Biederman v. Brown, 563 S.W.3d 291

In 1993 Baron & Budd represented Beverly Jean Brown in an asbestos wrongful-death suit (the Brown Case). A firm memo used to prep witnesses (the Memo) became the subject of discovery disputes.
In 1997 the trial court ordered an in‑court deposition of Baron & Budd partner Russell Budd (the Budd Deposition) limited to the Memo’s creation/use, and entered a protective order restricting dissemination. The court inspected materials in camera and ordered production of the Memo; an appellate mandamus later held the Memo privileged.
The Brown Case was dismissed for want of prosecution on July 7, 2006 (plenary power expired Aug. 6, 2006). Many original court files and transcripts were later destroyed or unavailable.
In 2016 journalist Christine Cole Biederman moved to intervene in the closed Brown Case under Texas Rule of Civil Procedure 76a to unseal the 1997 Budd Deposition, alleging it was a “court record” and relevant to public health/ongoing asbestos litigation.
Baron & Budd filed a plea to the jurisdiction arguing the trial court lacked authority: the court’s plenary power had expired and Rule 76a did not apply because the deposition was not a filed court record and/or was in camera discovery excluded from Rule 76a.
The trial court held a jurisdictional hearing, found the deposition was in camera discovery used solely to rule on discoverability and not a Rule 76a court record, dismissed for lack of jurisdiction, and the appellate court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court retained jurisdiction under Tex. R. Civ. P. 76a(7) to unseal the 1997 Budd Deposition after case dismissal	Biederman: Rule 76a grants continuing jurisdiction to seal/unseal court records at any time; the Budd Deposition is a "court record" (filed or unfiled discovery concerning public health) so court retained jurisdiction	Baron & Budd: Plenary power expired in 2006; the Budd Deposition was not a filed court record and was in‑camera discovery excluded from Rule 76a(2)(a)(1) (and not covered by 76a(2)(c))	Held: Court lacks jurisdiction. Biederman failed to show the deposition was a Rule 76a "court record"; it was in‑camera discovery excluded from Rule 76a, and plenary power had expired.

Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999) (trial court lacks authority to act after plenary power expires)
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (plea to the jurisdiction standards; court must resolve jurisdiction before merits)
Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520 (Tex. 1998) (Rule 76a applies only to "court records"; threshold determination required before invoking full Rule 76a procedures)
Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) (pleader bears burden to allege facts establishing subject‑matter jurisdiction)
BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (appellate standard: facts necessary to support judgment and supported by evidence may be implied)
State ex rel. Latty v. Owens, 907 S.W.2d 484 (Tex. 1995) (actions taken after expiration of plenary power are void)