In his second attempt to seal records and prevent their release to the public by Nov. 12, Judge Carlos Cortez has involved yet another appellate court—Fort Worth’s Second Court of Appeals—in hopes of obtaining emergency relief.
But separate orders released Tuesday by the Second Court of Appeals and Dallas’ Fifth Court of Appeals indicate that Cortez’s appellate fate may ultimately lay in the hands of Texarkana’s Sixth Court of Appeals, a court that has previously denied Cortez relief.
For nearly three years, Cortez, who is judge of Dallas County’s 44th District Court, has fought the release of the records, including his deposition and witness statements from two women that were provided during a defamation case he filed—and later nonsuited—against Dallas lawyer Coyt Randal “Randy” Johnston.
Trial and appellate courts previously have ruled that the documents at issue are “court records” and therefore available for public view. But lawyers for Cortez argued during an Oct. 10 hearing before visiting Judge Richard Davis that Cortez was entitled to a second hearing on whether the records could be sealed. They also argued that the public’s right to view the records is outweighed by Cortez’s privacy interests. [See "Judge Carlos Cortez Asks Court Again to Seal Documents in Defamation Lawsuit Against Lawyer," Texas Lawyer, Oct. 11, 2013, page 1.]
Texas Lawyer and The Dallas Morning News have intervened in the case and filed a motion to lift a sealing order that prevented the release as the case made its way up the appellate court ladder. On Oct. 29, Davis denied Cortez’s second attempt to seal the records and ordered that previous sealing orders over the documents be lifted by Nov. 12.
Cortez then filed a notice of appeal with the Dallas Court of Appeals, which has previously recused itself from the case. Cortez also filed an unopposed motion to again recuse the Dallas Court of Appeals.
He also filed a mandamus petition against Davis’ ruling in the Fort Worth Court of Appeals on Oct. 30, arguing the Fort Worth court should consider the case because, under the Texas Rules of Appellate Procedure, when a court of appeals has an “inability to act,” that case may be transferred to the “nearest available court of appeals.” The motion notes that the Fifth Court has twice previously recused itself from the case.
On Nov. 5, the Dallas Court of Appeals issued a notice stating that the Texas Supreme Court has ordered the case transferred to the Texarkana Court of Appeals and that the files of the case will be transferred to the Texarkana Court.
Also on Nov. 5, the Fort Worth Court of Appeals issued an order noting that Johnston and the interveners must file a response to Cortez’s writ of mandamus by Nov. 15. That order also stays Davis’ order denying Cortez’s motion to seal until either the Fort Worth Court of Appeals rules or another court of appeals obtains jurisdiction of the case and rules on the matter.
Cortez and his attorney, Frank Gilstrap, a partner in Arlington’s Hill Gilstrap, did not immediately return calls for comment.
Joe Larsen, special counsel in the Houston office of Sedgwick who represents Texas Lawyer and The Dallas Morning News, said he believes the Texarkana Court will have the final say in whether the documents will be released to the public on Nov. 12 or later.
“It’s pretty clear the Sixth Court of Appeals is going to get this,” said Larsen, who noted that Texas Lawyer and The Dallas Morning News will oppose Cortez’s request for mandamus relief. “When the Sixth Court of Appeals considers and rules on this, the Second Court of Appeals is out of this. And essentially the Second Court of Appeals is deferring to the court of appeals where this has been transferred, but it’s staying the trial court’s order until that court does rule.”
Johnston did not return a call seeking comment. But Mike Yanof, a partner in Dallas’ Thompson, Coe, Cousins & Irons who represents Johnston, agreed with Larsen.
“The most important part of what Fort Worth did was, they entered the temporary stay to preserve the status quo until Texarkana rules,” Yanof said. “And other than that, it’s in the court that it should be in: the court that’s already heard this once—Texarkana.”
On Sept. 4, 2012, the Texarkana Court of Appeals ruled that the documents at issue were “court records” available for public view. In that opinion, the Sixth Court of Appeals noted that two witness statements at issue “the contents of which, if true, at the very least would certainly elicit public disapprobation of Cortez.”