2)(b).  The financial portions of the agreements are excluded from this rule.  See id.

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G. Post-trial records

Posttrial motions fit within the definition of “court records” for purposes of the presumption of access recognized in Rule 76a.  See Tex. R. Civ. P. 76a(2)(a).

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H. Appellate records

The Supreme Court of Texas has not expressly determined whether there is a constitutional right of the public to access appellate court records in civil cases.  However, Texas courts recognize that civil court records are presumptively open to the public.  See Davenport v. Garcia, 834 S.W.2d 4, 23–24 (Tex. 1992); In Interest of M.A.M., No. 05-14-00040-CV, 2015 WL 5863833, at *4 (Tex. App.—Dallas Oct. 8, 2015), reh’g overruled (Nov. 30, 2015) and review denied (Feb. 26, 2016) (mem. op.) (citing Times Herald Printing Co. v. Jones, 717 S.W.2d 933, 936 (Tex. App.—Dallas 1986), vacated and dismissed on other grounds, 730 S.W.2d 648 (Tex. 1987) (per curiam); Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex. App.—Houston [1st Dist.] 1989, no pet.)).  As discussed above, Texas Rule of Civil Procedure 76a governs sealing procedure in the trial court, and records sealed by the trial court will remain sealed on appeal, absent a successful motion to unseal.

The Texas Rules of Appellate Procedure provide that sensitive data, such as bank account numbers or social security numbers, generally must be redacted in court filings, unless a court orders otherwise.  See Tex. R. App. P. 9.9.  Documents containing unredacted sensitive information may not be posted on the internet.  See Tex. R. App. P. 9.9(e).

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I. Other civil court records issues

Nothing further to report.

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VII. Jury and grand jury access

Texas courts recognize a constitutional right of access to voir dire proceedings, and only permit closure when narrowly tailored to protect competing interests of higher value.  See Woods v. State, 383 S.W.3d 775, 779 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (quoting Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 510 (1984)); In re A.J.S., 442 S.W.3d 562, 566–67 (Tex. App.—El Paso 2014, no pet.) (“The public trial right extends not only to the guilt-innocence phase of trial, but to voir dire as well.”); Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 103, 105 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (collecting United States Supreme Court cases on the issue and permitting court access to voir dire proceedings).

Jury deliberations are secret and closed to the public.  State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 209 n.7 (Tex. Crim. App. 2003) (“[W]e do not allow the parties or the public to impeach that verdict with evidence of what occurred between the jurors in the sanctity of that jury deliberation room.”); Tex. Code Crim. Proc. Ann. art. 36.22.

The same is true for all grand jury proceedings.  See San Antonio Express-News v. Roman, 861 S.W.2d 265, 267 n.1 (Tex. App.—San Antonio 1993, orig. proceeding); Tex. Code Crim. Proc. Ann. art. 20.011.  Transcripts and testimony from grand jury proceedings must generally be kept secret, but may, under certain circumstances, be disclosed by a court.  See Stern v. State ex rel. Ansel, 869 S.W.2d 614, 622 (Tex. App.—Houston [14th Dist.] 1994, writ denied).  Further, grand jury testimony is discoverable under certain circumstances in civil cases.  See Lesher v. Coyel, 435 S.W.3d 423, 430 n.3 (Tex. App.—Dallas 2014, pet. denied) (citing Euresti v. Valdez, 769 S.W.2d 575, 579 (Tex. App.—Corpus Christi 1989, no writ)).

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A. Access to voir dire

The public has a constitutional right of access to voir dire proceedings, subject only to “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”  Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 103, 105 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (quoting Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 510 (1984)) (collecting United States Supreme Court cases on the issue and permitting court access to voir dire proceedings).  Other Texas appellate courts have recognized a constitutional right of access to voir dire proceedings in the Sixth Amendment context, citing to U.S. Supreme Court First Amendment precedent.  See, e.g., Woods v. State, 383 S.W.3d 775, 779 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d); In re A.J.S., 442 S.W.3d 562, 566–67 (Tex. App.—El Paso 2014, no pet.) (“The public trial right extends not only to the guilt-innocence phase of trial, but to voir dire as well.”) (citing Press-Enterprise, 464 U.S. at 505).

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B. Juror identities, questionnaires and other records

Although personal information about jurors is confidential by default, trial courts must allow for the disclosure of such information in criminal cases upon application and a showing of good cause by a party or bona fide member of the media acting in that capacity.  See Tex. Code Crim. Proc. Ann. art. 35.29.  A “good cause” showing requires evidentiary support and must establish more than a mere possibility of the condition which purportedly justifies disclosure.  See Cardenas v. State, No. 13-09-353-CR, 2010 WL 3279489, at *7 (Tex. App.—Corpus Christi–Edinburg Aug. 19, 2010, no pet.).

The public does not have a right of access to jury deliberations in criminal trials.  See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 209 n.7 (Tex. Crim. App. 2003); Tex. Code Crim. Proc. Ann. art. 36.22.  Conversations with jurors during the pendency of a criminal trial are not permitted unless with the court’s permission and in the court’s presence.  See Tex. Code Crim. Proc. Ann. art. 36.22.  Jury deliberations may not be recorded.  See Tex. Code Crim. Proc. Ann. art. 36.215.

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C. Grand jury proceedings and records

The public does not have a right of access to grand jury proceedings.  See San Antonio Express-News v. Roman, 861 S.W.2d 265, 267 n.1 (Tex. App.—San Antonio 1993, orig. proceeding); Tex. Code Crim. Proc. Ann. art. 20.011.

Grand jury proceedings, which include testimony before the grand jury and deliberations, are secret, and the participants are prohibited from disclosing any part of the proceedings.  See Barnhart v. State, No. 13-08-00511-CR, 2010 WL 3420823, at *11 (Tex. App.—Corpus Christi–Edinburg Aug. 31, 2010, pet. ref’d) (citing In re Reed, 227 S.W.3d 273, 275 (Tex. App.—San Antonio 2007, no pet.)); Tex. Code Crim. Proc. Ann. art. 20.02, 20.16.  However, a court may permit disclosure when, in the court’s judgment, disclosure is “material to the administration of justice.”  Stern v. State ex rel. Ansel, 869 S.W.2d 614, 622 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (collecting cases where disclosure was permitted).  The defendant may also disclose the contents of a grand jury proceeding, but only in connection with a court proceeding and only upon petition for disclosure, filed with the court.  See Tex. Code Crim. Proc. Ann. art. 20.02(d), (e).

Upon the showing of a “particularized need,” grand jury testimony can be discovered in a civil case.  See Lesher v. Coyel, 435 S.W.3d 423, 430 n.3 (Tex. App.—Dallas 2014, pet. denied) (citing Euresti v. Valdez, 769 S.W.2d 575, 579 (Tex. App.—Corpus Christi 1989, no writ)).  Under the “particularized need” standard, it is not enough that grand jury testimony may be useful to find potential inconsistencies in the witness’s statement—more is required.  See In re 5 Byrd Enters., Inc., 980 S.W.2d 542, 543 (Tex. App.—Beaumont 1998, no pet.).  Only if the testimony is “material to the administration of justice” will a court permit its entry into evidence.  See Lesher, 435 S.W.3d at 430 n.3 (citing Stern, 869 S.W.2d at 622).  Thus, courts accept grand jury testimony to prove perjury, impeach a witness, trace a breach of grand jury secrecy, and determine deficiencies in the grand jury’s composition.  See Stern, 869 S.W.2d at 622.

The identities of grand jurors are not secret.  See Barnhart, 2010 WL 3420823, at *11.  However, personal information about grand jurors, such as home addresses or social security numbers, are only disclosable to a party in the proceeding upon a showing of good cause.  See Tex. Code Crim. Proc. Ann. art. 19.42.

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D. Interviewing jurors

Generally, the press has a right “to interview willing, discharged jurors, except when outweighed by a compelling government interest, such as the need to protect the sanctity of jury deliberations, a juror’s right to privacy and to be free from harassment, or a defendant’s Sixth Amendment right to a fair trial.”  In re Hearst Newspapers P’ship, L.P., 241 S.W.3d 190, 195 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding).  Gag orders that are not designed to protect a compelling government interest are generally unconstitutional.  See id. at 196.

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VIII. Proceedings involving minors

Texas law provides that proceedings under the Juvenile Justice Code involving juvenile defendants who are fourteen years or older must be open to the public unless good cause is shown that the proceedings should be closed.  See In re Fort Worth Star-Telegram, 441 S.W.3d 847, 854–55 (Tex. App.—Fort Worth 2014, orig. proceeding) (construing Tex. Fam. Code Ann. § 54.08(a)).  As in other contexts, Texas courts require “good cause” to be shown on the record.  See In re Fort Worth Star-Telegram, 441 S.W.3d at 854–55.  In cases involving juvenile defendants who are under fourteen years old, courts are required to keep hearings closed to the public unless the interests of the child or the public would be better served by an open hearing.  See Tex. Fam. Code Ann. § 54.08(c).  There are no published cases explaining when the public would be better served in the context of this statute.  Finally, transcripts or recordings of public hearings are not confidential under the Texas Family Code.  See In re Fort Worth Star-Telegram, 441 S.W.3d at 859–60 (citing Tex. Fam. Code Ann. §§ 54.08(a), 58.005, 58.007).

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A. Delinquency

Adjudication hearings regarding delinquency are governed by the Juvenile Justice Code.  See Tex. Fam. Code Ann. § 54.03(a) (“A child may be found to have engaged in delinquent conduct or conduct indicating a need for supervision only after an adjudication hearing conducted in accordance with the provisions of this section.”).  Courts have a duty to open delinquency hearings involving juveniles who are fourteen years or older to the public unless good cause is shown that the proceedings should be closed.  See In re Fort Worth Star-Telegram, 441 S.W.3d 847, 854–55 (Tex. App.—Fort Worth 2014, orig. proceeding) (construing Tex. Fam. Code Ann. § 54.08(a)).  As in other contexts, Texas courts require “good cause” to be shown on the record.  See In re Fort Worth Star-Telegram, 441 S.W.3d at 854–55.  In adjudication hearings involving juveniles who are under fourteen years old, courts are required to keep hearings closed to the public unless the interests of the child or the public would be better served by an open hearing.  See Tex. Fam. Code Ann. § 54.08(c).  There are no published cases explaining when the public would be better served in the context of this statute.  Transcripts or recordings of public hearings are not confidential under the Texas Family Code.  See In re Fort Worth Star-Telegram, 441 S.W.3d at 859–60 (citing Tex. Fam. Code Ann. §§ 54.08(a), 58.005, 58.007).

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B. Dependency

In suits concerning juveniles under the care of the Department of Family and Protective Services, proceedings are closed to the public unless the interests of the child or the public would be better served by an open hearing.  See Tex. Fam. Code Ann. § 262.308(c).  Pleadings filed under the relevant subchapter, titled “Emergency Possession of Certain Abandoned Children,” are not public records, and may be disclosed only to “a party in a suit regarding the child, the party’s attorney, or an attorney ad litem or guardian ad litem appointed in the suit.”  Id. § 262.308(b).  There are no cases construing this statute.

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C. Other proceedings involving minors

Contested proceedings that affect the parent-child relationship are ordinarily treated the same as other civil proceedings.  See Tex. Fam. Code Ann. § 105.003(a).  However, courts may limit attendance at hearings to only interested individuals upon an agreement of all parties to the suit.  See id. § 105.003(b).  Further, parties may waive the creation of a record for the case, with the court’s consent.  See id. § 105.003(c).  Both parties must be present, or have counsel present, at the hearing to waive the record’s creation.  See, e.g., Wray v. Papp, 434 S.W.3d 297, 299 (Tex. App.—San Antonio 2014, no pet.). In addition, documents filed in cases arising under the Family Code are excluded from the statutory definition of "court records" and therefore the presumption of access under Texas Rule of Civil Procedure 76a(2) does not apply to them. Nevertheless, Rule 76a broadly provides that "[n]o court order order or opinion issued in the adjudication of a case may be sealed," suggesting that court orders and opinions even in cases arising under the Family Code may not be sealed. Tex. R. Civ. P. 76a(1).

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D. Prohibitions on photographing or identifying juveniles

In San Antonio Express-News v. Roman, a Texas court of appeals determined that a court order barring the publication of the identities of minors who testified in a criminal trial was constitutionally invalid.  See 861 S.W.2d 265, 267–68 (Tex. App.—San Antonio 1993, orig. proceeding) (applying Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992)).  The court reasoned that, under the Supreme Court of Texas’s Davenport test, courts may impose prior restraints only upon evidence-based findings that “(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.”  Id. at 267 (quoting Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 56 (Tex. 1992)).  As the juveniles in Roman had already testified in open court and had given their names during that testimony, that information was part of the public record.  See id. at 268.  Thus, the court concluded that there was “no constitutionally valid reason” to prohibit the press from disseminating the identities of minors under those facts.  Id.

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E. Minor testimony in non-juvenile courts

In San Antonio Express-News v. Roman, a Texas court of appeals determined that a court order barring the publication of the identities of minors who testified in a criminal trial was constitutionally invalid.  See 861 S.W.2d 265, 267–68 (Tex. App.—San Antonio 1993, orig. proceeding) (applying Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992)).  The court reasoned that, under the Supreme Court of Texas’s Davenport test, courts may only impose prior restraints upon evidence-based findings that “(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.”  Id. at 267 (quoting Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 56 (Tex. 1992)).  As the juveniles in Roman had already testified in open court and had given their names during that testimony, that information was part of the public record.  See id. at 268.  Thus, the court concluded that there was “no constitutionally valid reason” to prohibit the press from dissemination the identities of minors under those facts.  Id.

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

Public access rules will vary on a tribe-by-tribe basis.  See, e.g., Kickapoo Traditional Tribe of Texas Tribal Codes (enacted Nov. 1, 2005), https://kickapootexas.org/wp-content/uploads/2017/05/KTTT-Ch-1-17-Tribal-Codes.pdf.

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B. Probate

Texas courts have not expressly addressed whether probate records are subject to the typical presumption of openness.  However, the Texas Probate Code requires county clerks to maintain a record for each estate where a probate proceeding has been filed.  See Tex. Estates Code Ann. § 52.052.  These records must be properly indexed, and the county clerks must keep the indexes open for public inspection.  See id. § 52.053.

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C. Competency and commitment proceedings

Texas courts have not expressly addressed whether incompetency proceedings are subject to the typical presumption of openness.  However, one Texas court of appeals has ruled that psychiatric reports that were prepared for a competency hearing and filed with a court had to be made available to the public.  See Express-News Corp. v. MacRae, 787 S.W.2d 451 (Tex. App. 1990).  That court reasoned that, where the defendant’s criminal trial was over and neither party had asked the court to keep the report secret, there was no interest counteracting the general constitutional presumption of public access to judicial records.  See id. at 452.

Similarly, Texas courts have not expressly addressed whether commitment proceedings are subject to the typical presumption of openness.  However, the Texas statute imposes some public access restrictions for commitment proceedings involving mental illness or intellectual disability.

In commitment proceedings involving a criminal defendant who appears to the court to have a mental illness, each document filed with the court is considered to be “a public record of a private nature” which requires a court order to access.  See Tex. Health & Safety Code Ann. § 571.015(a); Tex. Code Crim. Proc. Ann. art. 46B.102(b) (providing that the Health and Safety Code governs commitment proceedings to mental health services).  Courts may only issue such orders permitting access upon a finding that either access to the document is in the public interest, or the person seeking access is the person to whom the document relates.  See Tex. Health & Safety Code Ann. § 571.015(b).

Somewhat similarly, in commitment proceedings involving a criminal defendant who appears to the court to have an intellectual disability, records that contain “the identity, diagnosis, evaluation, or treatment of a person that are maintained in connection with the performance of a program or activity relating to an intellectual disability are confidential” and may be disclosed only in certain circumstances.  Tex. Health & Safety Code Ann. § 595.001; Tex. Code Crim. Proc. Ann. art. 46B.103(b) (providing that the Health and Safety Code governs commitment proceedings to residential care facilities).  One of those circumstances is pursuant to a court order that provides for appropriate safeguards for the information and is based on an application showing good cause, including a balancing of the public’s interest in disclosure against the injury to the intellectually disabled person.  See Tex. Health & Safety Code Ann. § 595.005(d).

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D. Attorney and judicial discipline

Rule 2.16 of the Texas Rules of Disciplinary Procedure provides that disciplinary proceedings and records are generally confidential.  However, where the respondent waives confidentiality, the disciplinary proceeding stems from a criminal conviction, or a court orders disclosure, confidentiality is excepted.  See Tex. R. Disciplinary Proc. 2.16(A)(1).  Likewise, negotiated judgments or final judgments that entail sanctions other than a private reprimand may be and are publicized, including in the Texas Bar Journal.  See id. 2.16(A)(2)–(3).  Appeals to the Board of Disciplinary Appeals become part of the public record, unless the appeal concerns only a private reprimand.  See id. 2.16(A)(4).

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E. Immigration proceedings

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F. Other proceedings

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

Texas courts have not ruled on media standing to challenge gag orders on third parties to litigation.

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B. Gag orders on the press

Gag orders are presumptively unconstitutional under the Texas Constitution, unless the court makes specific findings of fact supported by evidence that “(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 v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992).  Davenport itself was a civil case, but courts have applied the test to criminal cases as well.  See, e.g., In re Benton, 238 S.W.3d 587, 594 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

In Fort Worth Star-Telegram v. Walker, the Supreme Court of Texas ruled that a newspaper, which was a defendant in a civil suit for invasion of privacy due to its coverage of a criminal proceeding, could not be enjoined from publishing a testifying witness’s name once it has become part of the trial court’s public record. 834 S.W.2d 54, 56–58 (Tex. 1992) (“[A] trial court is without power to prohibit the publication of testimony presented during the trial of a criminal case.” (citing Ex parte Foster, 71 S.W. 593, 596 (Tex. Crim. App. 1903))).  The Court determined that orders limiting the press’s freedom to publish what was in public records failed the first step of the Davenport test, and accordingly are unconstitutional.  See id. at 58.

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C. Gag orders on participants

Gag orders are presumptively unconstitutional under the Texas Constitution, unless the court makes specific findings of fact supported by evidence that “(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 v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992).  Davenport itself was a civil case, but the test has been applied to criminal cases as well.  See In re Benton, 238 S.W.3d 587, 594 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

Thus, one Texas court of appeals ruled that a court’s order prohibiting jurors from speaking to the press about a trial that resolved in a settlement was unconstitutional.  See In re Hearst Newspapers P’ship, L.P., 241 S.W.3d 190, 195–96 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding).  That court reasoned that unless outweighed by a compelling interest, the press’s constitutional right “to gather news” includes the right to interview willing, discharged jurors.  See id.  Sufficient countervailing, compelling interests, which the court did not find present in Hearst, include “the need to protect the sanctity of jury deliberations, a juror’s right to privacy and to be free from harassment, or a defendant’s Sixth Amendment right to a fair trial.”  Id.

Another Texas court of appeals ruled that a gag order against a defendant and defendant’s counsel was unconstitutional and an abuse of discretion where only one of the numerous public statements made by the defendant’s counsel was potentially prejudicial, but given the time between the statement and the scheduled trial, there was no substantial likelihood of material prejudice.  See In re Benton, 238 S.W.3d at 599.  That court acknowledged that, on facts indicating more serious, material prejudice, a gag order may be justified because of a defendant’s or his counsel’s public statements.  See id. at 600.

More recently, a Texas court of appeals ruled that a gag order on the parties was unconstitutional because there were not facts supporting the order’s rationale.  See In re Clendennen, No. 10-17-00390-CR, 2018 WL 1415558 (Tex. App.—Waco Mar. 21, 2018, orig. proceeding).  In particular, the order did not reflect facts showing that public disclosure would inhibit the court’s ability to seat a fair and impartial jury, which was the order’s stated justification.  See id. at *2; but see In re Houston Chronicle Publ’g Co., 64 S.W.3d 103, 108-09 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (finding that a gag order was not unconstitutional where the court took judicial notice of “the unusually emotional nature” of the case and the volume of media coverage).

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D. Interviewing judges

The Texas Code of Judicial Conduct provides that judges must not make public comments about pending or impending cases that indicate the judge’s probable decision on the matter.  See Tex. Code Judicial Conduct 3.B(10).  This ethical canon does not prohibit public statements (including statements on social media) entirely, and does not prohibit the judge from explaining court procedures for informational purposes.  See id.

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

Protection of witnesses and ongoing investigations: In the Court of Inquiry context, the Texas Court of Criminal Appeals has rejected closure premised upon protecting a witness’s safety.  See Eagle Printing Co. v. Delaney, 671 S.W.2d 883 (Tex. Crim. App. 1984).  The court declined to weigh competing interests against the public’s right of access to criminal proceedings, noting that there were competing Sixth Amendment and First Amendment interests in federal cases where courts engaged in a balancing analysis.  See id. at 887.  Because of Article 52.07 of the Texas Code of Criminal Procedure’s statutory mandate that “all proceedings shall be open to the public” for Court of Inquiry proceedings, however, the court determined that it was inappropriate to weigh concerns regarding a witness’s safety against the public’s right of access.  See id. at 886–88.

Given that Article 1.24 of the Texas Code of Criminal Procedure likewise requires that all criminal proceedings be public, Texas courts may not follow federal precedent in criminal cases where courts weighed the government’s interest in protecting witnesses and the integrity of its own investigation against the public’s right to access criminal proceedings.  See, e.g., United States v. Brown, 447 F. Supp. 2d 666, 671 (W.D. Tex. 2006) (denying public access to the transcript of a bill-of-exceptions hearing because doing so could harm the government’s ongoing investigation); United States v. Ketner, 566 F. Supp. 2d 568, 587–88 (W.D. Tex. 2008) (denying public access to the transcript of plea hearing minutes for the same reason).  On the other hand, courts may consider factors such as witness safety in the civil context, as the Rule of Civil Procedure governing the sealing of records permits courts to weigh substantial interests against the presumption of openness.  See Tex. R. Civ. P. 76a(1).

Trade secrets: The Texas Uniform Trade Secrets Act requires courts to protect trade secrets from disclosure by reasonable means.  See In re M-I L.L.C., 505 S.W.3d 569, 578 (Tex. 2016) (citing Tex. Civ. Prac. & Rem. Code § 134A.006).  The statute creates a presumption in favor of granting protective orders, which it suggests could include “provisions limiting access to confidential information to only the attorneys and their experts, holding in camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.”  Tex. Civ. Prac. & Rem. Code § 134A.006(a).  Further, a Texas court of appeals has recognized that the disclosure of a trade secret during litigation could “destroy the very property right trade secret protection is designed to confer.”  Oryon Techs., Inc. v. Marcus, 429 S.W.3d 762, 764 (Tex. App.—Dallas 2014, no. pet.).  For that reason, the Dallas Court of Appeals determined that “a trial court may only order the public disclosure of trade secrets if such disclosure is ‘indispensable to truth and justice.’”  Id. at 765 (citation omitted).

Sexual assault issues: Courts can exclude the public from portions of trials where it “appears reasonably necessary to prevent the embarrassment or emotional disturbance of such witness or to enable the witness to testify to facts material to the case.”  See Price v. State, 496 S.W.2d 103, 107–08 (Tex. Crim. App. 1973) (quoting H.H. Henry, Annotation, Exclusion of Public During Criminal Trial, 48 A.L.R.2d 1436, 1450 (1956)); see also Grimmett v. State, 2 S.W. 631, 634, 22 Tex. Ct. App. 36, 41 (1886) (upholding the public’s exclusion from a courtroom where the evidence was deemed “indecent” and the crowd was disorderly).  In Price, which dealt with the defendant’s right to a public trial rather than the public’s right to access the proceedings, the Court of Criminal Appeals found that it was proper for the trial court to exclude the public, excepting one member of the press and a law student who was assisting the defense counsel, from the victim’s testimony in a rape case where the court noted the psychological stress that the trial was imposing on the victim.  See 496 S.W.2d 103 at 107–08.

Privacy: The general right of access is bounded by common-law privacy considerations, which limit the disclosure of information that “(1) contain[s] highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) [is] not . . . of ‘legitimate concern’ to the public.”  City of Carrollton v. Paxton, No. 03-13-00838-CV, 2016 WL 1566400, at *3 (Tex. App.—Austin Apr. 4, 2016, no pet.) (noting that the common-law privacy limitations identified in Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), apply to the public disclosure of information).  What constitutes a “legitimate concern” is a fact-intensive inquiry, though criminal allegations generally qualify.  See Cortez v. Johnson, No. 06–13–00120–CV, 2014 WL 1513306, at *6 (Tex. App.—Texarkana Apr. 16, 2016, no pet.) (citing Star–Telegram, Inc. v. Doe, 915 S.W.2d 471, 474–75 (Tex. 1995)).  “While the general subject matter of a publication may be a matter of legitimate public concern, it does not necessarily follow that all information given in the account is newsworthy.”  Star–Telegram, Inc. v. Doe, 915 S.W.2d at 474.

Thus, the privacy interests of a plaintiff in a defamation lawsuit did not clearly outweigh the general presumption of openness when the plaintiff attempted to have discovery evidence, which related to allegations of criminal activity, sealed after dropping the suit.  See Cortez, 2014 WL 1513306, at *6.  And a newspaper’s publication of details about a particular crime, which though not private or embarrassing individually but which collectively could enable readers to identify the crime’s victim, likewise is within scope of legitimate public concern, according to the Supreme Court of Texas.  See Star–Telegram, Inc., 915 S.W.2d at 474.  And the disclosure of identifying information about witnesses in a workplace racial discrimination investigation report did not qualify as “highly intimate or embarrassing,” and therefore was not considered confidential.  See Abbott v. Dallas Area Rapid Transit, 410 S.W.3d 876, 881 (Tex. App.—Austin 2013, no pet.).

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B. Cameras and other technology in the courtroom

In civil cases, broadcasting, televising, recording, or photographing courtroom proceedings are only permissible in three circumstances: (a) where in accordance with Supreme Court of Texas-approved guidelines; (b) where the parties consent and the activity will not unduly distract trial participants or harm the courtroom’s dignity; or (c) where the proceeding is ceremonial.  See Tex. R. Civ. P. 18c.  County Local Rules governing media activity in the courtroom which have been approved by the Supreme Court of Texas fall within the first category.  See In re BP Prods. N.A., 263 S.W.3d 117, 119 (Tex. App.—Houston [1st Dist.] 2006, no pet.).  Local rules on this topic, where they exist, will vary county to county.  Local rules for courts in each county can be found on the Texas Judicial Branch website: http://maps.txcourts.gov/.

In the criminal context, courts may allow cameras in the courtroom so long as they do not impair the ability of the jury to render an impartial verdict.  See, e.g., Hendershot v. State, No. 13–10–00452–CR; 2012 WL 3242018, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 9, 2012, pet. ref’d); see also Graham v. State, 96 S.W.3d 658, at 660–61 (Tex. App.—Texarkana 2003, pet. ref’d) (“[I]n the absence of aggravating factors, broadcast activity in a courtroom is not, standing alone, inappropriate when properly controlled by the court.”).  In September and October 2019, a Dallas County District Judge allowed the livestreaming of the high-profile murder trial in which former Dallas police officer Amber Guyger was convicted of the murder of her neighbor, Botham Jean.  See David Tarrant, News media all-in on Amber Guyger trial as viewers watch live-stream feeds, Dallas Morning News, Sept. 23, 2019, https://www.dallasnews.com/news/crime/2019/09/23/news-media-all-in-on-amber-guyger-trial-as-viewers-watch-live-stream-feeds/.

Appellate courtroom proceedings may be broadcast, televised, recorded, or photographed where permitted by the court.  See Tex. R. App. P. 14.1.  The Texas Supreme Court livestreams its oral arguments, and a number of the courts of appeals post argument audio recordings on their websites.

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C. Tips for covering courts in the jurisdiction

The Texas state court system has two co-equal courts atop its appellate hierarchy.  The Supreme Court of Texas is the court of last resort for civil and juvenile cases, and the Court of Criminal Appeals is the court of last resort for criminal cases.  In all cases except death penalty cases, which are appealed directly to the Court of Criminal Appeals from the trial level, the high courts hear appeals from the fourteen intermediate courts of appeals.

The courts of appeals have regional jurisdiction across Texas and serve as intermediate appellate courts, similar to the Circuit Courts in the federal court system.

There are two categories of courts whose decisions are appealed to the courts of appeals, the district courts and the county courts.  The district courts have overlapping original jurisdiction over civil actions with the county courts for civil actions worth over $200, and additionally have jurisdiction over felony cases and juvenile matters.  Some district courts are specialized for criminal or other matters.  There are three types of county courts: Constitutional county courts; Statutory county courts, and Statutory probate courts.  The Constitutional county courts have original jurisdiction over civil cases valued at between $200 and $10,000 ($20,000 beginning September 1, 2020), as well as jurisdiction over probate and guardianship matters, misdemeanors with jail sentences or possible fines of at least $500, and juvenile matters.  The Constitutional county courts also hear de novo appeals from the local courts.  The Statutory county courts have jurisdiction mirroring the Constitutional county courts, except that the courts have jurisdiction over civil cases ranging from $500 to $200,000 ($250,000 beginning September 1, 2020) or higher.

The Statutory probate courts handle probate and guardianship matters.

There are two categories of local courts: Justice of the Peace courts and the Municipal courts.  The Justice of the Peace courts are not courts of record and have jurisdiction over civil actions valued at $10,000 or less, small claims, and misdemeanors that do not carry a sentence of imprisonment.  The Justice courts also conduct magistrate functions.  Justices of the Peace do not have to be licensed attorneys.  The Municipal courts are mostly not courts of record and have jurisdiction over misdemeanors that do not carry a sentence of imprisonment, municipal ordinance criminal cases, and some limited civil jurisdiction.  The Municipal courts also conduct magistrate functions.

The Texas Judicial Branch publishes a Judicial Directory every year, with periodic updates during the year, at http://www.txcourts.gov/judicial-directory/.

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