Full Opinion

Opinion issued October 30, 2026 In The Court of Appeals For The First District of Texas ——————————— NO. 01-24-00818-CV ——————————— SKYE TORRES AND AMANDA TREVINO, Appellants V. COLTIN LUMMUS, Appellee On Appeal from the 122nd District Court Galveston County, Texas Trial Court Case No. 23-CV-1461 CONCURRING MEMORANDUM OPINION There are times when “plaintiffs face a catch-22: they need information to reach discovery, but they need discovery to access information.” Jeffrey Liang, Reverse Erie and Texas Rule 202: The Federal Implications of Texas Pre-Suit Discovery, 89 TEX. L. REV. 1491, 1491 (2011). This may be one of those times. Coltin Lummus wants to be a plaintiff but cannot do so without certain information. He believes that he and his former fiancée “conceived a child” but that she and some unknown person or persons decided to “kill the unborn child.” Lummus does not know who did it or where it occurred. He seeks to depose the child’s mother and grandmother to learn the circumstances of the abortion so he can sue those who were involved. Rule of Civil Procedure 202 allows a prospective plaintiff to petition a court for an order authorizing depositions or written questions for one of two reasons: 1) to perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit, and 2) to investigate a potential claim or suit. TEX. R. CIV. P. 202.1. Lummus’s pleadings and briefing make clear he seeks the information for the first reason. The problem for Lummus is that our Supreme Court requires those invoking Rule 202 to have more information about the potential suit than what Lummus currently has. A Rule 202 petition seeking to obtain testimony for an anticipated suit must be filed in the “proper court” in a county where venue for the suit may lie. TEX. R. CIV. P. 202.2(b)(1). Our Supreme Court interpreted the phrase “proper court” to mean a court that, at minimum would have personal jurisdiction over the prospective defendant. In re Doe, 444 S.W.3d 603, 608–09 (Tex. 2014). 2 Doe is a 5–4 decision where the policy arguments for and against this interpretation of Rule 202 were fully fleshed out. In that case, Reynolds & Reynolds, a company with a presence in Texas, tried to use a Rule 202 petition to get information from another company with a presence in Texas (Google) regarding the identity of an anonymous blogger who had allegedly defamed the first company. However, as one might expect in that fact pattern, Reynolds had no evidence that the blogger was in Texas nor did it plead that the blogger would be subject to the personal jurisdiction of the court. From Reynolds’s pleadings, it was altogether possible that Reynolds was using Rule 202 and Texas courts to get information to use for filing suit in another state. Chief Justice Hecht’s opinion for the Court was concerned that an expansive use of Rule 202, untethered from personal jurisdiction, would negate the protections Texas offers to individuals from other states who enter special appearances. He went on to note that the restrictive view of Rule 202 kept with legislative trends aimed at keeping Texas from being “the world’s forum of final resort.” Id. at 611 (quoting Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 145 (1988)). The expansive view of Rule 202, he wrote, would “make Texas the world’s inspector general.” Id. Justice Lehrmann wrote a dissent in which three colleagues joined. Justice Lehrmann pointed out that the restrictive view of Rule 202 would force parties into making “impossible showing[s]”; how could a party plead or prove personal 3 jurisdiction over a prospective defendant if it could not learn the prospective defendant’s identity? Id. (Lehrmann, J., dissenting). Justice Lehrmann emphasized that the court’s holding was an “end” to “discovery of anonymous parties.” Id. at 615. Lummus has fewer facts to support jurisdiction than did Reynolds. Reynolds did not know who the blogger was but it alleged the defamation reached Texas. Not only does Lummus not know who his prospective defendants are, he does not know if any of their actions occurred in Texas. Taking everything in Lummus’s pleading as fact, it’s altogether possible the mother drove herself to a state where abortion is not illegal and had it done in a way that is not actionable in Texas. Allowing discovery based on a claim that someone somewhere did something that would be actionable if it occurred in Texas would push Texas toward becoming, in Chief Justice Hecht’s term, “the world’s inspector general.” Policy choices like the one the Supreme Court made in Doe necessarily involve tradeoffs. The inability to get discovery without knowing who a defendant is means that many wronged individuals are left without a remedy. At the same time, allowing parties to use Rule 202 to get information regarding events that did not occur in Texas or are not actionable here creates a serious risk for abuse and harassment. One of our Supreme Court’s duties is to make these sorts of evaluations 4 when interpreting the Rules of Civil Procedure, and one of our duties is to follow its decisions. I join the Court’s opinion today because it faithfully adheres to Doe. Clint Morgan Justice Panel consists of Justices Rivas-Molloy, Gunn, and Morgan. Justice Morgan, joined by Justice Gunn, concurring. 5