Be Careful With That Axe -- Texas Breaks New Ground in Defamation Turned Court Records Case


Beware the law of unintended consequences.  The Texas high court has just denied review of a court of appeals opinion in a case that began as a defamation action brought by a Texas state court judge against a Dallas-area lawyer.  At issue in the appeal, however, was the holding that the transcripts of the judge’s deposition and two witness statements in that defamation case are “court records” as defined in Texas Rule 76a to include “discovery not filed of record having a probable adverse effect on the administration of office and the operation of government.”  Cortez v. Johnston, 378 S.W.3d 468 (Tex. App. – Texarkana 2012, pet. denied).

Us and Them

The matter began after the lawyer published a complaint he had previously filed with the Judicial Commission in which he alleged a number of misdeeds against the judge, including drug use and solicitation of prostitution.  The judge responded by filing suit against the lawyer for libel as well as for extortion.  The lawyer sought the judge’s deposition, which was scheduled and taken after the parties agreed to maintain its confidentiality pending hearing on the judge’s motion for protective order.  However, following the deposition, in response to the judge’s request for disclosure, the lawyer produced two sworn witness statements.  The judge nonsuited his claims that same afternoon, even before the court had heard his motion for protection scheduled for the following Monday.  The morning of the hearing, the lawyer filed a motion to compel answers to questions the judge had refused to answer at the deposition and also asked for discovery sanctions, attaching to the motion a transcript of the deposition.  At the hearing, the court granted the nonsuit and asked for briefing on the motion for protection.

On the Run

This rapid turn of events was followed closely by the media, and The Dallas Morning News and The Texas Lawyer intervened in the lawsuit as provided in Texas Rule of Civil Procedure 76a to obtain release of the transcripts of the judge’s deposition and the witness statements.  In addition to papers on file with the court, Texas Rule 76a also defines, as court records, discovery “not filed of record having a probable adverse effect on the public health and safety, the administration of the office and the operation of government.”  The intervenors and defendant argued that the contents of the judge’s deposition and the sworn witness statements indeed regarded matters adversely affecting the judge’s ability to administer his office of district court judge and the operation of government, an argument they claimed was supported by the contents of the transcripts themselves, by the judge’s own allegations of extortion, and by the fact one of his fellow judges had also intervened to push for release of the records.  In addition, as a separate ground, intervenors and the defendant argued that the deposition transcript with a motion to compel and for sanctions, even though filed after the nonsuit, was among the papers filed with the case and “court records” for that reason as well.

Tear Down the Wall

The trial court found the transcripts were court records on both grounds.  The judge sought immediate appeal of this order, but the trial court held he must first make his arguments to seal these records before appealing the finding that the transcripts fell within the definition of “court records,” and the Rule 76a public hearing was scheduled.  However, just as the hearing began, the judge “nonsuited” the motion to seal as well in order to first appeal the ruling on court records.

The judge sought to overturn many of the trial court’s rulings on appeal, including refusal to allow immediate appeal of the order finding the transcripts are court records, refusal to rule on his motion for protection after nonsuit of the libel and extortion claims and its refusal to allow his lawyers to make arguments in camera on his asserted privileges and confidentiality.  However, the court of appeals found the only issue on appeal was the correctness of the ruling that the transcripts were court records.  Thus it affirmed, noting, in passing, the “sudden attack of pudeur” precipitating the judge’s nonsuit and noting that, if true, the testimony in the witness statements would “at a minimum lead to public opprobrium” of the judge.


The judge sought review by the Texas Supreme Court, but the court denied his petition and now has denied his motion for rehearing.  This leaves standing the court of appeals’ opinion that matters not directly connected to the actions taken by officers of government in the actual administration of their office may nevertheless pertain to matters having a probable adverse effect on the administration of that office and on the general operation of government.  This is the first published opinion holding that discovery not filed of record is a court record under the definition in Rule 76a and a major precedent in Texas jurisprudence.

A lesson from this scenario is that striking back with a defamation lawsuit may chop down more than the palisades your nemesis.

Be careful with that axe, Eugene.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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