in-re-fort-worth-star-telegram-dallas-morning-news-cbs-stations-group-of ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00144-CV
IN RE FORT WORTH STAR- RELATORS
TELEGRAM; DALLAS MORNING
NEWS; CBS STATIONS GROUP
OF TEXAS LLC; KXAS-TV; NW
COMMUNICATIONS OF TEXAS,
INC., ON BEHALF OF STATION
KDFW FOX 4; AND WFAA-TV, INC.
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ORIGINAL PROCEEDING
TRIAL COURT NO. 323-98857J-13
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OPINION
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I. INTRODUCTION
In the underlying case involving juvenile R.J.D., Respondent, the
Honorable Jean Boyd, sua sponte ordered the courtroom closed to the public
and to members of the media during R.J.D.’s certification hearing and during the
setting for R.J.D.’s determinate sentence trial. Relators Fort Worth Star-
Telegram; Dallas Morning News; CBS Stations Group of Texas LLC; KXAS-TV;
NW Communications of Texas, Inc., on behalf of KDFW Fox 4; and WFAA-TV,
Inc. assert that Respondent abused her discretion by closing the courtroom, by
excluding Relators from the courtroom during these proceedings, and also by
subsequently denying Relators’ motion for access to the reporter’s records
generated at these proceedings. For the reasons set forth below, we will
conditionally grant a writ of mandamus ordering Respondent to vacate her orders
closing the courtroom; to set aside her March 20, 2014 order denying Relators’
motion to vacate the closure orders; and to take immediate steps to make
transcripts of these proceedings available to Relators upon payment and making
proper arrangements.
II. FACTUAL AND PROCEDURAL BACKGROUND
The State alleged that R.J.D. had committed the primary offense of capital
murder and sought to have him certified to stand trial as an adult. The
certification hearing was held on January 10, 2014; R.J.D. had turned seventeen
years old in December 2013. R.J.D. had been in detention an unusually long
time based on the unavailability of his attorney due to medical conditions.
Consequently, the trial on R.J.D.’s determinate sentence was scheduled for
January 22, 2014, just twelve days after the certification hearing. In light of this
fact, Respondent stated that she was finding good cause to close the courtroom
on January 10 to avoid tainting the jury pool and ordered all members of the
public and the media to leave the courtroom prior to commencement of the
2
certification hearing. R.J.D. did not seek the courtroom closure, and the State
opposed it.
Respondent declined to waive her exclusive jurisdiction by certifying R.J.D.
to stand trial as an adult, and the State and R.J.D. subsequently reached a plea
agreement. They planned to present the agreement to Respondent at R.J.D.’s
determinate sentence trial setting scheduled for January 22, 2014. Prior to this
setting, the State—in consultation with the victim’s family—and the defense
attorneys agreed to omit from the stipulation of evidence certain facts regarding
the sexual relationship between R.J.D. and the victim. On January 22,
Respondent again ordered the courtroom closed to the public and to members of
the media. R.J.D. did not seek the courtroom closure, and the State opposed it.
Respondent accepted the parties’ plea agreement, and the case concluded.
Relators later filed a motion with Respondent seeking access to the
reporter’s records from the January 10 and the January 22 proceedings and
requesting that Respondent vacate her courtroom closure orders.1 Relators’
motion urged Respondent to make available to any member of the public, upon
request, copies of the transcripts of the January 10 and the January 22
proceedings. After a hearing, Respondent denied the motion.
1
Relators concede that Respondent did not sign written courtroom closure
orders. But Respondent’s oral closure orders were clear and specific and were
actually enforced by removing the public and the media from the courtroom on
January 10 and January 22. Therefore, the lack of written orders does not
preclude mandamus relief in this case. See In re Bledsoe, 41 S.W.3d 807, 811
(Tex. App.—Fort Worth 2001, orig. proceeding).
3
Relators then filed this original proceeding. Relators claim that
Respondent abused her discretion by issuing the January 10 and the January 22
courtroom closure orders and by denying Relators’ motion seeking access to the
reporter’s records from the two proceedings.2
III. STANDING
The general test for standing in Texas requires that there “(a) shall be a
real controversy between the parties, which (b) will be actually determined by the
judicial declaration sought.” See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex. 1993). A relator must have standing to seek mandamus
relief. See, e.g., In re Baker, 404 S.W.3d 575, 577–78 (Tex. App.—Houston [1st
Dist.] 2010, orig. proceeding); Cole v. Gabriel, 822 S.W.2d 296, 297 (Tex. App.—
Fort Worth 1991, orig. proceeding). A lack of standing may be raised at any time
or by the court on its own motion. See Tex. Ass’n of Bus., 852 S.W.2d at 445–
2
The State filed a response to Relators’ petition for writ of mandamus
consistent with its position in the trial court—the State objected to the courtroom
closures—and asserted that Respondent had abused her discretion in various
respects by closing the courtroom. Respondent filed a response. R.J.D. filed a
response and an amended response. An amicus curiae brief was tendered by a
group of juvenile justice law professors contending that Respondent did not
abuse her discretion. The Texas Criminal Defense Lawyers Association
(TCDLA) tendered an amicus curiae brief asserting that Respondent did not
abuse her discretion. The TCDLA also timely filed a motion pursuant to Texas
Rule of Appellate Procedure 39.5 requesting permission to share the time for
argument allotted to Real Party in Interest R.J.D. This court granted that motion.
The General Counsel for the TCDLA presented argument on behalf of R.J.D. and
in support of the amicus curiae brief tendered by the TCDLA. Relators and the
State also tendered, and we ordered filed, postsubmission briefs. TCDLA also
tendered a postsubmission amicus curiae brief.
4
46. Relators’ standing is an element of our subject-matter jurisdiction. See id.
Accordingly, we address it here.
Courts have routinely recognized that members of the press possess
standing to seek relief from orders barring them from a courtroom. See, e.g.,
United States v. Cianfrani, 573 F.2d 835, 845–46 (3rd Cir. 1978).3 In Cianfrani,
several newsgathering organizations and two named reporters alleged that the
order of a district court barred them from attending a hearing and prevented them
from subsequently reading a transcript of that hearing; they sought aid from the
appellate court to remove the continuing effect of the district court’s action, as
well as to establish the illegality of such closure orders for the future. Id. The
Cianfrani court explained that these allegations pleaded specific, concrete facts
demonstrating that the challenged practices harmed the newsgathering
organizations and the two named reporters and that they would personally
benefit in a tangible way from the court’s intervention. Id. Thus, the court held
that the newsgathering organizations, as well as the two named reporters, had
satisfied the standing requirements implicit in Article III of the United States
Constitution and discussed in Warth v. Seldin: they had made an allegation of
such a personal stake in the outcome of the controversy as to warrant invocation
3
See also Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457
U.S. 596, 603, 102 S. Ct. 2613, 2618 (1982); Oregonian Publ’g Co. v. U.S. Dist.
Court for Dist. of Or., 920 F.2d 1462, 1464 (9th Cir. 1990), cert. denied, 501 U.S.
1210 (1991); Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125,
126–28 (Ky. 1988).
5
of federal-court jurisdiction (the injury-in-fact requirement) and to justify exercise
of the court’s remedial powers on their behalf (the prudential concerns
requirement). Cianfrani, 573 F.2d at 845–46 (discussing Warth v. Seldin, 422
U.S. 490, 498–500, 95 S. Ct. 2197, 2205–06 (1975)).
Relators here allege that Respondent issued two courtroom closure orders
barring them from attending proceedings conducted in her courtroom and then
later denied their motion requesting that she vacate the orders and permit them
to obtain a copy of the transcripts of these two proceedings. They seek aid from
this court to remove the continuing effect of Respondent’s action, as well as to
establish the illegality of these types of courtroom closure orders for the future.
We hold that these allegations satisfy the first prong of the general test for
standing in Texas, akin to the injury-in-fact federal standing requirement, that
requires a party seeking relief to have a personal stake in the outcome in order
for a real controversy to exist between the parties. See Brown v. Todd, 53
S.W.3d 297, 302 (Tex. 2001) (recognizing that to establish standing, plaintiff
must allege injury distinct from public); see also Tex. Ass’n of Bus., 852 S.W.2d
at 446; accord Warth, 422 U.S. at 498–500, 95 S. Ct. at 2205–06; Cianfrani, 573
F.2d at 845–46. We next address whether Relators established the second
prong of the general test for standing in Texas that required them to show that
the controversy between them will be actually determined by the judicial
declaration sought. See Tex. Ass’n of Bus., 852 S.W.2d at 446.
6
IV. THE MOOTNESS DOCTRINE
The mootness doctrine is rooted in the separation of powers doctrine in the
United States and Texas constitutions, both of which prohibit courts from
rendering advisory opinions. See U.S. Const. art. III, § 2, cl. 1; Tex. Const. art. II,
§ 1; see also Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.
2000); Tex. Ass’n of Bus., 852 S.W.2d at 444. The doctrine limits courts to
deciding cases in which an actual controversy exists. FDIC v. Nueces Cnty., 886
S.W.2d 766, 767 (Tex. 1994); Houston Chronicle Publ’g Co. v. Crapitto, 907
S.W.2d 99, 101 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding). An
actual controversy does not exist when a party seeks a ruling on some matter
that, when rendered, would not have any practical legal effect. See Meeker v.
Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 759 (Tex. App.—Fort Worth 2010, pet.
denied).
Here, the parties agree that no actual controversy currently exists
concerning Respondent’s courtroom closure orders. Relators were ordered
excluded from the January 10 and the January 22 proceedings, and any ruling by
this court on the propriety of Respondent’s courtroom closure orders will have no
practical legal effect at this point; R.J.D.’s case has concluded. Thus, the issue
of whether Respondent abused her discretion by issuing the courtroom closure
orders has become moot. See, e.g., Williams v. Lara, 52 S.W.3d 171, 184 (Tex.
2001) (holding inmates’ claims for injunctive and declaratory relief concerning
unconstitutional program run in jail were moot because inmates had been
7
released from jail); Valley Baptist Med. Ctr., 33 S.W.3d at 822 (holding appeal of
rule 202 presuit discovery order permitting deposition became moot when
appellant produced representative for deposition).
Relators nonetheless contend that this issue falls within the capable-of-
repetition-yet-evading-review exception to the mootness doctrine. “Capable of
repetition yet evading review” is a rare exception to the mootness doctrine. Tex.
A & M Univ.-Kingsville v. Yarbrough, 347 S.W.3d 289, 290–91 (Tex. 2011). To
invoke this exception, a party 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. Williams, 52 S.W.3d at 184–85; Gen. Land
Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990).
Here, via testimony and affidavits presented at the hearing on Relators’
motion for access to the court reporter’s records generated at the January 10 and
the January 22 hearings, Relators established that Respondent had sua sponte,
and without reliance on evidence in the record, issued the courtroom closure
orders on January 10 and January 22;4 that Respondent had issued courtroom
closure orders under similar circumstances a few times in the past; and that the
January 10 and the January 22 hearings had both concluded on the same day
4
It is undisputed that no evidence supporting either of the courtroom
closure orders was offered, judicially noticed, stipulated to, made mention of, or
otherwise made a part of the trial court record other than the fact that R.J.D.’s
determinate sentence trial was set twelve days after his certification hearing.
8
that they had started. Consequently, Relators met their burden of establishing
that the challenged act—the sua sponte issuance of a courtroom closure order
excluding Relators from the courtroom in the absence of on-the-record
evidence—was, and will be in the future, of such short duration that Relators
could not, or probably would not, be able to obtain review before the issue
becomes moot. Relators also established that a reasonable expectation exists
that they will be subject in the future to a sua sponte order by Respondent
excluding them from the courtroom in the absence of on-the-record evidence of
good cause. See Crapitto, 907 S.W.2d at 101–02 (holding that order excluding
media from courtroom during voir dire, although moot, fell within the capable-of-
repetition-yet-evading-review exception because of short duration of voir dire and
likelihood of repetition based on judge’s statement on record that she was
entitled to exclude media from voir dire).5 Thus, although no actual controversy
currently exists concerning Respondent’s courtroom closure orders, Relators met
their burden of establishing that the challenged act—Respondent’s sua sponte
issuance of courtroom closure orders in the absence of evidence in the record
showing good cause for the closures—is capable of repetition yet will evade
review. We therefore possess jurisdiction over this original proceeding under the
5
Respondent stated on the record that she disagreed with the contention of
the attorney for the State that she could not close the proceedings in the absence
of evidence presented on the record.
9
capable-of-repetition-yet-evading-review exception to the mootness doctrine
embodied in the second prong of the general test for standing in Texas.
V. STANDARDS OF REVIEW
A. Prerequisites to Mandamus Relief
A writ of mandamus will issue to correct a clear abuse of discretion when
there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court abuses its
discretion if it reaches a decision so arbitrary and unreasonable as to amount to
a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply
the law. Walker, 827 S.W.2d at 839–40. The relator has the burden to establish
an abuse of discretion as well as the inadequacy of appeal as a remedy.
Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig.
proceeding), superseded by statute on other grounds, Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(a)(7) (West Supp. 2014), as recognized in In re AIU Ins.
Co., 148 S.W.3d 109, 119 (Tex. 2004) (orig. proceeding).
An adequate remedy by appeal does not exist when a trial court improperly
excludes the public or the press from proceedings that are to be open. See, e.g.,
Houston Chronicle Publ’g Co. v. Shaver, 630 S.W.2d 927, 934 (Tex. Crim. App.
1982); Crapitto, 907 S.W.2d at 100–02. Because Relators are members of the
media who were excluded from Respondent’s courtroom on January 10 and on
January 22, they have no adequate remedy by appeal. See Shaver, 630 S.W.2d
10at 934; Crapitto, 907 S.W.2d at 100–02. Below we discuss whether
Respondent’s challenged action in issuing the courtroom closure orders
constituted an abuse of discretion.
B. Rules of Statutory Construction
We review issues of statutory construction de novo. Tex. Lottery Comm’n
v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). In construing
statutes, our primary objective is to give effect to the legislature’s intent. Id.(citing Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.
2009)). “Where text is clear, text is determinative of that intent.” Entergy Gulf
States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (op. on reh’g). Thus,
we rely on the plain meaning of the text as expressing legislative intent unless a
different meaning is supplied by legislative definition or is apparent from the
context, or the plain meaning leads to absurd results. Tex. Lottery Comm’n, 325
S.W.3d at 635; see also Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d
864, 866 (Tex. 1999) (explaining that “it is a fair assumption that the Legislature
tries to say what it means, and therefore the words it chooses should be the
surest guide to legislative intent”).
VI. TEXAS FAMILY CODE SECTION 54.08
Texas Family Code section 54.08 is part of the Texas Juvenile Justice
Code and is titled, “Public Access to Court Hearings.” It provides, in pertinent
part, as follows:
11
(a) Except as provided by this section, the court shall open hearings
under this title to the public unless the court, for good cause shown,
determines that the public should be excluded.
....
(c) If a child is under the age of 14 at the time of the hearing, the
court shall close the hearing to the public unless the court finds that
the interests of the child or the interests of the public would be better
served by opening the hearing to the public.
Tex. Fam. Code Ann. § 54.08(a), (c) (West 2014).
In their first three issues, Relators argue that Respondent abused her
discretion in several respects by issuing the courtroom closure orders. One of
Relators’ contentions is that Respondent closed the courtroom without a showing
of good cause, as required by section 54.08(a). Relators contend that the “for-
good-cause-shown” language of section 54.08(a) requires an evidentiary hearing
at which Relators and members of the public must be permitted to appear and to
offer evidence and also requires Respondent to make specific findings to support
the closure.6
A. The January 10 Hearing
Relators assert that Respondent’s reason for closing the January 10
hearing—to avoid tainting the jury pool because R.J.D.’s determinate sentence
6
Relators assert that Respondent should be required to make specific
findings documenting the showing of good cause that are sufficient to permit
review by a court of appeals and by way of analogy cite to In re United
Scaffolding, Inc., 377 S.W.3d 685, 689 (Tex. 2012) (orig. proceeding).
12
trial was set twelve days later—was conclusory and is not, as a matter of law,
good cause for closing the courtroom.
The fear of tainting the jury pool is indeed a concern in every pretrial
hearing in every high profile case, criminal or civil, including juvenile cases. See,
e.g., Skilling v. United States, 561 U.S. 358, 378–79, 130 S. Ct. 2896, 2912–13
(2010) (recognizing that “most cases of consequence garner at least some
pretrial publicity”). Juror exposure to news accounts of a crime does not alone,
however, presumptively deprive the defendant of due process. Id. at 377–85,
130 S. Ct. at 2913–17 (distinguishing cases in which the media coverage was so
pervasive that the United States Supreme Court presumed prejudice to the
defendant). “Every case of public interest is almost, as a matter of necessity,
brought to the attention of all the intelligent people in the vicinity, and scarcely
any one can be found among those best fitted for jurors who has not read or
heard of it, and who has not some impression or some opinion in respect to its
merits.” Id. at 381, 130 S. Ct. at 2915 (quoting Reynolds v. United States, 98
U.S. 145, 155–56 (1879)). Prominence does not necessarily produce prejudice,
and juror impartiality does not require juror ignorance. Id. at 381, 130 S. Ct. at2914–15 (citing Irvin v. Dowd, 366 U.S. 717, 722–23, 81 S. Ct. 1639, 1642–43
(1961)).
The plain language of family code section 54.08(a) states that proceedings
involving juveniles who are fourteen years or older “shall” be open “unless the
court, for good cause shown, determines that the public should be excluded.”
13
Tex. Fam. Code Ann. § 54.08(a).7 “Shall,” when used in a statute, imposes a
duty. See Tex. Gov’t Code Ann. § 311.016(2) (West 2013). Thus, giving section
54.08(a) its plain meaning, it imposes a duty to open hearings to the public. See
Tex. Fam. Code Ann. § 54.08(a). The limited exception to this imposed duty of
openness is found in the phrase “unless the court, for good cause shown,
determines that the public should be excluded.” Id. The plain meaning of the
phrase “for good cause shown” has been construed in other statutes to require
evidence in the record establishing good cause. See Abron v. State, 531 S.W.2d
643, 645 (Tex. Crim. App. 1976) (construing former code of criminal procedure
article 44.08(e)—which authorized a court of appeals to permit the filing of a late
notice of appeal “for good cause shown”—as requiring sufficient supportive
evidence in the record), overruled on other grounds by Johnson v. State, 556
S.W.2d 816 (Tex. Crim. App. 1977); Hooker v. State, 932 S.W.2d 712, 716 (Tex.
App.—Beaumont 1996, no pet.) (construing article 35.29 of the code of criminal
procedure—which requires a trial court to release personal information regarding
the jury to a party to the trial upon a request and a showing of good cause—as
requiring sufficient supportive evidence in the record); accord Roberts v.
7
Relators point us to the legislative history of family code section 54.08 and
to prior versions of the statute as evidence of the legislature’s intent in enacting
the current version of the statute. But we apply a “text-centric model” when
construing statutes; we will use extrinsic aids such as legislative history only
when the text is not clear. See Ojo v. Farmers Grp., Inc., 356 S.W.3d 421, 435
(Tex. 2011) (Jefferson, C.J., concurring); Jennings v. WallBuilder Presentations,
Inc. ex rel. Barton, 378 S.W.3d 519, 528 (Tex. App.––Fort Worth 2012, pet.
denied). The text of family code section 54.08(a) is clear.
14
Williamson, 111 S.W.3d 113, 124 (Tex. 2003) (construing rule of civil procedure
141—which authorizes trial court, for good cause stated on the record, to
adjudge costs against prevailing party—as requiring trial court’s stated good
cause to be specific; general fairness is not good cause).8 Given the duty
imposed by section 54.08(a) to open hearings to the public and giving the
statutorily articulated exception to this duty its plain meaning, we hold that
section 54.08(a) requires some evidence in the record supportive of a good-
cause finding that the public should be excluded. In the absence of evidence in
the record—stipulated facts, judicial notice taken of facts or of files, testimony,
self-authenticating documents, or some other evidence—as to why and how
R.J.D.’s jury pool might be tainted by the media’s and the public’s presence at
the January 10 hearing, good cause has not been “shown” for Respondent’s
January 10 courtroom closure order as required by the plain language of the
statute.9 We hold that Respondent abused her discretion by issuing the January
8
See also Richard E. Flint, Mandamus Review of the Granting of the
Motion for New Trial: Lost in the Thicket, 45 St. Mary’s L.J. 575, 630 n.267
(2014) (distinguishing rules of civil procedure that authorize a trial court to take
action for “good cause” from rules of civil procedure that authorize a trial court to
take action for “good cause shown” or other similar language).
9
Accord In re A.J.S., No. 08-12-00306-CV, 2014 WL 3732569, at *5 (Tex.
App.—El Paso July 29, 2014, no pet. h.) (holding that juvenile had a Fourteenth
Amendment Due Process right to an “open trial” and assuming error from
courtroom closure during voir dire over juvenile’s objection because no facts or
fact-findings existed in record providing constitutionally sound basis for closure).
15
10 courtroom closure order in the absence of evidence supportive of a good-
cause finding.
B. The January 22 Trial Setting
Relators assert that Respondent also abused her discretion by sua sponte
closing the January 22 proceeding. Respondent indicated that the reason she
closed this proceeding was because the prosecutor had removed certain facts
from the stipulation of evidence to be presented at this hearing, causing
Respondent to likewise be concerned about the publication of these omitted
facts. Thus, Respondent’s sole stated reason in the record for sua sponte
closing the January 22 hearing was to avoid the possible presentation of private
facts that the prosecutor had decided to omit from the stipulation of evidence.
We recognize that the goals of the juvenile justice system are different
from the adult criminal justice system; otherwise, a separate juvenile justice
system would be unnecessary. See Tex. Fam. Code Ann. § 51.01 (West 2014)
(setting forth the purposes of the juvenile justice code). The different goals of the
juvenile justice system cause the types of privacy concerns at issue here to be
more compelling in juvenile cases.10 And we do not doubt that privacy concerns
could, in some instances, justify closing a juvenile proceeding involving a juvenile
who is at least fourteen years old for some period if the statutory requisite of
10
The amicus curiae briefs tendered to this court on behalf of four law
professors with expertise in Texas juvenile law and by the TCDLA detail the
unique issues and concerns faced by juvenile judges like Respondent.
16
good cause is shown on the record. But, again, as set forth above, giving the
language of family code section 54.08(a) its plain meaning, in the absence of
evidence in the record—stipulated facts, judicial notice taken of facts or of files,
testimony, self-authenticating documents, or some other evidence—as to why
and how and the extent to which the public dissemination of these private facts
would be detrimental to the juvenile or to another party, good cause has not been
shown for Respondent’s January 22 courtroom closure order as required by the
plain language of the statute. Accord A.J.S., 2014 WL 3732569, at *5. We hold
that under the facts presented here, Respondent abused her discretion by
issuing the January 22 courtroom closure order in the absence of evidence
supportive of a good-cause finding.
C. The Limitations of Our Holdings
Relators and the State contend that Respondent’s courtroom closure
orders also violate the First Amendment of the United States Constitution and the
“Open Courts” provision of the Texas constitution. See U.S. Const. amend. I;
Tex. Const. art. 1, § 13. Having determined that Respondent abused her
discretion by failing to correctly apply family code section 54.08(a) in the present
case, we need not address the constitutional issues raised by Relators. See,
e.g., In re Ostrofsky, 112 S.W.3d 925, 932–33 (Tex. App.—Houston [14th Dist.]
2003, orig. proceeding) (“Having found an abuse of discretion by the trial court
under [Texas Family Code] section 156.006, we need not address the
constitutional ground raised by relator.”).
17
Relators and the State also urge us to define “good cause shown” and to
articulate procedures applicable in the future to govern courtroom closure orders
under section 54.08(a) in all Texas juvenile proceedings.11 We lack jurisdiction to
do so. The Texas constitution’s separation of powers provision prohibits courts
from issuing advisory opinions that decide abstract questions of law. See Brown,
53 S.W.3d at 302; see also Coalson v. City Council of Victoria, 610 S.W.2d 744,
747 (Tex. 1980) (explaining that courts may not give advisory opinions or decide
cases upon speculative, hypothetical, or contingent situations). The distinctive
feature of an advisory opinion is that it decides an abstract question of law
without binding the parties. Tex. Ass’n of Bus., 852 S.W.2d at 444. Any
definition of “good cause shown” created by this court and any procedures
articulated by this court as governing courtroom closures under section 54.08
would constitute the resolution of abstract questions of law that would not apply
11
Relators cite to several United States Supreme Court criminal cases and
to several out-of-state juvenile cases setting forth tests and procedures for
courtroom closure orders that Relators contend would be appropriate here. See
e.g., Presley v. Georgia, 558 U.S. 209, 215, 130 S. Ct. 721, 725 (2010)
(explaining that trial courts are required to consider alternatives to closure of
criminal trials); Richmond Newspapers, Inc. v. Va., 448 U.S. 555, 581, 100 S. Ct.
2814, 2829–30 (1980) (holding that, “[a]bsent an overriding interest articulated in
findings, the trial of a criminal case must be open to the public”); State ex. rel.
Plain Dealer Publ’g v. Geauga Cnty. Ct. Com. Pl., Juv. Div., 734 N.E.2d 1214,
1218–20 (Ohio 2000) (placing burden on party seeking closure of juvenile
proceeding to show three factors). As previously mentioned, Relators also
contend specific good-cause findings should be required as in United
Scaffolding, 377 S.W.3d at 689.
18
to the parties before us and would thus constitute an impermissible advisory
opinion.12
Although we possess jurisdiction to address the narrow issue presented by
the facts here—whether or not Respondent abused her discretion by issuing
courtroom closure orders in the absence of any type of evidence on the record
showing good cause—our jurisdiction to address this specific moot issue under
the limited capable-of-repetition-yet-evading-review exception to the mootness
doctrine does not extend to pronouncing definitions or to adopting procedures
concerning family code section 54.08(a) that will not be binding on the parties in
this case because R.J.D.’s case has concluded. That is, the complained-of
action by Respondent that satisfies the capable-of-repetition prong of the
exception to the mootness doctrine here is only the exact action taken by
Respondent in R.J.D.’s case. We cannot speculate as to whether some other
12
We likewise question whether Relators and the State possess standing
to seek this relief—a definition of good cause shown and articulation of
procedures governing courtroom closures under section 54.08. They have not
established the first prong of the general test for standing in Texas concerning
this relief; Relators and the State have suffered no actual, as opposed to merely
hypothetical or generalized, grievance regarding these issues. See Brown, 53
S.W.3d at 302; see also Schlesinger v. Reservists Comm. to Stop the War, 418
U.S. 208, 221–22, 94 S. Ct. 2925, 2932–33 (1974) (explaining in the context of
standing that “[t]he desire to obtain (sweeping relief) cannot be accepted as a
substitute for compliance with the general rule that the complainant must present
facts sufficient to show that his individual need requires the remedy for which he
asks”). If Relators and the State lack standing to assert these issues, then we
lack subject-matter jurisdiction over them on this basis as well. See Tex. Ass’n of
Bus., 852 S.W.2d at 444 (recognizing standing is component of subject-matter
jurisdiction).
19
type of courtroom closure action taken or courtroom closure procedure followed
by Respondent in the future might or might not constitute an abuse of discretion;
nor may we pontificate on the abstract application of section 54.08 to
hypothetical facts that are not before us. See Patterson v. Planned Parenthood,
Inc., 971 S.W.2d 439, 442–43 (Tex. 1998) (explaining that “[a] case is not ripe
when its resolution depends on contingent or hypothetical facts, or upon events
that have not yet come to pass” and recognizing an opinion in a case that is not
ripe is an advisory opinion); accord Houston Chronicle Publ’g Co. v. Thomas,
196 S.W.3d 396, 401 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding
declaratory judgment action seeking construction of Texas Public Information Act
was moot because autopsy report sought was produced and declining to
construe act based on future hypothetical fact situations); see also North
Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404 (1971) (“[C]ourts are
without power to decide questions that cannot affect the rights of litigants in the
case before them[.]”).
Therefore, our holdings here are limited to concluding that Respondent
abused her discretion by closing the January 10 and January 22 proceedings
because no evidence was shown on the record to support any good-cause
finding. A plain-language reading of family code section 54.08(a) mandates that
good cause for closing a juvenile proceeding involving a juvenile who is at least
fourteen years old be shown by evidence on the record.
20
VII. THE RECORDINGS OF THE PROCEEDINGS
In their fourth issue, Relators claim that Respondent abused her discretion
by failing, after R.J.D.’s case was concluded, to vacate her closure orders and to
permit Relators access to the recordings made by the court reporter of the
January 10 and January 22 proceedings. R.J.D. contends that the recordings
are, by law, confidential pursuant to Texas Family Code sections 58.005 and
58.007. See Tex. Fam. Code Ann. §§ 58.005, .007 (West 2014).
Section 58.005 is titled, “Confidentiality of Records.” Id. § 58.005. It
declares confidential
[r]ecords and files concerning a child, including personally
identifiable information, and information obtained for the purpose of
diagnosis, examination, evaluation, or treatment or for making a
referral for treatment of a child by a public or private agency or
institution providing supervision of a child by arrangement of the
juvenile court or having custody of the child under order of the
juvenile court.
Id. Section 58.007 is titled, “Physical Records or Files.” Id. § 58.007. It provides
as follows:
(b) Except as provided by Section 54.051(d-1) and by Article 15.27,
Code of Criminal Procedure, the records and files of a juvenile court,
a clerk of court, a juvenile probation department, or a prosecuting
attorney relating to a child who is a party to a proceeding under this
title may be inspected or copied only by:
....
(5) with leave of the juvenile court, any other person, agency,
or institution having a legitimate interest in the proceeding or in the
work of the court.
21
Id. § 58.007(b)(5).13 Section 54.09 of the family code is titled, “Recording of
Proceedings” and requires that all judicial proceedings under chapter 54 be
recorded by stenographic notes or by electronic, mechanical, or other
appropriate means. Id. § 54.09 (West 2014).
Examining these provisions and giving the words of the provisions their
plain meaning, no language exists making the recordings of the January 10 and
January 22 proceedings involving R.J.D. confidential as a matter of law. Section
58.005 makes “records and files concerning a child” that are “obtained for the
purpose of diagnosis, examination, evaluation, or treatment” confidential as
opposed to making recordings of judicial proceedings confidential. See id.
§ 58.005. Section 58.007 does limit inspection of juvenile court records, but
recordings of judicial proceedings—mandated to be recorded per section 54.09—
are not specifically included in the court records subject to limited inspection.
See id. § 58.007. Reporter’s records of juvenile disposition hearings, including
13
In addition to these provisions, the Juvenile Justice Code contains
numerous other provisions concerning information regarding juveniles. See, e.g.,
Tex. Fam. Code Ann. §§ 58.001–.405 (West 2014). Some of the statutory
provisions restricting access to juvenile records appear to not apply in cases
such as this one in which a determinate sentence is imposed. Accord id.§ 58.003(b) (prohibiting juvenile court from sealing records of a juvenile who has
received a determinate sentence for engaging in the delinquent conduct that
violates a penal law listed in section 53.045; section 53.045 lists capital murder);
see also Tex. Penal Code Ann. § 12.42(f) (West Supp. 2014) (providing that an
adjudication by a juvenile court that a juvenile engaged in delinquent conduct
constituting a felony offense for which he was committed to the Texas Juvenile
Justice Department under family code section 54.04(d)(2), (d)(3), or (m), or
section 54.05(f) for a determinate sentence is a final conviction for enhancement
purposes).
22
determinate sentence trials, are routinely filed in appellate courts when a juvenile
appeals his disposition order. See id. § 56.01(c)(1)(B) (West 2014) (authorizing
juvenile to appeal disposition order), § 56.02 (providing for reporter’s record in
juvenile case to be prepared and included in appellate record). See generally In
re J.A.B., No. 08-11-00244-CV, 2013 WL 3943087, at *1–8 (Tex. App.—El Paso
July 24, 2013, no pet.) (involving juvenile’s appeal from adjudication and
disposition orders). Appeals in juvenile cases are as in civil cases generally; no
special confidentiality rules exist in the rules of appellate procedure concerning
reporter’s records in juvenile appeals.14 See Tex. Fam. Code Ann. § 56.01(b); In
re G.C.F., 42 S.W.3d 194, 195–96 (Tex. App.––Fort Worth 2001, no pet.).
Neither Respondent nor the amicus curiae have directed us to other statutes or
rules mandating that a transcription of a juvenile proceeding is confidential as a
matter of law, and we have not located any.
Finally, to construe sections 58.005 and 58.007 as making the two
recordings at issue confidential when section 54.08 mandates that judicial
proceedings involving a juvenile who is at least fourteen years old “shall” be open
to the public “unless the court, for good cause shown, determines that the public
14
The only privacy accommodation for juveniles in the rules of appellate
procedure is that an appellate court is to identify a juvenile by a pseudonym
instead of by the juvenile’s name in its opinion in a juvenile appeal. See Tex. R.
App. P. 9.8(c). Appellate courts are expressly prohibited from altering the
original appellate record—which includes the clerk’s record and the reporter’s
record—in juvenile cases to protect a juvenile’s identity. See Tex. R. App. P.
9.8(d), 34.1.
23
should be excluded” would create an absurd result in the case before us. See
Tex. Fam. Code Ann. §§ 54.08(a); 58.005, 58.007. In other words, because the
legislature has mandated that judicial proceedings involving juveniles like R.J.D.
who are at least fourteen years old shall be open to the public absent good cause
shown to exclude the public, it would be nonsensical and would constitute an
absurd result for us to construe other statutory provisions as cloaking the
recordings of the two proceedings with confidentiality when there was no good
cause shown in the trial court.15 See, e.g., Jose Carreras, M.D., P.A. v.
Marroquin, 339 S.W.3d 68, 73 (Tex. 2011) (declining to interpret statute in
manner that would lead to absurd results) (citing City of Rockwall v. Hughes,
246 S.W.3d 621, 625–26 (Tex. 2008) (“[W]e construe the statute’s words
according to their plain and common meaning . . . unless such a construction
leads to absurd results.”)); City of Laredo v. Villarreal, 81 S.W.3d 865, 868–69
(Tex. App.—San Antonio 2002, no pet.) (declining to adopt one party’s proposed
construction of ordinance because it would lead to absurd results).
We hold that Respondent abused her discretion by refusing to vacate the
courtroom closure orders issued in R.J.D.’s case on January 10 and January 22,
15
We need not, and do not, determine whether recordings of proceedings
made pursuant to section 54.09 may be confidential when the proceedings
involve a juvenile younger than fourteen years old. Likewise, we need not, and
do not, determine whether recordings of proceedings involving a juvenile
fourteen years or older may be considered confidential when such proceedings
are closed based on an on-the-record showing of good cause under section
54.08(a).
24
and we will order her to vacate these orders and to set aside her March 20, 2014
order denying Relators’ motion to vacate the closure orders. The vacatur of the
closure orders means that Relators are entitled to obtain a copy of the recording
of the judicial proceedings, exclusive of any exhibits,16 upon making payment and
proper arrangements. See Cianfrani, 573 F.2d at 846 (recognizing that reversal
of courtroom closure order would have the immediate effect of requiring the court
to open the transcript of the hearing to the public, which court had previously
declined to do); accord Davenport v. Garcia, 834 S.W.2d 4, 24 (Tex. 1992) (orig.
proceeding) (explaining that “with the gag order lifted, there should be no
impediment to viewing the court records”); Lesikar v. Anthony, 750 S.W.2d 338,
339–40 (Tex. App.––Houston [1st Dist.] 1988, orig. proceeding) (conditionally
granting writ of mandamus and directing district court judge to vacate order that
prevented relators from obtaining a copy of a reporter’s record).
VIII. CONCLUSION
Having determined that Respondent abused her discretion by issuing the
January 10 and the January 22 courtroom closure orders and by subsequently
refusing to vacate the courtroom closure orders, we conditionally grant a writ of
16
Relators limit their request for relief to seeking the transcripts of the two
proceedings at issue. Our opinion therefore addresses only Relators’ access to
the recordings of the proceedings on January 10 and on January 22 that were
made pursuant to section 54.09. See Tex. Fam. Code Ann. § 54.09. We do not
speculate on whether exhibits, if any, offered into evidence at these proceedings
may or may not be confidential as a matter of law under other provisions of the
Texas Family Code.
25
mandamus. We are confident that Respondent will promptly vacate her January
10, 2014 and January 22, 2014 orders closing the courtroom in R.J.D.’s case; set
aside her March 20, 2014 order denying Relators’ motion to vacate those orders;
and take immediate steps to make the transcripts of the January 10 and January
22 proceedings at issue here available to Relators upon payment and proper
arrangements. The writ will issue only if Respondent fails to promptly do so.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DELIVERED: August 12, 2014
26