                                             OPINION
                                        No. 04-07-00660-CV

                               IN RE COASTAL BEND COLLEGE

                    From the 79th Judicial District Court, Jim Wells County, Texas
                                  Trial Court No. 07-04-45797-CV
                           Honorable Richard C. Terrell, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Alma L. López, Chief Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: October 15, 2008

AFFIRMED

           This appeal stems from a Texas Rule of Civil Procedure 76a motion asking the trial court

to seal two DVDs containing information obtained from Coastal Bend College (“Coastal Bend”).

The trial court determined the documents were not “court records” under Rule 76a and were,

therefore, not open to the public. Appellants, intervenors in the underlying receivership action,

filed this appeal. Because we agree that the documents are not “court records,” as defined by

Rule 76a(2), we affirm the trial court’s judgment.
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                              FACTUAL AND PROCEDURAL BACKGROUND

        On February 9, 2007, Kathlyn Patton, Director of Personnel for Coastal Bend, asked

Anthony Sanders, Coastal Bend’s PC & Network Supervisor, to make hard copies and create a

backup of all emails on her Coastal Bend computer. Because Sanders believed information was

being wrongfully destroyed, he placed the requested information on two DVDs, giving one copy

to Patton and retaining the other copy. It is undisputed that Sanders’ actions were taken without

the permission or knowledge of either Patton or Coastal Bend.                     The first DVD contained

approximately 10,000 separate documents.                 Coastal Bend claims that within the 10,000

documents there are at least 935 privileged communications with counsel and that other

documents contain social security numbers and other personal and private information. Sanders

also copied and preserved additional emails after Patton asked for the original back-up. These

copies were retained on a separate DVD.

        Because Sanders believed Coastal Bend was not responding to open records requests for

the documents and that Coastal Bend was destroying files, he retained counsel to file an

application for appointment of receivership regarding the two DVDs. 1 The DVDs were tendered

into the court’s registry, and Sanders sought the appointment of a receiver to index and catalogue

the information on the DVDs so that a determination could be made on whether the documents

“are subject to the attorney-client privilege or some other privilege . . . prior to the release to the

general public.” See TEX. CIV. PRAC. & REM. CODE ANN. § 64.031(5) (Vernon 2008) (“Subject

to the control of the court, a receiver may: . . . (5) perform other acts in regard to the property as



1
   The application states that it was being filed pursuant to Chapter 64.001(a)(6) of the Texas Civil Practice and
Remedies Code, which provides that “[a] court of competent jurisdiction may appoint a receiver . . . in any other
case in which a receiver may be appointed under rules of equity.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 64.001(a)(6) (Vernon 2008).


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authorized by the court.”). Sanders’ application also asked for an in camera inspection of the

documents.

        During the next two months, Coastal Bend sent several communications to Sanders’

counsel (1) maintaining that the information contained on the DVDs was confidential, attorney-

client information; (2) warning counsel not to view or share the information with any other

person; and (3) demanding return of the original and any and all copies of the DVDs or hard

copies of information taken from the DVDs.

        On June 5, 2007, the appellants, 2 who are all current or former employees of Coastal

Bend with pending discrimination claims filed with the Equal Employment Opportunity

Commission, filed a plea in intervention to Sanders’ application for appointment of receivership.

Just ten days later, both Sanders and all the intervenors filed a motion to non-suit and the trial

court signed an order of non-suit granting the motions and dismissing the cause of action without

prejudice. Three days after the non-suit, Sanders’ counsel notified Coastal Bend that the trial

court’s clerk had provided copies of the DVDs to the intervenors’ attorneys, the media, and a

representative of the Texas Faculty Association.

        On June 20, 2007, 3 Coastal Bend filed a motion for a temporary sealing order alleging,

among other things, that Sanders did not have the right to the emails or documents contained on

the DVDs and the documents contained emails protected by the attorney-client privilege and

protected as “information considered to be confidential by law, either constitutional, statutory or

by judicial decision,” pursuant to Texas Government Code section 552.007. The trial court


2
    The pleadings did not include current appellant Donaciano Contreras, but he filed a subsequent plea in
intervention raising similar concerns on June 7, 2007.
3
   Texas Rule of Civil Procedure 76a grants continuing jurisdiction to the trial court. More specifically, the rule
provides that “Any person may intervene as a matter of right at any time before or after judgment to seal or unseal
court records. A court that issues a sealing order retains continuing jurisdiction to enforce, alter, or vacate that
order.” TEX. R. CIV. P. 76a(7) (emphasis added).


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granted the temporary sealing order the following day and set a hearing on the motion to seal.

After a contested hearing, the trial court entered an order which found in part that: “The two

DVDs are not ‘court records’ within the meaning of Rule 76a because they were filed for in

camera inspection by the Court and are, therefore, not open to the public under Rule 76a.”

         On appeal, appellants raise several challenges to the trial court’s sealing order. 4

However, because we believe the question of whether the documents were “court records” as

defined by Rule 76a(2) is dispositive, we address only that issue.

                                            STANDARD OF REVIEW

         An appellate court applies an abuse of discretion standard to review a trial court’s

determination of whether a document filed with the trial court is a “court record” as defined by

Rule 76a(2). Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998). If the trial court

determines the documents are “court records,” then the documents are presumed to be open to

the general public, and a party moving for a sealing order has the burden to rebut the

presumption. Upjohn Co. v. Freeman, 906 S.W.2d 92, 96 (Tex. App.─Dallas 1995, no writ).

                “COURT RECORDS” UNDER TEXAS RULE OF CIVIL PROCEDURE 76A

         Texas Rule of Civil Procedure 76a broadly defines “court records” as “all documents of

any nature filed in connection with any matter before any civil court . . . .” TEX. R. CIV. P.

76a(2)(a). However, Rule 76a contains three exceptions to this broad definition, one of which is

applicable here: “documents filed with a court in camera, solely for the purpose of obtaining a

ruling on the discoverability of such documents” are not “court records.” TEX. R. CIV. P.

76a(2)(a)(1). Therefore, before determining whether documents filed with the court are “court

records” subject to being sealed, the trial court must first determine whether the documents are,


4
   Rule 76a(8) provides that “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.” See TEX. R. CIV. P. 76a(8).


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in fact, “court records” as defined by Rule 76a(2). Kepple, 970 S.W.2d at 525. “It is the burden

of the party claiming the documents are open to the public to prove by a preponderance of the

evidence that the documents are court records as defined by Rule 76a.” Upjohn, 906 S.W.2d at

96; see also Roberts v. West, 123 S.W.3d 436, 440 (Tex. App.—San Antonio 2003, pet. denied)

(holding that the party seeking to invoke the requirements of Rule 76a bears the burden). The

appellants, therefore, bore the initial burden to establish that the documents in question were

“court records” as defined by Rule 76a(2).

1.     Tendering the Documents for In Camera Inspection

       On appeal, appellants contend the documents are “court records” open to the general

public because the DVDs were not tendered to the court “solely for the purpose of obtaining a

ruling on the discoverability of such documents.” Instead, appellants claim Sanders submitted

the documents for in camera inspection only “in the event” the documents were subject to

attorney-client privilege. In other words, appellants contend the documents do not come within

the scope of any exception under Rule 76a(2)(a) and, therefore, the documents fall within the

broad definition of “court records.” Appellants also assert the DVDs, as the subject of the

application for receivership, are a part of the court record and available for public review.

Coastal Bend, on the other hand, argues that the only logical reading of Rule 76a is that simply

tendering documents for in camera inspection does not convert the documents into “court

records.” If that were the case, Coastal Bend argues, the process of tendering documents in

camera would be made useless because once tendered, they would become public records. We

agree with Coastal Bend.

       As the Supreme Court explained, a party must be allowed to tender a document in camera

when necessary without converting the document to a “court record.” See Kepple, 970 S.W.2d at

526. “Were it otherwise, trial courts could not review the documents themselves in determining


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how to apply Rule 76a without requiring [the party] to relinquish the very relief sought under the

rule.”     Id.   Here, the documents were specifically tendered by Sanders for an in camera

inspection before release of the information to the public. We therefore hold that tendering the

records with the application for receivership did not convert the records to “court records” under

Rule 76a(2).

2.         Judicial Admission

           In their next argument, appellants assert Coastal Bend judicially admitted the documents

were “court records” based on Coastal Bend’s motion entitled “Coastal Bend College District’s

Motion to Seal Court Records” and Coastal Bend’s reference in its trial brief to the documents as

“court records.”

           A judicial admission must be a “clear, deliberate and unequivocal statement” by a party.

Regency Advantage Ltd. P’ship v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996).

The title of Coastal Bend’s pleading, absent a clear, deliberate and unequivocal statement within

the pleading itself that the documents were “court records” as defined by Rule 76a(2), is not a

judicial admission. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999)

(stating courts “look to the substance of a motion to determine the relief sought, not merely to its

title”).    Because Coastal Bend’s motion to seal does not contain a “clear, deliberate and

unequivocal” statement that the DVDs are “court records” under Rule 76a(2), we hold there was

no judicial admission.

           Also, assertions of fact, pled in the alternative, do not constitute a judicial admission.

Hughes Wood Prod., Inc. v. Wagner, 18 S.W.3d 202, 207-08 (Tex. 2000); see also Brooks v. Ctr.

for Health Care Servs., 981 S.W.2d 279, 283 (Tex. App.—San Antonio 1998, no pet.) (“Because

the allegations regarding intent were pled in the alternative, they do not constitute judicial

admissions.”). Therefore, Coastal Bend’s alternative argument in its trial brief that the sealing


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requirements of Rule 76a(1) had been satisfied did not amount to a judicial admission that the

documents were “court records” under Rule 76a(2).

3.         Temporary Sealing Order

           Appellants next assert the trial court made a finding in its temporary sealing order that the

documents were “court records” and Coastal Bend is judicially estopped from taking a position

contrary to that finding.             Appellants’ characterization of the temporary sealing order is

incorrect. 5      The trial court did not make any factual findings or reach any determination with

regard to whether the documents constitute “court records” under Rule 76a(2). To the contrary,

the order appears to use the term “court records” in its ordinary sense and not as the term in

defined under Rule 76a(2)(a).

                                                          CONCLUSION

           We conclude the trial court’s determination that the DVDs were not “court records” is

neither arbitrary nor unreasonable; therefore, the court did not abuse its discretion in concluding

the documents were not available to the general public. Because the documents are not “court




5
    The temporary sealing order reads, in pertinent part, as follows:

                     Coastal Bend College District proved a compelling need for a temporary sealing order
           and demonstrated that delay in sealing would result in immediate and irreparable harm to [sic]
           because the DVDs tendered to the registry of the court contain highly confidential, attorney-client
           privileged communications related to currently pending and/or reasonably anticipated claims or
           litigation filed against the District. If nothing else, the release of this information would
           effectively destroy any defenses of the District to the claims and anticipated litigation, causing the
           District to incur huge monetary losses from which, given the current circumstances, it likely will
           never recover.
                     THEREFORE, the court orders the following court records in this cause temporarily
           sealed . . . .

(Emphasis added.)




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records” open to the public, further analysis under Rule 76a is unnecessary.6 We therefore

affirm the trial court’s judgment. 7


                                                          Sandee Bryan Marion, Justice




6
  Because our determination that the documents are not “court records” is dispositive, we need not address the
appellants’ remaining issues. TEX. R. APP. P. 47.1.
7
   On appeal, Coastal Bend asserts appellants stole documents from Coastal Bend and used the receivership and
intervention proceedings to attempt to “launder” the stolen documents into legitimate “court records.” Because we
are constrained by the absence of an appellate record or any trial court findings regarding this assertion, we do not
express any opinion on the issue. Thus, our decision should not be construed as a statement on the propriety of
Sanders’ application for appointment of receivership or appellants’ intervention.



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