in Re American Airlines, Inc.

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00201-CV
___________________________
IN RE AMERICAN AIRLINES, INC.
Original Proceeding
236th District Court of Tarrant County, Texas
Trial Court No. 236-326225-21
Before Kerr, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
This original proceeding arises from litigation filed by American Airlines, Inc.
against Sabre Holdings Corporation, Sabre GLBL Inc., and Sabre Travel International
Limited (collectively, Sabre). American filed its petition for writ of mandamus under
seal1 seeking to have this court order the trial court to vacate (1) its Order Denying
American Airlines, Inc.’s Motion to Compel Production of Privileged Trade Secrets of
Sabre and Non-Parties and (2) its “verbal[] instruct[ion]”2 to the parties “not to
electronically file materials under seal in this case with the [D]istrict [C]lerk through
the eFileTexas.gov system” and to instead “email filings to the court coordinator
directly” (the Email Order). Because the trial court has not complied with the
mandatory language of Rule 74 as to the documents that it required to be emailed to
the court coordinator, we grant relief regarding the Email Order. Tex. R. Civ. P. 74.
But we deny the other relief sought in American’s petition for writ of mandamus. See
Tex. R. App. P. 52.8(a), (d).
American has filed a separate appeal in cause number 02-22-00159-CV
1
challenging a different trial-court order sealing the entire case file.
2
We may grant mandamus relief from an oral order that is clear, specific,
enforceable, and adequately shown by the record. In re Bledsoe, 41 S.W.3d 807, 811
(Tex. App.––Fort Worth 2001, orig. proceeding). Sabre has not argued that the trial
court’s verbal directive fails to meet these requirements.
2
II. BACKGROUND
Sabre acts as an intermediary between airlines and travel agents via its Global
Distribution System (GDS). Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG,
567 S.W.3d 725, 728 (Tex. 2019). Through the GDS, Sabre “connects airlines with
consumers by aggregating travel offerings of multiple airlines for comparison
shopping by travel agents.” Id. Airlines, including American, contract with Sabre for
inclusion of their flight data in the GDS. See id.In June 2021, American sued Sabre over contract-related issues. American
sought to expedite the suit.
After American requested discovery from nonparty Delta Air Lines, Inc.,
American and Sabre negotiated an agreed protective order, which applies to
documents furnished by parties and nonparties, defines two categories of confidential
documents, and restricts who may view the documents in each category. Sabre and
Delta3 provided some documents to American with provisions redacted. But Sabre
and Delta resisted discovery of the redacted information claiming that it was
privileged trade-secret information of Delta. Sabre also withheld other documents
and information on the basis of trade-secret privilege.4
3
Delta produced a redacted version of its contract with Sabre in accordance
with a Rule 11 agreement with American.
4
Not only does Sabre claim a trade-secret privilege, but also Delta and several
other nonparties have resisted document production based on the trade-secret
privilege.
3
American filed a motion to compel production of the withheld documents, and
the trial court held a hearing on the motion that lasted three days: April 28, 2022,
April 29, 2022, and May 2, 2022. The trial court denied the motion to compel in an
order dated May 5, 2022 (Motion to Compel Order). Although the Motion to
Compel Order did not specifically mention the in camera documents as documents
that the trial court had considered in its ruling, the Motion to Compel Order did state
that the trial judge had considered “all relevant papers submitted to or filed in th[e]
litigation,” and the mandamus record shows that Sabre had delivered the withheld
documents to the trial judge for in camera review on April 26, 2022.5
Meanwhile, American and Sabre filed agreed motions to seal parts of the trial-
court record pertaining to American’s application for a temporary injunction, and the
trial court ordered those parts of the record sealed. Later, however, in a one-line,
handwritten order, the trial court sua sponte ordered the entire case file sealed. On
January 18, 2022, the trial court––“through its court coordinator”6––verbally issued
the Email Order.
The trial court delivered the seven binders of in camera documents to this
5
court for purposes of the mandamus proceeding.
6
It is undisputed that the coordinator was delivering this instruction from the
trial judge. See Higginbotham v. Collateral Prot., Inc., 859 S.W.2d 487, 490 (Tex. App.—
Houston [1st Dist.] 1993, writ denied) (“The record establishes that the court
coordinator, acting as the agent for the trial court, sent the parties at least two notices
that the case was set for a jury trial.”); see also Butler v. State, 6 S.W.3d 636, 641 (Tex.
App.––Houston [1st Dist.] 1999, pet. ref’d) (citing Tex. Gov’t Code Ann. § 74.101(a)
for establishment of coordinator “to improve justice and to expedite the processing of
4
American complied with the Email Order until the trial court overruled
American’s motion to vacate the sua sponte order sealing the entire case file.
American then filed an appeal from that order in this court.7
Three days after filing the notice of appeal, American filed––with the trial-court
clerk––a Motion Requesting Authorization To Prepare And Transfer Sealed Clerk’s
And Reporter’s Records (the Transfer Motion) and a contemporaneous Plaintiff’s
Designation Specifying Material To Be Included In Clerk’s Record (the Designation).8
The Transfer Motion sought a trial-court order “authorizing the [D]istrict [C]lerk and
court reporter to prepare the Clerk’s and Reporter’s Records and transmit those
records to the Second Court of Appeals under seal.”9 The Designation, referenced in
cases through the courts” and citing Higginbotham for the proposition that “the court
coordinator can act as an ‘agent for the trial court’ in the pursuit of judicial
economy”).
7
Nothing in this memorandum opinion is to be construed as ruling on the
issues to be determined in the appeal.
8
American filed these appeal documents in a supplemental mandamus record.
But we may also take judicial notice of our own records in the appeal for purposes of
this original proceeding. See, e.g., U.S. Cap. Invs., LLC v. Shahbazi, No. 02-17-00199-
CV, 2018 WL 772761, at *2 (Tex. App.—Fort Worth Feb. 8, 2018, pet. denied) (mem.
op.); cf. Gardner v. Martin, 345 S.W.2d 274, 276 (Tex. 1961) (“It is well recognized that
a trial court may take judicial notice of its own records in a cause involving the same
subject matter between the same, or practically the same, parties.”).
9
The Transfer Motion stated that it was being filed in accordance with the
District Clerk’s “policy [that] require[s] an order from [the trial court] authorizing [the
District Clerk] to prepare and transmit the Clerk’s and Reporter’s Records to the
Second Court of Appeals under seal.” Attached was an email from the Administrative
5
the Transfer Motion, included a three-page Exhibit B that listed the “substantive
motions and other filings emailed to the court coordinator, in accordance with the”
Email Order that American was requesting to “be included in the Clerk’s Record” for
the appeal. Sabre did not oppose the Transfer Motion and “designated additional
material filed with and maintained only by the trial court’s coordinator.” On May 23,
2022, American sent a letter to the trial court noting that Sabre did not oppose the
Transfer Motion and “urg[ing] the [c]ourt to consider and promptly rule on the . . .
Motion by submission so that American [could] proceed with its urgent appeal.” As
of July 22, 2022, the trial court had not ruled on the Transfer Motion “[d]espite
multiple requests for a ruling.”10
In the midst of attempting to obtain a complete clerk’s record for the appeal,
American filed this mandamus proceeding on May 31, 2022––twenty-two days after
filing the Transfer Motion and twenty-five days after filing its notice of appeal––
complaining of the Motion to Compel Order as well as the Email Order.
Appeals Clerk indicating that she would “not be able to move forward in preparation
of the Clerk’s record without the signed Order giving [her] permission to do so.”
American stated this fact in its Unopposed Motion for Transfer of
10
Designated Trial Court Records filed in the appeal in this court on July 22, 2022;
therefore, we consider it undisputed. We note that a trial court has a ministerial duty
to rule on a party’s properly filed motion within a reasonable time after it has been
submitted to the court or after the party’s request for a ruling. In re Welsh, No. 09-22-
00262-CV, 2022 WL 3651991, at *1 (Tex. App.––Beaumont Aug. 25, 2022, orig.
proceeding) (mem. op.).
6
III. DISCUSSION
American raises six issues in its mandamus petition. The first four deal with
the Motion to Compel Order, and the fifth issue deals with the Email Order.
American asserts in its sixth issue that the trial court’s errors cannot be remedied by
appeal. We grant relief only on its fifth issue and the part of its sixth issue related to
the fifth issue.
A. Standard of Review
Mandamus relief is an extraordinary remedy. In re Acad., Ltd., 625 S.W.3d 19,
25 (Tex. 2021) (orig. proceeding). The party seeking mandamus relief must show
both that the trial court clearly abused its discretion and that the party has no
adequate remedy by appeal. In re Allstate Indem. Co., 622 S.W.3d 870, 875 (Tex. 2021)
(orig. proceeding).
A trial court abuses its discretion when a decision is arbitrary, unreasonable,
and without reference to guiding principles. Id.; see Walker v. Packer, 827 S.W.2d 833,
839–40 (Tex. 1992) (orig. proceeding). We defer to a trial court’s factual
determinations that have evidentiary support, but we review the trial court’s legal
determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009)
(orig. proceeding). An error of law or an erroneous application of the law to the facts
is always an abuse of discretion. See In re Geomet Recycling LLC, 578 S.W.3d 82, 91–92
(Tex. 2019) (orig. proceeding).
7
An appellate remedy’s adequacy has no specific definition; “the term is ‘a proxy
for the careful balance of jurisprudential considerations’ [that implicate both public
and private interests,] and its meaning ‘depends heavily on the circumstances
presented.’” Allstate Indem. Co., 622 S.W.3d at 883 (quoting In re Prudential Ins. of Am.,
148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding)); In re Ford Motor Co., 165 S.W.3d
315, 317 (Tex. 2005) (orig. proceeding) (quoting Prudential, 148 S.W.3d at 136); see also
In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding)
(“Whether a clear abuse of discretion can be adequately remedied by appeal depends
on a careful analysis of costs and benefits of interlocutory review.”).
An appellate remedy is adequate when any benefits to mandamus review are
outweighed by the detriments. Prudential, 148 S.W.3d at 136. But the converse is not
necessarily true; even when the benefits of mandamus review outweigh the
detriments, we must consider whether the appellate remedy is nonetheless adequate.
Id. In evaluating the benefits and detriments, we consider whether mandamus will
preserve important substantive and procedural rights from impairment or loss. In re
Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). The danger of
permanently losing substantial rights occurs when the appellate court would not be
able to cure the error, when the party’s ability to present a viable claim or defense is
vitiated, or when the error cannot be made a part of the appellate record. ERCOT,
Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 641 (Tex. 2021)
(orig. proceeding) (citing In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex.
8
2004) (orig. proceeding)). We should also consider whether mandamus will allow us
“to give needed and helpful direction to the law that would otherwise prove elusive in
appeals from final judgments” and “whether mandamus will spare litigants and the
public ‘the time and money utterly wasted enduring eventual reversal of improperly
conducted proceedings.’” Team Rocket, 256 S.W.3d at 262 (quoting Prudential,
148 S.W.3d at 136).
B. Email Order
1. Rules for Tendering Documents to be Filed
A district clerk has a ministerial duty to file a document when it has been
properly presented to the clerk. In re Samson Expl., LLC, No. 09-22-00081-CV, 2022
WL 1177276, at *4 (Tex. App.—Beaumont Apr. 21, 2022, orig. proceeding) (mem.
op.). The Rules of Civil Procedure set forth how documents are to be presented to
the clerk for filing. The default method, subject to certain enumerated exceptions, is
that “attorneys must electronically file documents in courts where electronic filing has
been mandated.” Tex. R. Civ. P. 21(f)(1); see Supreme Court of Tex., Order Requiring
Electronic Filing in Certain Courts, Misc. Docket No. 13-9164 (Dec. 9, 2013)
(mandating e-filing for all nonjuvenile civil cases in all district courts by 2016);11 see also
Supreme Court of Tex., Order Adopting the Recommendations of the Judicial
This order vacates and supersedes two prior orders mandating e-filing:
11
Supreme Court of Tex., Order Requiring Electronic Filing in Certain Courts, Misc.
Docket No. 13-9092 (June 24, 2013), and Supreme Court of Tex., Order Requiring
Electronic Filing in Certain Courts, Misc. Docket No. 12-9206 (Dec. 11, 2012).
9
Committee on Information Technology for Access to Electronically Filed Court
Documents by Judges, Clerks, and Attorneys Through re:SearchTX, Misc. Docket
No. 17-9025 (Feb. 21, 2017) (noting in introduction that “e-access . . . is more
efficient for judges, clerks, lawyers, and parties” and “provides greater transparency
for the justice system that is critical to evaluating its operation, improving its
procedures, and strengthening public trust”). “[D]ocuments filed under seal or
presented to the court in camera” are among the exceptions to electronic filing and
“must not be filed electronically.” Tex. R. Civ. P. 21(f)(4)(B)(i).12 Nevertheless,
[e]very pleading, plea, motion, or application to the court for an order,
whether in the form of a motion, plea, or other form of request, unless
presented during a hearing or trial, must be filed with the clerk of the court in
writing, . . . and at the same time a true copy must be served on all other
parties, and must be noted on the docket.
Tex. R. Civ. P. 21(a) (emphasis added), 74 (“The filing of pleadings, other papers[,]
and exhibits as required by these rules shall be made by filing them with the clerk of
the court . . . .”).13 Therefore, under Rule 21, documents not filed electronically that
are not “presented during a hearing or trial” should be filed in paper form with the
clerk of the court. Tex. R. Civ. P. 21(a), 21(f)(4)(B)(i); cf. Tex. R. Civ. P. 21(f)(4)(C)
(listing as one of the exceptions to the e-filing requirement that “[f]or good cause, a
12
Thus, the trial court did not abuse its discretion by ordering that documents
under seal not be filed electronically.
13
In addition, the Tarrant County Local Rules provide that “[a]ll pleadings,
motions, notices, and any other paper, document[,] or thing made a part of the record
in any civil, family law[,] or criminal case shall be filed with the Clerk.” Tarrant (Tex.)
Loc. R. 1.06(a).
10
court may permit a party to file other documents in paper form in a particular case”
(emphasis added)).
A paper copy permitted to be filed with the trial court clerk may be filed by
mail or by hand delivery. See Tex. R. Civ. P. 5, 21(a), 74. “[P]leadings, other papers
and exhibits” may also be filed with a judge, at the judge’s discretion. Tex. R. Civ.
P. 74; Stokes v. Aberdeen Ins., 917 S.W.2d 267, 268 (Tex. 1996) (mentioning that Rule 74
gives judge discretion to accept filing); In re Welvaert, No. 10-19-00131-CV, 2019 WL
1966962, at *2 (Tex. App.––Waco May 1, 2019, orig. proceeding) (mem. op.) (noting
same); State v. One Million Seven Hundred Eleven Thousand Sixty-One Dollars & Seventy-Nine
Cents ($1,711,061.79) in U.S. Currency (Currency Forfeiture), No. 04-18-00379-CV,
2018 WL 6793787, at *5 (Tex. App.—San Antonio Dec. 27, 2018, no pet.) (mem. op.)
(noting that fact that judge is authorized to accept documents for filing does not mean
he did so, especially when judge did not comply with remainder of Rule 74 by noting
filing date and time on document and forwarding it to the district clerk); In re Cuban,
24 S.W.3d 381, 383 (Tex. App.––Dallas 2000, orig. proceeding) (“A judge may accept
a document for filing.”). But when a document is so filed, the judge has the duty to
“note thereon the filing date and time and forthwith transmit the[ document] to the
office of the clerk.” Tex. R. Civ. P. 74 (providing that if papers are filed with judge,
the judge “shall note thereon the filing date and time and forthwith transmit them to
the office of the clerk”); Cuban, 24 S.W.3d at 383 (stating that when judge accepts
filing under Rule 74, “[t]he judge is to note the date and time on the document and
11
forward it to the clerk’s office”); cf. Tex. Gov’t Code Ann. §§ 311.002, 311.016(2)
(providing that for purposes of Code Construction Act, the word “‘[s]hall’ imposes a
duty”).
2. Purposes of District Clerk’s Duties Regarding Court Records
Various statutes and rules govern the district clerk’s duties vis à vis filing
documents, and case law applies those statutes and rules to different circumstances
based on the specific reasons therefor. As we discuss below, among the primary
purposes for the district clerk’s prescribed duties are to keep and maintain court
records in a timely and orderly fashion (1) so that there are no questions about when
documents were filed or presented for due-date purposes, (2) so that court records
may be timely accessed and viewed by those permitted to do so, and (3) so that
documents are maintained securely to protect against unauthorized access or loss.
The Texas Government Code expressly assigns responsibility for court filings
to the district clerk. Subsections (a) and (b)(1) of Government Code Section 51.303
provide that a district clerk “has custody of and shall carefully maintain and arrange
the records relating to or lawfully deposited in the clerk’s office” and that the clerk
“shall . . . record the acts and proceedings of the court.” Tex. Gov’t Code
Ann. § 51.303(a)–(b)(1). Additionally, although the Texas Legislature has given
district clerks the authority to maintain and store documents “by microfilm, image
processing technology, or other process that correctly and legibly reproduces or that
forms a medium for copying or reproducing or by optical data storage,” that authority
12
is subject to numerous conditions; one such condition is that the district clerk’s
maintenance and storage plan must “provide standards for the organizing, identifying,
coding, and indexing of records so a record can be retrieved rapidly and the reproduced
record can be certified as a true and correct copy.” Id. § 51.304(a), (b)(3) (emphasis
added). The district clerk’s maintenance and storage plan must also “provide for the
permanent retention of records, including security provisions to guard against physical
loss, alteration, and deterioration.” Id. § 51.304(b)(5). In contrast, nothing in
Government Code Chapter 24 assigns or delegates the above duties to a district-court
judge. See generally id. §§ 24.001–.034, 24.601–.607.
For purposes of determining timeliness, “an instrument is deemed in law filed
at the time it is left with the clerk, regardless of whether or not a file mark is placed on
the instrument and regardless of whether the file mark gives some other date of
filing.” Standard Fire Ins. v. LaCoke, 585 S.W.2d 678, 680 (Tex. 1979). Thus, a party
satisfies its duty under the Rules of Civil Procedure by “put[ting] a legal instrument in
the custody and control of the court clerk.”14 Warner v. Glass, 135 S.W.3d 681, 684
(Tex. 2004). “The purpose of this rule is to protect a diligent party from being
penalized by errors and omissions of the court clerk.” Garza v. State, 919 S.W.2d 788,
790 & n.4 (Tex. App.—Houston [14th Dist.] 1996, no pet.) (noting––in bail-bond
case governed by Rules of Civil Procedure––that “[a]n essential purpose of filing
“Electronic service is complete on transmission of the document to the
14
serving party’s electronic filing service provider.” Tex. R. Civ. P. 21a(b)(3).
13
documents is to make them part of the records of the district or county clerk . . . and
trial court for future reference” and that “having documents in the files of the court
and clerk forecloses” questions about when filing and presentment of documents has
occurred); Kelly Moore Paint Co. v. Ne. Nat’l Bank of Fort Worth, 426 S.W.2d 591, 593
(Tex. App.—Fort Worth 1968, no writ) (“One of the official duties of the clerk is to
know ‘what his office records show with respect to pending litigation.’” (quoting
Hanks v. Rosser, 378 S.W.2d 31, 34 (Tex. 1964))).
But the term “filed” has a different meaning when viewed from the perspective
of the clerk. See In re Smith, 270 S.W.3d 783, 786 (Tex. App.—Waco 2008, orig.
proceeding). Under Rules of Civil Procedure 24 through 26, the clerk must
• “[w]hen a petition is filed . . . indorse thereon the file number, the day
on which it was filed and the time of filing, and sign his name officially
thereto”;
• “keep a file docket which shall show in convenient form the number
of the suit, the names of the attorneys, the names of the parties to the
suit, and the nature thereof, and, in brief form, the officer’s return on the
process, and all subsequent proceedings had in the case with the dates
thereof”; [and]
• “keep a court docket in a permanent record that shall include the
number of the case and the names of the parties, the names of the
attorneys, the nature of the action, the pleas, the motions, and the ruling
of the court as made.”
Tex. R. Civ. P. 24–26. Thus, the clerk physically “‘files’ a document by indorsing a file
mark on it, recording it in the clerk’s file docket, and maintaining the document in the
clerk’s file for the suit.” Smith, 270 S.W.3d at 786.
14
After a document has been filed with the district clerk, “[e]ach attorney at law
practicing in any court shall be allowed at all reasonable times to inspect the papers
and records relating to any suit or other matter in which he may be interested.” Tex.
R. Civ. P. 76; see Glidden Co. v. Aetna Cas. & Sur. Co., 291 S.W.2d 315, 318 (Tex. 1956)
(noting that papers delivered to the clerk’s custody for filing are “to be kept by him
among the papers in his office subject to such inspection by interested parties as may
be permitted by law”). Moreover, Rule 76a provides that “[c]ourt records may not be
removed from court files except as permitted by statute or rule.” Tex. R. Civ.
P. 76a.15
Finally, when a notice of appeal has been filed, the trial-court clerk has a duty
to prepare, certify, and timely file the clerk’s record with the appellate court if “the
party responsible for paying for the preparation of the clerk’s record has paid the
“[C]ourt records” are defined by Rule 76a as
15
all documents of any nature filed in connection with any matter before
any civil court, except:
(1) documents filed with a court in camera, solely for the purpose
of obtaining a ruling on the discoverability of such documents;
(2) documents in court files to which access is otherwise restricted
by law; [and]
(3) documents filed in an action originally arising under the Family
Code.
Tex. R. Civ. P. 76a(2)(a).
15
clerk’s fee, has made satisfactory arrangements with the clerk to pay the fee, or is
entitled to appeal without paying the fee.” Tex. R. App. P. 35.3(a). The clerk’s record
and reporter’s record comprise the “appellate record.” Tex. R. App. P. 34.1. Each
case––even if bearing multiple cause numbers––has only one appellate record––and,
unless an exception applies, that record is due sixty days after the notice of appeal is
filed. Tex. R. App. P. 26.1(a)–(c), 34.1, 35.1.
3. No Waiver
Sabre contends that American waived its complaint about the Email Order by
complying with it without objection. Error-preservation rules apply to original
proceedings. In re Rowes, No. 05-14-00606-CV, 2014 WL 2452723, at *1 (Tex. App.––
Dallas May 30, 2014, orig. proceeding) (mem. op.). Thus, generally, to be considered
in an original proceeding, a complaint must have been presented to the trial court by
timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). A request, objection,
or motion is considered timely if it is asserted when the potential error becomes
apparent. Hoxie Implement Co. v. Baker, 65 S.W.3d 140, 145 (Tex. App.—Amarillo
2001, pet. denied).
Here, from the very beginning of the suit, American was focused on expediting
the proceedings. While it is true that American followed the Email Order for almost
four months, the parties were serving the filings to each other via email, in accordance
with the protections agreed to in the protective order. Therefore, the parties were
16
able to access the documents for purposes of the litigation. And no disputes arose
over the timeliness or accuracy of the emailed documents.16
But the nature and scope of, and harm from, the error became apparent when
American filed the appeal of the trial court’s sua sponte sealing order. At that time,
American filed the Transfer Motion and the Designation, attempting to have the
emailed documents filed in a clerk’s record in this court. American has represented to
this court––without dispute––that it has made “multiple requests” for a ruling on the
Transfer Motion. Despite the fact that the clerk’s record in the appeal was due on
July 1, 2022, the trial court did not rule on the Transfer Motion before this court had
to grant American’s Unopposed Motion for Transfer of Designated Trial Court
Records filed in the appeal. Under these particular circumstances, we conclude that
American raised this very issue with the trial court at the time the error became
apparent and that the trial court refused to rule on American’s complaint. See Tex. R.
App. P. 33.1(a)(1), (2)(B).
When a clerk’s record was filed in the appeal on July 12, 2022, not only was it
filed after we extended the filing date, but it also did not include the documents that
had been emailed to the court coordinator according to the Email Order. Therefore,
on American’s unopposed motion, we ordered the trial court “to direct the court
American has noted in its mandamus petition, for example, that it agreed to
16
seal the temporary-injunction proceedings “to avoid further delay in scheduling the
temporary[-]injunction hearing.”
17
coordinator of the 236th District Court––and any other trial court personnel in
possession of digital or paper copies of the described items––to forward to the
Tarrant County District Clerk” the emailed documents that both parties had
designated to be included in the clerk’s record for the appeal.17 See Tex. R. App.
P. 35.3(c). And we recently granted a two-week extension of time to file the
supplemental clerk’s record containing the emailed documents––from August 25,
2022, until September 9, 2022––based on the trial-court clerk’s representation that
“[p]er the request of the Court Coordinator, Rhonda Young, documents are not
readily available.” Although those documents were finally filed on September 7, 2022,
the filing of a complete clerk’s record in the appeal was delayed for two months and
has required multiple orders from this court to accomplish.18
We ordered Sabre to file a supplemental response to the mandamus petition
17
to explain whether, despite its lack of opposition to an order compelling the trial court
to transfer certain of the documents that had been emailed to its court coordinator to
the District Clerk for inclusion in the appellate record, Sabre remained opposed to
American’s request for mandamus relief as to the remaining documents emailed to the
court coordinator under this procedure, as well as the forwarding of future documents
in this manner. Sabre filed a supplemental response in which it states that its
“agreement with the motion reflected its position that the documents delivered to the
court coordinator are properly part of the appellate record.” We find no merit in
Sabre’s argument that because some of the documents subjected to the disputed
procedure “are in the process of being included in the sealed appellate record for 02-22-00159-
CV,” American cannot show harm as to the remaining documents that have never
been properly forwarded to the District Clerk under Rule 74.
18
Although the appeal is interlocutory in the sense that no final judgment has
been signed, sealing orders under Rule 76a are deemed severed from the case and
function as a final judgment. Tex. R. Civ. P. 76a(8). Therefore, the appeal is not
subject to an accelerated schedule.
18
Although American characterizes its complaint as one of fundamental error, we
need not decide whether the complained-of action is of the type that need not be
preserved. Under the unique circumstances of this case, we hold that American
sought relief from the trial court when the problem of which it complains––inability
to obtain a timely and complete clerk’s record––became apparent.19 That the trial
court––in the face of a filed appeal with set deadlines––refused to comply with
Rule 74, even after American pointed out the problem and sought an express order,
was sufficient to preserve this issue for our review. See also Tex. Gov’t Code
Ann. § 22.221(a) (providing that court of appeals may issue writ of mandamus to
enforce its jurisdiction); cf. In re Simmonds, 271 S.W.3d 874, 879 (Tex. App.––Waco
2008, orig. proceeding) (holding that if both district clerk and district court refuse to
19
Although procedurally Sabre complains that American failed to timely pursue
this complaint in the trial court, its argument also implicates the timing of American’s
mandamus petition. For similar reasons, we hold that––on these facts––American did
not unduly delay in filing its mandamus petition. See In re Am. Airlines, Inc.,
634 S.W.3d 38, 43 (Tex. 2021) (orig. proceeding) (holding that American “reasonably
explained the year-long period” before it sought mandamus relief because it did not
receive the complained-of order for four months and real party in interest thereafter
failed to comply with the trial court’s ordered prerequisite notice for taking the
compelled deposition; thus, American was justified in filing mandamus petition in the
face of impending trial to avoid rescheduling the trial date); cf. In re Whataburger Rests.
LLC, 645 S.W.3d 188, 193–94 (Tex. 2022) (orig. proceeding) (holding that
Whataburger was entitled to mandamus relief when clerk’s failure to notify it of
issuance of appealable interlocutory order precluded it from filing appeal and that
Whataburger did not “sleep on its rights” by not checking with the trial court to see if
such an order had issued because counsel should be able to rely on clerk’s duty to
notify).
19
accept document for filing, court of appeals has jurisdiction to consider whether to
order district court to accept filing).
4. Consequences of Failure to Comply With Rule 74 Duties on Filing
A trial judge’s lack of compliance with Rule 74 when accepting documents for
filing prevents the district clerk from complying with his or her statutory and Rule-
based duties. That a trial judge to whom a document was tendered did not comply
with the mandatory language of Rule 74 has been construed as evidence that the judge
exercised Rule 74’s discretion not to accept the document for filing. See Currency
Forfeiture, 2018 WL 6793787, at *4–5; Garza, 919 S.W.2d at 789–90; see also Harbin v.
Brown, Graham & Co., No. 07-98-0209-CV, 1999 WL 311097, at *1 (Tex. App.––
Amarillo 1999, pet. denied) (per curiam) (op. on reh’g, not designated for publication).
But cf. Defee v. Defee, 966 S.W.2d 719, 721 (Tex. App.––San Antonio 1998, no pet.)
(refusing to speculate on when waiver document found in clerk’s custody but without
clerk’s official file-stamp was filed but deferring to bill-of-review judge’s finding that
trial judge had accepted and placed the waiver in the court’s file). Therefore, when a
judge agrees to accept a filing under Rule 74 but does not also comply expeditiously
with the requirements of Rule 74 by noting the filing date and time on the document
20
and by “forthwith”20 transmitting the documents to the district clerk, the primary
purposes of filing documents, as explained above, are thwarted.
Although it is understandable in a complex case such as this one––involving
voluminous filings by both parties and nonparties, many of which contain confidential
material subject to protective orders––that the trial court would make every effort to
prevent inadvertent disclosure of a document to an unauthorized person, the
procedure fashioned here not only does not comply with Rule 74, but it also prevents
the District Clerk from complying with his statutory and Rule-based obligations. The
majority of documents tendered in this case from January 18, 2022, to at least July 12,
2022, were not placed in the District Clerk’s custody for months. Thus, the District
Clerk has been prevented from complying with his statutory duty to maintain, store,
and arrange these records, as well as his duty to implement security measures “to
guard against physical loss, alteration, and deterioration” of those records. See Tex.
Gov’t Code Ann. § 51.304(a), (b)(5). Finally, nothing indicates how, or if, these
documents emailed to the court coordinator have been organized, identified, coded,
or indexed so that they “can be retrieved rapidly.”21 See id. § 51.304(b)(3).
20
Black’s Law Dictionary defines “forthwith” as “[i]mmediately,” “without
delay,” “directly,” “promptly,” “within a reasonable time under the circumstances,”
and “with all convenient dispatch.” Forthwith, Black’s Law Dictionary (11th ed. 2019).
In fact, the opposite appears to have been established when the court
21
coordinator told the trial-court clerk that the documents are “not readily available.”
21
Moreover, the Email Order has interfered with the District Clerk’s and this
court’s duties in the pending appeal vis à vis the appellate record.22 Sabre contends
that American has not been harmed because it was served all of these documents and
has them in its possession, as evidenced by its ability to provide us a mandamus
record. But the fact that an appeal from the Email Order (after a final judgment) is
inadequate is illustrated by this court’s difficulty in obtaining a timely and complete
clerk’s record for the pending appeal of the sealing order. This court and the trial
court are “jointly responsible for ensuring that the appellate record is timely filed.”
Tex. R. App. P. 35.3(c). A district clerk has a duty to timely file the clerk’s record
portion of the appellate record. Tex. R. App. P. 35.3(a). We cannot consider
documents that are not part of the appellate record. See Cummings v. Billman,
634 S.W.3d 163, 166 n.1 (Tex. App.—Fort Worth 2021, no pet.) (mem. op.) Our
inability to timely obtain a complete clerk’s record and thereby timely order briefing in
the appeal amply shows why mandamus relief is appropriate. Moreover, the fact that
Sabre did not oppose the supplementation of the clerk’s record in the appeal helps
show why mandamus relief is appropriate here. Complex litigation can often spawn
22
Cf. In re M.R.J.M., 193 S.W.3d 670, 675–76 (Tex. App.––Fort Worth 2006,
order) (en banc) (reasoning that statute––allowing trial court to find that appeal from
parental-rights termination judgment would be frivolous––would be unconstitutional
if interpreted to allow frivolousness finding to obviate the filing of a complete
appellate record in this court for review of factual-sufficiency argument urged on
appeal), disp. on merits, 280 S.W.3d 494 (Tex. App.––Fort Worth 2009, no pet.) (op. on
reh’g).
22
multiple appeals. If we were not to order relief now, we could be faced with having to
issue piecemeal orders for the trial court to comply with its Rule 74 duty each time an
appeal is filed. Such a remedy would be wasteful in any litigation, much less one in
which the plaintiff has expressly sought expedited relief.23
5. Civil Practice and Remedies Code Does Not Authorize Procedure
Sabre finally contends that Texas Civil Practice and Remedies Code Section
134A.006(a)––which provides that in an “action” under Chapter 134A, “a court shall
preserve the secrecy of an alleged trade secret by reasonable means”––is instructive as
to whether the trial court was authorized to mandate this alternative to filing
documents in the clerk’s record. Tex. Civ. Prac. & Rem. Code Ann. § 134A.006(a).
That section goes on to establish “a presumption in favor of granting protective
orders to preserve the secrecy of trade secrets” and permits such orders to “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.” Id. But these described protective provisions are permissive
only. See HouseCanary, Inc. v. Title Source, Inc., 622 S.W.3d 254, 260 (Tex. 2021).
We do not agree that Section 134A.006 allows the trial court to implement the
procedure here contrary to the Rules of Civil Procedure and the duties of the District
We should not be understood as laying the blame for any delay solely on one
23
party or condoning all of the litigation conduct of any one party.
23
Clerk set forth in the Government Code. Even if Chapter 134A applied to
American’s claim, Section 134A.007(c) controls over the Rules of Civil Procedure
only “[t]o the extent that [it] conflicts with” them. Tex. Civ. Prac. & Rem. Code Ann.
§ 134A.007(c). And Section 134A.006’s listed permissive protective-order provisions
say nothing about restricting a party’s ability to obtain and have filed a timely,
complete appellate record. Accordingly, whether the trial court could look to that
provision for guidance in crafting its orders does not excuse its lack of compliance
with Rule 74.
6. Disposition
We conclude that the trial court abused its discretion by directing the parties to
email documents to the court coordinator instead of filing them via paper with the
District Clerk and also by failing to comply with Rule 74 by properly marking those
documents and forwarding them “forthwith” to the District Clerk. We further
conclude that American has shown that it does not have an adequate remedy by
appeal. We therefore sustain American’s fifth issue and part of its sixth issue.
C. Motion to Compel Order
Regarding American’s other, discovery-related complaints, we have carefully
reviewed American’s petition, Sabre’s response, American’s reply, Sabre’s
supplemental response, the mandamus record, and the documents presented to the
trial court for in camera review. Having done so, we deny relief. See Tex. R. App.
P. 52.8(a), (d).
24
IV. CONCLUSION
Having determined that the trial court abused its discretion by directing the
parties to email all documents to be filed to the court coordinator rather than filing
them by paper under seal with the District Clerk and then by failing to comply with
Rule 74 by noting the filing date and time on the so-tendered documents and
transmitting them forthwith to the District Clerk, we order the trial court to vacate its
verbal directive to the parties to forward all documents to be filed to its court
coordinator via email. We further order the trial court––to the extent it has not
already done so––to comply with Rule 74 by noting the filing date and time on the
documents tendered solely to the court coordinator via email in accordance with the
Email Order.24 We direct the court coordinator of the 236th District Court––and any
other trial court personnel in possession of digital or paper copies of the described
items––to then forward any of those file-marked documents that have not already
been forwarded according to our July 26, 2022 order in cause number
24
We note that the trial court did not so file mark the documents forwarded to
the District Clerk under seal for inclusion in the clerk’s record in appeal cause number
02-22-00159-CV—although some, but not all, of the documents are stamped
“received” with a date and the court coordinator’s initials. However, those
documents appear to be arranged in chronological order by date of tender. Rather
than delay the appeal further––and in the absence of any pending motion seeking to
have those documents properly file marked––we decline to, at this time, order the trial
court to have a supplemental clerk’s record filed in the appeal that contains file-
marked versions of those particular documents.
25
02-22-00159-CV to the Tarrant County District Clerk under seal. We deny all other
relief requested by American in its petition for writ of mandamus.
/s/ Dana Womack
Dana Womack
Justice
Delivered: September 12, 2022
26