## In the Court o f Appeals Second App ellate District of Texas

at Fort Worth

___________________________ No. 02

- 22

- 00201

- CV

___________________________

O ri ginal Proceeding 236 th District Court of Tarrant County, Texas Trial Court No. 236

- 326225

- 21 Before Kerr, Womack, and Wallach, JJ. Memorandum Opinion by Justice Womack 

### I N RE 

### A MERICAN 

### A IRLINES 

### , I NC


### .2 MEMO RANDUM OPINION I . I NTRODUCTION This or iginal proceeding aris es from litigation filed b y American Airlines, I n c. against Sabre Holdings Corporation, Sa bre GLBL Inc., and Sabre Travel Internati onal L imited ( collectively, Sabre). Ame rican filed its peti t io n for writ of mand amus under seal 1 seeki ng to h a

ve this court or de r the trial court to vacate (1) its Order Denying American Airlines, I n c. ’ s Motion to Compel Produc tion of Privileged Trade Secrets o f Sabre and Non

- Pa rties a nd (2) its “ verbal[] instruct[ io n] ” 2 to the part i e s “ not to elec tronicall y file materials u nder seal in this case with the [D] istrict [C] lerk through the eF ile T exas.g ov syste m ” and to instead “ email filings to the c ourt coordinator direct ly ” (the Email Or der). Because the trial court ha s not complied wit h the mandatory lang

uage of Rule 74 as to the documents that it required to be emailed to the court coord inator, w e grant r el ief regarding the Email Orde r . Tex. R

. Civ. P

. 74. But we deny the othe r relief sought in Ameri can ’ s pet i tion f or writ of mandamu s. See T ex. R. App. P. 52.8(a), (d).

1 American has fi l e d a separate appeal in c a use numb er 02

- 22

- 00159

- C V challenging a different trial

- court order sealing the entire case file

.

2 We may grant mandamus relief from an oral order that is clear, specifi c, enforceable , and adequat ely shown by the record. In re B l e d soe , 41 S.W.3d 807, 811 (T ex. Ap p . –– Fort Worth 2 001 , orig. procee ding). Sabre has not argued that t he trial court ’ s ver bal directive fails to meet th ese requirements

.3 II. BACKGROUND Sabre acts as an intermedia ry between airlines and t ravel agents via it s Global Distribution System (GDS)

. Sabre Travel I nt ’ l, Ltd. v. Deutsc

he L ufthansa AG , 567 S.W.3d 725, 728 (

Tex . 2 019)

. T hrough t he GD S , Sabre “ connects airlines with consumers by aggregat ing travel offerings of multiple airlines for comparison shopping by travel agents. ” Id. A irlines, i ncluding Americ an , contract with Sa bre for inclusion of their f

light dat a in the GDS. See id. In June 2021, American sued Sabre over contract

- related issues

. American soug ht to expedite the s uit

. A f ter Amer ican requested di scovery f rom nonparty Delta Air Lines, I nc. , American and Sab re negotiated a n agreed protective order , which applies to docume nts f

urnished by parti es and no nparties , d efines two cat egories of confident ial documents , and restricts who ma y view th e documents in each category . Sa bre and Delta 3 provided some documents to American wit h provisions red acted

. B u t Sabre and Delta re sis ted discovery of the redacted information claiming that it was privileged trade

- secret information of De l ta. Sabre also withheld other documen ts and information on the basis of trade

- secret privileg e . 4

3 Delta pro duced a redac ted versi on of its contract with Sabre in accordance with a R u l e 11 agreement with Ame rican.

4 N o t only does Sabre claim a trade

- secret privilege, but also Delta and several other nonparties have resi sted document production based on the trade

- secret priv ilege.4

Amer ican filed a m otion to compel pro duction of the withheld documents, an d the tria l court held a hearin g on the motion that last ed three days: A pr il 2 8, 20 22, April 29, 2 022, and May 2, 2022. The trial court denied the motion to co mpel in an order dated May 5, 2 0 22 (Motion to Co mpel Order)

. Although t he M o tion to Compel O rde r did not specifically mention t he in c amera documents a s docume nts that the tria l court had consider ed in its ruling , the Motion to Compel O rde r did state that the trial judge had considered “ all relevant pa pers submit t ed to or fil ed in t h [e] li tigation , ” and the mandamus record shows that Sabre had delivered the withh eld documents to the tri al judge for in cam era review on April 26, 2022. 5 Meanwhile, American and Sabre filed agreed motions to seal part s o f the trial

court re cord per taining to American ’ s ap plica tion for a tempora ry injunction , and the

t ria l court ordered those parts of the r ecord sealed. Later, howe ver, in a one

- line, ha ndwritte n order, the trial c ourt su a sponte ordered th e entire case fil e sealed. O n January 1 8, 2 022, t he trial court

–– “ t h rough its court coordinator ” 6

–– ver bally issued the Email Order

.

5 Th e tr ial court d elivered t he seven b inders of in c amera documents to this court for purposes of the mandamus p rocee ding.

6 It is undi s p uted that the coordinator was deliver ing this instruction fro m the tria l j udge

. See H

igg inbotham v. Co llater

al Prot., Inc. , 859 S.W.2d 487, 490 (Tex. App.

— Houston [1st D ist.] 1993, writ denied) ( “ The record establishes that the court coordinator, acting as the agent for the trial court, sent the parties at least tw o notices that the case w as set for a jury trial

. ” ) ; see also Butler v. Sta te , 6 S.W. 3d 636, 641 (Tex. App.

– – Houston [ 1 st Dist.] 1999, pet. ref ’ d) (citing Tex. Gov ’ t Code Ann. § 74.101 (a) for estab lishme nt of coordinator “ to improve justice and to e xpedite the proce ssing of5

America n complied wi th th e Email Order until the tri al court overruled American ’ s motion to vacate the su a sponte order sealing th e entire cas e file

. American then filed an appeal from tha t order in this cou rt . 7 Three days after filing the notice of appeal , Amer ican filed

–– with the trial

- court clerk

–– a Motion R equesting Au t horization To Prepare A nd Trans fer Sealed Clerk ’ s And R e porter ’ s R e cords (the Trans fer Motion ) an d a cont emporaneous Plaintif f ’ s Designation Specifying Material To Be Included In Clerk ’ s Record (the Designation)

. 8 The Tr an sfer Mo tio n sought a trial

- cou rt order “ authorizing the [D] istrict [ C ] lerk and court reporter to pr epare th e Clerk ’ s and Repor ter ’ s Records and transm it those records t o the Second Court of Appeals under seal. ” 9 T h e D esignation, reference d in

ca ses thr ough the court s ” and citing Higginbotham for th e proposition that “ th e court coo r dinator can act as an ‘ agent for the trial court ’ in the pursuit of judicial econom y ” ).

7 Nothin g in this memorandum opini on i s to be construed as ruling on the issues to be determined in the ap peal.

8 American file d these appeal documents in a supplement a l mandamus record

. But we may also take judicia l notice of our own reco rds in the appeal for pur pos e s of this original proce eding

. See , e.g. , U.S. Cap

. Inv

s . , LLC v. Shahbazi

, No. 02

- 17

- 00199

- C V, 2018 WL 772761, at *2 (T ex. 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 reco gni zed that a trial court may take judicial notice of its own records in a cause involving the sam e subject matter between th e same, or practically the same, p arties. ” ).

9 The Transfer M otion stated that it was being filed in accordance with the Distr ict Cl erk ’ s “ policy [that] require [ s ] an order from [the trial court] authorizing [ the District Clerk

] t o prepare and transmit the Clerk’s and Reporter’s Records to the Second Court of Appeals under seal

. ” Attached was an ema il f rom the Administrative6

the Tra ns fer M otion, includ ed a three

- page Exhibit B that listed the “ substantive motio ns and other filings ema il ed to the court coordinat or , in accordance with t h e ” Email Order that American was requesting to “ be inc luded in the Clerk ’ s R e c ord ” for the appeal. Sa bre did not oppose the Transfer M otion and “ designated additional

ma terial filed with a nd maintai ned o nly by the trial court ’ s co ordin ator. ” On May 23, 2 022, American sent a letter to the trial court noting that Sabre did not oppo se the Transf er Motion and “urg[ing] the [c]ourt to consider and prompt ly rule on the . . . Motion by submission so that Americ an [ could ] proceed with its u rgent appeal. ” As of J uly 22, 2022, the trial court had not ruled on the Transfe r M otion “ [d]e spite multip le requests for a ruling. ” 10 In the midst of attempting to obt ain a complet e clerk ’ s record for the ap peal , A me rican fi led t his manda mus proceedin g on May 31, 2022

–– twent y - two days after filing the Tra n s fer M o tion and twenty

- five da y s after filing its notice of appeal

–– complaining of the M otion to C omp el Order as well as the Email Order

.
Appeals Clerk indicating that she would “ not be able to m ove forward in preparation of the Clerk ’ s record w

ithout the signed Order giv ing [her] permission to do so. ”

10 American stated this fact in its Unopposed Moti on for Transfer of Designated Trial Court R e c ords filed in the appeal in this court on July 22, 2022; therefore, we consider it undisputed. We n ot e that a t rial court ha s a ministerial duty to rule on a par t

y ’ s properly filed motion wi thin a rea sonable ti me aft er it has been submitted to the court o r after the party ’ s requ est for a ruling. In re W elsh , No. 09

- 22

- 00262

- CV , 2022 WL 3651991, at *1 (Te x. App.

–– Beaumont Aug. 25, 2022, orig. proceeding) (mem. op. )

.7 II I. DI SCUSSION American raise s six issues in its mandamu s peti tion. Th e first f o ur deal with the Moti on to Compel Order , and the fifth issue deals with the Email Order

. American asserts in it s sixth issue th at the trial court ’ s erro rs cannot be remed i ed by appeal. We grant relief o nly on it s fifth issue and the part of its sixth is s ue rela ted to the fifth iss ue . A. Standard of Revie w Mandamus relief is an extraordinary remedy

. In re Acad., Ltd. , 625 S.W.3d 19, 25 (Te x. 2021) (orig. proceedi ng). The party seeking mandamus relief must show both that the tri a l court clearly abused i ts disc retion and that the party has no adequate remedy by appeal. In re All state Indem. Co. , 622 S.W.3d 870, 875 (Tex. 2021) (orig. procee ding). A trial court a buses its discretion when a decision is arbitrary, unreasonable,

an d without reference to g u iding p rinciples. Id. ; see Walker v. Packer , 827 S.W.2d 833, 839

– 40 (Tex. 19 92) (orig. proceeding). We defer to a trial court’s factual de terminati ons that have e viden tiary support, but we review the tr ial court’s legal determina t

ions de novo. In re La b att Foo d 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 fac ts is alw ays an abuse of disc retion. See I n re Geomet Recycling LLC

, 578 S.W.3d 82, 91

– 92 ( Tex. 2019) (orig. proce e ding).8

An appellate remedy’ s adequacy has no specific definition ; “ the term i s ‘ a proxy for the careful balance of jurisprudential considera tions ’ [that implicate b oth p ublic and private interests , ] and i ts meaning ‘ depends heavily on the circumstances pr e sented. ’” Allstate Indem. Co. , 622 S.W.3d at 883 (quoting In re Prudential I ns. of Am. , 148 S.W.3d 124, 136 (Tex. 2004) (orig. pro ceeding) ) ; In re Ford Motor Co. , 165 S .W.3d 315, 317 (Tex. 2005) (orig. p roceeding) (quoting Prudent i al , 148 S.W.3d at 136); see als o In re McAllen Med. Ctr., Inc. , 275 S.W.3d 458, 464 (Tex. 2008) (orig . proceeding) (“Whether a clear abuse of discretion can be adeq uately remedied by appea l dep ends on a careful analysis of costs and benefits of interlocut o ry review.”). An appe l late re medy is adequate whe n any benefits to mandamus review are outweighed b y the detrime nts. Prudential , 148 S.W.3d at 136. But the converse is not necessarily true ; even w he n the benefits of mandamus re view outweigh the detrim e nts, we must consider w h ether t he appellate remedy is nonetheless adequate. Id. In evaluating the benefits and detriments, we consider wh ether mandamu s will preserve important substantiv e and procedur al rights from impairment or loss. In re Team Rocket

, L.P. , 256 S.W.3d 257, 2 62 (Tex . 2008) (orig. proce eding) . The danger of permanently losing substantial rights occurs when the appellate c ourt would no t be able to cure the error, when th e party’s abil ity to present a viable cl aim or defense is vitiated, or when the error canno t be mad e a part of the appe llate record. ERCOT, Inc. v. Panda Power Generation Infrastructure Fund, LLC , 619 S.W.3 d 628, 641 (Tex. 2021) (orig. proceeding) (citing In re Van Wat ers & Rogers, Inc. , 145 S. W.3 d 203, 211 (Tex.9

2004) ( o rig. proceeding) ) . We s hould a lso consider whether mandamus will allow us “to give needed and helpful direction to the law that would othe rwise prove elusive in appeals from final judgmen ts” and “wheth er mandamus will spare lit iga nts and the public ‘the t

ime and money utterly w a sted en during eventual reve rsal of improperly conducted proceedings.’” Team Rocket , 256 S.W.3d at 262 (quoting Pru dential , 14 8 S.W.3d at 136). B . Email Order 1. Rules for Tender ing Documents to be File d A district clerk ha s a mi n isterial duty to file a documen t when i t has been p roperly present ed to the clerk. In r e Samson Expl., LLC

, No. 09

- 22

- 00081

- CV, 2022 WL 1177276 , at *4 (Tex. App.

— Beaumont Apr. 21, 2022, o rig. proceeding ) (mem. op.)

. The Rules of Civil Procedure set for t h ho w documents are to b e presen ted to the clerk for filing . The default method , s ubject to certain enumerated exceptions, is that “ attorneys must elec tronically fil e documents in courts w here electronic filin g has been mandated

. ” Tex. R. C iv. P. 21( f)(1 ) ; see S u preme Court of T ex., Or der Requiring Electr onic Filing in Certain Court s , Misc. Docket No. 1 3

- 9164 ( Dec. 9 , 201 3 ) (mand ating e

- filing for all n onjuvenile civil cases i n all distric t courts by 2016 ) ; 11 see also S u preme Cou rt of Tex., Order Adopting t he Recommendations of t h e Judic ial

11 This order vacates and supersedes two prio r o rde rs mandating e

- filing: S u preme Court of T ex., Order Requiring Ele ctronic Filing in Certain Court s , Misc. Docket No. 13

- 9092 (

June 24, 201 3 ) , an d S u preme Court of Tex ., Or der Requiring Electronic Filing i n Certain Court s , Misc. Docket No. 12

- 920 6 ( Dec. 11, 20 12 )

.10

C ommittee on Inf

ormation Technology for Access to Elect ronically F i led Co urt Documents by Ju dges, Clerks, and Attorn eys Through r e:SearchTX , Misc. Docket No. 1 7

- 9 0 25 ( Feb. 21, 2017 ) ( noting in introduction that “ e
- acces s . . . is more efficient for jud ges, clerks, lawyers , and parties ” a nd “ provides greater transparency for the justice system that is critical to evaluat ing its operation, improving its proc edures, and strengthening public trust ” )

. “ [ D ] ocum ents filed un der seal or presented to th e court in came ra ” a re among th e exception s to electronic filing and

“ mus t not be filed ele c tronic ally. ” Tex. R. Civ. P . 21( f)( 4)( B)( i ). 12 Nevertheless, [e] very ple ading, plea, motion, or application to t he cour t for an order, whet h er in the form of a mot i on, ple a , or other form o f request, unless presented during a hearing or trial, must be filed with the clerk of the cou rt in wri tin g , . . . and at the same t ime a true copy must be served on all other par ties, an d m ust be noted on th e d ocket. Tex. R. Ci v . P. 2 1(a) (em phasis added ) , 74 ( “ The filing of pleadings, other papers [,] and exhibits as required by these rules shall be made by fili ng them with the cler k of

t he court

. . . . ” )

. 13 T herefore , under R u l e 21, d ocum ents not filed e le ctronically th at

are n ot “ pr esented during a hea ring 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. C iv. P. 21( f)(4)(C) ( listing as one of the e x ception s to the e

- f iling requiremen t tha t “ [f] or go od caus e , a

12 Thus , the trial court did not abuse i ts discretion by orderin g that doc uments under seal not be filed elec tronically

.

13 In addition, t he Tarrant County Loca l R u l es pro vide that “ [a]ll p leadings, motions, notices, a nd any othe r paper , document [ ,] or thing made a part of the record in any ci vil, fa mil y law [,] or c riminal c ase shall be filed with the Clerk

. ” Tarrant (Tex.) Loc. R. 1.06(a).11

co urt may permit a par ty to file other document s in paper for m in a particular case ” (emphasis added) ). A paper copy pe rmitted t o be filed with the t rial court clerk may be filed by mail or by hand del ivery. See T ex. R. Civ. P. 5 , 21(a) , 74

. “ [P ] lea d ings, other papers and exh ibits ” may also be filed with a judge, at the judge ’ s discretion

. T e x. R . Civ. P

. 74 ; Sto kes v. Ab erdeen Ins. , 917 S.W.2d 267, 26 8 (Tex. 1996) (mentioning that Rule 74 gives judg e di sc retion to accept fili ng); In re Welvaert , N o . 10

- 19

- 00131

- CV , 2019 WL 1 966962, at * 2 (Tex. App.

–– W a co May 1, 2019, orig. proceeding ) (mem. op.) (

noting same) ; St ate v. On e Mi

llion Seven Hundred Eleven Thousand Sixty

- One Dolla rs & Seventy

- Nine Cents ( $1,711,061.79) in U.S. Curr ency ( Currency Forf

eitu r e ) , No . 04

- 18

- 0 0379

- CV, 20 18 WL 6793 787, at *5 (Tex. App.

— San Antonio Dec. 27, 2018, no pet.) (mem. op.) (noting tha t fact th at judge is authorized to ac cep t document s for f iling does not mean he did s o , e specially when jud ge d id no t comply with remai nder of Rul e 74 by noting filin g date an d time on document and forwarding it to the district clerk ) ; In re Cuban , 24 S.W.3d 381, 3 83 (Tex. App.

–– Dallas 2000, ori g. proceeding) (“A judge may accept a document fo r filing. ” )

. B u t when a do cument is so filed , the judge ha s the duty to

“ not e thereon the filing da te and time and forthwith transmit the [ document] to the office of the clerk

. ” Tex. R. C iv

. P. 74 ( pr o viding that if papers are filed with judge, the judge “ shall note thereon the fi ling date and time and f orthwi th transmit them to the office of the clerk ” ) ; Cuban , 24 S.W.3d at 383 ( stating that when judge acc epts filing under Rule 74, “ [t]he judge is to note the date and time on the d o cument and12

forward i t to the clerk ’ s office ” ) ; cf

. Tex. Gov ’ t Code Ann. § § 311. 00 2, 311.016 (2) ( pro vid ing that for purpose s of Code C ons truction Act, the word “ ‘ [s] hall ’ imposes a duty ” )

. 2. Purpose s of District Clerk ’ s Duties Regarding Court Record s Various statutes and rules gove rn the district clerk ’ s duties vis à vis fili n g docu ments , and case law app lies those statutes and rules t o d ifferent circumstances based on the specific reasons therefo r. As w e discuss below, among t he pr i mary purp oses for the district clerk ’ s p resc ribed duties are to keep a n d main tain court record s in a timely and orderly f ash ion (1) so that there are no qu est ions about when documents were filed or presented for due

- date p urpo ses , (2) so that court r ecord s may be t imely accessed and viewed by those permitted to do so , and (3) so that doc ument s are m aint ai ned sec u re ly to prot ect against u nautho rized access or loss. The T e xas Go vernment Code expressly assign s re spo nsi bility for c ourt filings to the di st rict clerk

. Subsec tions (a) an d (b) (1) of Governm ent Code Section 51.303 pro vide that a dis trict cl e rk “ ha s custo dy of and sha ll carefully maintain and arrange the records relating t o or lawfully deposited in the clerk ’ s office ” and t hat the clerk

“ shall

. . . record the acts and proc eedings of the court

. ” Tex. Gov ’ t Code Ann. § 51.303( a)

– (b) (1)

. A ddi t ionall y, although the T e xa s Legislatur e has given district cle rks the authority to maintain and store do cuments “ by microfilm, image proces sing technology, or o the r process that correct ly and legibly repro duces or that forms a mediu m for copying or reprod u ci ng o r by optical data st orage , ” that authority13

is s ubject to numerou s conditions ; on e such condition is that the district clerk ’ s maintenance a nd storage plan must “ pr o vide standards for the organizing, ide ntifying, coding, and in dexing of records so a r ecord can be retrieved ra

p idly and the reproduced record can b e certified as a true and correct copy

. ” Id. § 51.304 (a), (b)(3) (em phasis added)

. The dis trict cler k ’s m aintenance and storage plan must als o “ provide f or the permanen t retention of records, includ ing security provisi ons to guard against ph ysical loss, alteration, an d deterioration. ” Id. § 51.304 (b )( 5 ). In contrast, nothin g in Gove rnment Code Chapter 24 a ssigns or deleg ates the above duties to a distri ct

- court judge

. See ge nerally id. §§ 2 4 .001

– . 034 , 24. 601

– .607

. Fo r purpo se s of determining timeliness , “ a n instrum ent is deemed in law filed at the time it is left with the clerk, reg ardless of whether or no t a file mark is placed on the instru ment and re gardless of whet her the file mark gives some o ther date of filing. ” Stan dard Fire Ins. v. LaCoke , 585 S.W. 2d 678, 680 (Tex. 1979)

. Thus, a p arty

sa tis fies its duty under the Rule s of Civil Procedure by “ put[ting] a legal inst rum ent in the cust ody and control o f the cour t c lerk

. ” 14 Warner v. G l ass , 1 35 S .W.3d 681, 684 ( Tex. 2004). “ The purpose o f this ru le is to protect a dili ge nt part y from being penal ized by e rrors a nd o missions of the court cler k. ” Garza v. State , 919 S.W. 2d 788, 790 & n.4 (Tex. App.

— Houston [14th D i st. ] 1996, no pet.) ( no t ing

–– i n bail

- bond case gov erned by Rules of Civil Procedure

–– t hat “ [a] n essential purpose of f iling

14 “ Electronic service is co m plete on transmission of the doc u ment to the serving party ’ s electronic filing se rvi ce provider. ” Tex. R. Civ. P. 21a (b)( 3)

.14

documents is t o make them pa rt of the records of the district o r county cler k

. . . and trial court for f

uture refere nce ” a nd that “ hav in g documents in the files of the court and cle rk forecloses ” questions a bout when filing and presen tme nt of docume nts has occurred) ; Kelly Moore Pai

nt Co. v. Ne. Na t ’

l Bank of Fort Wo rth , 426 S.W.2d 591, 593 (Tex. App.

— Fort W orth 1968, no writ) ( “ One o f th e official duties o f the c lerk is to know ‘wha t his office records show with respe ct to pending litigation. ’ ” ( quo ting Hanks v. Rosser

, 378 S.W.2d 3 1, 34 (Tex. 1964) ) )

. But t he term “f

iled” has a diff

er ent me aning when viewed from the perspective of th e cle rk. See In re Smi t h , 270 S.W.3d 783, 786 (Te x. App.

— Waco 2008, orig. proceeding

)

. Under Rules of Civil Procedure 24 through 26 , the clerk must

• “ [w] hen a p etition is filed

. . . i ndorse the reon the file number, the day o n which it was filed and th e tim e of filing, and s i gn his name officially the reto ” ;

• “ keep a file docket which shall show in convenient form th e number of the suit, the names of the attorneys, the names of the pa rties to the suit, and t he nature thereof , and, in brief form, the o ffice r ’ s return on the p rocess , and all subsequent proceedings had in th e case with th e dates thereof ” ; [and]

• “ k eep a court docket in a permanent rec ord that shall include the number o f the case and the names of the parties, the names of the attorneys, the nature of the acti o n, the pleas, the motions, and the ruling of the court as made

. ” Tex. R. Civ. P. 24

– 26. Th us, th e clerk phy s ically “ ‘ files ’ a d ocum ent by indorsing a file mark on it, recording it in the c lerk ’ s file doc k et, an d main taining the do cumen t in the clerk ’ s f i le for the suit. ” Smith , 270 S.W.3d at 786

.15

After a document has been filed with the d ist ri ct cler k, “ [e] a ch attorney at law pra cticing in any court shall be allow ed at all reasonab le tim es to inspect the papers and records relatin g to any suit or other m atter in which he may be i nterested. ” Tex. R. Civ. P. 76 ; see Glidden Co. v. Aetna Cas. & Sur. Co. , 291 S.W .2d 315, 318 (Tex. 19 56) ( noting that p apers delivered t o the clerk ’s custody fo r filing are “to be kept by him among the pa pers in his office subj e ct to such in spection by i nterested parties as may be permitte d by law ” )

. Moreover, Rule 76 a p rovides that “ [c] ourt records may not be removed from court files exc ept as permitted by stat ute or rule. ” Te x. R. C i v. P

. 76a. 15 Finall y, when a notice of app e al has been filed, the tri al

- court clerk has a duty to prepare , certify, and timely file the cl erk ’ s record with the appellate court if “ t he party responsible for p aying for the preparatio n of the clerk ’ s record has paid the

15 “ [ C]our t records ” are defined b y Rule 76 a as

a ll documents of any nature filed in connect ion with any matter before any civil court, ex cept: ( 1) documents fil e d with a court in camera, solely for the purpose of ob taining a ruling on the di scoverability of such d ocuments; ( 2) documen ts in court files to which acc ess is otherwise restrict ed by l aw; [and] ( 3) documents filed in an a ction ori ginally aris ing under t h e Family Code. Tex. R. Civ . P. 76a( 2)(a).16

clerk ’ s fee, has made satisfac t ory ar rangements 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 repo rter ’ s record compr ise the “ appellate recor d

. ” Tex. R. App. P

. 34.1. Each

case –– even if bearing multi p le cau se numbers

–– has o nly one appellate record

–– and , unless a n 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 Sa bre cont ends that Ameri can waived its complain t about the Email Or der by comp lying with it without objection

. E r ror
- preservation rules apply to original proceedings

. In re Rowes , No. 05

- 14

- 00606

- CV , 2014 WL 2452723, at *1 (Tex . App.

–– D allas May 30, 2 014, orig. proceeding) (mem . op.) . Thus , generall y , to be c onsidered in an origi nal proceeding , a complaint must hav e been presented to the trial court by timely request , o bjection, or motion. Tex. R. App. P . 33.1(a ) (1)

. A request, object

ion , or motion is considered timely if it is asserted w hen the po t ential er ror becomes apparent. Hoxie Impleme nt Co. v. Baker , 65 S .W.3d 140, 145 (Tex. App.

— Amarillo 2001, pet. denied). He re, from t he very beginning of the suit, Americ an was focused on e xpediting the p roceedings. Whi le it is tr u e that A merican follow e d the Email Order for almost f our months, the parties were serving the filings to each other via email , in acc ord ance with the protect

ions agreed to in the protective order. There fore, the partie s wer e17

ab le to acces s the documents for p urposes of the lit i gatio n. And no disputes arose

over the ti meliness or accuracy of the emailed documents

. 16 But the nature and scop e of, and har m from, the er ror became apparent w h en Ame rican filed the appeal of th e trial c ourt ’s sua sponte sealing o rder . At that time, Am e rican filed the Transfer Motion and the Designation, attempting to have the emailed documents filed in a clerk ’ s reco rd in this court . American has repr esented to this cour t

–– without dispute

–– that it has made “ multiple requests ” fo r a ruling on the Trans f er Motion . Despite the fact that the clerk ’ s reco rd in the appeal was due on July 1, 2022 , the trial court did not rule on the Tra nsfer M otion before th is court had

to gran t A merican ’ s Unopposed Mo tion fo r Tr ansfer of Designated Tr ial Court R e cords filed in the appeal

. Under these particular circumstances, we conclude that A mer ican raised this very issue with the tr ial court at t he time the error became

a pparent and that the trial court refused to rule o n American ’ s complain t. See T ex. R. App. P. 33.1(a) (1), (2)(B). When a clerk ’s record was fi led in the appeal on July 12, 2022 , not only was it filed after we extended the filin g date , but it also did no t include t he documents tha t had been emailed to t h e co urt coo rdinator according to the Email O rder

. Therefore,

o n Ame rican ’s unopposed mo tion, we orde r ed the trial court “ to dire ct the court

16 Ameri can ha s noted in its m an damus petition, for example, th at i t agreed to seal the temporary

- injunction proceedings “ to avoid further d elay in schedul ing the temporary[

- ]injunct

i on hearing. ”18

coordinator of the 236th District Court

–– and any other trial co urt personnel in possession o f digital o r paper co p ies of the described items

–– to forward to the Tarrant County Dist ric t Clerk ” the emailed docum ents that both partie s had des ignated to be included in the clerk ’ s record for the appeal. 17 See Tex. R. App. P

. 35.3(c)

. A nd we recently granted a two

- week ext e nsion o f time to file the

s upplemental clerk ’ s record containin g the emailed documents

–– from Aug ust 2 5, 2022 , unti l September 9, 2022

–– based on the trial

- court clerk ’ s rep resentation that

“ [p] er the reques t of the Court Coor dinator , Rhonda Young, document s are no t readily available

. ” Although those documents were fin ally filed on September 7, 2022, the filing of a complete clerk ’ s record in the ap peal was delaye d for two months and has r equired multiple or ders from this court to acc omplish

. 18

17 We ordered Sabre to file a supplemental res pon se to the m andamus petition to explain whether , desp ite it s lack of oppositi on to an order compel ling the trial court to transfer ce rtain of th e documents that had be en emailed to its co urt coo rdinator to the District Clerk fo r inclusion in the a ppellat e r eco rd, Sabre remained opposed to American ’ s request for mand amus reli ef as to the remaining d ocuments emailed to t he court coordinator under th is procedure , as well a s the forwarding of fut ure documents in thi s manner. Sabre f iled a suppl eme nta l re sponse in which i t states that its
“ agreement with the motion reflected its position t hat the documents del ivered to the court coordinator are properly part of the a ppe llate record. ” W e find n o merit in Sabre ’ s argume nt th at bec ause some of the documents subject ed to the disputed procedure “ ar

e in the process of bei

n g included in the sea led appellate record for 02

- 22

- 00159

- CV , ” American cannot show harm as to t he remaining d ocuments that h ave never be en properly forwarded t o t he Dist r ict Clerk under R u le 74.

18 Although the appeal is interl ocutor y in the sense that no f inal judgment has bee n signed, sealing orders under Rule 76a are deemed seve red from the case an d function as a final judgment. T ex. R. Civ. P. 76a (8)

. Therefore , t he appe a l is not subject to an accelerated schedule

.19

Altho ugh Am e rican c haracterizes its com plain t as one of fundame ntal error, we need not decide whether the co mplained

- of action is of the type that nee d not be p reserved. Under the un ique circumstances of this case , w e hold that Ameri can sought relief from the trial c ourt wh en the problem of wh ich it complains

–– inability
to obtai n a time ly and complete clerk ’ s record

–– beca me apparent. 19 That the tria l
court

–– in the f ace of a filed appeal with set deadlines

–– refu sed to comply with Rule 74, even a fter American poi nted o u t the p roblem and sought an express o rder, was sufficient to pr eserve this issue for our review. See also Tex. Gov ’ t Code Ann. § 22.221 (a) (

providing that court of appeals may issue writ of man damu s to

en force its jurisdi c tion

) ; cf

. In re Simmonds

, 271 S

. W. 3d 87 4, 879 (Te x. App.

–– W aco 2008, orig. proceeding) (

holdin g that if both district clerk and district court refuse to

19 A lthough proced urally Sabre complains t hat American failed to timely pursue this c omplaint i n the trial court, its argument also implicates the timin g of American ’ s mandamus pe tition. For similar re aso ns, we h old that

–– on these facts

––

American did not unduly delay in fi ling its mandamus petiti on. See In re Am. Airlines, I n c. , 634 S. W.3d 38, 43 (Tex. 2021) (orig. proceeding ) ( ho lding that A merican “ re asonably explained the year

- long period ” before it so ugh t ma n damus relief because it di d not receive the complained

- o f ord er for four months and r eal party in intere st thereaf ter failed to com ply with the trial court ’ s ordered pre requisite notice for ta kin g the compelled d eposition ; thus, Amer ican was jus tif ied in f iling m andamus petition in the face of impending trial to avoid resche duling the trial date ) ; cf. In re What abur g er Rests

. LLC , 645 S .W. 3 d 188, 19 3

– 9 4 (Tex. 2022) (orig. proceeding) ( holding that W hataburger was entitled t o mandamus relief when cle rk ’ s fa i lure to notify it of issua nce of appealable interlocutory order preclu ded it from filing appea l an d that Whatabur ger did not “ sleep on its rights ” by not checking with the trial court to se e if s uch an order had issued bec ause counsel should be abl e t o re l y on clerk ’ s duty to notify ).20

accept document for filing, court of appeals has jurisdiction to consi der whe ther to order district c ou rt to ac cept filing )

. 4 . Cons e q uences of Fail ure to Comply With Rule 74 Duties on Filing A tri al judge ’ s lack of compliance with Rule 74 when accepting documents for f iling prevents the district clerk from complying with his or h er s tat utory and Rule

ba sed duties

. That a tria l j ud ge t o whom a document was ten d e r e d did not comply with the mandatory language of Rule 74 has been construed as evidence that the judge

ex er ci sed R

ule 7 4 ’ s discretion not to accept the document for filing

. See Currency Forfeitu re , 201 8 W L 6 793787, at *4

– 5; Gar z a , 919 S. W. 2d at 789

– 90; se e also Harbin v. Brown, Graham & Co. , No. 07

- 98

- 0209

- CV, 1999 WL 311097, at *1 (Tex. App.

–– Amari llo 199 9, pet. denied) (per curiam) ( op. on reh ’ g, not desig nated for publication)

. But cf. Defee v. Defee , 966 S.W.2d 719, 721 (Te x . App.

– – San Antonio 1998, n o pe t. ) ( refusing to specul ate on wh en waiver document found in clerk ’ s custody but without clerk ’ s off icial file

- stamp was filed but deferring to bill

- of

- review jud ge ’ s finding that trial judge had accept ed and plac ed the waive r in the court ’ s file )

. T h e refore, when a judge agrees to accept a filing under R u le 74 but does not also comply expediti ously with the r equirements of Rule 74 by noting the fi ling date and time on the doc ument21

and by “for thw

ith ” 20 t ran smit ting the documen t s to th e district clerk, th e primary purp ose s of filing document s , as explained above, are thwarted

. Although it is u nder standable in a complex case suc h as this o ne
–– involving volu minous filings by both parties a nd n onpar ti es, man y of which c ontain conf i dential materia l subject to protective orders

–– th a t the trial court would make ev ery effort to prevent in advertent disclosure of a document to an una u thor i zed person , the procedur e fashioned here not only doe s not compl y with Rule 7 4 , but it al so prevents the Dis trict Clerk from complying with his statutory and Rule

- based ob ligati ons . T he majority of documents tendered in this case fr om Jan uary 18, 2022 , to at leas t Ju ly 12, 2022 , were not place d in t he Di strict Cle rk ’ s custody for months . Thu s , the Dis t r ict Cle rk has been prevente d from complying with his sta tutory duty to maintai n, store, and arrange these records, as well as his duty to im plement securi ty measure s “ to guard against physical loss, altera tion, and deterioration ” of t hose recor ds. See Te x . Gov ’ t Code Ann. § 5 1.304 (a), (b)( 5 ). Finally, nothing indica tes how , or if, th ese docu ments emailed to the court coordinator h ave been organized, identified, coded, or indexed so that they “ can be retri eved r a pidly

. ” 21 See id. § 51.304(b)(3)

.

20 Bla ck ’ s Law Dictionary defines “ forthw ith ” as “ [i

] mmediately , ” “ without delay , ” “ directly, ” “ promptly , ” “ within a reason able time unde r the circumstances, ” and “ wi th all convenient dispatch. ” Forthwith , Black ’ s Law Dic tio nar y (1 1 th ed. 2019).

21 In fact, the opposite appears to have been established when the court coordinator told the trial

- court clerk that the docume nts are “ not readily available

. ”22

Moreover , the Em ail Order has int erfered with th e District Clerk ’ s and this
court ’ s du ties in th e pending appeal vis à vis the appellate record

. 22 S abre contends that America n has not been har med because it was ser ved a ll of t hese documents and has t hem in its pos s ession, as evidenced by its ability to provide us a m anda mus

rec ord. But the fact t h at an appeal from the Email Order (afte r a final judgment) is inadequate is illustrated by this court ’s difficulty in ob taining a timel y and c omp l e te cle r k ’s record for t h e pending appeal o f the sealing order . This court and the trial
court are “jointly responsible for ensuring that the appellate record is timely filed. ” Tex. R. A pp. P. 35.3(c)

. A d istrict c lerk has a du ty to time ly file the clerk ’ s re c o rd portion of th e appellate record

. Tex. R. App. P. 35. 3(a)

. W e cannot cons ider documents that are not part of the appell ate record. See Cummings v. Billman , 634 S.W.3d 163, 166 n.1 (Tex. App.

— Fort Worth 2021, no pet.) (mem . o p. ) O ur inab ility t o timely obtain a complete clerk ’ s record and thereb y ti mely or der briefing in the appeal amply shows why mandamus relief is appropr iate. M ore over, the fact that Sabre did not o ppose the supplementation of the clerk ’ s record in the appeal he lps sho w why m andamus relief i s appropr iate her e . Complex litigat ion can often spawn

22 Cf. In re M.R.

J.M. , 193 S.W.3 d 6 70, 675

– 7 6 (Tex. App.

–– Fort Worth 2006, order) ( e n banc ) (

reasoning t hat statute

–– allowing trial court to find that appea l from par ental

- rights termination judgment would be frivo lous

–– would be unconstitutional if i nterpreted to al low fri volousness find ing to obvia te the filing of a complete appellate r e cord in this court for review of factual

- sufficiency argu ment urged on appeal ) , disp . on merits , 280 S .W.3d 494 (Tex. App.

–– Fo rt Worth 2009, no pet.) (op. on reh ’ g)

.23

multiple appeal s. If we were n ot to order reli ef now, we could be faced with ha ving to issue piecemeal orders for the trial court to c omply with its Rul e 7 4 duty each tim e an ap peal i s filed. Such a r emedy would be w a steful in any lit igation, mu ch less one in which the plaintiff has ex pressly sought expedited relief. 23 5 . Civil Pr a cti ce and R e medies Code Does N ot A uthorize Procedure Sabre finally contends th at Texas Civ il Practi ce and R e medies Code S ection 134 A.006 (a

)

– – which provi des t hat in an “ action ” under Chapter 134A , “ a court shall preserve the secrecy of an alleged trade secret by rea sonable means ”

–– is instructive as to whether the trial court was auth orized to mandat e thi s alte rna tive to filin g docu ments in th e clerk ’ s record

. Tex. Civ. Prac . & Rem. C ode Ann. § 134A.006(a). T hat section g oes on to establish “ a presumption in favor o f granting protective orders to preserve the secrecy of trade secrets ” and permits such or ders t o “ include provi sions limit

ing ac c e ss to confidentia l information to only the attorneys and their experts, holding in camera hearings, sealing the records of th e action, and ordering any person involved in the litigation not to d isclose an alleged tr ade se cre t without pri or court ap proval

. ” Id. But these described p ro tective p rovisions are permissive only

. See HouseCa nary, Inc. v. Title Source, I n c. , 622 S.W.3 d 254, 260 (Tex. 2021). We do not agree that Section 134A.006 allow s the trial co urt to i mplemen t the procedure here contr ary to t h e Rules of Civ il Procedure and the duties of the D istrict

23 We should not be under stood as la ying th e b lame f or any delay s ole ly on one party or con d o ning all of the litigation conduct of any one party .24

Clerk se t forth in t he Government Code

. Even if Chapter 134A appl ied to American ’ s claim , Section 134A.007 (c) controls over the Rules o f Civ i l Procedure

on ly “ [t] o the extent tha t [it] con flicts w i th ” them . Te x. C iv. Pr ac. & Rem. Code Ann. § 134A. 007 (c)

. And Section 134 A.006 ’ s l isted permissive protective

- order provi s ions say n othing about re stric ting a party ’ s ability to obtain and hav e f ile d a tim ely ,
co mplete ap pellate record

. Accordi ngly, w h e ther the trial co urt could look to tha t provision for guidance in crafting its orders does not e xcu se its lack of comp liance with Rule 74. 6. Disposition We con c lude t hat the trial court abused its discretion by d irectin g the parties to email doc uments t o t he court coordi nator i nstead of filing them via pape r with the D istrict C lerk and also by failing to c omply with Rule 74 by p roperly marking those document s and forwarding them “ fort hwith ” to the Dist r ict Clerk

. We fur th er conclude th at America n has s h o wn that it does n ot have an adequate remedy by appeal . We therefore susta in American ’ s fifth issu e and part of its sixt h issue

. C . Motion to Compel O rder Regarding American ’ s other, discovery

- rela ted complain ts, w e hav e care fully revi ewed Ame rican ’ s p e t ition, Sabre ’ s response , American ’ s re ply, Sabre ’ s supple m e n tal response, the mandamus record, an d the documents presente d to the

tr i al court for in camera re view . Having done so, we deny relie f. See T ex. R. Ap p . P. 52. 8( a), (d).25 IV. C ONCLUSION Hav ing d etermined that the tria l court abu sed its discretion by directi ng the parties to email all docume nts to be filed to the court coordin ator rather than filing them by paper under seal with the D is trict C lerk and then by fai ling t o comply w ith Rule 74 by no t

i ng the filing date and time on th e s o
- tendered d ocuments and transmitting them forthwith to the Distric t Cler k, we order the trial court to vacate its

ver bal directive to the parties to forward all documents to be filed t o its co u rt

coor dinator via email

. W e further order the t rial court

–– to the extent it has no t already done so

–– to comply with R u le 74 by noting the filing date and time on the documents t endered solely to the court coordinator v ia emai l in accordance with the Emai l Order

. 24 We direct the c ourt coordinator of the 236th District Court

–– and any other t rial court personnel in possession of digital or paper copies of the described items

–– to then forward any of those file

- marked docume nts that have not alre ady b een forwarded a c cording to our J u l y 26, 2022 order in cause numb er

24 We note that the trial court did no t so file mar k the documents forwarded to the District Clerk under seal for inclusion in the cl erk ’ s record in appeal ca use nu mber 02

- 22

- 00159

- CV

— although some, but not all, of the documents are stamped
“ received ” with a date and the court co or dinator ’ s initials . However, those do c uments appear to be arranged in chronolo gical order by date of tender. Rather than delay the appeal further

–– and in the absence of any pending motion seeking to have tho se documents properly file marked

–– we de cline to , at this time, order the trial court to have a supplemental clerk ’ s record filed in the appeal that contains file

marked version s of those particular docume nts .26

02

- 22

- 00159

- CV to the Tarrant County District Clerk under seal

. We deny all other relief r equested by American i n its petition for writ of mandamus.
/s/ Dana Womack Dana Woma ck Justice Delivered: Sep tember 12, 2022