Holly Bone A/K/A Holly Martin v. David Tyler Moss ( 2021 )

Order entered October 1, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00436-CV
No. 05-21-00803-CV
HOLLY BONE A/K/A HOLLY MARTIN, Appellant
V.
DAVID TYLER MOSS, ET AL., Appellees
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-09893
ORDER
On July 23, 2021, a sealed supplemental clerk’s record was filed in appellate
cause number 05-21-00436-CV. The record before the Court did not contain a
sealing order. Accordingly, by order dated July 30, 2021, we temporarily sealed
the supplemental clerk’s record filed on July 23 and allowed the parties an
opportunity to obtain a sealing order.
On September 10, 2021, a sealed supplemental clerk’s record was filed in
appellate cause number 05-21-00436-CV containing the trial court’s October 23,
2020 temporary sealing order. This record was filed in response to this Court’s
July 30 order requesting a sealing order. Another sealed supplemental clerk’s
record was filed on September 17 containing the same temporary sealing order
along with two other documents.1
Additionally, appellant has filed another appeal in the same underlying
lawsuit that has been docketed as appellate cause number 05-21-00803-CV. In that
appeal, a two-volume clerk’s record was filed on September 28, volume one of
which was filed under seal and includes the same October 23, 2020 temporary
sealing order.
Under Texas Rule of Civil Procedure 76a, court records are generally
presumed to be open to the general public and may be sealed only upon motion and
if certain conditions are met. See TEX. R. CIV. P. 76a. Among those conditions are
that the movant must provide public notice, the trial court must hold a hearing on
the motion in open court as soon as practicable, and the trial court must issue an
order that complies with the requirements of rule 76a(6). See id. 76a(3), (4) & (6).
The trial court may issue a temporary sealing order in certain circumstances, but
any temporary order must set the time for the required open court hearing and
direct the movant to immediately give the public notice regarding the open court
hearing. See id. 76a(5).
1
The two other documents are (1) Motion to Vacate Turnover Orders and (2) Order Denying Defendant
Holly Bone-Martin’s Motion to Vacate Turnover Orders. Both documents are also included in the sealed
clerk’s record filed on September 28, 2021 in appellate cause number 05-21-00803-CV.
The temporary sealing order does not set the time for the required open court
hearing or direct the movant to immediately give the required public notice. See
id. More importantly, the record before the Court does not contain a final written
order in compliance with rule 76a(6). See id. Thus, there is currently no authority
for any portion of the appellate record to be filed under seal.
In light of the above circumstances, the July 23, September 10, and
September 17 sealed supplemental clerk’s records filed in appellate cause number
05-21-00436-CV and the September 28 volume one sealed clerk’s record filed in
appellate cause number 05-21-00803-CV shall remain under seal for FORTY
DAYS to allow the parties to obtain an order that complies with the requirements
of Rule 76a from the trial court that permanently seals the documents contained in
the supplemental clerk’s records and clerk’s record. See TEX. R. CIV. P. 76a.
Alternatively, if the parties prefer, they can file redacted documents to protect
sensitive information. See TEX. R. APP. P. 9.9.
The parties shall provide, within FORTY DAYS of the date of this order,
written verification whether the trial court signed a sealing order. If the trial court
does not sign a sealing order within the time prescribed, the Court will order the
above-noted supplemental clerk’s records and clerk’s record unsealed.
If the trial court signs a sealing order, we ORDER Dallas County District
Clerk Felicia Pitre to file, within FORTY-FIVE DAYS of the date of this order, a
supplemental clerk’s records in both appellate cause numbers 05-21-00436-CV and
05-21-00803-CV containing the sealing order.
We DIRECT the Clerk of this Court to send a copy of this order to the
Honorable Martin Hoffman, Presiding Judge of the 68th Judicial District Court;
Ms. Pitre; and, the parties.
/s/ CRAIG SMITH
JUSTICE