A Richardson psychiatrist whose misconduct case figured prominently in discussions defining how court records Texas are sealed has been disciplined by the Texas Medical Board. Again.
A board panel “temporarily suspended, without notice” Wayne Jones’ medical license earlier this month. The board determined his ability to practice medicine “poses a continuing threat to public welfare.”
It also alleged Jones “engaged in unprofessional, abusive, and threatening conduct” with a patient in April and accused him of “allowing an unlicensed individual to prescribe dangerous drugs and/or controlled substances on his behalf.”
Jones’ story, however, is not confined to allegations of misconduct in 2023, and it reaches well beyond his medical license.
Past accusations against Jones led to a lawsuit central to the debate about open government in Texas, a conversation that continues today: When can court records be sealed, and when does the public have a right to see them?
The state’s highest court is revisiting those questions right now.
Times Herald Printing Co. v. Wayne Jones
In the early 1980s, a 41-year-old former patient filed a civil lawsuit against Jones in Dallas County, accusing him of sexual impropriety and ethical misconduct. The lawsuit alleged he’d had a sexual relationship with her and had overprescribed drugs while she was his patient. The case was settled in 1983, and then-State District Judge Nathan Hecht agreed to seal the court file.
The Dallas Times Herald later sought to have the records unsealed, but the Texas Supreme Court refused to take up the case on procedural grounds.
Despite the loss, the routine sealing of court records in Texas came under scrutiny in the wake of the case. A series in the late 1980s by the Dallas Morning News added to the momentum for change. The News found civil judges in Dallas had sealed more than 200 cases without stating a rationale or timeline, and without a public hearing.
“It really gave an appearance of impropriety to what had been going on at the Dallas County courthouse,” said Tom Leatherbury, director of the First Amendment clinic at SMU Dedman School of Law, “a pattern of influence, of secret influence, where people and companies could get judges to do them a favor essentially without anyone knowing about it.”
That reporting contributed to the Texas Legislature ordering the judicial branch to develop guidelines for the sealing of records.
The result of that process was Rule 76(a).
‘The public’s right of access'
Records filed in the course of a lawsuit can reveal allegations of defective consumer products or harmful medicines. They can detail misconduct by government officials, or waste of public money.
On the other hand, companies may want to shield records that contain trade secrets or other proprietary information from competitors.
Rule 76(a), finalized in 1990, established when and how a judge could seal court records in Texas. Significantly, it lays down the presumption that records are public.
“It vindicates the public’s right of access that every court has to acknowledge under common law,” said Leatherbury.
He argued if Texas didn’t have a rule like 76(a), the public could be kept “in the dark about defective products or waste of government funds of other misconduct on the part of public officials.”
Under Rule 76(a), records can only be sealed if a party shows “a specific, serious and substantial interest” outweighing the presumption that the records are public. The party also must show there isn’t a less restrictive way to protect that interest, as well as show the “probable adverse effect that sealing will have upon the general public health and safety.”
Any motion to seal records is supposed to get a hearing no sooner than 14 days after the motion is filed and a notice of public hearing is posted.
Past allegations against Jones
The 1980s lawsuit was not the only time Jones faced allegations of misconduct from former patients before his suspension this year.
A complaint filed with the Texas Medical Board against Jones in September 1999 alleged Jones prescribed drugs to people who were drug abusers, including a woman he was treating for attention deficit disorder. According to the complaint, this was a person “he knew, or should have known, was an abuser of narcotic drugs” and who “died of an overdose of Ritalin, Prozac, and Desoxyn,” all of which Jones prescribed.
In May 2000, the Texas Medical Board decided to restrict Jones’ license for three years for failing to keep proper treatment and drug records.
Another complaint filed against Jones in August 2009 alleged “negligence in providing medical services, failure to use diligence; poor medical judgment; poor decision making; and non-therapeutic prescribing and/or treatment.”
Two years later, the board entered into an agreed order, which required Jones submit to having another doctor monitor his practice and complete eight hours of “risk management” training.
The board and Jones again entered into an agreed order in August 2019. It mandated Jones “not perform any injection or physical examination on female patients; have a chaperone available to observe anytime he conducts an in-person visit with a female patient; [and] within 60 days undergo a competency evaluation to determine whether he is physically, mentally or otherwise competent to safely practice medicine.”
Jones did not respond to requests for comment.
Texas Medical Board disciplinary actions against a doctor are public records and posted online. Documents from a civil lawsuit — if a judge allows them to be sealed — are not.
Revisiting the rule
Hecht, who was elected to the Texas Supreme Court in 1988, heard the arguments for tougher procedures around sealing court records as Rule 76(a) was being developed. He was concerned a judge could always revisit a seal if a person demonstrated they didn’t receive adequate notice of the hearing.
“Because it is impossible to give actual notice to the world, an order sealing records can never be effectively final,” Hecht and a colleague wrote in a statement when the rule was adopted.
He agreed some standards around sealing records were called for but said the rule as written was “excessive.”
Hecht is now the court’s chief justice. In a 2021 letter asking the court’s advisory committee to study the rule and propose recommendations, he wrote, “Courts and practitioners alike complain that the Rule 76a procedures are time consuming and expensive, discourage or prevent compliance, and are significantly different from federal court practice.”
Businesses typically want rules that make it easier to seal court records, as they can maintain trade secrets and avoid revelations — or unfounded accusations — that may be embarrassing or hurt their bottom lines.
Transparency advocates, on the other hand, say if sealing records is too easy, the public will miss out on important information, such as evidence of faulty products.
Leatherbury thinks the process for sealing documents could be modernized to make Rule 76(a) more efficient. For example, notices for hearings on motions to seal records could be published in one online location on the court’s website.
“That would certainly increase efficiency if there were a central repository that people could access,” he said.
Framing the argument
After months of discussion, the Supreme Court Advisory Committee recently submitted its analysis to the court. The next step is for the court to release a draft rule for public comment. A court spokesperson said there is no projected date for that to happen.
One question is whether the forthcoming draft will presume certain types of information are off-limits from the start, placing the burden on the person seeking to make the records public.
This shift of framing — from presumed public to presumed private — could have a powerful effect.
“[It] creates a broad presumption in favor of sealing that conflicts with the longstanding federal presumption of public access to court records,” Texas Tech Law Professor Dustin Benham wrote about one of the proposed committee drafts. “A party seeking to seal court records must establish compelling reasons sufficient to overcome the public’s access rights.”
There was disagreement among committee members about precisely what to recommend to the court.
Chip Babcock, who currently chairs the judicial advisory committee, represented the Dallas Times Herald decades ago in its quest to obtain court records from the Wayne Jones misconduct suit.
Speaking for himself and not the committee, Babcock told KERA he thinks Rule 76(a) as currently written does a good job.
He also thinks “80% of the controversy and difficulty” comes from the portion of the rule that says discovery evidence is presumed public even if it is only exchanged between parties in a lawsuit and not filed with the court. These records must deal with public health or safety, or the operation of government, and not concern “intangible property rights” like trade secrets.
In Babcock’s opinion, that’s the only thing that needs to be fixed.
“Otherwise, the rule works well,” he said. “It performs a very, very valuable service to the citizens.”
Legal transparency
Babcock said there is another important reason to maintain most of the current process for sealing records. If shielding documents were easier, the public would lose a powerful tool for monitoring the work of the judicial branch.
“Some courts — not many, but some — don't want the public to see what’s going on at the courthouse, and this rule pretty much prevents that from happening,” Babcock said.
The conversation around transparency in Texas’ judiciary is occurring amid a larger conversation about openness in the nation’s legal system.
Recent news reports have detailed how justices of the United States Supreme Court failed to disclose lavish vacations, including private jet travel. The justices have defended their lack of disclosure by saying they weren’t required to report the trips.
Now, there are calls for the nation’s high court to have an ethics code with clear mechanisms of accountability.
Courts in Texas are not subject to the state's Public Information Act, which governs public agencies, boards, and commissions. The Supreme Court of Texas sets much of the policy that governs records for local and state judiciaries. Revising a rule that governs the sealing of records in civil suits, therefore, could have a serious impact on what the public knows about that branch of Texas government.
Leatherbury believes the justices know the stakes.
“I think the court is very attuned to the need for transparency and the need to preserve the appearance of judicial fairness,” he said.
Got a tip? Email Bret Jaspers at bjaspers@kera.org. You can follow Bret on Twitter @bretjaspers.
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