Freedom Comm v. Mancias, et al

*Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 17, 1996
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-40359
_____________________
FREEDOM COMMUNICATIONS, INC. d/b/a
The Monitor,
Plaintiff-Appellant,
versus
THE HONORABLE FERNANDO MANCIAS, Judge of
the 93rd Judicial District Court of
Hidalgo County, Texas; PAULINE G.
GONZALEZ, Clerk of the Hidalgo County
District Courts,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(M-96-CV-046)
_________________________________________________________________
October 17, 1996
Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:*
This appeal presents the question whether the district court
correctly dismissed the complaint on the basis of res judicata.
After reviewing the record, studying the briefs, and considering

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the arguments presented to this court, we have concluded that the
dismissal was erroneous.
Res judicata attaches only when there has been a final
judgment rendered by a court of competent jurisdiction on the
merits of a claim. See, e.g., Eagle Prop., Ltd. v. Scharbauer, 807
S.W.2d 714, 718 (Tex. 1990). In this action, the state court
dismissed the complaint for lack of jurisdiction. A dismissal for
lack of jurisdiction does not operate as a judgment on the merits
for purposes of res judicata. See, e.g., Fed. R. Civ. P. 41(b).
Additionally, in the state court, The Monitor only sought to
intervene in a pre-existing action. Ordinarily, the denial of a
motion to intervene does not result in a bar to future litigation
on the basis of res judicata. See, e.g., In re Troy Dodson Constr.
Co., 993 F.2d 1211, 1214 (5th Cir. 1993); 18 Charles A. Wright Et
Al., Federal Practice and Procedure § 4438, at 352 (1981).
Because we conclude that res judicata does not bar the present
action, we remand the case to the district court for consideration
of the merits of the section 1983 claim. Upon remand, it seems to
us that the court must first examine whether The Monitor has
alleged a constitutional right by virtue of their claim that the
First Amendment grants them the right to have a case-by-case review
of sealed court files to determine whether their alleged right to
the information is outweighed by the privacy interests of those

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connected with the file whose privacy is protected by the sealing
order. Second, if the court finds that The Monitor has effectively
raised a constitutional claim, then the court must determine
whether the Texas statutes, as applied in this case, result in a
denial of that right. If so, the court then must consider whether
the Texas statutes should be stricken on the basis of their
unconstitutionality as applied in this case and, finally, if the
Texas statutes are being unconstitutionally applied in this case,
whether the state court judge should be ordered to conduct a review
of the sealed file to determine the relative weights of The
Monitor's right to the information and the privacy interests
protected by the sealing. Our suggestion set out above as to how
the district court might proceed is not intended to straight-jacket
the district court, which may proceed to determine the merits of
the plaintiff’s claim in its own good judgment.
Finally, we might observe that, in the course of these
proceedings, the district court may see the need to invite the
State of Texas to become a party in order to defend its statutes.
Indeed, if the plaintiff seeks to declare a state statute invalid,
the state must be made a party.

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We therefore REVERSE the district court's holding that the
state court decision bars, because of res judicata, the present
action and REMAND this action for further consideration.
REVERSED and REMANDED.

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