                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                               No. 04-18-00509-CV & 04-18-00844-CV

                                    TITLE SOURCE, INC., et al.,
                                           Appellants

                                                  v.

                        HOUSECANARY, INC., f/k/a Canary Analytics, Inc.,
                                       Appellee

                      From the 73rd Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016-CI-06300
                            Honorable David A. Canales, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice
Concurring Opinion by: Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: July 10, 2019

REVERSED AND RENDERED

           These consolidated appeals arise from a business dispute involving trade secrets. After a

jury trial concluded, the trial court ordered several admitted exhibits sealed or redacted. Later, the

trial court denied appellants’ motions to modify the sealing order but clarified the order.

Appellants contend in the first consolidated appeal, No. 04-18-00509-CV, that the trial court erred

by entering the sealing order. In the second appeal, No. 04-18-00844-CV, appellants contend the

trial court erred by refusing to modify the sealing order. Some appellants also contend, in the

second appeal, that the trial court’s clarification order is void for vagueness.
                                                                            04-18-00509-CV & 04-18-00844-CV


        Appellee contends that we do not have jurisdiction to consider the first appeal. We first

address and deny appellee’s jurisdictional challenge. We then hold that the trial court erred when

it entered the sealing order. Our resolution of the first appeal renders the second appeal moot.

                                             BACKGROUND

        Appellant Title Source, Inc. (“Title Source”) and Appellee HouseCanary, Inc. f/k/a Canary

Analytics, Inc. (“HouseCanary”) develop and compile algorithms, software, and data as part of

their businesses. Each prize this information as proprietary trade secrets. We take no position on

whether this information is, in fact, “trade secrets” as the law defines that term.

        Title Source sued HouseCanary for breach of contract, fraud, and tortious interference.

HouseCanary counterclaimed for misappropriation of intellectual property under the Texas

Uniform Trade Secrets Act (“TUTSA”) and other common-law theories.

        Early in the case, the parties agreed to a stipulated protective order (the “SPO”). Among

other things, the SPO provides procedures for the parties to mark information as

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” The SPO

grants limited protections for such materials and also specifies procedures for sealing the materials

in court. The parties dispute the importance of the SPO, but no party disputes that it was validly

entered and is enforceable. 1

        At a pretrial hearing, the parties presented their lists of exhibits to be preadmitted. Counsel

for Title Source and counsel for HouseCanary stated their agreement that the exhibits should be

preadmitted and that the parties had no objection to preadmission. The trial court preadmitted the




1
  The parties also agreed to a supplement to the SPO, which the court ordered, but the parties do not contend the
supplement is relevant to these appeals.


                                                      -2-
                                                                                04-18-00509-CV & 04-18-00844-CV


exhibits. Among the preadmitted exhibits are the 14 exhibits the court later sealed or ordered

redacted that are in dispute in these appeals. 2

           Approximately a month into the seven-week trial, Title Source moved to close the

courtroom during the trial testimony of a Title Source fact witness who Title Source anticipated

would testify about its computer source code. Title Source asserted this code was a trade secret.

Title Source also moved to seal documents that would be filed or placed into the record regarding

its source code. These records had not been preadmitted before trial. Title Source argued that the

requirements for sealing court records under Texas Rule of Civil Procedure 76a did not apply, but

Title Source attempted to comply with the requirements regardless. 3 The trial court ordered these

source-code documents sealed. HouseCanary too obtained temporary closure of the courtroom

during testimony concerning its computer source code.

           It is undisputed that HouseCanary did not request for the exhibits at issue in these appeals

be sealed until after the trial concluded. According to HouseCanary, these exhibits reveal

HouseCanary’s purported trade secrets. The parties do not dispute that several of these exhibits

were discussed and displayed at trial; however, they dispute the extent to which the exhibits were

discussed and displayed and whether members of the general public or press viewed the exhibits

when displayed.

           At the end of trial, the trial court instructed the jury not to talk about or mention confidential

aspects of the case regarding trade secrets. The trial court did not provide any guidance as to what

those “confidential aspects” were and did not identify particular exhibits as containing trade

secrets.


2
  HouseCanary no longer seeks protection for at least one of the 14 exhibits “due to events in the federal litigation”
discussed below.
3
  Title Source and HouseCanary had agreed to protections for Title Source’s source code through a supplement to the
SPO.


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                                                                     04-18-00509-CV & 04-18-00844-CV


       Over six weeks after trial ended, HouseCanary filed a motion to seal thirty exhibits that

had been admitted into evidence at trial. The motion only refers to Texas Rule of Civil Procedure

76a. HouseCanary gave public notice of its request, and appellants The Reporters Committee for

Freedom of the Press and the Houston Forward Times (collectively, “Media Intervenors”) as

intervenors and Title Source opposed the request. The trial court held a public hearing on the

matter and denied HouseCanary’s motion from the bench.

       Three days later, HouseCanary filed a “Motion to Reconsider Whether to Seal Certain Core

Materials.” HouseCanary narrowed its request to eight exhibits, which HouseCanary asserted

contain its “most sensitive information.” In its motion to reconsider, HouseCanary relied “solely”

on TUTSA as the basis for sealing, and specifically disclaimed reliance on Texas Rule of Civil

Procedure 76a. HouseCanary also asked the trial court to modify the SPO to recognize TUTSA

as the statutory basis for sealing. The trial court heard the matter and verbally ruled it would grant

HouseCanary’s motion to reconsider and order the eight exhibits sealed. The trial court did not

verbally order that the SPO be modified. The trial court instructed HouseCanary to draft an order

conforming to the ruling.

       HouseCanary drafted an order that included the eight exhibits specified in the motion to

reconsider and six additional exhibits that HouseCanary asserted were exact copies of the eight

originally-specified exhibits or contained excerpts from those eight exhibits. Soon thereafter, the

trial court signed an order granting the motion to reconsider and ordering the eight originally-

specified exhibits sealed in their entirety. The trial court also ordered the additional six exhibits

to be redacted to remove and seal the trade secrets contained therein. Title Source and the Media

Intervenors appealed this order, which is the subject of the first appeal.

       Shortly after the trial court signed the sealing order, HouseCanary filed, in a separate

federal-court proceeding, a motion that included a copy of two of the eight entirely-sealed


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exhibits.4 The document filed in federal court is and has been available to the public, except for a

brief period during which it was under seal by the federal court.

         Title Source and the Media Intervenors moved to vacate the sealing order as to the two

exhibits publicly available in federal court. The Media Intervenors also sought clarification

regarding the extent of their right to publish documents they lawfully obtain. The trial court denied

the motion to unseal the two exhibits but issued a clarifying order as to the Media Intervenors’

right to publish. Title Source and the Media Intervenors appealed the trial court’s orders on these

matters in the second appeal.

                                               JURISDICTION

         House Canary initially challenges this court’s jurisdiction under Texas Rule of Civil

Procedure 76a to consider the first appeal. This dispute raises an issue central to the appeal—

whether and to what extent the Texas Uniform Trade Secrets Act (“TUTSA”) supplants Rule 76a

when a party moves to seal alleged trade secrets. We will consider any potential conflict only to

the extent necessary to resolve the appeal.

         Absent specific authorization for interlocutory appeals and original proceedings, appellate

courts only have jurisdiction over final judgments. CMH Homes v. Perez, 340 S.W.3d 444, 447

(Tex. 2011). The Texas Supreme Court has deemed that orders relating to sealing or unsealing

court records made pursuant to Rule 76a are final, appealable judgments. Jack B. Anglin Co., Inc.

v. Tipps, 842 S.W.2d 266, 272 n.13 (Tex. 1992); Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158

(Tex. 1992).

         By its terms, Rule 76a applies to the trial court’s sealing order and gives this court

jurisdiction over the first appeal:


4
 The document HouseCanary filed in federal court is multiple pages. One of those pages is the same as sealed exhibits
DX342 and DX759. DX342 and DX759 are identical one-page exhibits.


                                                        -5-
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         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.

TEX. R. CIV. P. 76a(8).

         House Canary argues Rule 76a does not apply, despite this language, because the trial court

ordered sealing pursuant to TUTSA, not Rule 76a, and because TUTSA is entirely incompatible

with Rule 76a and controls.

         While it is true that the court’s order to seal does not mention Rule 76a, this fact alone does

not remove the order from the ambit of appealable orders specified by Rule 76a(8)—i.e., “any

order . . . relating to sealing or unsealing court records.” “Any order” includes an order to seal

pursuant to TUTSA. The plain language of Rule 76a provides for appellate jurisdiction. 5

         Rule 76a will not apply, however, if it conflicts with TUTSA and if TUTSA controls. In

2013, the Legislature passed TUTSA to expressly displace the common law of trade secret in

Texas. See TEX. CIV. PRAC. & REM. CODE ANN. 134A.007(a); Seismic Wells, LLC v. Matthews,

No. 5:15-CV-148-C, 2016 WL 3390507, at *3 (N.D. Tex. Feb. 22, 2016). TUTSA provides for a

cause of action for injunctive relief and damages for the misappropriation of trade secrets. See

TEX. CIV. PRAC. & REM. CODE ANN. 134A.003–.004.                          Relevant to these appeals, section

134A.006(a) provides:

         In an action under this chapter, a court shall preserve the secrecy of an alleged trade
         secret by reasonable means. There is a presumption in favor of granting protective
         orders to preserve the secrecy of trade secrets. Protective orders may include
         provisions limiting access to confidential information to only the attorneys and their
         experts, holding in camera hearings, sealing the records of the action, and ordering
         any person involved in the litigation not to disclose an alleged trade secret without
         prior court approval.



5
  At the very least, the order on the motion to reconsider is an order “relating to sealing” under Rule 76a(8) because
the motion asks the trial court to reconsider the motion to seal made pursuant to Rule 76a.


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Section 134A.007(c) provides:

       To the extent that this chapter conflicts with the Texas Rules of Civil Procedure,
       this chapter controls. Notwithstanding Section 22.004, Government Code, the
       supreme court may not amend or adopt rules in conflict with this chapter.

       HouseCanary argues that Rule 76a creates a “comprehensive scheme with burdens,

presumptions against sealing, [] notice procedures, and immediate appeal. Everything about that

scheme is incompatible with [TUTSA], and [TUTSA] plainly overrides those requirements.” Title

Source and the Media Intervenors respond that Rule 76a and TUTSA can be read in harmony.

They argue Rule 76a provides for immediate appeals while TUTSA is silent on the issue.

       We agree with Title Source and the Media Intervenors that there is no conflict between

Rule 76a(8) and TUTSA on the issue of immediate appeals. TUTSA provides that it controls “to

the extent” that it conflicts with the Texas Rules of Civil Procedure. TEX. CIV. PRAC & REM. CODE

ANN. § 134A.007(c). While TUTSA may conflict with the Rules on other matters—and we take

no position on whether it does so—as to immediate appeals, there is no conflict. TUTSA is silent

as to immediate appeals, and Rule 76a provides for such appeals. Thus, there is no express conflict.

Cf. Carpinteyro v. Gomez, 403 S.W.3d 508, 511 (Tex. App.—San Antonio 2013, pet. denied)

(determining there to be no conflict between Texas Rule of Civil Procedure 4, concerning

computation of time, and a statute imposing a 120-day deadline that does not address how to

compute the statutory time period).

       There also is no inherent conflict. Immediate appeals, as provided for by Rule 76a(8), do

not inherently conflict with heightened protections for trade secrets or presumptions in favor of

protective orders. In fact, immediate appeals may vindicate the rights of trade secret holders better

than alternative means of review because an immediate appeal provides trade secret holders with

a vehicle to swiftly appeal a ruling that exposes trade secrets and does not impose heightened

standards. A Rule 76a(8) appeal, for example, does not require a party to establish entitlement to


                                                -7-
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mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 839–41 (Tex. 1992) (orig. proceeding)

(mandamus relief “is intended to be an extraordinary remedy” to correct a “clear abuse of

discretion” committed by the trial court). Additionally, Rule 76a(8) provides that an appellate

court can abate the appeal and order the trial court to hold further hearings and make additional

findings. See TEX. R. CIV. P. 76a(8). Mandamus review may not be so permissive. See Walker,

827 S.W.2d at 837 (denying mandamus relief where the party seeking relief failed to provide the

appellate court with a statement of facts from the trial court’s evidentiary hearing); TEX. R. APP.

P. 52.3(g) (“Every statement of fact in the petition [for mandamus relief] must be supported by

citation to competent evidence included in the appendix or record.”).

       Our holding is further supported by the language of TUTSA section 134A.007(c) which

does not specifically reference Rule 76a or preclude its application to trade secret cases. We

presume the Legislature was aware of the background law and acted with reference to it when it

enacted TUTSA. See Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990). We also

presume that the Legislature chose the words in TUTSA carefully. See Tex. Lottery Comm’n v.

First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). The Legislature did not assert

that TUTSA conflicts with and controls over Rule 76a. Instead, TUTSA provides only that

TUTSA controls “[t]o the extent that [TUTSA] conflicts with the Texas Rules of Civil Procedure.”

       TUTSA also does not reference the supreme court’s specific rulemaking authority for

adopting rules related to sealing. TUTSA section 134A.007(c) provides: “Notwithstanding

Section 22.004, Government Code, the supreme court may not amend or adopt rules in conflict

with this chapter.” Government Code Section 22.004 grants the supreme court rulemaking

authority generally. See TEX. GOV’T CODE ANN. 22.004; In re M.N., 262 S.W.3d 799, 802 (Tex.

2008) (discussing section 22.004 and the supreme court’s obligation to promulgate rules of




                                               -8-
                                                                    04-18-00509-CV & 04-18-00844-CV


practice and procedure). However, Texas Government Code section 22.010 grants the supreme

court specific authority to adopt rules related to sealing:

        The supreme court shall adopt rules establishing guidelines for the courts of this
        state to use in determining whether in the interest of justice the records in a civil
        case, including settlements, should be sealed.

TUTSA does not single out this section of the Government Code as a potential source of conflict.

If the Legislature had meant to curtail the supreme court’s rulemaking authority related to sealing,

it could easily have said so. See State v. Castle Hills Forest, Inc., 842 S.W.2d 370, 372 (Tex.

App.—San Antonio 1992, writ denied) (determining statute did not conflict with rules of civil

procedure because the Legislature enacted the statute with full knowledge of trial courts’ power

under the rules and, if the Legislature had meant to curtail the power, “it could easily have said

so”).

        We determine the Legislature’s choice of words and omissions in TUTSA support our

holding that TUTSA does not entirely conflict with Rule 76a. Accordingly, pursuant to Rule 76a,

we have jurisdiction to consider the first appeal.

                                           DISCUSSION

        Title Source and the Media Intervenors contend, under a variety of theories, that the trial

court erred by entering the sealing order. Both assert that Rule 76a supplied the standards and

procedures for the trial court to evaluate HouseCanary’s request to seal and that we review the

sealing order for abuse of discretion. See Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex.

1998) (Rule 76a sealing orders are reviewed for abuse of discretion). Title Source and the Media

Intervenors contend Rule 76a applied because Title Source and HouseCanary agreed in the SPO

that Rule 76a would apply to any request to file material under seal, including requests made at

trial. According to the argument, the trial court abused its discretion because it failed to apply

Rule 76a in sealing the exhibits at issue. See Walker, 827 S.W.2d at 840 (“[A] clear failure by the


                                                 -9-
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trial court to analyze or apply the law correctly will constitute an abuse of discretion.”). 6 For its

part, HouseCanary argues Rule 76a does not apply because the SPO does not and could not require

its application. According to HouseCanary, the sealing order “was mandated by law” because

TUTSA explicitly required the court to preserve the secrecy of HouseCanary’s alleged trade

secrets.

           We determine that Rule 76a applied to HouseCanary’s request to seal the exhibits at issue

because the SPO mandates the use of Rule 76a and TUTSA does not override the SPO. Our

determination resolves the first appeal and renders moot the second appeal, which concerns

modifications and clarifications of the sealing order.

The Stipulated Protective Order

           The SPO provides that Rule 76a sets forth the procedures and standards that apply when a

party seeks permission from the trial court to file material under seal. HouseCanary does not

dispute the enforceability of the SPO. It contends the SPO has a more limited scope. Specifically,

HouseCanary asserts the SPO does not apply to sealing requests made at trial.

           We apply contract principals to ascertain and give effect to the parties’ intentions as

expressed in agreed orders. See In re Ford Motor Co., 211 S.W.3d 295, 298 (Tex. 2006) (per

curiam) (orig. proceeding) (applying contract principals to interpret agreed protective order);

Kawasaki Motors Corp., U.S.A. v. Thompson, 872 S.W.2d 221, 224 (Tex. 1994) (determining that




6
  Title Source also argues the trial court abused its discretion because it sealed the exhibits at issue even though
HouseCanary did not meet the SPO requirements regarding the time for filing motions to seal. We do not reach this
argument. See TEX. R. APP. P. 47.1. (“The court of appeals must hand down a written opinion that is as brief as
practicable but that addresses every issue raised and necessary to final disposition of the appeal.”). Title Source and
the Media Intervenors also assert several other arguments that we do not reach. See id. Title Source and the Media
Intervenors argue that the trial court could not reconsider the motion to seal because HouseCanary had not shown
changed circumstances following the initial denial. Additionally, Title Source and the Media Intervenors argue that,
after the trial court admitted the exhibits at issue without protection, and after the parties discussed the exhibits in open
court, the trial court could not seal the exhibits under TUTSA and the trial court was prohibited from sealing the
exhibits under the First Amendment to the United States Constitution.


                                                           - 10 -
                                                                      04-18-00509-CV & 04-18-00844-CV


agreed order modified discovery request); Care Ctr., Ltd. v. Sutton, No. 09-07-469 CV, 2008 WL

1745862, at *2 (Tex. App.—Beaumont Apr. 17, 2008, pet. denied) (mem. op.) (interpreting agreed

order to determine parties did not extend statutory deadline). We will construe an agreed order as

a matter of law when it “is worded so that it can be given a certain or definite legal meaning.” Gulf

Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex. 2000). As with contract provisions,

provisions in a stipulated order cannot be read in isolation, but all provisions must be considered

with reference to the whole. Ford, 211 S.W.3d at 298 (citing Coker v. Coker, 650 S.W.2d 391,

393 (Tex. 1983)).

       During the discovery phase, the parties submitted a joint motion for entry of the SPO “to

facilitate discovery.” The court signed the order. The SPO states it is entered “[u]nder Texas Rule

of Civil Procedure 192.6 and Texas Civil Practice and Remedies Code § 134A.006.” Texas Rule

of Civil Procedure 192.6 provides for discovery protective orders, including one that orders “the

results of discovery be sealed or otherwise protected, subject to the provisions of Rule 76a.” TEX.

R. CIV. P. 192.6(b)(5). Texas Civil Practice and Remedies Code § 134A.006 is the TUTSA section

that provides: “[A] court shall preserve the secrecy of an alleged trade secret by reasonable

means.” TEX. CIV. PRAC. & REM. CODE ANN. § 134A.006(a). Section 134A.006(a) creates a

“presumption in favor of granting protective orders,” which may include provisions “sealing the

records of the action.” Id.

       Generally, the SPO provides a means to protect “Disclosure or Discovery Material,” which

is defined as “items or information . . . that are produced or generated in disclosures or responses

to discovery in this matter.” Paragraph 4.2(b) provides a means to designate, as confidential,

testimony adduced at “pretrial or trial proceedings.” The SPO provides that, unless modified, it

“shall remain in effect through the conclusion of this litigation.”




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           The SPO also limits its scope in a paragraph entitled “SCOPE.” The SPO provides:

           [T]he protections conferred by this Order do not cover . . . information . . . [that]
           becomes part of the public domain after its disclosure to a Receiving Party as a
           result of publication not involving a violation of this Order, including becoming
           part of the public record through trial or otherwise . . . .

The SPO further provides: “Any use of Protected Material at trial shall be governed by a separate

agreement or order.”

           The SPO references Rule 76a twice. The SPO provides in its introductory paragraph:

           As set forth in Paragraph 12.3[7] below, this Protective Order acts as a temporary
           sealing order but does not entitle the Parties to file confidential information under
           seal; Texas Rule of Civil Procedure 76A [sic] sets forth the procedures that must
           be followed and the standards that will be applied when a party seeks permission
           from the court to file material under seal.

In addition, SPO Paragraph 11.3 provides in full:

           Filing Protected Material. Without written permission from the Designating Party
           or a court order secured after appropriate notice to all interested persons, a Party
           may not file in the public record in this action any Protected Material. A Party that
           seeks to file under seal any Protected Material must comply with Texas Rule of
           Civil Procedure 76A [sic]. Protected Material may only be filed under seal pursuant
           to a court order authorizing the sealing of the specific Protected Material at issue
           and this Protective Order shall operate as a temporary sealing order pursuant to
           Rule 76a of the Texas Rules of Civil Procedure. Upon the filing of any material
           under temporary seal, the party desiring to maintain the confidentiality of such
           material is directed to file a motion to seal the information pursuant to Rule 76a
           within five (5) business days. If a Receiving Party’s request to file Protected
           Material under seal pursuant to Rule 76A [sic] is denied by the court, then the
           Receiving Party may file the Protected Material in the public record pursuant unless
           [sic] otherwise instructed by the court.
           HouseCanary refers to the SPO as a “pretrial protective order.” It argues the SPO excludes

from its scope the trial court’s sealing order because the sealing order is an order concerning the

“use of Protected Material at trial,” and, according to the SCOPE paragraph, the use of such

material at trial “shall be governed by a separate agreement or order.” HouseCanary also argues

the SPO provisions regarding “filing” information under seal are not applicable at trial because a


7
    The reference should be to Paragraph 11.3. There is no Paragraph 12.3.


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party “offers” rather than “files” evidence. Title Source argues the SPO applies beyond the

discovery period, and the specific filing provisions in the SPO govern any request to seal, at trial

or otherwise. 8

        Upon reviewing the entire SPO, we determine it applies at trial. Our interpretation gives

effect to the language that the order “shall remain in effect through the conclusion of this litigation”

and to Paragraph 4.2(b), which specifies the procedure for designating trial testimony as

confidential, which would be meaningless if the SPO did not apply at trial. See Coker, 650 S.W.2d

at 393 (“[C]ourts should examine and consider the entire writing in an effort to harmonize and

give effect to all the provisions of the contract so that none will be rendered meaningless.”)

(emphasis in original).

        Although the SPO generally applies at trial, we must also consider whether the SPO applies

to requests to seal trial exhibits. We determine that it does. In the introductory paragraph and

Paragraph 11.3, the SPO specifies that, if a party seeks to file material under seal or keep material

filed under seal, the party must comply with Rule 76a. The parties made no exception for alleged

trade secrets or to filings at trial. HouseCanary argues that the provisions do not apply at trial

because a party “offers” rather than “files” evidence. While it is true that a party offers evidence,

if the evidence is admitted, the court reporter files the evidence with the clerk of court. See TEX.

R. CIV. P. 75a; Lance v. Robinson, 543 S.W.3d 723, 733 (Tex. 2018) (determining material to be

“on file” after exhibits were introduced at a preliminary injunction hearing and filed by the court

reporter with the court clerk). In this case, the trial court preadmitted the exhibits at issue which




8
  The Media Intervenors take no clear position on the scope of the SPO. They argue that HouseCanary did not comply
with the SPO, so the SPO could not serve to seal the exhibits even temporarily. The Media Intervenors also argue
that TUTSA Section 134.006(a) could not authorize a protective order with less demanding standards and procedures
to seal records than the standards and procedures specified in Rule 76a. We do not reach these arguments. See TEX.
R. APP. P. 47.1.


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the parties thereafter discussed and displayed in open court to varying degrees. After trial,

HouseCanary moved to seal the exhibits. The trial court ordered the exhibits sealed. Soon

thereafter, the court reporter filed the exhibits with the court clerk. Although HouseCanary did

not file the exhibits directly with the court clerk, it did “seek[] permission from the court to file

material under seal,” and it did “seek[] to file under seal.” HouseCanary’s request fell within the

terms of the SPO because the Texas Rules of Civil Procedure required the court reporter to file the

exhibits at issue with the court clerk and HouseCanary sought to seal those exhibits. Because

HouseCanary’s request to seal fell within the terms of the SPO, the SPO required HouseCanary to

comply with Rule 76a.

         HouseCanary seeks to avoid this outcome by relying on the SCOPE paragraph. This

paragraph, however, does not limit HouseCanary’s obligations when it comes to requests to seal.

The SCOPE paragraph concludes: “Any use of Protected Material at trial shall be governed by a

separate agreement or order.” HouseCanary argues the trial court’s sealing order is just such an

order. The trial court’s sealing order, however, does not concern the “use” of exhibits. “Using”

and “sealing” are entirely different matters. During trial, the parties used certain exhibits at issue

by asking witnesses questions about the exhibits, reading portions of the exhibits, and displaying

portions in the courtroom. The trial court’s sealing order does not concern any of those activities.

Instead, it seals the exhibits after the parties had completed trial and finished with any use they or

any other trial participant would give the exhibits at trial. In sum, the SPO does not limit the

provisions on sealing pursuant to the SCOPE paragraph.                       Consequently, the SPO required

HouseCanary to comply with Rule 76a when it requested the court to seal the exhibits at issue. 9


9
 HouseCanary asked the trial court to modify the SPO, but the court did not. HouseCanary points to several statements
the trial court made at the hearing on HouseCanary’s motion to seal to argue the trial court imposed “an entirely
separate [protection] process” during trial. The transcript, however, reveals the trial court considered only Rule 76a
to provide the standards and procedures for sealing. The trial court explained that some exhibits not at issue in these


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         Section 134A.006(a) of TUTSA does not require us to ignore the SPO and mandate sealing,

as HouseCanary contends. 10 The section provides: “[A] court shall preserve the secrecy of an

alleged trade secret by reasonable means.” The law further provides: “There is a presumption in

favor of granting protective orders to preserve the secrecy of trade secrets.” Protective orders

“may include provisions . . . sealing the records of the action . . . .” TEX. CIV. PRAC. & REM. CODE

ANN. 134A.006(a). If protective orders were mandated by section 134A.006(a), the presumption

in favor of protective orders would be superfluous. See Spradlin v. Jim Walter Homes, Inc., 34

S.W.3d 578, 580 (Tex. 2000) (avoiding constructions that make statutory language into

surplusage). Section 134A.006(a) imposes on trial courts only a duty to use “reasonable means”

to preserve trade secrets. It does not mandate protective orders or compel the sealing of alleged

trade secrets in all instances. See In re Commercial Metals Co., No. 05-16-01214-CV, 2017 WL

3712169, at *2 (Tex. App.—Dallas Aug. 29, 2017, pet. dism’d) (mem. op.) (holding trial court did

not abuse its discretion by entering protective order that balanced plaintiff’s trade secret concerns

with defendant’s need for its owner as a surrogate in-house counsel to view protected material).

         In the instant case, the trial court implemented section 134A.006(a) through the SPO. The

trial court acted on the presumption in favor of granting protective orders by granting a protective

order. HouseCanary concedes the SPO was a reasonable measure under section 134A.006(a) to

preserve trade secrets. The SPO states in its first sentence that it is entered pursuant to section

134A.006. Section 134A.006(a) does not provide particular standards or procedures for sealing


appeals were sealed earlier in the case. The trial court further explained that it did not release any exhibits to a news
reporter who requested trial exhibits after trial because the trial court was unsure which trial exhibits were subject to
the previous orders.
10
   HouseCanary asserts that Title Source argued similarly that section 134A.006(a) controls over Rule 76a when Title
Source moved to seal its own exhibits. We note that Title Source moved to seal material protected by the supplement
to the SPO. Title Source also moved to seal pursuant to Rule 76a, in an abundance of caution. Neither the supplement
nor the sealing order in Title Source’s favor are at issue in this appeal. Regardless, Title Source cannot concede—by
its prior position or otherwise—a question of law necessary to the proper disposition of an appellate issue. See Haas
v. Voigt, 940 S.W.2d 198, 201 (Tex. App.—San Antonio 1996, writ denied).


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                                                                                  04-18-00509-CV & 04-18-00844-CV


records. The parties agreed the SPO would limit disclosure of discovery material to certain

persons, thus permitting the free exchange of information during discovery. The parties further

agreed that sealing any document filed with the court required compliance with Rule 76a. Nothing

in the statute prohibited the SPO, and the trial court fulfilled its obligation under section

134A.006(a) by entering the SPO.

           The trial court, however, abused its discretion when it ignored the SPO and ordered exhibits

sealed without application of the Rule 76a standards and procedures. “We review a trial court’s

decision to seal records under Rule 76a for abuse of discretion.” See Gen. Tire, 970 S.W.2d at

526. “A trial court has no ‘discretion’ in determining what the law is or applying the law to the

facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute

an abuse of discretion . . . .” Walker, 827 S.W.2d at 840. “Rule 76a does not reserve discretion to

the trial court whether to comply with its provisions.” Chandler v. Hyundai Motor Co., 844

S.W.2d 882, 885 (Tex. App.—Houston [1st Dist.] 1992, no writ); see also Gen. Tire, 970 S.W.2d

at 526 (Rule 76a requires a trial court “to balance the public’s interest in open court proceedings

against an individual litigant’s personal or proprietary interest in privacy.”). It is undisputed that

the trial court did not apply Rule 76a when it decided HouseCanary’s motion to reconsider whether

to seal the exhibits at issue. 11 The trial court abused its discretion by sealing the exhibits at issue

without applying the Rule 76a standards and procedures, as agreed and ordered in the SPO. See

Walker, 827 S.W.2d at 840; cf. In re Brookfield Infrastructure Grp., LLC, No. 13-17-00486-CV,

2018 WL 1725467, at *11–12 (Tex. App.—Corpus Christi Apr. 9, 2018, no pet.) (mem. op.)

(determining trial court did not abuse its discretion by compelling a party produce documents

containing alleged trade secrets when the party failed to comply with an agreed protective order).



11
     HouseCanary asserted in its motion to reconsider that it did not renew its challenge under Rule 76a.


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                                                                   04-18-00509-CV & 04-18-00844-CV


                                        CONCLUSION

       We hold the trial court abused its discretion when it sealed records without applying the

Rule 76a standards and procedures, as agreed and ordered in the SPO. We set aside the trial court’s

order sealing the exhibits at issue, and we render judgment denying HouseCanary’s Motion to

Reconsider Whether to Seal Certain Core Materials. Because we reverse the trial court’s order in

the first appeal, No. 04-18-00509-CV, the issues raised in the second appeal, No. 04-18-00844-

CV, which concern whether the trial court erred by failing to modify or sufficiently clarify its

order, are moot. Accordingly, we dismiss the second appeal.


                                                  Rebeca C. Martinez, Justice




                                               - 17 -
