Unreported / Non-Citable
Background
Delia Cavazos-Gamez filed a Texas Rule of Civil Procedure 202 petition seeking presuit discovery concerning a negative campaign mailer that used her mugshot and portions of a police report. She alleged that confidential records had been improperly accessed and released for political purposes and that the mailer lacked a required disclosure identifying who paid for it. After initially obtaining discovery from a mailing company and its owner, she amended her petition to seek depositions and documents from Bernardo Diaz and Aleph Development, LLC.
Diaz and Aleph moved to dismiss under the Texas Citizens Participation Act, Rule 91a, and Rule 202. On June 4, 2026, the trial court authorized the depositions and document production and separately denied the motion to dismiss. Diaz appealed and, with Aleph, petitioned for mandamus relief challenging the same orders.
The Court’s Holding
The court conditionally granted mandamus relief. It concluded that Cavazos-Gamez sought discovery in anticipation of litigation but failed to comply with Rule 202’s requirement to identify the persons expected to have interests adverse to hers—or state that their identifying information could not be ascertained through diligent inquiry. Her amended petition omitted individuals and entities implicated by the detailed allegations in her original petition.
The court also rejected the argument that the depositions could be justified merely as an investigation of potential claims. Cavazos-Gamez’s allegations and previously obtained information provided firm factual foundations and enough information to file suit without further presuit discovery. Because Rule 202 discovery must be strictly limited and carefully supervised, the trial court abused its discretion by authorizing the depositions. The court directed the trial court to vacate both June 4 orders and dismissed Diaz’s parallel appeal as moot.
Key Takeaways
- A Rule 202 petitioner anticipating litigation must identify expected adverse parties and serve them as required, or explain why their identities cannot be ascertained through diligent inquiry.
- Presuit discovery is not available merely to develop claims when the petitioner already possesses sufficient facts to file suit.
- Mandamus relief was appropriate because an improperly compelled deposition cannot be undone on appeal.
Why It Matters
The decision reinforces that Texas Rule 202 is an exceptional procedure rather than a routine means of obtaining discovery before filing suit. Petitioners cannot avoid Rule 202’s notice and identification requirements by omitting known potential defendants from an amended petition.
For prospective deponents, the opinion confirms that mandamus may provide immediate review when a trial court orders presuit discovery beyond what the rules permit.