                                  COURT OF APPEALS FOR THE
                             FIRST DISTRICT OF TEXAS AT HOUSTON

                                               ORDER

Appellate case name:       Edwin K. Hunter and Hunter, Hunter & Sonnier, LLC v. Preston
                           Marshall, Individually and Rusk Capital Management, L.L.C.

Appellate case number:     01-16-00636-CV

Trial court case number: 2015-35950

Trial court:               11th District Court of Harris County

         On August 16, 2016, appellees, Preston Marshall and Rusk Capital Management, L.L.C.,
filed a “Motion for Leave to File In-Camera Documents in Connection with [Appellants’] Appeal
and Emergency Motion to Stay,” in which they requested “leave to supplement the appellate
record—by hand delivery to the Court—documents submitted to the trial court, including in-
camera documents, that relate directly to” the emergency motion for stay and appeal filed by
appellants, Edwin K. Hunter and Hunter, Hunter & Sonnier, LLC.
        We note that on September 1, 2016, we granted in part and denied in part appellants’
emergency motion for stay. Accordingly, we DISMISS as moot appellees’ motion for leave to
the extent that it relates to appellants’ emergency motion for stay.
        In regard to appellees’ motion for leave as it relates to appellants’ appeal, appellees assert
that on August 12, 2016, appellants requested that the trial court clerk prepare a clerk’s record in
the instant case. However, appellants’ request excluded certain relevant documents, particularly
“documents filed with the trial court for an in-camera review.” Thus, appellees request that the
Court “grant [them] leave to supplement the record with [such] documents,” which appellees have
“hand-delivered to the Court.”
        In response to appellees’ motion for leave, appellants object to the inclusion in the record
of any “in-camera exhibits that were previously attached to” filings that are “wholly irrelevant” to
appellants’ appeal, including the in-camera exhibits attached to appellees’ motion to compel,
appellees’ response to expedite ownership determinations, appellees’ motion for expedited special
appearance hearing, and appellees’ sixth amended petition. See TEX. R. CIV. P. 120a(3). And
although appellants request that we deny appellees’ motion for leave, they note that they do not
oppose the submission of a supplemental sealed clerk’s record containing the in-camera exhibits
that were attached to appellees’ response in opposition to appellants’ special appearances. See id.
         Here, the appellate record does not contain the in-camera exhibits that appellees attached
to their response in opposition to appellants’ special appearances.1 See id. “If a relevant item has
been omitted from the clerk’s record . . . any party may by letter direct the trial court clerk to
prepare, certify, and file in the appellate court a supplement containing the omitted item.” TEX. R.
APP. P. 34.5(c)(1); see also TEX. R. APP. P. 34.5(c)(3) (“Any supplemental clerk’s record will be
part of the appellate record.”). And if a document that has been designated for inclusion in the
clerk’s record has been lost or destroyed, the parties may, by written stipulation, deliver a copy of
that item to the trial court clerk for inclusion in a supplemental clerk’s record. TEX. R. APP. P.
34.5(e).
         Further, when documents have been submitted for in-camera inspection, a party must
request that the exhibits be carried forward under seal so that the appellate court can evaluate them.
Pope v. Stephenson, 787 S.W.2d 953, 954 (Tex. 1990); Lesher v. Coyel, 435 S.W.3d 423, 431–32
(Tex. App.—Dallas 2014, pet. denied); see also TEX. R. CIV. P. 76a; Envtl. Procedures, Inc. v.
Guidry, 282 S.W.3d 602, 636 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (appellate court
does not have authority to seal documents in appellate record). However, hand-delivering to the
appellate court a copy of the purported in-camera documents, as appellees are attempting to do in
the instant case, is not sufficient. See Humphreys v. Caldwell, 881 S.W.2d 940, 944–45 (Tex.
App.—Corpus Christi 1994, orig. proceeding) (party submitted package under cover letter from
attorney informing appellate court enclosed documents submitted for in-camera inspection); see
also TEX. R. APP. P. 34.5(c), (e); McGrath v. Baylor Univ. Med. Ctr., No. 05-99-00457-CV, 2000
WL 1222039, at *3 n.6 (Tex. App.—Dallas Aug. 29, 2000, pet. denied) (not designated for
publication) (noting where party “did not ask the trial court to bring the subject documents forward
under seal,” appellate court “had no way of knowing whether the documents in [party]’s possession
were the precise documents which the trial court reviewed in camera”). Accordingly, we DENY
appellees’ motion for leave to the extent that it relates to appellants’ appeal.
        We note, however, that the parties in the instant case are not prevented from requesting
that the trial court clerk prepare and file a supplemental clerk’s record containing the in-camera
exhibits, particularly those attached to appellees’ response in opposition to appellants’ special
appearances, whose inclusion in the appellate record appellants do not appear to oppose. See TEX.
R. CIV. P. 120a(3); TEX. R. APP. P. 34.5(c); see also TEX. R. APP. P. 34.5(e); B.W.B. v. Eanes Indep.
Sch. Dist., No. 03-16-00710-CV, 2017 WL 4348215, at *1 (Tex. App.—Austin Sept. 29, 2017, no
pet.) (mem. op.) (party to deliver to trial court documents reviewed in camera and trial court clerk
to then forward such documents in supplemental clerk’s record).
       It is so ORDERED.

Judge’s signature: /s/ Terry Jennings
                    Acting individually         Acting for the Court


Date: February 15, 2018

1
       Appellees tendered to the Court the in-camera exhibits on August 16, 2016. The Court received
       these documents, but they have not been filed by the Clerk of the Court. We note that the clerk’s
       record in this case contains place-holder sheets for the in-camera exhibits that appellees attached
       to their response in opposition to appellants’ special appearances.
