## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 14 - 00144 - CV

IN RE FORT WORTH STA R

TELEGRAM; DALLAS MORNING NEWS ; CBS STATIONS GROUP OF TEXAS LLC; KXAS

- TV ; NW COMMUNICATIONS OF TE XAS, INC., ON BEHALF OF S TATION KDFW FOX 4 ; AND WFAA

- TV , INC. RELATORS

---------- ORIGINAL PROCEEDING TRIAL COURT NO. 323

- 98857J

- 13

---------- 

### OPINION

---------- I. I NTRODUCTION In the underlying c ase involving juvenile R .J.D

. , Respondent , the Honorable Jean Boyd , sua spont e ordered the courtroom c losed 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 sentenc e trial. Relators Fort Worth Star

-2

Telegram; Dallas Morning News; CBS Stations Group of Texas LLC; KXAS

- TV; NW Comm unications 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 the se proceedings , and also by subsequently denying Relator s’ motio n for access to the reporter’s records generated at the se 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 de nying Relators’ moti on 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. F ACTUAL AND P ROCEDURAL B ACKGROUND 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 detent ion 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 t his 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 c ourtroom prior to commencement of the3

c ertification 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 t he State and R.J.D. subsequently reache d 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 th is setting , the State

— in consul tation with the victim’s family

— and the defense attorneys agreed to omit from the stipulation of e vidence 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 oppose d 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 medi a from the courtroom on January 10 and January 22 . T herefore , 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).4

Rel ators 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 pro ceedings

. 2
III. S TANDING 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 Contro l Bd ., 852 S.W.2d 440, 446 (Tex. 1993). A r elator 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 Wort h 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., 85 2 S.W.2d at 445

–

2 The State filed a response to R elators’ petition for writ of mandamus consistent with its position in the trial court

— the State objected to the courtroom closure s — and asserted that Respondent had abused her discretion in various respects by closing the courtroom. Respondent filed a res ponse. R.J.D. filed a response and an amended response . A n amicus c ur iae 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 (T C D LA) ten dered 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 Int erest 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 TCD LA

. Relators and the State also tende red, and we ordered filed, post submis sion briefs. TCD LA also tendered a post submission amicus curiae brief.5

46. Relators’ standing is an element of our subject

- matter jurisdiction. See i d. Accordingly, we addre ss 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 (3 rd Cir. 1978). 3 In Cianfrani , several news gath ering organizations and two named reporters alleged that the order of a district court barred them from attending a hearing and prevented the m from subsequently reading a transcript of th at hearing ; they sou g h t aid from the appellate court to re move the co ntinuing effect of the district court’s action, as

w e ll as to establish t he illegality of such closure orders for the future. Id . The Cianfrani court explained that these allegations pleaded specific, concrete facts demonstrating that the challenged prac tices harm ed the news gathering 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 repor ters , had satisfied the standing requirements implicit in Article III of the United States Constitution and discussed in Wa r th 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 C nty

. , 457 U.S. 596, 603, 102 S. Ct. 2613, 2618 (1982); Oregonian Pub l’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 , 74 7 S.W.2d 125, 126

– 28 (Ky. 1988).6

of fe deral

- 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 p roceedings 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 gen eral 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 ; accor

d 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 se cond prong of the general test for standing in Texas that require d 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 446.7 IV
. T HE M OOTNESS D OCTRINE The mootness doctrine is rooted in the separation of powers doctrine in the United States and Texas c onstitutions, both of which prohibit courts from rende ring 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 whic h an actual controversy exists. FDIC v. Nueces Cnty

. , 886 S.W.2d 766, 767 (Tex. 1994); Houston Chronicle Pub l’g Co. v. Crapitto , 907 S.W. 2d 99, 101 (Tex. App.

— Hous ton [14th Dist.] 1995 , orig. proceeding ). An actual controversy does not exist when a p arty seeks a ruli ng on some matter that, when rendered, would not have any practical legal effect. See Meeker v. Tarrant C nty

. Coll

. Dist

., 317 S.W.3d 754, 759 (Tex. App.

— Fort Worth 2010, pet. denied). Here, the parties agree that no actual controversy cu rrently 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 Re spondent’s courtroom closure orders will have no practic al 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 ha s 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 been8

released from jail); Valley Baptist Med. Ctr ., 33 S.W.3d at 822 (holding appeal of

r ule 202 presuit discovery order permitting deposition became moot when appellant produced representative for deposition)

. Relators nonetheless contend that th is i ssue fall s within the capable

- of

repetition

- yet
- evading

- review exception to the mootness doctrine

. “Capable of repetition yet evading re view” is a rare exception to the mootness doctrine . Tex. A & M U

niv

. - 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 beco mes 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, v ia 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 relian ce on evidence i n the record , issued the courtroo m 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 ha d both concluded on the same day

4 It is undisputed that no evidence supporting either of the courtroom closure orders was offered, judiciall y 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 sentenc e trial was set twelve days after his certification hearing

.9

that they had started. Consequently, Relators met their burden of establishing that the challenged act

— the sua sponte issuance of a courtroom closure order exclud ing Relators from the courtroom in the absence of on

- the

- rec ord evidence

— wa s , 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 bec omes moot . Relators also established that a reasonable expectation exists that they w ill be su bject in the future to a sua sponte o rder by Respondent exclud ing 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, altho ugh 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 n o actual controversy currently exists concerning Respondent’s courtroom closure orders, Relators met their burden of estab lishing that the challenged act

— Respondent’s sua sponte issuance of courtroom closure order s in the absence of evidence in the record sho wing 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 disagr eed 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

.10

capable

- of

- repetition

- yet
- evading

- review exc eption to the mootness doctrine embodied in the secon d prong of the general test for standing in Texas. V. S TANDARD S OF R EVIEW 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 A m ., 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 prejudi cial 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. Wit tig , 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.2d11

at 934; C rapitto , 907 S.W.2d at 100

– 02. B elow we discus s whether Respondent’s challenged action in issuing the courtroom closure orders constituted an abuse of discretion.

B. Rules of Statutory Construction
W e review issues of statutory construction de novo. Tex. Lottery Comm’ n v. First State Bank of DeQu een , 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,

w e rely on the plain meaning of the text as expressing legislative intent unless a different meaning is supplied by legislative de finition 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”).

V I
. T EXAS F AMILY C ODE S ECTION 54.08 Texas Family Code section 54.08 is part of the Texas Juvenile Justice Code and is t itled, “Public Access to Court Hearings.” It provides, in pertinent part, as follows:12

(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 issui ng the courtroom closure orders . O ne of Relators’ conten tions is that Respondent closed the courtroom without a showing of good cause, as required by section 54.08(a). Relators contend that the “for

g ood

- 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 H earing Relators assert that Respondent’s reason for closing the January 10 he aring

— to avoid tainting the jury pool because R.J.D.’s determinate sentenc e

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)

.13

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 i s indeed a concern in every pre trial he aring in every high profile cas e, criminal or civil, including juvenile cases

. See,
e.g. , Skilling v. U

nited States , 561 U.S. 358, 37 8

– 79 , 130 S. Ct. 2896, 2912

– 1 3 (2010) (recognizing that “most cases of consequence garner at least some pretrial publicity ” ). J uror 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 (dis tinguishing cases in which the media coverage was so pervasive that the United States Sup reme 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 juro rs 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 Reyno lds v. United States , 98 U.S. 145, 155

– 56 (1879) )

. Prominence does not necessarily produce prejudi ce , and juror impartiality does not require juror ignorance. Id. at 381, 130 S. Ct. at 2914

– 15 (citing Irvin v. Dowd , 366 U.S. 717, 722

– 23 , 81 S. Ct. 1639, 1642

– 43 (1961)). T he 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.”14

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 “un less the court, for good cause shown, determines that the public should be excluded.” Id. T he 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 fil ing 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 requir es 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 R oberts v.

7 Relators point us to the legislative history of family code section 54.08 a nd 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.15

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 th a t section 54.08(a) requires some evidence in the record supportive of a good

cause finding that the public should be excluded. I n 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 b y the media’s and the publ ic’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 discre tion by issu ing the January

8 S ee 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 t o 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 constitut ionally sound basis for closure).16

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 closin g the January 22 proceeding

. Respond ent 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 a bout the publication of these omitt ed 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 th at 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 jus tice 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 proc eeding involving a juvenile who is at least fourteen years old for some period if the statutory requisite of

10 The amicus curiae brief s 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.17

good cause is shown on the record

. But, a gain, as set forth above, giving the language of family code section 54.08(a) its plain meaning, in the a b sence of evidence in the record

— stipulated facts, judicial notice taken of facts or of files, testimony, self

- authenticating do cuments, 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 pr esented here , Respondent abused her discre tion by issuing the January 22 courtroom closure order in the absence o f evidence supportive of a good

- cause finding

.

C. The Limitations of O ur Holdings Relators and the State contend that Respondent’s courtroom c losure orders also violate the First Amendment of the United States Constitution and the “Open Courts” provision of the Texas c onstitution. See U.S. Const. amend. I ; Tex. Const. art. 1, § 13. Having determined that Respondent abused her discretion by fai ling 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

, 11 2 S.W.3d 925, 932

– 33 (Tex. App.

— Houston [14th Dist.] 2003, orig. proceeding) ( “H aving 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

. ”).18

Relators and the State also urge us to define “ good cause shown” and to articulate procedures ap plicable in the future to govern courtroom clos ure order s under section 54.08 (a) in all Texas juvenile proceedings

. 11 We lack jurisdiction to do so. T he Texas c onstitution ’s separation of powers provision prohibit s courts from issuing advisory opinions th at 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) (e xplaining that c ourts may not give advisory opinions or decide cases upon speculative, hypothetical, or conti ngent 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 proce dures articulated by this court as governing courtroom closures u nder section 54.08 would constitute the resolution of abstract questions of law that would not apply

11 Rel ators cite t o several United States Supreme Court criminal cases and to several out

- of

- state juvenile cases setting for th 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. V a

. , 448 U.S. 555, 581, 100 S. Ct. 2814, 2829

– 30 (1980) (holding that, “[a]bsent an o verriding interest arti culated in findings, the trial of a criminal ca se must be open to the public”); State ex

. r el. Plain Dealer Publ’g v. Geauga C nty. 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, Rela tors also contend specific good

- cause findings should be required as in United Scaffolding , 377 S.W.3d at 689.19

to the parties before us and would thus constitute an impermissible advisory opinion. 12
Alt hough we possess juris diction to address the narrow issue presented by the facts here

— whether or not Respondent abused her discretion by issuing

cou rtroom closure orders in the absence of any type of evidence on the record showing good cause

— our jurisdicti on to address this specific moot issue under th e 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 n ot be binding on the parties in this case because R.J.D.’ s case has concluded. That is, the compla ined

- of action by Respondent that satisfies the capable

- of

- repetit ion prong of the exception to the mootness doctrine here is only the exact action taken by Res pondent in R.J.D.’s case. W e cannot speculate as to whether some other

12 We likewise question whether Relators and the State possess standi ng 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 a nd 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 Sch lesinger 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 tha t the complainant must present facts sufficient to show that his individual need require s the remedy for which he asks” ). If Rel ators 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 su bject

- matter jurisdiction)

.20

type of courtroom closure action taken or courtroom closure procedure followed by Re spondent in the future might or might not constitute an abuse of discretion ; nor may we pontificate on the abstract application of section 54.0 8 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 hy pothetical 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); a cc ord Houston Chronicle Pub l’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 P ublic I nformation A ct 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 holding s 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 involv ing a juvenile who is at least fourteen years old be shown by evidence on the record.21 VI I
. T HE R E CORDINGS OF THE P ROCEEDINGS In their fourth issue, Relators claim that Respondent abused her discretion by failing, after R.J.D.’s case was concluded, to vac ate 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. c ontends that the re cordings are, by law, confidential pursuant to Texas Family Code sections 58.005 and
58.007. See Tex. Fam. Code Ann. §§ 58.005, .0 07 (West 2014 ). Section 58.00 5 is ti tled, “Confidentiality of Records.” I d. § 58.005. It declares confidential [ r ] ecords and files concerning a child, including personally identifiable information, and info rmation 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 hav ing custody of the child under order of the juvenile court. Id

. Section 58.007 is titled, “Physical Records or Files.” I d . § 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 ins pected or copied only by :

. . . . (5) with leave of t he juvenile court, any other per son, agency, or institution hav in g a legitimate interest in the proceeding or in the work of the court.22

Id

. § 58.007(b)(5). 13 Section 54.09 of the family code is titled, “Recording of Proceedings” and requires that all judi cial proceedings under chapter 54 be recorded by stenographic notes or by electronic, mechanical, or other appropriate means. I d. § 54.09 (West 2014)

. Examining these provisions and giv ing the words of the provisions their plain meanin g, no language exi sts making the recording s 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 “o btained for the purpose of diagnosis, examination, evaluation, or treatment ” confidential as opposed to making recordings of judicial proceedings confidential. See i d. § 58.005. Section 58.007 does limit inspection of juvenile court records, but record ing s of judicial proceeding s — mandated to b e recorded per section 54.09

— are not specifically included in the court records subject to limited inspection. See id. § 58.007. R eporter’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 pr ovisions restricting access to juvenile records appear to not apply in cases such as this one in which a determinate sentenc e is imposed. Accor d 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; s ection 53.045 lists capital murder) ; see also Tex. Penal Code Ann. § 12.42(f) (West Supp. 201 4 ) ( 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 i s a final convic tion for enhancement purposes).23

determinate sentence trials, are routinely filed in appellate court s when a juvenile appeals his disposition order. Se e 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)

. S ee 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 order s )

. Appeals in juvenile cases are as in civil cases generally; no special confidentiality rules e xist 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 dire cted 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. F inally, to construe section s 58.00 5 and 58.007 as making the two

re cordings at issue confidenti al 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 alterin g the original appellate record

— which includes the clerk’s record and the report er’s record

— in juvenile cases to protect a juvenile’s identity. See Tex. R. App. P. 9.8(d ) , 34.1.24

should be excluded” would create an absurd re sul t 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 publi c 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 a s cloaking the recordings of th e two proceeding s with confidentiality when there was no good

cause show n 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. 200 8) (“[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 o ne 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 proceeding s involve a juvenile younger than fourteen years old. Likewise, we need not , and do not, determine whe ther recordings of proceedings involving a juvenile fourteen years or older may be considered confidential when such proceeding s are closed based on an on

- the

- record showing of good cause under section 54.08(a).25

and we will orde r 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 proceeding s , 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) ; a ccord 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. Anthon y , 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). VII I
. C O NCLUSION Having determined that Respondent abused her discretion by issuing the J anuary 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.26

mandamus. We are c onfident 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, ME IER, and GABRIEL, JJ. DELIVERED: August 12 , 2014