in Re Sprague, Rustam & Diamond, PC,Michael Sprague and J. Christopher Diamond ( 2020 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: In re Sprague, Rustam & Diamond, PC, Michael Sprague,
Individually, and J. Christopher Diamond, Individually
Appellate case number: 01-20-00250-CV
Trial court case number: 2017-76096
Trial court: 127th District Court of Harris County
Relators, Sprague, Rustam & Diamond, PC, Michael Sprague, and J. Christopher
Diamond, have filed a motion for supplemental mandamus record to be filed under seal.
Real parties in interest, Coastal Cargo of Texas, Inc. and Tokio Marine HCC, have filed a
response in opposition to relators’ motion. Relators’ motion requests this Court order real
parties in interest to supplement the mandamus record by filing, under seal, the documents
inspected by the trial court in camera. Based on the information available to this Court,
there is no indication that the documents inspected by the trial court in camera were filed
under seal or otherwise made a part of the record. Appellate courts do not have the
authority to seal documents in an appellate record. See Envtl. Procedures, Inc. v. Guidry,
282 S.W.3d 602, 636 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). Accordingly,
we deny relators’ motion for supplemental mandamus record to be filed under seal.
We note that all parties agree that as a part of this Court’s consideration of relators’
petition for writ of mandamus, it is necessary for this Court to review the documents
inspected by the trial court in camera. Here, the mandamus record does not contain the
documents reviewed by the trial court in camera. For that reason, further action by the
parties is necessary to make these documents part of the mandamus record.
Further, when documents have been submitted for in camera inspection, a party
must request that the documents be carried forward under seal so that the appellate court
can evaluate them. Pope v. Stephenson, 787 S.W.2d 953, 954 (Tex. 1990); Lesher v. Coyel,
435 S.W.3d 423, 431–32 (Tex. App.—Dallas 2014, pet. denied); see also TEX. R. CIV. P.
76a; Envtl. Procedures, Inc., 282 S.W.3d at 636. However, hand-delivery of a copy of the
purported in camera documents to this Court by real parties in interest is not sufficient. See
Humphreys v. Caldwell, 881 S.W.2d 940, 944–45 (Tex. App.—Corpus Christi 1994, orig.
proceeding) (party submitted package under cover letter from attorney informing appellate
court enclosed documents submitted for in-camera inspection); see also TEX. R. APP. P.
34.5(c), (e); McGrath v. Baylor Univ. Med. Ctr., No. 05-99-00457-CV, 2000 WL 1222039,
at *3 n.6 (Tex. App.—Dallas Aug. 29, 2000, pet. denied) (not designated for publication)
(noting where party “did not ask the trial court to bring the subject documents forward
under seal,” appellate court “had no way of knowing whether the documents in [party]’s
possession were the precise documents which the trial court reviewed in camera”).
The parties are not prevented from requesting that the trial court clerk identify and
prepare a sealed supplemental clerk’s record containing the documents reviewed by the
trial court in camera. See TEX. R. APP. P. 34.5(c); see also TEX. R. APP. P. 34.5(e); B.W.B.
v. Eanes Indep. Sch. Dist., No. 03-16-00710-CV, 2017 WL 4348215, at *1 (Tex. App.—
Austin Sept. 29, 2017, no pet.) (mem. op.) (party to deliver to trial court documents
reviewed in camera and trial court clerk to then forward such documents in supplemental
clerk’s record).
It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes
 Acting individually  Acting for the Court
Date: ___April 16, 2020___