Petition for Writ of Mandamus Denied and Majority and Concurring Opinions 

filed June 6, 2019.

In The 

Fourteenth Court of Appeals

NO. 14-19-00267-CV

IN RE KOSMOS ENERGY SAO TOME AND PRINCIPE, Relator 

ORIGINAL PROCEEDING 

WRIT OF MANDAMUS 

 157th District Court 

Harris County, Texas 

Trial Court Cause No. 2017-71987 

C O N C U R R I N G O P I N I O N

Today the court addresses the merits of relator Kosmos Energy Sao Tome 

and Principe’s petition for writ of mandamus and denies relief, concluding that 

Kosmos failed to show that the respondent trial judge clearly abused her discretion

in denying Kosmos’s motion to quash the deposition of Andrew Inglis and 

requiring Kosmos to produce him for deposition. This court should not reach the 
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merits because Kosmos has failed to show that the record provided to this court is 

the same record the trial court reviewed in making its decision.

Shortly after filing its petition for writ of mandamus and mandamus record, 

Kosmos sought to withdraw the original mandamus record and file an amended 

mandamus record. The proffered amended record contained redacted documents. 

The original one had no redactions. By filing an amended record rather than a 

supplemental record, the amended record would take the place of the original 

record and essentially make the original record unavailable to the court and to the 

public. If, instead, Kosmos had filed a supplemental record with the same 

redactions, then this court could have decided the case on the unredacted record 

because the record would have consisted of both the redacted version and the 

unredacted version. By amending rather than supplementing, Kosmos effectively 

substituted the redacted record for the unredacted one and made it impossible for 

this court to review what the trial court reviewed. 

 The parties have not asserted that the trial court put the redacted documents 

under seal or that the trial court reviewed them under seal or that the documents 

were similarly redacted in the trial court. 

Texas Rule of Civil Procedure 76a, entitled “Sealing Court Records,” 

provides that court records, as defined in the rule, other than orders or opinions, 

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

showing of each of the following: 

(a) a specific, serious and substantial interest which clearly outweighs: 
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(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.1

(the “Rule 76a Showing”). When a trial court seals documents and no party 

challenges the sealing order, this court typically carries the protection into the 

original proceeding, maintaining the trial court’s sealing order. 

 When Kosmos filed this mandamus proceeding, Kosmos did not seek to file 

the record under seal, nor did Kosmos assert that the trial court had sealed any 

documents made part of the mandamus record. Likewise, when Kosmos sought 

to amend the mandamus record by substituting redacted documents, Kosmos did 

not assert that Kosmos had made the Rule 76a Showing in the trial court vis-à-vis 

the redacted documents or even that the redacted documents had been presented 

to the trial court or filed or made a part of the trial-court record. 

Nonetheless, a divided panel of this court allowed Kosmos to file the 

amended record. The order allowing Kosmos to file the amended record noted 

that “Chief Justice Frost would deny the motion because the amended mandamus 

record contains documents with redactions; relator has not shown that the 

documents reviewed by the trial court were similarly redacted and in considering 

the request for mandamus relief, this court must review the same evidence the trial 

court considered.” Still, Kosmos took no action to show that the documents the 

 

1 Tex. R. Civ. P. 76a(1).
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respondent trial judge reviewed were the same redacted documents comprising 

the amended mandamus record. 

Now, the original record is no longer part of the court’s mandamus record. 

At least thirteen pages of the amended record contain redacted material —

material that is blocked from this court’s (and the public’s) view. If the trial court 

reviewed information not available to this court, on review of the trial court’s 

ruling, this court would be unable to determine if the trial court abused its 

discretion based on the evidence before the trial court when the court issued the 

challenged ruling. If this court were to conclude that the trial court abused its 

discretion based on the redacted, amended record, it is possible that this court 

would have reached the opposite conclusion if this court were considering the 

unredacted record that was before the trial court. It would not be fair to mandamus 

the trial court or order the trial court to vacate its order based on our review of a 

different record. 

In considering Kosmos’s request for mandamus relief, this court must 

review the same evidence the trial court considered.2 We are unable to do that 

without going outside our record, an act the rules and appellate practice prohibit. 

Under these circumstances, this court need not and should not reach the merits of 

Kosmos’s petition for mandamus relief. It would be like watching only a portion 

 

2 See Univ. of Tex. v. Morris, 344 S.W.2d 426, 429 (Tex. 1961) (concluding that the Supreme 

Court of Texas’s “action must be controlled by the record made in the trial court at the time the 

[trial court’s ruling] was issued”); Keck v. First City Nat. Bank of Houston, 731 S.W.2d 699, 700 

(Tex. App.—Houston [14th Dist.] 1987, no writ) (stating that this court’s action must be based on 

the record made in the trial court at the time of the trial court’s ruling).
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of a filmed episode and deciding what happened. The missing parts might change 

everything. That is why reviewing courts must parachute into the trial-court 

record and review the trial court’s ruling based on what was before the trial court, 

not based on a record redacted after the fact.3

Parties cannot make an end run around Rule 76a by giving the court of 

appeals only a record containing documents redacted after the trial court’s ruling. 

That approach deprives the public of the protections of Rule 76a and skews the 

analysis in the court of appeals. 

Kosmos’s failure to make the requisite same-record-as-the-trial-courtreviewed showing effectively disqualifies Kosmos from getting mandamus relief. 

This court need not — and should not — reach the merits for if in analyzing the 

merits the court concluded that the trial court abused its discretion in making the 

ruling, this court could hardly grant affirmative relief because it would have to do 

so based on a different record.4

 Because such a holding would be unsupportable 

under our precedent, the better course is to deny relief based on the failure to make 

the requisite showing that the proffered mandamus record contains the same 

documents — redactions included — the trial court reviewed.5 Because the court 

instead addresses the merits, I respectfully decline to join the majority opinion. 

 

3 See Morris, 344 S.W.2d at 429; Keck, 731 S.W.2d at 700.

4 See Morris, 344 S.W.2d at 429; Keck, 731 S.W.2d at 700.

5 See Morris, 344 S.W.2d at 429; Keck, 731 S.W.2d at 700.
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But I agree that Kosmos has failed to show its entitlement to mandamus relief, so 

I concur in this court’s judgment.

 /s/ Kem Thompson Frost 

Chief Justice

Panel consists of Chief Justice Frost and Justices Wise and Zimmerer (Wise, J., 

majority)