The appeal of a lawsuit between seven "member cities" of a water contract with Texarkana, Texas, and its subsidiary, Texarkana Water Utilities, will not be argued in secret, an appellate court has ruled.
The cities of New Boston, Hooks, DeKalb, Wake Village, Maud, Avery and Annona, Texas, alleged they were overcharged for water supplied to them through TWU under a long-term contract signed between the cities and TWU officials in 1969.
But the litigation in district court in Bowie County has been under a gag order issued by 96th District Judge Jimmy Leon White of Mount Pleasant. He was assigned the case when local district judges recused themselves because of inherent conflicts of interest.
White also said he sealed the lawsuit file and docket sheet maintained in the district court's office in Bowie County. He said the docket sheet has notations he made on it that he does not want the public to see until after the litigation is resolved.
White signed an order refusing to dismiss the member cities' lawsuit on Feb. 5.
The City of Texarkana on Feb. 11 filed its intent to appeal White's decision to Texas' 6th Court of Appeals, based in Texarkana.
In doing so, lawyers for the city, on March 10, filed a motion to continue the legal battle under seal in the 6th Court of Appeals. In its motion, the city says that the member cities did not oppose the sealing of court filings. TWU and the City of Texarkana, Texas, uses the gag order and its call for "restricting public comment" as the basis of seeking to seal all filings in the appellate court.
Chief Justice Josh Morriss, Justice Donald R. Ross and Justice Jack Carter, on March 16, issued a ruling denying the city's bid.
As part of the appellate ruling, much of the district court's file is now included in the appellate file. Included in that is the docket sheet from district court.
The docket sheet, with clerk's notes of proceedings through Feb. 11, 2004, does not include an order to seal the case file. It does include the gag order, which was issued by White on Dec. 11, 2002.
Texas Rules of Civil Procedure holds that: "... No court order or opinion issued in the adjudication of a case may be sealed."
In order to seal court records -- or documents in a case file -- either the City of Texarkana, Texas, or the member cities would have had to file a motion seeking sealing of the entire case file under Texas Rules of Civil Procedure 76(A). Public notice would have to be given and an open hearing would have to be held no sooner than 14 days, giving the public time to object.
"A motion relating to sealing or unsealing court records shall be decided upon written order, open to the public, which shall state: the style and number of the case; the specific reasons for finding and concluding whether the showing required by Paragraph 1 has been made; the specific portions of court records which are to be sealed; the time period for which the sealed portions of the court records are to be sealed; and the time period for which the sealed portions of the court records are to be sealed. The order shall not be included in any judgment in the case ...," according to 76(A)6.
The docket sheet has no order listed actually sealing the case file.
The district court docket sheet does, however, have an entry from Feb. 11, 2004, of a court hearing: "Court held hearing on contempt-evidence introduced and court finds Mayor (Mike) Huddleston, individually and as mayor of the city of Wake Village is in contempt and punishment is withheld pending jury selection. Court finds that gag order is clear and unambiguous and subject to enforcement."
No one other than the parties of the lawsuits have been allowed into the hearings presided over by White.
In a case by The Dallas Morning News against the 5th Court of Appeals, in 1992, it was held, "The press and the public have a right to be present at all proceedings in the trial of the underlying case, and to report all that they observe."