In Re David Barnes and LaSaundra Barnes, as Next Friends of Janie Doe, a Minor v. the State of Texas

CONDITIONALLY GRANT, DISMISS APPEAL and Opinion Filed June 5,
2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00774-CV

IN RE DESOTO INDEPENDENT SCHOOL DISTRICT, Relator
and
DESOTO INDEPENDENT SCHOOL DISTRICT, Appellant
v.
DAVID BARNES AND LASAUNDRA BARNES, AS NEXT FRIENDS OF
JANIE DOE, A MINOR, Appellees

Original Proceeding and On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-23-03760

MEMORANDUM OPINION
Before Justices Molberg, Pedersen, III, and Nowell
Opinion by Justice Molberg

In this consolidated interlocutory appeal and original proceeding, appellant

and relator DeSoto Independent School District (DeSoto ISD) challenges the trial

court’s July 20, 2023 order granting, in part, the amended verified petition for pre-

suit discovery filed by appellees and real parties in interest,1 which ordered the pre-

1
Appellees and real parties in interest are David Barnes and LaSaundra Barnes, as next friends of Janie
Doe, a minor.
suit deposition2 of a corporate representative of DeSoto ISD on certain topics and

required DeSoto ISD to produce certain documents and tangible items responsive to

a subpoena duces tecum. In this memorandum opinion,3 because we conclude the

trial court abused its discretion in entering the July 20, 2023 order and DeSoto ISD

has no adequate remedy by appeal, we conditionally grant the writ of mandamus and

dismiss the appeal as moot.

I. BACKGROUND

In March 2023, appellees and real parties in interest filed a “Verified Petition

for Pre-Suit Discovery of Respondent DeSoto Independent School District,”

alleging, in part, that their daughter’s third-grade teacher, a male employee of

DeSoto ISD, forced their daughter to perform oral sex on him in October 2015, and

sexually assaulted her multiple times over the months that followed. DeSoto ISD

filed a response that included a plea to the jurisdiction and claimed its immunity was

not waived. After a hearing, the trial court denied the petition “without prejudice to

the refiling” and signed an order stating the cause “will remain pending” and that

appellees “may file an amended petition.”

About six weeks after that order was signed, appellees filed an “Amended

Verified Petition for Pre-Suit Discovery of Respondent DeSoto Independent School

District.” The amended petition made the same allegations regarding the teacher’s

2
See TEX. R. CIV. P. 202.
3
See TEX. R. APP. P. 47.4, 52.8(d).
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conduct, again requested to depose the corporate representative of DeSoto ISD on

certain topics and to have DeSoto ISD produce certain documents and tangible

items, and indicated appellees sought this pre-suit discovery “to determine the

potential basis for claims against” and “to investigate potential claims . . . against

[the teacher], DeSoto ISD, and unknown DeSoto ISD employees.” DeSoto ISD

again filed a response that included a plea to the jurisdiction and claimed its

immunity was not waived. Appellees filed a motion to strike DeSoto ISD’s response

as untimely.

The appellate record contains a docket sheet that indicates the trial court heard

appellees’ amended verified petition for pre-suit discovery on July 20, 2023, but the

appellate record contains no hearing transcript. No evidence was presented in the

hearing, according to the affidavit of counsel that accompanies the petition for

mandamus filed by DeSoto ISD. See TEX. R. APP. P. 52.7(a)(2).4

On July 20, 2023, the trial court signed the order at issue. The order granted

in part and denied in part appellees and real parties in interest’s amended verified

petition, ordered the pre-suit deposition of a corporate representative of DeSoto ISD

on twenty-seven topics, required DeSoto ISD to produce ten categories of documents

and tangible items responsive to a subpoena duces tecum. The order also included

two findings, specifically, that allowing appellees and real parties in interest (1) to

4
DeSoto ISD’s counsel’s affidavit states, “No testimony was adduced in connection with this matter in
the trial court, and the Real Parties in Interest did not offer any exhibits in any hearing in the trial court
regarding the order that is the subject of this mandamus proceeding.” See TEX. R. APP. P. 52.7(a)(2).
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take the oral and videotaped deposition of DeSoto ISD corporate representative on

the topics included in Exhibit A attached to the order and (2) to submit the subpoena

duces tecum attached as Exhibit A to the order “outweighs the burden or expense of

the procedure.”

DeSoto ISD appealed that order on August 2, 2023. By order dated September

6, 2023, after noting DeSoto ISD had not requested a reporter’s record, we ordered

the cause submitted without one.

After submission, because it appeared clear that appellees and real parties in

interest’s rule 202 petition sought a pre-suit deposition from DeSoto ISD as a

potential defendant, we expressed a concern regarding our jurisdiction to hear the

interlocutory appeal.5 On April 9, 2024, we requested by a particular date a letter

brief from DeSoto ISD regarding our jurisdiction, and we provided a deadline by

which appellees and real parties in interest could submit a response, if any. DeSoto

ISD timely submitted a letter brief in response, arguing that we have jurisdiction to

hear the appeal and expressing an intent, in any event, to file a petition for writ of

mandamus. Real parties in interest filed no response regarding our jurisdiction.

5
See In re Jorden, 249 S.W.3d 416, 419 (Tex. 2008) (orig. proceeding) (“Presuit deposition orders are
appealable only if sought from someone against whom suit is not anticipated; when sought from an
anticipated defendant . . . , such orders have been considered ancillary to the subsequent suit, and thus
neither final nor appealable.”); see also In re City of Dallas, No. 05-18-00289-CV, 2018 WL 5306925, at
*3 (Tex. App.—Dallas, Oct. 26, 2018, orig. proceeding) (mem. op.) (in consolidated appeal and original
proceeding brought by a governmental entity and potential defendant in a rule 202 proceeding, this Court
concluded the appropriate remedy for an improper rule 202 order is a petition for a writ of mandamus, not
an interlocutory appeal).
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Soon after filing its letter brief, DeSoto ISD filed a petition for writ of

mandamus, followed by an unopposed motion to consolidate the appeal with the

mandamus proceeding. We consolidated the mandamus proceeding into this

proceeding and ordered real parties in interest and respondent to file a response to

the petition for mandamus, if any, by a particular deadline.6 Neither filed a response.

II. DISCUSSION

We first consider DeSoto ISD’s petition for writ of mandamus regarding the

trial court’s June 20, 2023 order.

A. Standards Regarding Mandamus and Rule 202

To be entitled to mandamus relief, a relator must show: (1) the trial court has

clearly abused its discretion; and (2) there is no adequate remedy by appeal. See In

re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding).

A trial court abuses its discretion if it reaches a decision so arbitrary and

unreasonable it amounts to a clear and prejudicial error of law or if it clearly fails to

correctly analyze or apply the law. Id.; Walker v. Packer, 827 S.W.2d 833, 839–40

(Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what

the law is or in applying the law to the facts and abuses its discretion when its

6
See TEX. R. APP. P. 52.8(b)(1) (“If the court is of the tentative opinion that relator is entitled to the
relief sought or that a serious question concerning the relief requires further consideration . . . the court
must request a response if one has not been filed. . . .”).
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decision is arbitrary and capricious. See In re Prudential, 148 S.W.3d at 135;

Walker, 827 S.W.2d at 840.

“It is an abuse of discretion for a trial court to order a rule 202 deposition when

the party seeking the deposition fails to provide any evidence to meet the burden of

establishing the facts necessary to support ordering a rule 202 deposition.” In re

City of Dallas, 2018 WL 5306925, at *4 (citations omitted).

A relator has no adequate remedy by appeal from a trial court’s order granting

a rule 202 deposition because his only opportunity to appeal the trial court’s order

would be after the deposition occurred. Id. (citations omitted).

B. DeSoto ISD’s Arguments and Application of Law to Facts

In its petition for writ of mandamus, DeSoto ISD argues, in part, that the trial

court’s July 20, 2023 order constituted an abuse of discretion because there is no

evidence to support it and that mandamus relief is its only remedy. DeSoto ISD

makes two other arguments as well, but in light of our conclusion below, we need

not reach them.7

7
In light of our conclusions herein, we need not reach DeSoto ISD’s arguments that the trial court
abused its discretion in entering the July 20, 2023 order because (1) rule 202 does not authorize a trial court
to order production of documents, and (2) the amended rule 202 petition filed by appellees and real parties
in interest failed to allege any potential claims over which the trial court would have jurisdiction. See TEX.
R. APP. P. 47.1 (stating we “must hand down a written opinion that is as brief as practicable but that
addresses every issue raised and necessary to final disposition of the appeal”); 52.8(d) (stating that, when
granting relief in an original proceeding, we “must hand down an opinion as in any other case” and stating,
with an exception not applicable here, “Rule 47 is applicable to an order or opinion by a court of appeals.”).
However, although we do not decide those issues here, we do note we have previously rejected an argument
similar to the first of the two arguments previously listed in this paragraph. See In re Perrilloux, No. 05-
19-01584-CV, 2020 WL 2092483, at *4 (Tex. App.—Dallas May 1, 2020, orig. proceeding) (mem. op.)
(“[T]he plain language of the rules permits a petition seeking a pre-suit deposition under Rule 202 to request

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A trial court cannot grant a rule 202 petition without making the findings

required by Rule 202.4. Patton Boggs LLP v. Moseley, 394 S.W.3d 565, 571 (Tex.

App.—Dallas 2011, orig. proceeding); see also In re Campo, No. 05-13-00477-CV,

2013 WL 3929251, at *1 (Tex. App.—Dallas July 26, 2013, orig. proceeding) (mem.

op.). As the rule 202 petitioners, appellees and real parties in interest had the burden

to both plead and prove that they were entitled to a pre-suit deposition. TEX. R. CIV.

P. 202.1(b), 202.4(a)(2). This required the presentation of evidence, not simply

reliance on a verified petition and argument. See In re Noriega, No. 05-14-00307-

CV, 2014 WL 1415109, at *2 (Tex. App.—Dallas Mar. 28, 2014, orig. proceeding)

(mem. op.); see also Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d

656, 660 (Tex. 1995) (“Generally, pleadings are not competent evidence, even if

sworn or verified.”). In Noriega, we stated,

It is an abuse of discretion for a trial court to find that the likely benefit
of a Rule 202 deposition outweighs the burden of the deposition when
the party seeking the deposition fails to provide any evidence on which
the court could have based such a finding. In re Campo, No. 05-13-
00477-CV, 2013 WL 3929251, at *1 (Tex. App.—Dallas July 26, 2013,
orig. proceeding) (mem. op.) (mandamus conditionally granted where
no evidence was presented to the trial court at the hearing on the motion
and party seeking Rule 202 deposition did not formally offer or admit
its verified pleading at the hearing). The trial court did just this and in
so doing abused its discretion.

2014 WL 1415109, at *3.

the production of documents as well.”) (first citing TEX. R. CIV. P. 205.1(c); then citing In re City of Tatum,
567 S.W.3d 800, 808 (Tex. App.—Tyler 2018, orig. proceeding)). We also stated, “Of course, the
requesting party and the trial court should be mindful of the burden requests for production impose on non-
parties and carefully balance the burdens of discovery in view of the non-party status.” Id.
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The same is true here. As a result, we conclude the trial court abused its

discretion in finding that the likely benefit of the deposition of DeSoto ISD’s

corporate representative outweighs the burden or expense of the procedure because,

according to the record before us, appellees and real parties in interest failed to

provide any evidence on which the trial court could have based such a finding. Id.

We also conclude DeSoto ISD has no adequate remedy by appeal. See In re

City of Dallas, 2018 WL 5306925, at *4 (“A relator has no adequate remedy by

appeal from a trial court’s order granting a rule 202 deposition because his only

opportunity to appeal the trial court’s order would be after the deposition

occurred.”).

Thus, because DeSoto ISD has satisfied both standards for mandamus relief,

we conditionally grant DeSoto ISD’s petition for writ of mandamus and direct the

trial court to vacate its July 20, 2023 Order Regarding Pre-Suit Discovery and to file

with this Court, within thirty (30) days, a copy of its order issued in compliance with

this order. A writ will issue only in the event the trial court fails to comply.

In light of our ruling, we dismiss DeSoto ISD’s appeal as moot. See id., at *6

(concluding appeal need not be considered under similar circumstances); Tandem

Energy Corp. v. State ex rel. Dept. of Transp., No. 14-03-00815-CV, 2003 WL

22349032, at *1 (Tex. App.—Houston [14th Dist.] Oct. 16, 2003, no pet.) (mem.

op.) (per curiam) (appeal challenging order granting rule 202 petition was moot

–8–
because appellate court ruled on merits of petition for writ of mandamus concerning

same order).

III. CONCLUSION

We conditionally grant DeSoto ISD’s petition for writ of mandamus and

dismiss its appeal as moot. A writ will issue only in the event the trial court fails to

vacate its July 20, 2023 Order Regarding Pre-Suit Discovery and to file with this

Court, within thirty (30) days, a copy of its order issued in compliance with our

ruling.

/Ken Molberg/
230774F.P05 KEN MOLBERG
JUSTICE

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

IN RE DESOTO INDEPENDENT On Appeal from the 44th Judicial
SCHOOL DISTRICT, Relator District Court, Dallas County, Texas
Trial Court Cause No. DC-23-03760.
and Opinion delivered by Justice
Molberg. Justices Pedersen, III and
DESOTO INDEPENDENT Nowell participating.
SCHOOL DISTRICT, Appellant

No. 05-23-00774-CV

v.

DAVID BARNES AND
LASAUNDRA BARNES, AS NEXT
FRIENDS OF JANIE DOE, A
MINOR, Appellees

In accordance with this Court’s opinion of this date, the appeal from the trial
court’s July 20, 2023 Order Regarding Pre-Suit Discovery is DISMISSED.

It is ORDERED that appellant DeSoto Independent School District recover
its costs of this appeal from appellees David Barnes and LaSaundra Barnes, as next
friend of Janie Doe, a minor.

Judgment entered this 5th day of June 2024.

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