Texas Voices for Reason and Justice, Inc. v. the City of Argyle, Texas The City of Hickory Creek, Texas The City of Oak Point, Texas And the City of Ponder, Texas

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-16-00052-CV

TEXAS VOICES FOR REASON APPELLANT
AND JUSTICE, INC.

V.

THE CITY OF ARGYLE, TEXAS; APPELLEES
THE CITY OF HICKORY CREEK,
TEXAS; THE CITY OF OAK POINT,
TEXAS; AND THE CITY OF
PONDER, TEXAS

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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 15-10761-211

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant Texas Voices for Reason and Justice, Inc. (“TVRJ”) filed a

“Motion to Seal Evidentiary Documents and for Protective Order” in the trial court.
1
See Tex. R. App. P. 47.4.
See Tex. R. Civ. P. 76a, 192.6. The trial court denied TVRJ’s motion, and TVRJ

perfected this interlocutory appeal raising two issues challenging the denial of its

motion for a sealing order and the denial of its motion for a protective order,

respectively.2 Because TVRJ’s request for a temporary sealing order was

premature, we will affirm the trial court’s order denying it. And, because TVRJ is

not required to obtain a protective order before identifying its members by

pseudonyms, we will affirm the trial court’s order denying TVRJ’s motion for a

protective order, at this time, based on the record before us.

II. FACTUAL AND PROCEDURAL BACKGROUND

TVRJ filed suit against Appellees The City of Argyle, Texas; The City of

Hickory Creek, Texas; The City of Oak Point, Texas; and The City of Ponder,

Texas, asserting a state-law claim under Article XI, Section 4 of the Texas

constitution challenging the validity of sex-offender, residency-restriction

ordinances (“SORROs”) enacted by each Appellee. TVRJ asserted it possessed

associational standing to sue on behalf of its members for interim equitable relief,

a declaratory judgment, a permanent injunction, and attorney’s fees. All

Appellees filed pleas to the jurisdiction asserting that TVRJ lacked associational

standing to sue on behalf of its members.

TVRJ filed a “Motion to Seal Evidentiary Documents and for Protective

Order” explaining that TVRJ

2
See Tex. R. Civ. P. 76a(8) (authorizing interlocutory appeal from any
order relating to sealing or unsealing of court records).

2
 is a domestic, nonprofit organization duly incorporated under Title 2,
Chapter 22, et seq., of the Texas Business Organizations Code. It
has brought this suit on behalf of members of its organization who
are required to register as “sex offenders” under Chapter 62 of the
Texas Code of Criminal Procedure.

TVRJ’s motion further explained that in order to adequately respond to

Appellees’ pleas to jurisdiction challenging TVRJ’s associational standing, TVRJ

would need to file evidence––including but not limited to affidavits from its

members who are required to register under Chapter 62––in opposition to the

allegations made the basis of some or all of Appellees’ pleas to jurisdiction.3

TVRJ’s motion further explained:

[TVRJ] moves the Court to enter an order allowing it to file “under
seal” evidentiary documents in response to the aforementioned plea
to jurisdiction issues raised by Defendants Hickory Creek, Argyle
and Ponder. Secondly, [TVRJ] moves the Court to enter a protective
order prohibiting all Defendant-Parties, and their respective counsel,
from disclosing any identifying information concerning any person
named in the evidentiary documents to be filed by Plaintiff and
shared by Plaintiff with all Defense Counsel, in response to the pleas
to jurisdiction filed by Defendants Hickory Creek, Argyle[,] and
Ponder.4

3
TVRJ filed suit on December 28, 2015, and filed its “Motion to Seal
Evidentiary Documents and for Protective Order” on January 22, 2016. The last
plea to the jurisdiction was filed on February 12, 2016. A hearing on Appellees’
pleas to the jurisdiction was set for February 17, 2016. The trial court conducted
a February 5, 2016 hearing on TVRJ’s motion and denied it on February 10,
2016.
4
Although TVRJ’s motion also sought permanent relief, TVRJ abandoned
its claim for permanent relief at the hearing before the trial court.

3
Appellees filed a joint response to TVRJ’s motion, and TVRJ filed a reply. After a

hearing, the trial court signed an order denying TVRJ’s motion in toto. See Tex.

R. Civ. P. 76a(4), (6).

III. STANDARD OF REVIEW

We review a trial court’s denial of relief under Texas Rule of Civil

Procedure 76a for an abuse of discretion. See Gen. Tire, Inc. v. Kepple, 970

S.W.2d 520, 526 (Tex. 1998). With respect to factual matters, a trial court

abuses its discretion if, under the record, it reasonably could have reached only

one decision, and it failed to do so. See Walker v. Packer, 827 S.W.2d 833, 840

(Tex. 1992) (orig. proceeding). With respect to the application of the law, a trial

judge has no discretion in determining what the law is or in applying the law to

the undisputed facts, and a clear failure by the court to correctly analyze or apply

the law will constitute an abuse of discretion. See id.

IV. RULE 76A APPLIES ONLY TO COURT RECORDS

The special procedures of Rule 76a apply only to the sealing of “court

records.” Kepple, 970 S.W.2d at 524. Subject to certain limited exceptions,

“court records” include “all documents of any nature filed in connection with any

matter before any civil court.” Id. at 523 (quoting Tex. R. Civ. P. 76a(2)). The

language of Rule 76a does not authorize trial courts to apply Rule 76a before

making the threshold determination of whether particular documents, like unfiled

discovery, are court records subject to the rule. Id. at 521–22, 524 (“We hold that

the district court erred in invoking Rule 76a’s procedures before determining

4
whether General’s documents were ‘court records[]’ and that the court abused its

discretion in determining that the documents were ‘court records.’”); see also

Roberts v. West, 123 S.W.3d 436, 440 (Tex. App.––San Antonio 2003, pet.

denied) (“Before a trial court decides whether a Rule 76a hearing and order are

necessary, it must determine whether the documents in question are ‘court

records.’”).

The record before us conclusively establishes that TVRJ did not tender to

the trial court either in camera, at the hearing on its motion, or otherwise, the

documents that TVRJ claims constitute “court records.” See In re Coastal Bend

Coll., 276 S.W.3d 83, 87 (Tex. App.––San Antonio 2008, no pet.) (recognizing

that “a party must be allowed to tender a document in camera when necessary

without converting the document to a ‘court record’ . . . . otherwise, trial courts

could not review the documents themselves in determining how to apply Rule

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

rule”). Instead, TVRJ’s motion requested that the trial court “enter an order

allowing it to file ‘under seal’ evidentiary documents in response to” Appellees’

pleas to the jurisdiction. While the affidavits TVRJ claims it will be required to

attach to its responses to Appellees’ pleas to the jurisdiction would almost

certainly qualify as court records as that term is defined in Rule 76a(2), no

authority exists authorizing a sealing order requiring documents not yet filed or

tendered in camera to the trial court. See Tex. R. Civ. P. 76a(1), (2), (5); Kepple,

970 S.W.2d at 523; Roberts, 123 S.W.3d at 440.

5
 Because Rule 76a(5) does not permit the prospective issuance of a

temporary sealing order without a review of and a determination that the actual

records requested to be sealed are in fact court records, we hold that the trial

court did not abuse its discretion by denying TVRJ’s motion to seal evidentiary

records. We overrule TVRJ’s first issue.

V. PROTECTIVE ORDER NOT REQUIRED TO AVOID NAMING TVRJ MEMBERS

If documents are not “court records,” the party seeking protection may

move for a protective order under Rule 192.6. See Tex. R. Civ. P. 192.6;

Roberts, 123 S.W.3d at 440. The trial court may then restrict access to the

documents or information under Rule 192.6, rather than the more rigorous

standards of Rule 76a. Kepple, 970 S.W.2d at 525 (reversing judgment of court

of appeals that upheld trial court order denying sealing and remanding case to

district court “for sole purpose of reinstating protective order”). A protective order

may be used to protect the movant from “harassment, annoyance, or invasion of

personal, constitutional, or property rights.” See Tex. R. Civ. P. 192.6(b). A

protective order may issue on a showing of a particular, specific, and

demonstrable injury. Masinga v. Whittington, 792 S.W.2d 940, 940 (Tex. 1990).

There is no requirement, however, that the injury be balanced against the

presumption of open access to court records as required by Rule 76a. See

Roberts, 123 S.W.3d at 440 (citing Texans United Educ. Fund v. Texaco, Inc.,

858 S.W.2d 38, 40 (Tex. App.––Houston [14th Dist.] 1993, writ denied), cert.

denied, 516 U.S. 811 (1995)).

6
 TVRJ moved for “a protective order prohibiting all [Appellees and their

counsel] from disclosing any identifying information concerning any person

named in the evidentiary documents to be filed by [TVRJ] and shared by [TVRJ]

with [Appellees and their counsel].” The trial court stated on the record at the

hearing on TVRJ’s motion for a sealing order and protective order that TVRJ’s

attorney “represent[s] the plaintiffs in this case. They brought the lawsuit.

They’re not being compelled in order to provide a defense mechanism to a

lawsuit that someone else brought.” But in fact TVRJ is the plaintiff, not TVRJ’s

individual members; TVRJ asserts associational standing to bring suit on behalf

of its members. An association’s assertion of associational standing does not

preclude a protective order concerning the name of one or more of its members

who individually possess standing in their own right for purposes of establishing

associational standing.5

In fact, even a named plaintiff (as opposed to a member of an association

that is named as a plaintiff under the associational-standing doctrine, like TVRJ

here) may proceed under a pseudonym in certain circumstances. See, e.g.,

Does I Through XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1070 (9th Cir.

5
To establish associational standing, TVRJ must show that (1) at least one
of its members would have standing to sue on their own behalf, (2) the interests it
seeks to safeguard are germane to the organization’s purpose, and (3) neither
the claim asserted nor the requested relief necessitate the participation of
individual members. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S.
333, 343, 97 S. Ct. 2434, 2441 (1977).

7
2000) (“Article III’s standing requirement does not prevent a court from allowing

plaintiffs to proceed anonymously simply because plaintiffs seek to protect

themselves from retaliation by third parties.”); Doe v. United Servs. Life Ins.

Co., 123 F.R.D. 437, 439 (S.D.N.Y. 1988) (recognizing that although lawsuits are

generally public events and the public has a legitimate interest in knowing

pertinent facts, including party names, courts have allowed parties to use

fictitious names under special circumstances, particularly when necessary to

protect privacy); Doe v. Deschamps, 64 F.R.D. 652, 653 (D. Mont. 1974)

(allowing pregnant plaintiffs challenging abortion regulations to proceed under

pseudonyms); Topheavy Studios, Inc. v. Doe, No. 03-05-00022-CV, 2005 WL

1940159, at *7 (Tex. App.––Austin Aug. 11, 2005, no pet.) (mem. op.)

(recognizing trial court order allowing plaintiff Doe to proceed under pseudonym

did not hinder defendant’s ability to prepare a defense because order “specifically

allows for full discovery and states that Doe’s true name may be used in

depositions and in the investigation of the case as long as her name is given only

to those individuals who must know her name in order to fully participate in the

investigation,” thus preventing the disclosure of Doe’s true name only to the

media or in any public forum); Mother & Unborn Baby Care of N. Tex., Inc. v.

Doe, 689 S.W.2d 336, 337 (Tex. App.—Fort Worth 1985, writ dism’d) (explaining

pregnant and unmarried women used pseudonyms in filing suit against entity that

they believed, after consulting Yellow Pages, performed abortions).

8
 And finally, authority exists that for the purposes of establishing

associational standing, TVRJ may initially file documents identifying the members

of its organization that possess standing by pseudonyms. 6 See Fla. Action

Comm., Inc. v. Seminole Cty., No. 6:15-cv-1525-Orl-40GJK, 2016 WL 6080988,

at *2–3 (M.D. Fla. Oct. 18, 2016) (order).7 In Florida Action Committee, suit was

brought by an association called the Florida Action Committee (FAC)––a

voluntary membership organization that seeks to reform Florida’s sexual-offender

laws and registry––challenging Seminole County’s SORROs. Id. at *1. FAC

identified its individual members who possessed standing under the first prong of

the Hunt associational-standing test by the names Does #1–4. Id. When

Seminole County sought discovery of the identity of Does #1–4, FAC filed a

6
During oral argument, TVRJ’s counsel clarified for the court that through
TVRJ’s “Motion to Seal Evidentiary Documents and for Protective Order,” it
ultimately sought the ability to file affidavits that used initials to identify its
members with individual standing, to proceed in the litigation by identifying such
members by initials, and to limit disclosure of such members’ names and
personal information to the attorneys involved in this suit.
7
Further authority for this proposition stems from the Supreme Court’s
recognition that compelled disclosure of membership lists of groups engaged in
advocacy may constitute a restraint on freedom of association. See NAACP v.
Alabama, 357 U.S. 449, 462, 78 S. Ct. 1163, 1171 (1958); see also Centro De La
Comunidad Hispana De Locust Valley v. Town of Oyster Bay, 954 F. Supp. 2d
127, 139–40 (E.D.N.Y. 2013) (explaining that in considering whether to compel
disclosure, the relevant inquiry is whether the party seeking to limit disclosure
has made a prima facie showing that articulates “some resulting encroachment
on their liberties,” shifting the burden to the other side “to demonstrate the
necessary compelling interest in having discovery”) (quoting N.Y. State Nat’l Org.
for Women v. Terry, 886 F.2d 1339, 1355 (2d Cir. 1989), cert. denied, 495 U.S.
947 (1990)).

9
motion for protective order8 to prohibit the public disclosure of the Does’

identities, and the magistrate judge denied it. Id. The case came before the

district court on FAC’s objections to the magistrate judge’s order. The district

court noted that different standards apply in determining whether a party, as

opposed to a nonparty witness (like the Does), may proceed under pseudonyms.

Id. at *2. Ultimately, because FAC did not come forward with evidence at the

hearing on its motion for protective order that the Does themselves faced a threat

of violence, the district court upheld the magistrate judge’s ruling denying FAC’s

motion for a protective order. Id. at *3 (“FAC produced no evidence indicating

that the Does themselves faced a threat of violence.”).

Applying this law to the present facts, TVRJ may identify its members as

necessary for the purposes of establishing associational standing by

pseudonyms, initials, or fictitious names. See id. at *2–3 (voluntary membership

organization that sought to reform Florida’s sexual offender laws and registry

brought suit in its name under doctrine of associational standing and identified

individual members with standing as Does #1–4); see also, e.g., Topheavy

Studios, Inc., 2005 WL 1940159, at *7 (allowing adult plaintiff to proceed under

8
FAC’s motion for a protective order was filed pursuant to Federal Rule of
Civil Procedure 26, which permits a district court to “issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue burden
or expense.” Fed. R. Civ. P. 26(c)(1). Texas Rule of Civil Procedure 192.6(b)
contains a provision virtually identical to Federal Rule of Civil Procedure 26(c)(1).
Tex. R. Civ. P. 192.6(b) (authorizing trial court to issue a protective order to
“protect the movant from undue burden, unnecessary expense, harassment,
annoyance, or invasion of personal, constitutional, or property rights”).

10
pseudonym to enjoin video game manufacturer from using topless video of her

obtained when she was a minor); Mother & Unborn Baby Care, 689 S.W.2d at

337 (allowing pregnant and unmarried women to proceed under pseudonyms in

suit against entity that they believed, after consulting Yellow Pages, performed

abortions). If or when Appellees seek discovery of the identity of such members,

consideration of a motion for protective order will be ripe for disposition by the

trial court.9 But based on the record before us—and as the issue was presented

to the trial court—we cannot say that the trial court abused its discretion by

denying TVRJ’s motion for a protective order at the present time. We overrule

TVRJ’s second issue.

VI. CONCLUSION

Having overruled TVRJ’s two issues, we affirm the trial court’s February

10, 2016 “Order Denying Plaintiff’s Motion to Seal Evidentiary Documents and for

Protective Order.”

/s/ Sue Walker
SUE WALKER
JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: March 30, 2017

9
In fact, the trial court astutely limited its ruling denying TVRJ’s motion for
protective order to the specific facts presented. The trial court stated on the
record, “So without prejudice to any other hearing in regard[] to a protective order
[with] regards to the relief requested today . . ., I will deny the protective order
requested in this matter.” [Emphasis added.]

11