### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00308
- CV

Stetson Roane, Appellant

v. Halcy Martin Dean, Appellee

FROM THE 98TH DISTRI CT COURT OF TRAVIS C OUNTY NO. D
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- 005721 , THE HONORABLE STEP HEN YELENOSKY, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Stetson Roane appeals from the district court ’ s order denying his motion to seal certain court records

. Because Roane did not meet his burden to show “ a speci fic , serious and substantial interest which clearly outweigh s ” the “ presumption of openness” for court records,

s ee Tex. R. Civ. P. 76a (1)(a)(1) , w e affirm.

BACKGROUND In 2018, Halcy Martin Dean, an employee for Se g uin Independent School District (Seguin ISD), sued Roane , Seguin ISD ’ s superintendent , for intenti on al infl iction of emotional distre ss . In h er petition, Dean alleged that Roane accompanied Dean to her hotel room following

a 2017 professional conference and made unwanted statemen ts and sexual advances that were intended to cause her emotional distress

. Dea n also asserted that sh e filed an a dministrative complaint with Seguin ISD (the Com plaint) and that Roane was placed on administrative leave.2 Roane re sponded to Dean ’ s petition with a plea to the jurisdiction asserting that
Dean ’ s claim is preemp ted b y the Texas Labor Code. A s e xh ibit C in support of his plea, Roane served the C omplaint on Dean ’ s counsel but did not file the exhibit pursuant to an agreed protective order and su bj ect to the granting of a sealing order under Rule 76a. Roane then f iled an unopposed motion to seal the Complaint

. As backgrou n d , Roane alleged that the C omplaint initially was requested by the medi a; Se g uin ISD sought an Attorney General opinion as to whether the C omplaint had to be disc losed under the Public Infor matio n Ac t (PIA) ; the Attorney General order ed disclosure; Roane filed a lawsuit in Travis County to pre vent disclosure (the
PIA L awsuit) ; the district court affirmed the Attorney General ’ s decision on summary judgment, but entered an agreed protective order se alin g the C omplaint for transmission “ to any court of appeals as part of the clerk ’ s record ” (the PIA Order) ; a n d Roane appealed the order to t he Fourteenth Court of Appeal s on transf er from this Court

. To support his motion to seal in this

case , Roane at tach ed his supporting a ffidavit, the PIA Order, and the agreed protective order. In his affidavit, Roane testified:
There is a compelling need to maintain confidentiality of this information and for the sealing of these records from public access and insp ecti on on a temporary b asis because the document contains allegations of highly intimate or embarrassing facts and was sealed by court order in Cause No. D

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- 001843, Stetson Roane v. The Honorable Ken Paxton, et al

. As a result, immediate and irrepa rabl e injury will resul t to my privacy interests before notice can be posted and a hearing can be held

. Dean did not oppose the sealing of the Complaint

.

At the hearing on the motion to seal , Roane asserted that the “ specific , serious, and substantial inte re st ” that “ clearly outw eigh s ” the presumption of openness

— the threshold burden required by R ule 76a for court rec ords to be sealed, see Tex. R. Civ. P. 76a

— is “ the3

interest of mai ntaining the status quo and allowing the litigation process to play itse lf out in that
separ ate [ PIA] [L]awsuit

. ” He claimed that he “ has put forth considerable effort to assert his rights under the law to ge t a ruling ” in the PIA Lawsuit and that it would be “ an injustice to allow this to circumvent what he ’ s put so much tim e and effort for in the other litigatio n. ” T he district court , however, stated that it has the obligation under R ule 76a “ to play the de vil ’ s advocate because nobody else is going to do that here

. ” The court then no ted that the PIA Lawsuit goe s to “ wheth er or not [the Compl aint] has to be rel eased under the [PIA] , ” which is “ a different s tandard, different statute , different rule ” from R u le 76a . Accordingly, the district court stated, “ I think they are entirely different question s, and the d ecision here if it shouldn ’ t be s ealed
may moot the question o ver there, but it ’ s not interfer ing with the jurisdiction of the cou rt of appeals over there because they ’ re n ot answering thi s question. ”

T he district court then den i ed Roane ’ s motion to seal court record s , sta ting in an ord er , “ U pon its indep endent review, the court finds that the disclosure of Exhibit C to Defendant ’ s Plea to the Jurisdiction would not affect a speci fic, serious, and substantial interest that clearly outw eighs the presumption that court record s are open to the general public. ” Roane appeals from this order. See id. R. 76a(8) (providing for appeal from order relating to sealing or unseal ing c ourt records). D uring the pendency of this appeal, the Fourteenth Cour t of Appeals affirmed the distri ct court ’ s decision in the PIA La wsuit in favor of disclosure. See Roane

v. Paxton , No. 14

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- 00264

- CV, 2020 WL 428861, at *1 (Tex. App.

— Houston [14th Dist.]
Jan. 28, 2020, no pet. h.) ( mem . op.).4 RULE 76A AND STA NDAR D OF REVIEW Rule 76a provides the st andard for se aling cou rt records and provide s that court

recor ds “ are presume d to be open to the general public

. ” Tex. R. Civ. P. 76a (1)

. 1 “ The party

m oving for the sealing order then has th e burd en to rebut the presumption in order to seal the

rec ords. ” Upjohn Co. v. Freema n , 906 S. W.2d 92, 96 (Tex. App.

— Dallas 1995, no writ)

. T he presumption of openness may be rebutted “ only up on a showing of all of the following ” :
(a) a specific, serio us and substantial interest which clearly outweighs : (1) this pre sumption of opennes s; (2) any prob abl e adverse e ff ect that sealing will have upon the general public health or safety ; (b) no less restri ct i ve means than sealing records will adequat ely and effectively protect the specific interest asserted

.
T ex. R. Civ

. P. 76a (1) (a)

– (b)

. Ru le 76a also requires t hat a motion to seal court records “ shall be decided by written order , ” and the sealing order shall state “ the specific reasons for finding and

con cluding whether the showing required by paragraph 1, has b een ma d e. ” Id. R. 76a(6).

In rev iewing a di strict cour t ’ s determination as to t he extent to which information should be restricted from the public under R ule 76a , we employ an abuse of discreti on standard

. See Gen eral Tire, Inc. v. Kepple , 97 0 S.W.2d 520, 52 6 (T ex. 1998)

. “ A t rial cour t abuses it s discretio n if it acts in an arbitrary or unreasonable manner without referenc e to any guiding rules

o r principles. ” Walker v. Gu tierrez , 111 S.W.3d 56, 62 (T ex. 2003). Thus, the pertinent question here “ is whethe r the judge acted un reaso nabl y and arbit rarily in c oncluding that [the movant] had failed to carry its burden [under R ule 76a(1)] as t o at least one essential element. ”

1 The parties do not dispute that the Complaint constitutes a c ourt reco rd subject to the presumption of opennes s for purposes of th i s lawsuit.5

McAfee, Inc. v. Weis s , 336 S.W.3d 840, 844 (Tex. App.

— Dallas 2011, pet . denied) (citin g Upjohn Co. , 906 S. W.2d at 9 5).

DISCUSS ION

In tw o issues, Roane claims the district court abused its discretion. First, Roane

asse rts t hat he met R ule 76a ’ s standard for sealing court re cords. Second, Roane alleges that the distri ct co urt failed to st a te in its order “ th e specifi c reasons f or finding and concluding whether the showing required by paragraph 1 , has been made , ” as requ ired by R ule 76a

.

In his first issue , Ro ane states t hat his “ interest in sealing Exhibit C is simply t hat, allowing publ i c disclosure due to Rule 7 6a ’ s presum ption would absolutely and forever nullify his right to a ruling in the pending PIA Litig ation ” and that his “ time and effort he has put into maintain ing the confidentiality of the document will have been wasted, all w i thout ever gettin g a final d ecision. ” But Roane has not show n ho w “time and effort ” already s pent in th e PIA Lawsuit is more than a sunk cost and constitutes a present “specific, serious and substantial interest

. ” Moreover, Roane admit s that he “ has nev e r argued that the s tandard s for prote ction under the PIA and for sealing under Rule 76a are the same. ” Thus, even if the Complaint is confidential under the PIA , R ule 76a ’ s standard may not necessarily be satisfied. 2 To satisfy

2 For similar reasons , Roane ’ s reliance on sectio n 552. 3221 of the Texas Government Code is un availing

. S ection 552.3 221 exempts from the requirements of Rule 76a docu ments fil ed with the court for in camera inspecti on u nder that sect ion in P I A litigation, but it does not apply to the Complaint in this case that was not filed under the PIA

. S ee Tex. Gov ’t Code § 552.322 1 (a) (noting that section applies “ [i]n any suit f iled unde r this chapter ” ) , (d ) ( “ I nformation file d wi th the court u nder thi s section does not constitute ‘ court records ’ within the meani ng of Rule 76a [.] ” )

. Roan e claims that he is not arguing that sectio n 552.3221

“ absolutely pre

- empts Rule 76a across a ll lawsui ts ” ; rather, h e claims that he is arg u in g th at “ as current ly writt e n, § 552.3221 recognizes an interest that is within the realm of those that should be p rotected under Rule 76a. ” But s ection 552. 3221 does not automatically recognize “ a specific, serious and subst antial interest ” as re quired by rul e 76a. See Te x. R. Ci v . P. 76a(1).6

R ule 76 a ’ s standard, the r easons and eviden ce allege dly support ing the con fidential it y of the document under the PIA must also show that the re exist s “ a specific , seriou s and substantial interest ” that “clearly ou tweigh s ” the “ presumption that court records are o pen to the general public. ” See Tex . R. Civ. P. 76a(1 ). But Roane does not discuss in this case the reasons and evidence that would allegedly support the confidentiality of the Complaint in the PIA Lawsui t

— e.g. , he does not discuss any privacy interests that might be impl i cated

. According ly, the mer e fact th at Roane may receive a favorable ruling in his PIA Lawsuit

— which he so far has not yet received

— would fail to establ ish R ule 76a ’ s thresh old standard. And if the possibility of a favor able ruli ng in the PIA Lawsuit wo u ld not make such a sho wing , we fail to see how the fact that Roane ’ s PIA Lawsuit is pe n ding or may be mooted would overcome the p resumption of
openness as required by R ule 76a

. We therefore conclude that the district court did not abuse its discretion in d etermining that “ the court finds that the disclosure of Exhibit C

. . . would not affect a s pecifi c, serious, and sub stantial interest that clearly outweighs the presumption that
court reco rds are o pen to the general public

. ” 3 We over rule Roane ’ s first i ssue.

Regarding Roane ’ s second issue , o n this record and in the context of a district
court ’ s decision deny ing a moti on to seal court r ecords, we conclude that the order satisfies the

r equiremen t that the written order state s “ the s pecific reasons for f inding and conclu ding whether the showing required by paragraph 1, has been made. ” See id. R. 76a(6). In contrast to other

Section 552.3221 provides a mechanism for a cou rt to conduct “ in camera inspection as i s necessary for the adjudicat ion of the case , ” see Tex. G ov ’ t Code § 552.3 221(a ), withou t requiring the information at issue to beco me publicly ac cessible under R ule 76a , s ee id. § 552.3221 (d).

3 Roane argue s that there was no controverting evidence for the district court to r ely on in exercising its discretion to deny the motion t o seal. But Roane bore the burden to produce ev iden ce sufficient t o establ i sh R ule 76a ’ s standard regardless of whether there was any c ontroverting evidence.7

procedur al re quir ement s of “ paragraph 1 ”

— e.g., that the documen t is a co urt record, that the interest clearly outweighs “ any proba b le adverse effect that s ealing will h ave upon the general publi c health or safety , ” a nd th at there is “ no less restrictive means ” to prote ct the interest asserted

— t he district court specif ically id entif

ied as the reason for denying the motion to seal that the disclosure “ would not affect a specific, serious, and subst antial interest which clearly outwei ghs the presumption that court records are open to the general public. ” See id. R. 76a(1 ).
Roane cites Clear Channel Communications, I nc. v. United Servic e s Auto mobile As s ’ n , 195 S.W.3d 129, 137 (Tex. App.

— San An tonio 2006, no pet.) , as his primary authority to argue that the order was insufficient . But Clear Channel is inapposite . I n Clear C hannel , the t rial court ordered records to b e sealed witho ut com p lying with R ule 76a at all : the order was not preceded b y a mo tion, notice, and hearing as required by the R ule 76a ; the order did not identify which portions of the court records are t o be seal ed ; and the order did not state any reas ons for sealing th e r ecords

. See i d. at 131, 136

– 37. Here, in contrast, t he dist rict c ourt complied with the procedural prerequisites an d specifi ed the rea son it denied Roane ’ s motion to seal under R ule
76 a . Accor dingly, we ov errule Roane ’ s second issue

.
CONCLUSION
Hav in g over ruled Roan e ’ s issues on appeal, we affirm.

____________ ______________________________ Melissa Goodwin , Justice
B efore Justices Go o dw i n, Kelly , and Smith Affirmed Filed: April 30, 2020