COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DAVID EDWARD SAUCEDO II and

MARIANA TERRAZAS SAUCEDO,

Individually and on Behalf of I.S., a Minor

Child,

Appellants,

v.

EL PASO CHILDREN’S HOSPITAL

CORPORATION, ROBERTO CANALES,

M.D., and RODOLFO FIERRO

- STEVENS,

M.D.,

Appellees. §

§

§

§

§

§

§

§ No. 08-22-00047- CV

Appeal from the

243rd Judicial District Court

of El Paso County, Texas

(TC# 2020- DCV -2549)

O P I N I O N

Appellants David Edward Saucedo II and Mariana Terrazas Saucedo (the Saucedos), bring

an interlocutory appeal challenging two trial court rulings made early in the proceeding and before

adjudication of the underlying case

. The Saucedos brought a wrongful death suit asserting medical

negligence against the El Paso Children’s Hospital, Roberto Canales, M.D., and Rodolfo Fierro

Stevens, M.D. (collectively, Appellees). To their original petition, the Saucedos attached physician

reports and supporting affidavits

. Appellees objected on multiple grounds, generally asserting the

attachments improperly disclosed peer

- review information in violation of Texas law.2 In a separate order, the trial court found the peer

- review privilege applied in part to certain

statements

, determining such information was protected from public disclosure unless properly

authorized for release ( the Privilege Order)

. And second, to remedy the privilege violation, the

trial court further found i n a second order that i t was necessary to remove and redact all protected

information from any publicly filed record

, and to seal those records from general view ( the

Amended Redaction Order). The Saucedos filed this interlocutory app eal challenging the trial

court ’ s two order s in three issues

. Weeks later, however, they also filed a separate mandamus

action assert ing the same three challenges against the same two orders

. We decide that cause this

same date. See In re David Edward Saucedo II and Mariana Terrazas Saucedo, Individually and

on Behalf of I.S

. , a Minor Child

, N o. 08

- 22

- 00089

- CV (Tex. App.

— El Paso April 2 4 , 2023

, orig.

proceeding). Due to t he Saucedos bringing complaints reviewed under both a mandamus standard

and by direct appeal, our review initially requires a determination of whether the Court ’ s

interlocutory jurisdiction is implicated

, as pertaining to each issue or sub

- issue presented.

Ultimately, as to this appeal, we dismiss in part based on lack of jurisdiction and affirm in

part on the merits of the remaining issue

. We conclude we have no jurisdiction over t he Saucedos ’

issues brought against the Privilege Order

, nor as to issues brought against the Amended Redaction

O rder to the extent the trial court granted special exceptions. But w e further conclude our

interlocutory jurisdiction is implicated as to t he Saucedos ’ remaining complaint against the

Redaction Order

. Finding no abuse of discretion as to the trial court ’ s sealing of certain record s,

we affirm in part as to that limited issue

.3 

### I. B ACKGROUND

Because this appeal involves unadjudicated allegations and assertions of privileged

information, we limit the factual and procedural background to those matters relevant to this

review.

A. The original lawsuit and objections filed in response

In support of their negligence suit, t he Saucedos attached multiple exhibits to their filed

petition, which was then served on defendants. The attachments included three reports of Bradley

Peterson, M.D.

— one as to each defendant

— along with a curriculum vitae. As well they included

an affidavit by Dr. Thomas Mayes

— the interim Chair of the hospital ’ s Department of Pediatrics

and a member of its credentials committee.

Appellees filed answers entering a general denial. Dr. Canales also filed a motion to strike

exhibits filed with plaintiffs ’ original petition

, asserting they contained privileged information

protected from public disclosure by Texas law. The Saucedos filed a consolidated response

asserting Appellees had failed to show the peer review privilege applied, and even if it did, it had

been waived by the parties. The consolidated response attach ed the same exhibits a long with a new

u nsworn d eclaration of Dr. Mayes

, in which Dr. Mayes stated his previous affidavit did not contain

any confidential information obtained from the committee

. Appellees lodged further objections to

Dr. Mayes ’ s unsworn declaration. The statements contained in Dr. Mayes ’ s affidavit, Dr. Mayes ’ s

unsworn declaration, and Dr. Peterson ’ s three expert reports (the E xhibits)

, and references made

in several pleadings, make up t he core issue of this appeal

.

B. Hearings on the motions and objections

The trial court considered objections in two phases

, holding seven hearin gs between March

2021 and January 2022

. In the first phase

, the trial court determined wh ether challenged4 information in plaintiffs ’ exhibits was protected by a medical peer review privilege

. And i f so,

whether defendants had otherwise waive d th at privilege. In September 2021, near the beginning

of the third hearing, the trial court announced its intent to rule that multiple statements included in

the filed exhibits were privileged and confidential

, and no waiver of the privilege had been

established. The trial court, however, did not render a signed order

. Instead, it further announced

it would need to determine how best to remove the privileged information from all relevant public

records. This concern led to the second phase of hearings held between October 2021 and January

2022

.

During this phase, Appellees additionally filed a motion titled

, “ Joint Special Exceptions

and Objections to Plaintiffs ’ Original Petition and Other Documents Filed by Plaintiff Containing

Privileged Information

, ” along with supplemental briefing supporting the ir previous motion to

strike. Appellees ’ requested the trial court: ( 1 ) strike the five exhibits attached to plaintiffs ’ o riginal

p etition pursuant to R ule 59 of the Texas Rules of Civil Procedure ; ( 2 ) sustain special exceptions

to portions of the o riginal p etition and other filings that attached the Affidavit and Declaration of

Dr. Mayes or quoted or paraphrased information from those d ocuments, which the trial court found

to be privileged; and ( 3 ) redact, remove, or both, from the public record

, the Affidavit and

Declaration of Dr. Mayes, and two of Dr. Peterson ’ s expert reports, and portions of those

documents included among allegations which the trial court found privileged

, under the trial

court ’ s inherent power outside R ule 76a procedures

. The trial court held t hree hearings relating to

proposed orders on the motion to strike and special exceptions.

On January 19, 2022, the trial court signed an “ Order on Defendants ’ Motion to Strike

Affidavits, Opinions, and Testimony ” (the Privilege Order). This order identified specific portions

of Dr. Mayes ’ s affidavit, Dr

. Mayes ’ s unsworn declaration, and Dr. Peterson ’ s expert reports

,5 which the trial court found to be protected under the peer review privilege provided by

§ 160.007(a) of the Texas Occupations Code

. The order further indicated that a separate order

would be issued to address how to remove

, redact, or both, from the public record, the information

and references protected from unauthorized disclosure.

Next, t he trial court h eld another hearing

, on January 26, 2021

, to determine how, and under

what authority it could order removal, redaction, or amendment of exhibits and other references

which were part of the public record.

On February 23, 2021, the trial court signed an “ Order on Defendants ’ Rule 59 Objection,

Special Exceptions, and Supplemental Issues Relating to Peer Review Privilege ” (the Amended

Redaction Order). 1 The trial court sustained Defendants ’ objections to the five attachments to the

Petition, struck them from the original p etition, and ordered the clerk to withdraw the se items from

the publicly accessible records

. The trial court also ordered certain portions of the E xhibits and

other filings in the public record to be amended

.

C. Filings in this C ourt

T he Saucedos filed a notice of interlocutory appeal, challenging the trial court ’ s Privilege

Order and Amended Redaction Order. Later, they filed a petition for writ of mandamus regarding

the same orders

. We docketed the mandamus proceeding under Cause No. 08

- 22

- 00089

- CV, styled

as In re David Edward Saucedo II and Mariana Terrazas Saucedo, I ndividually and on B ehalf of

I.S., a M inor C hild

. In both proceedings

, the Saucedos present ed identical brief ing, asserting three

issues challenging the trial court ’ s two written orders. For purposes of briefing, oral argument, and

the rendering of our decisions simultaneously

, w e consolidated the two proceedings

. See In re

Valero Energy Corporation

, 968 S.W.2d 916, 916

– 17 (Tex. 1998) (instructing that when a court

1 The Amended Redaction Order corrected a clerical error in the original Redaction Order signed on February 3, 2022.

This is not an issue by either party and Appellants appeal from the Amended Order.6 of appeals is confronted with an interlocutory appeal and a mandamus proceeding

, it should

consolidate the two proceedings and render decision s disposing of both simultaneously, such as to

conserv e judicial resources and resources of the parties) ; see also In re Chevron U.S.A., Inc.

, 419

S.W.3d 341, 346 (Tex. App.

— El Paso 2010, no pet.)

. In this opinion, we address t he Saucedos ’

complaints under our limited interlocutory jurisdiction

.



### I I

. J URISDICTION 

### O VER T HE 

### I SSUES O N 

### A PPEAL

The Saucedos bring the same three issues as they did in their companion case for

mandamus relief. As a preliminary matter, we first determine whether our interlocutory

jurisdiction is implicated by their c hallenge s against the trial court ’ s two orders. We have

jurisdiction to consider appeals only from final judgments and certain interlocutory orders made

immediately appealable by statute. See Lehmann v. Har

- Con Corp.

, 39 S.W.3d 191, 195 (Tex.

2001)

. Authority for interlocutory appeals is provided by § 51.014 of the Texas Civil Practice and

Remedies Code

. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 51.014 (listing appealable

interlocutory orders). Additionally, R ule 76a of the Texas Rules of Civil Procedure

, and other

interspersed statutes as well, authorize interlocutory appeal s under certain circumstances

. See T EX

.

R. C IV

. P. 76a(8) ( relating to order s relating to the sealing or unsealing of court records); see also

T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 15.003(b) ( regarding order s on venue) ; Id. §§ 51.016,

171.098 ( addressing orders on arbitration); T EX

. F AM

. C ODE A NN

. § 56.01(c)(1)(D) ( relating to

order s committing a child to a facility for the mentally ill )

.

We look at the three issues individually to confirm our jurisdiction as to each.

A. Issue o ne

In their first issue, the Saucedos challenge th e Privilege Order

, which found the medical

peer review privilege applie d to Dr. Peterson ’ s expert report s and to Dr. Mayes ’ s affidavit and7 declaration

. The Saucedos assert we have jurisdiction to review this issue on interlocutory appeal

even though they simultaneously have argued for mandamus relief. They assert th at questions

surrounding the P rivilege O rder are preliminary to other questions properly brought in an

interlocutory appeal. Even so, we recognize that a consolidation of the appeal with a mandamus

request does not confer jurisdiction over interlocutory issues where there is no statutory right to

appeal. See In re Chevron U.S.A., Inc.

, 419 S.W.3d at 347 (consolidating an interlocutory appeal

and mandamus action but still concluding that dismissal of the interlocutory appeal for want of

jurisdiction was required whe re there was no basis for appellate jurisdiction). Here, the Saucedos

cite no authority, and we found none, providing a statutory right to an interlocutory appe a l of th e

trial court ’ s finding that the medical peer review privilege applie d to information included in

publicly filed reports and pleadings

.

B. Issue t wo

In their second issue, the Saucedos assert the trial court abused its discretion in the

Amended Redaction Order by: (1) ordering them to amend and redact the E xhibits

, and similarly

amend and redact statements in pleadings and court filings paraphras ing from the same expert

reports; (2) ordering the E xhibits

, and court records paraphras ing any statements from them, sealed

as d efendants did not meet R ule 76a requirements; and (3) ordering the district clerk to withdraw

from the court ’ s file and the public ’ s access the E xhibits filed with their o riginal p etition, which

directly support s their allegations under R ule 59

.

The Amended Redaction Order provides two substantive provisions. First, the order strike s

all five exhibits attached to the original petition, removing them from the publicly filed record s

. In

essence, this ruling seal s the se record s from public view

. S econd, the order grant s Appellees ’

special exceptions against certain portions of plaintiffs ’ pleadings

.8 To start, Appellees assert the trial court ’ s ruling i s not appealable under R ule 76a because

the order itself indicates that R ule 76a did not apply. Appellees further assert the court ’ s ruling

which grants special exceptions is not a reviewable order

. We disagree with the first argument and

agree with the second.

First, a ny ruling removing court files from the public record is appealable under R ule 76a

of the Texas Rules of Civil Procedure

. See T EX

. R. C IV

. P. 76a(8) ( “ Any order (or portion of an

order or judgment) relating to sealing or unsealing court records shall be deemed to be severed

from the case and a final judgment which may be appealed by any party or intervenor who

participated in the hearing preceding issuance of such order. ” ). Rule 76a(8) provides that a sealing

order is “ deemed to be severed from the case and a final judgment ” and thus it may be appealed.

See Biederman v. Brown

, 563 S.W.3d 291, 299 n.6 (Tex. App.

— Houston [1st Dist.] 2018, no pet.)

.

Accordingly, R ule 76a provides a basis for appellate jurisdiction to review a trial court ruling that

operates as a sealing of the court ’ s record.

Second, as for special exceptions, a trial court ’ s ruling is not subject to review by

interlocutory appeal. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 51.014(a) ; see also Harris Cnty.

Flood Control Dist. v. Adam

, 56 S.W.3d 665, 670 (Tex. App.

— Houston [14th Dist.] 2001, pet.

dism ’ d w.o.j.) (stating trial court ’ s rulings on special exceptions are not subject to review by

interlocutory appeal).

C. Issue t hree

The Saucedos ’ third issue addresses both orders together, asserting no adequate remedy is

available on appeal. We interpret this issue as a contingent argument only brought in support of

the petition for mandamus relief. Having determined on mandamus relief that the Saucedos lack

an adequate remedy by appeal, the contingency is not applicable. In re Saucedo , No. 08

- 22

- 000 89

-9 CV (Tex. App.

— El Paso April 2 4 , 2023, orig. proceeding)

. Accordingly, this issue is not

appropriate for interlocutory appeal. We see no need to address this issue in this appeal.

For these reasons, we dismiss the appeal as to issue one in its entirety, issue two in part,

and issue three in its entirety

, concluding we have no interlocutory jurisdiction. We address issue

two

, in part, on its merits

.



### III. T HE 

### A MENDED 

### R EDACTION 

### O RDER

We determined we only have interlocutory jurisdiction over issue two in part

. Restate d

, the

Saucedos ’ second issue asserts the trial court abused its discretion by (1) ordering a sealing of the

five expert report s and other court records paraphras ing expert statements arguing that Defendants

did not satisfy R ule 76a substantive or procedural requirements; and (2) ordering the district clerk

of the trial court to withdraw from the court ’ s file and the public ’ s access the five expert report

exhibits that they filed with their o riginal p etition, which directly support their allegations under

R

ule 59

.

A. Applicable l aw and s tandard of r eview

Texas Rule of Civil Procedure 76a(1) provides as follows :

Standard for Sealing Court Records. Court records may not be removed from court

files except as permitted by statute or rule. No court order or opinion issued in the

adjudication of a case may be sealed. Other court records, as defined in this rule,

are presumed to be open to the general public and may be sealed only upon a

showing of all of the following:

(a) a specific, serious and substantial interest which clearly outweighs:

(1) this presumption of openness;

(2) any probable adverse effect that sealing will have upon the general

public health or safety;

(b) no less restrictive means than sealing records will adequately and

effectively protect the specific interest asserted.10 T EX

. R. C IV

. P

. 76a(1)

.

A trial court ’ s determinations under R ule 76a are reviewed under an abuse of discretion

standard. Gen. Tire, Inc. v. Kepple

, 970 S.W.2d 520, 526 (Tex. 1998)

. “ This is because Rule 76a

does not require the court to make factual findings, but rather requires it to balance the public ’ s

interest in open court proceedings against an individual litigant ’ s personal or proprietary interest

in privacy. ” In re Browning

- Ferris Indus., Inc.

, 267 S.W.3d 508, 512 (Tex. App.

— Houston

[14 th Dist.] 2008, no pet. )

. Under this standard, courts do not disturb the trial court ’ s ruling unless

it is shown that the court acted without reference to any guiding rules or principles or in a manner

that wa s arbitrary and unreasonable

. Downer v. Aquamarine Operators, Inc.

, 701 S.W.2d 238, 241

(Tex. 1985)

.

B. Analysis

The Saucedos assert the trial court abused its discretion in issuing the Amended Redaction

Order because Appellees failed to establish that they had complied with R ule 76a requirements

.

The trial court noted in the order that “ it has inherent power to limit the right of public access to

the Court ’ s judicial records that contain information the Court has declared to be confidential and

privileged. ” Moreover, it found that R ule 76a sealing procedures did not apply because the

challenged documents we re not “ court records ” as that term is defined in R ule 76a(2)(a)(2)

. Lastly

,

the trial court expressly stated it had granted Appellees ’ motion to strike the records pursuant to

R

ule 59 of the Texas Rules of Civil Procedure

.

The trial court determined the requirements of R ule 76a did not apply because the

challenged exhibits were not in fact court records

. Rule 76a provides that “ court records ” means

“ all documents of any nature filed in connection with any matter before any civil court, except: (1)

documents filed with a court in camera, solely for the purposes of obtaining a ruling on the11 discoverability of such documents; (2) documents in court filed to which access is otherwise

restricted by law; (3) documents filed in an action originally arising under the Family Code. ”

T EX

. R. C IV

. P. 76a(2)(a)

. W hether documents are considered court records by the terms of

R

ule 76a is a threshold determination. Kepple

, 970 S.W.2d at 524

. When the character of

documents is disputed, the party claiming they should remain open to the public carries the burden

to prove by a preponderance of the evidence that they qualify as court records. Roberts v. West

,

123 S.W.3d 436, 441 (Tex. App.

— San Antonio 2003, pet. denied)

. The trial court determines

whether the documents are court records based upon evidence presented

, which itself may include

the documents themselves submitted in camera

. Eli Lilly & Co. v. Biffle

, 868 S.W.2d 806, 809

(Tex. App.

— Dallas 1993, no writ)

.

Appellees assert the E xhibits are not court records because they fall under the exception

provided by R ule 76a (2)(a)(2 )

, applicable to “ documents in court files to which access is otherwise

restricted by law. ” T EX

. R. C IV

. P. 76a(2)(a)(2)

. They contend that

, because the law restricts access

to documents containing medical peer

- review privileged information, the challenged exhibits are

not court records

, and thus, it was not necessary to follow R ule 76a requirements in order ing a

sealing of the court ’ s file. The Saucedos respond that R ule 76a provides the only procedural

mechanism to seal ing court records

. They argue that Appellees failed to comply with the rule ’ s

requirements when they sought an order sealing the challenged records

. The Saucedos further point

out that the E xhibits have been thrust into the “ public domain for over 18 months because all

parties filed them and quoted from them in their motions

. ” Because Appellees never met their

burden to prove the medical peer review privilege applies, the Saucedos assert that R ule

76a (2)(a)(2) ‘ s exception cannot apply. However, as our companion opinion entered on this same12 day concludes, Appellees did in fact prove the peer review privilege applied. See In re Saucedo

,

No. 08

- 22

- 000 89

- CV (Tex. App.

— El Paso April 2 4 , 2023, orig. proceeding )

.

We conclude the information in the challenged exhibits is restricted by law and, pursuant

to the plain language of R ule 76a

, they are not court records and not subject to th ese requirements

.

See Enriquez v. Owens

, No. 03

- 09

- 00237

- CV, 2010 WL 1507821, at *4 (Tex. App.

— Austin Apr.

14, 2010, pet. denied) (stating board minutes were restricted under Texas law and

, therefore, were

not court records ; and this determination allowed the trial court to seal the records without

following the requirements of R ule 76a ) )

.

Accordingly, we conclude the trial court did not abuse its discretion in ordering the record

redacted and sealed. We overrule th e remaining portion of t he Saucedos ’ second issue.



### IV. C ONCLUSION

We dismiss the appeal in part and affirm the remaining part on the merits. We dismiss the

appeal in part regarding the challenges raised against the Privilege Order and the special exceptions

on the basis that we lack interlocutory jurisdiction. We affirm in part the trial court ’ s Amended

Redaction Order and remand to the trial court for further proceedings.

G INA M. PALAFOX

, Justice

April 2 4

, 2023

Before Rodriguez

, C.J., Palafox, and Soto, JJ.