United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS October 17, 1996 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _____________________ Clerk

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

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. 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,

(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.,

, 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

2 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.

3 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.

4