Makayla Montoya-Frazier and Buckle Bunnies Fund v. Zach Maxwell

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-26-00053-CV ___________________________ MAKAYLA MONTOYA-FRAZIER AND BUCKLE BUNNIES FUND, Appellants V. ZACH MAXWELL, APPELLEE On Appeal from the 355th District Court Hood County, Texas Trial Court No. C2022388 AND  ___________________________ No. 02-26-00062-CV ___________________________ IN RE MAKAYLA MONTOYA-FRAZIER AND BUCKLE BUNNIES FUND, Relators Original Proceeding 355th District Court of Hood County, Texas Trial Court No. C2022388 Before Sudderth, C.J.; Kerr and Wallach, JJ. Memorandum Opinion by Justice Wallach 2  MEMORANDUM OPINION I. Introduction Appellee/Real Party in Interest Zach Maxwell petitioned to take the presuit deposition of Appellant/Relator Makayla Montoya-Frazier, a founder and member of Appellant/Relator Buckle Bunnies Fund (BBF). See Tex. R. Civ. P. 202.2. In conjunction with his petition, he requested the production of “certain documents and tangible things” in a subpoena that he incorporated by reference. Over Montoya-Frazier and BBF’s objections, the trial court granted Maxwell’s Rule 202 petition and ordered Montoya-Frazier to submit to the requested deposition and production. Montoya-Frazier and BBF have filed a petition for writ of mandamus and an appeal. 1 We ordered the cases consolidated. In this consolidated case, Montoya-Frazier and BBF (collectively Montoya-Frazier where applicable) have raised four issues: (1) Montoya-Frazier has no adequate remedy at law to protect her from the order to submit to an improper deposition; (2) the trial court abused its discretion by granting Maxwell’s petition because he failed to present any admissible evidence that the benefits of discovery 1 If a deposition is sought from someone who is anticipated to be a party, a Rule 202 order is ancillary and thus neither final nor appealable. Montoya Frazier v. Maxwell (Buckle Bunnies I), 734 S.W.3d 1, 11 (Tex. App.—Fort Worth 2025, pet. denied) (en banc) (citing In re Jorden, 249 S.W.3d 416, 419 (Tex. 2008) (orig. proceeding)). If a deposition is sought from someone against whom suit is not anticipated, then the Rule 202 order is final and appealable. Id. 3 would outweigh its burden or that the discovery sought was necessary to prevent a failure or delay of justice; (3) the trial court abused its discretion by granting Maxwell’s petition because he failed to satisfy Rule 202’s procedural requirements; and (4) the trial court abused its discretion by ordering pre-trial discovery of a potential claim made under an unconstitutional statute. Based on this record and the parties’ admissions—as set out below— Montoya-Frazier and BBF will be defendants in Maxwell’s anticipated or potential lawsuit, making mandamus their sole remedy. See Buckle Bunnies I, 734 S.W.3d at 11. Because we conclude that the trial court’s order was a clear abuse of discretion and that Montoya-Frazier has no adequate remedy by appeal, we sustain the first and second issues and part of the third issue in the original proceeding; we do not reach all of the third issue’s subissues or the fourth issue. See Tex. R. App. P. 47.1. We conditionally grant the mandamus petition and order the trial court to vacate its order granting Maxwell’s Rule 202 petition and to render an order denying the same. Our writ will issue only if the trial court fails to comply. We dismiss the appeal for want of jurisdiction. II. Background A. The Rule 202 petition, response, reply, and briefing On September 1, 2022, Maxwell filed his verified Rule 202 petition, both “to avoid a delay or failure of justice in an anticipated suit” and to investigate potential claims against “individuals and organizations that performed or aided or abetted 4 abortions in violation of . . . Senate Bill 8 [(SB 8)].”2 Cf. Tex. R. Civ. P. 202.1 (stating that a person may “petition the court for an order authorizing the taking of a deposition on oral examination or written questions either: (a) to perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit; or (b) to investigate a potential claim or suit” (emphases added)); Tex. R. Civ. P. 202.2(d)(1)–(2) (stating that the Rule 202 petitioner must state either that he or she anticipates the institution of a suit in which he or she may be a party or that he or she seeks to investigate a potential claim by or against him or her); Tex. R. Civ. P. 202.4(a)(1)–(2) (setting out required Rule 202 either–or findings). To his petition, Maxwell attached six exhibits: • two news articles purporting to contain statements by Montoya-Frazier: Tina Vasquez, Meet the 21-year-old helping to fund abortions in Texas, Prism (March 25, 2021) (the Prism article), and Iris Dimmick, Abortion access advocates face imposters, legal threats as trigger law nears, San Antonio Report (August 1, 2022) (the SAR article); • Revised Civil Statutes Article 4512, which criminalizes certain abortion-related acts; • a March 18, 2022 letter to Morgan Gimblet, identified in the letter as BBF’s “Founder & Member,” from Representative Briscoe Cain, warning that “[t]he law of Texas imposes felony criminal liability” under Article 4512, that Gimblet and BBF were violating “this criminal statutory prohibition by paying for other people’s 2 The Legislature enacted SB 8, the Texas Heartbeat Act, in 2021. See Tex. Right to Life v. Van Stean, 702 S.W.3d 348, 351 (Tex. 2024); see also Weldon v. Lilith Fund for Reprod. Equity, 722 S.W.3d 40, 43 (Tex. App.—Fort Worth 2024) (mem. op.) (noting that Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 142 S. Ct. 2228 (2022), made SB 8 “mostly a footnote”), rev’d, 735 S.W.3d 702, 705 (Tex. 2026); Tex. Equal Access Fund v. Maxwell, No. 02-22-00347-CV, 2024 WL 853320, at *1–3 (Tex. App.—Fort Worth Feb. 29, 2024, pet. denied) (mem. op.) (tracing SB 8’s legal-challenge background). 5  abortions,” and advising Gimblet to “immediately cease and desist all activities that aid or abet elective abortions performed in Texas”; • a notice of deposition for Montoya-Frazier; and • a subpoena for deposition and production of 21 items, including documents describing BBF’s funding streams and identifying “any officer, employee, volunteer, board member, or donor” of BBF. In his verification, Maxwell stated that “every exhibit is an authentic copy of what it purports to be.” Along with a response to Maxwell’s Rule 202 petition, Montoya-Frazier made a plea to the jurisdiction and moved to dismiss the petition under the Texas Citizens Participation Act (TCPA). See generally Buckle Bunnies I, 734 S.W.3d at 5–6. She pointed out in the comprehensive response that, among other things, Maxwell’s petition did not contain Rule 202’s required contents; that it lacked evidentiary support; and that it was overbroad and beyond Rule 202’s scope, showing that its true purpose was to harass and intimidate. To the response, she attached, among other things, her unsworn declaration. 3 3 Montoya-Frazier also attached SB 8’s text, a Travis County district court’s order declaring part of SB 8 unconstitutional, the same court’s agreed order on temporary injunction in multi-district litigation (MDL) with attached affidavits filed by the plaintiffs—none of whom were Montoya-Frazier or BBF—to show imminent and irreparable harm, and a collection of similar Rule 202 petitions filed by one of Maxwell’s attorneys. 6  In her unsworn declaration, Montoya-Frazier attested that she had helped found BBF in early 2020 and that “since September 2021, [BBF] ha[d] not provided funding to support the provision of abortion services by Texas-licensed physicians.” She stated that other services BBF provided to low-income and at-risk Texans included providing harm-reduction services “such as ensuring that unhoused persons have access to Narcan and fentanyl test strips,” supplying diapers to economically-struggling parents, buying groceries for people who need them, and serving as a support system for those in BBF’s community, 4 in addition to serving as an abortion-rights advocate. Montoya-Frazier averred that complying with Maxwell’s Rule 202 petition “would damage [BBF] and threaten its ability to continue operating” because—among other things—the petition requested “documents and information related to [BBF’s] internal funding stream distinctions, the sources of its financial support (including its donors), and the identity of every person who works for [BBF] in any capacity, including its volunteers.” She further stated that responding to the petition’s broad and vague requests would require a great deal of time, effort, and money and that identifying BBF’s volunteers and donors could subject them to the same “death threats, threats of rape, and threats to ‘dox’”5 that she had received since 2020 for speaking out publicly in 4 Maxwell ignores these services, asserting in this proceeding that BBF’s activities are “illegal, so any threats to its continued operations do not qualify as a reason to deny discovery.” “Doxing” is the nonconsensual online posting of personal identifying 5 information to harass, punish, or exact revenge. See Schubiner v. Julis, 7 support of abortion rights. See First Choice Women’s Res. Ctrs., Inc. v. Davenport, 146 S. Ct. 1114, 1130 (2026) (listing problems that can arise from requiring confidential-donor disclosure, such as the information’s release through a hack or leak and the risk of harassment and reprisals, which are risks “heightened in the 21st century”).6 Maxwell filed a brief in January 2023 in support of his Rule 202 petition. In his brief, he asserted that without presuit discovery, he would have no way to identify and sue individuals involved in illegal self-managed abortions assisted by Montoya-Frazier and BBF and that denying his discovery request “would enable these lawbreakers to conceal their involvement until the four-year statute of limitations [under Texas Health and Safety Code Section 171.208(d)] ha[d] run, which would result in a ‘failure or delay of justice’ by thwarting the enforcement of Texas’s laws.” Without elaboration, he stated, “[T]he benefit to [him] from identifying these lawbreakers through pre-suit discovery far outweighs the burdens imposed on Ms. Montoya-Frazier, who has already admitted her knowledge of these illegal abortions to the news media, and has boasted of her organization’s complicity in those unlawful acts.” From her deposition, he wanted to identify any individuals apart from her who had aided and abetted illegal No. 05-24-00888-CV, 2026 WL 1481432, at *1 n.1 (Tex. App.—Dallas May 26, 2026, no pet. h.) (mem. op.) (defining “doxing” and citing sources). 6 The Supreme Court has repeatedly reiterated that demands for private donor information inevitably carry a deterrent effect on the exercise of First Amendment rights. See Davenport, 146 S. Ct. at 1122–25 (counting cases). 8 abortions and to “know where these individuals reside[d] so that he c[ould] determine the most favorable venue in which to sue.”7 He supported his assertions with citations to his Rule 202 petition and the Prism and SAR articles. Maxwell also filed a brief opposing the TCPA motion and plea to the jurisdiction. Although he disagreed that the TCPA applied to his Rule 202 petition,8 he asserted that he had “done more than enough to establish a ‘prima facie’ case for pre-suit discovery” and that he had “‘clear and specific evidence’ from Montoya-Frazier’s admissions that her organization [was] flouting Texas’s abortion laws.” To this brief, he attached two more news articles: Jada Yuan, The New Mexico Provider Trying to Save Abortions in Texas, Washington Post Magazine (May 10, 2022) (the WPM article), which addressed SB 8 but did not mention Montoya-Frazier or BBF,9 and Dartunorro Clark and Chloe 7 Cf. Tex. Health & Safety Code § 171.210(a)(4) (allowing SB 8 action to be brought in “the county of residence for the claimant if the claimant is a natural person residing in this state”). 8 In his TCPA response, Maxwell noted that in DeAngelis v. Protective Parents Coalition, this court had held that Rule 202 petitions qualify as TCPA “legal actions.” See 556 S.W.3d 836, 849 (Tex. App.—Fort Worth 2018, no pet.), overruled in part on other grounds by Buckle Bunnies I, 734 S.W.3d at 6, 34 (overruling DeAngelis to the extent it was inconsistent with holding that the TCPA does not apply to a Rule 202 petition filed after September 1, 2019). Maxwell stated that he “respectfully disagree[d] with [DeAngelis] and wishe[d] to preserve this issue for en banc consideration or an eventual petition for review.” He raised the same argument in his Buckle Bunnies I appellee’s brief. 9 The WPM article—published before Dobbs—focused on a New Mexico abortion provider and services he provided in New Mexico. It did not mention the funding source of any Texans visiting his clinic. 9 Atkins, Federal injunction prompts Texas abortion provider to resume care, NBC News (October 7, 2021) (the NBC article), which addressed a temporary federal injunction blocking SB 8 but did not mention Montoya-Frazier or BBF. 10 He also attached his counsel’s unsworn declaration that the WPM and NBC articles were “authentic copies of news reports that [his counsel had] downloaded from the internet.” 11 Montoya-Frazier and BBF replied, reiterating—among other things—that the Rule 202 petition was insufficient and failed to satisfy its evidentiary burden. They complained that the petition could not satisfy either the potential-claim or the anticipated-suit burden and objected to his attachments. B. The hearing On February 16, 2023, the trial court heard Montoya-Frazier’s objections, plea to the jurisdiction, and TCPA motion. At the hearing’s beginning, Montoya-Frazier’s counsel informed the trial court that if it decided there was no admissible evidence, it would not have “to decide what kind of 202 petition this is because there [wouldn’t] be The NBC article focused on Texas physicians providing abortions during the 10 temporary injunction of SB 8 and did not mention the funding source used to pay those physicians. The declaration was made under penalty of perjury but failed to comply with 11 several of Civil Practice and Remedies Code Section 132.001(d)’s form requirements. Cf. Tex. Civ. Prac. & Rem. Code § 132.001(d); Hays St. Bridge Restoration Grp. v. City of San Antonio, 570 S.W.3d 697, 702 & n.15 (Tex. 2019) (concluding unsworn declaration provided no support for motion despite being made under penalty of perjury based on deficiencies in statutorily required jurat). It also listed the wrong client, stating that counsel “represent[ed] petitioner Charles Byrn in this litigation.” 10 any evidence to support it either way.” Regarding the articles purporting to quote Montoya-Frazier, the trial court overruled the hearsay and authentication objections12 but sustained the objection to considering the Rule 202 petition as evidence. Montoya-Frazier’s counsel then argued that because the petition was excluded and Maxwell’s counsel had stated that the articles had been offered “exclusively for reasons other than the truth of the matters in them,” there was no evidence to show the truth of any required factual proposition in the Rule 202 petition. See Tex. R. Civ. P. 202.4(a) (allowing trial court to order deposition “but only if[] it finds that: (1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or (2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure”). Montoya-Frazier’s counsel offered Montoya-Frazier’s unsworn declaration at the hearing, and it was admitted into evidence without objection. He then used the declaration to argue that there was no benefit to the deposition’s going forward based Despite the trial court’s overruling the objections to all four articles, Maxwell’s 12 counsel did not actually offer the articles into evidence at the hearing, although he argued that “even if the TCPA applied, there’s more than sufficient evidence here.” At the hearing’s conclusion, the trial court stated that it would consider Montoya-Frazier’s quotes. 11 on her statement that since September 2021, BBF “ha[d] not provided funding to support the provision of abortion services by Texas licensed physicians.”13 Montoya-Frazier’s counsel also raised authentication and hearsay objections to Cain’s letter, pointing out that the representative was not there to speak to the court, that his letter was not a “certified public record of anything,” and that it was offered for the truth of the matter asserted in the letter, in addition to being inadequately authenticated by Maxwell’s verification. The trial court ruled that it would consider the letter “for the fact that a cease and desist was sent” but would not consider “any of the statements in it to be true other than that it was sent to them.” Montoya-Frazier’s counsel also pointed out that the Rule 202 petition itself did not comply with the Rule’s requirements,14 was insufficient, and was overbroad, to which the trial court stated, “I’m not going to let it go forward on, you know, all of the things that are too broad, but it would be limited to that which is not too broad.”15 Maxwell’s counsel stated that he had not “disputed that if an abortion happens 13 outside of Texas, there’s no SB8 claim.” Montoya-Frazier’s counsel raised objections to, among other procedural points, 14 Maxwell’s petition’s failure to delineate the “two types of Rule 202 petition[,] . . . two different tracks” and their distinct either–or requirements. Because we do not reach all of these objections, in the interest of brevity, we will not recount them here. See Tex. R. App. P. 47.1. 15 When the trial court granted Maxwell’s petition, its order did not include any limits. Cf. Tex. R. Civ. P. 202.4(b) (“The order must contain any protections the court finds necessary or appropriate to protect the witness or any person who may be affected by the procedure.”). 12  Maxwell’s counsel conceded at the hearing that the Rule 202 petition was “an anticipated[-]suit petition,” although he also stated that the references to potential other claims could “happen along with [the] anticipated suit petition” to “gain some more definite information before actually pulling the trigger on the lawsuit.” The trial court stated, “It’s my reading of this whole petition that it’s an anticipated[-]suit petition.” Maxwell’s counsel asked the trial court for time to respond to the evidentiary objections. At the hearing’s conclusion, the trial court asked for briefing on Maxwell’s attachments, opting to reserve its evidentiary rulings. During the hearing, the trial court also observed that “this has been happening in other jurisdictions in the state, these kind of requests for depositions,” and it inquired as to what happened in those cases and “the litigation” on SB 8’s constitutionality. Maxwell’s counsel responded that he had “been involved in two others” regarding SB 8 and TCPA motions and that both were on appeal.16 Montoya-Frazier’s counsel 16 In his Rule 202 petition, Maxwell asserted that there were no ongoing cases between himself and Montoya-Frazier but that “[t]here are several ongoing cases that seek to restrain state officials and private individuals from enforcing certain provisions” of SB 8. He listed two ongoing cases: Whole Women’s Health v. Jackson, 1:21-cv-00616-RP, which remains pending on remand on a standing question as to attorney’s fees, see 31 F.4th 1004, 1006 (5th Cir. 2022), and Texas Right to Life v. Van Stean, No. 03-21-00650-CV. See Whole Women’s Health v. Jackson, 556 F. Supp. 3d 595, 602 (W.D. Tex. 2021) (denying motions to dismiss), aff’d in part, rev’d in part, 595 U.S. 30, 35, 142 S. Ct. 522, 530 (2021) (concluding that certain abortion providers could pursue pre-enforcement challenges to SB 8 against some defendants but not others); see also Whole Woman’s Health v. Jackson, 642 S.W.3d 569, 572 (Tex. 2022) (concluding on certified question that Texas law does not authorize certain state officials to directly or indirectly enforce SB 8). 13 advised that a third case was also pending and that two of them were pending in this appellate court. The trial court asked, “[D]o we all agree that whatever I were to rule on this case, . . . nothing is going to happen until the Court of Appeals determines the constitutionality of this senate bill?” Montoya-Frazier’s counsel agreed, and Maxwell’s counsel stated, “[W]e assumed there’s a good chance that’s the case.” C. Subsequent filings Not quite three weeks later, Maxwell responded to the evidentiary objections. He responded to the authentication objections by attaching to the response another unsworn declaration by his counsel. In the unsworn declaration, his counsel averred that the Prism article was “an authentic copy of a news report that [he] downloaded from Prism’s website on August 23, 2022,” and the SAR article was “an authentic copy of a news report that [he] downloaded from the San Antonio Report’s website on August 23, 2022.” Maxwell’s counsel also averred that Exhibits 1 and 2 to Maxwell’s TCPA response—the WPM article and NBC article—were “authentic cop[ies]” of news reports he had downloaded from Washington Post’s website on October 7, 2022, and from NBC News’s website on March 18, 2022. Van Stean was a TCPA case brought in response to a declaratory-judgment action regarding SB 8’s constitutionality. See Tex. Right to Life v. Van Stean, 704 S.W.3d 6, 8 (Tex. App.—Austin 2023) (affirming denial of TCPA motion), rev’d, 702 S.W.3d at 351 (reversing to consider standing). A petition after remand was filed in the supreme court on June 1, 2026. See Tex. Right to Life v. Van Stean, 729 S.W.3d 896, 903 (Tex. App.—Austin 2026, pet. filed) (affirming MDL court’s denial of TCPA motion). 14  Montoya-Frazier addressed his arguments, requested a written ruling on all of the objections, and objected to any failure to rule on the objections. She also requested written rulings on the objections to the form of Maxwell’s Rule 202 petition and asked the trial court to rule on all of the objections before making its final ruling on the TCPA motion and the Rule 202 petition. She also pointed out to the trial court that Maxwell had again failed to properly authenticate his evidence, noting that Maxwell’s counsel’s new declaration still failed to meet all of Section 132.001(d)’s requirements.17 D. Evidentiary rulings On March 10, 2023, the trial court signed an order on the evidentiary objections. The trial court sustained part of the objection that Maxwell’s Rule 202 petition was not competent evidence and could not be considered in a Rule 202 proceeding, stating, “The Court will not consider the Petition to prove the facts asserted. The Court will consider the assertions made and the exhibits cited to.” Regarding the objections that all of the relevant facts about Montoya-Frazier and BBF in Paragraphs 6, 7, 17–19, 27, 31, 33, 34, 39, and 44–45 of the petition were “outside of [Maxwell’s] personal knowledge, and [were] thus either without foundation 17 Contrary to Civil Practice and Remedies Code Section 132.001(d)’s requirements, although Maxwell’s counsel included his address and execution information (and identified the correct client), he again omitted—and expressly declined to include—his date of birth. Cf. Tex. Civ. Prac. & Rem. Code § 132.001(d) (unsworn-declaration requirements); Hays St. Bridge Restoration Grp., 570 S.W.3d at 702 & n.15. Montoya-Frazier appears to have abandoned this argument in this proceeding. 15 or [were] inadmissible hearsay, and [could not] be used to support an evidentiary burden under the TCPA,” the trial court sustained the objections as to Paragraphs 1718 and 27 19 of the petition, but it overruled the objection “as to all others.”20 E. Order Two weeks after ruling on the evidentiary objections, the trial court signed an order denying the plea to the jurisdiction and TCPA motion and granting the Rule Paragraph 17 states, “Montoya-Frazier and the [BBF] have been violating and 18 continue to violate [Article 4512.2’s] criminal statutory prohibition by paying for other people’s abortions—even when those abortions are purely elective and are not performed for the purpose of saving the mother’s life.” Paragraph 27 states, “In addition to civil liability under SB 8, Montoya-Frazier 19 and the [BBF], along with each of their employees, volunteers, board members, and donors, have committed acts of first-degree murder by aiding or abetting illegal self-managed abortions in Texas.” 20 During the hearing, the trial court stated that it would not consider the Rule 202 petition as evidence. Paragraphs 40, 44–46, and 48–49 contained Maxwell’s assertions that allowing him to take the deposition would prevent the failure or delay of justice in an anticipated suit, see Tex. R. Civ. P. 202.4(a)(1), and that the burden on Montoya-Frazier would be modest and the value of the information sought would outweigh that burden, see Tex. R. Civ. P. 202.4(a)(2), but Maxwell attached no evidence to support these assertions except, as he argues here, by implication. Cf. Buckle Bunnies I, 734 S.W.3d at 11 (stating that a Rule 202 order requires support beyond mere allegations). The trial court overruled the objections that the Prism, SAR, WPM, and NBC articles and the Cain letter were inadmissible based on hearsay and inadequate authentication; overruled the objections that the Prism article, the Cain letter, and the WPM and NBC articles were irrelevant; and overruled the objection that the Prism article was prejudicial. The trial court stated that it would consider the Cain letter “as [a] cease and desist letter, not for truth of statements therein.” 16 202 petition. As to Rule 202, the trial court made the following findings and gave the following instructions: The Court finds that the likely benefit of allowing petitioner Zach Maxwell to depose Ms. Montoya-Frazier by oral examination outweighs the burden or expense of the procedure. See Tex. R. Civ. P. 202.4(a)(2). The Court further finds that allowing Mr. Maxwell to depose Ms. Montoya-Frazier by oral examination and discover the requested documents will prevent a failure or delay of justice in an anticipated suit. See Tex. R. Civ. P. 202.4(a)(1). The Court therefore grants Mr. Maxwell’s request to depose Ms. Montoya-Frazier by oral examination and orders that Montoya-Frazier produce the documents and tangible things described in the subpoena attached as Exhibit 6 to Mr. Maxwell’s petition. The deposition shall be held and the documents and tangible [sic] produced at a time and place to be agreed by the parties. F. First interlocutory appeal Montoya-Frazier and BBF brought a timely interlocutory appeal of the denial of their TCPA motion, see Buckle Bunnies I, 734 S.W.3d at 6, which stayed all other trial court proceedings pending that appeal’s resolution, see Tex. Civ. Prac. & Rem. Code § 51.014(a)(12), (b). Each party received two extensions of time for their opening briefs during that appeal’s pendency. We also gave Montoya-Frazier and BBF an extension to file their reply brief. On March 20, 2024, we informed the parties that we would take the case en banc and requested supplemental briefing on the DeAngelis issue, see Buckle Bunnies I, 734 S.W.3d at 6, setting 20-day filing deadlines. The case was submitted en banc via oral argument on May 22, 2024. On February 13, 2025, the court affirmed en banc the denial of the TCPA motion and remanded the case to the trial court for further proceedings. See id. at 6, 34–35. 17 Montoya-Frazier and BBF then filed a petition for review in the supreme court in cause number 25-0261. The supreme court requested a response to the petition from Maxwell on August 1, 2025. The supreme court denied the petition on October 24, 2025. Our mandate issued on December 8, 2025. See Tex. R. App. P. 18.1(a) (stating when mandate issues from a court of appeals), (c) (stating that mandate “may be issued earlier if the parties so agree, or for good cause on the motion of a party”). G. Original proceeding and second appeal In January 2026, Montoya-Frazier and BBF appealed the Rule 202 order in cause number 02-26-00053-CV and petitioned for writ of mandamus in cause number 02-26-00062-CV. See Jorden, 249 S.W.3d at 419. They informed this court that they had appealed in an abundance of caution based on Maxwell’s April 8, 2024 declaration in Fund Texas Choice v. Garza, No. 1:22-cv-00859-RP,21 and attached that declaration to their notice of appeal. In the declaration, Maxwell asserted that he had no intention and had never had any intention of suing BBF under SB 8 but also stated that he was “interested in pursuing potential SB 8 enforcement litigation only against the [BBF] and its employees, volunteers, and board members—and then only if evidence emerges showing that the [BBF] has violated [SB] 8.” [Emphasis added.] He did not otherwise expressly An appeal in that cause number has been filed in the Fifth Circuit under the 21 name Fund Texas Choice v. Deski, 790 F. Supp. 3d 534, 551 (W.D. Tex. 2025). 18 mention whether he anticipated suing Montoya-Frazier but noted that he had filed the Rule 202 petition against her. On January 27, we consolidated the cases. In our consolidation order, we asked Montoya-Frazier and BBF to file in their appeal any briefing supplemental to their mandamus petition within 30 days of our order and informed Maxwell that his consolidated appellee’s brief and response to the mandamus petition would be due 30 days later. Montoya-Frazier and BBF timely filed their supplemental brief. Maxwell moved for an extension of time to file his mandamus response and appellee’s brief to April 27, and the court granted his requested extension. On April 18, he requested another extension, until May 27, and the court granted the request but warned that further extension requests would be strongly disfavored. Maxwell filed his brief on May 27. On June 15, Montoya-Frazier and BBF requested an extension until July 27 to file their reply brief. The court granted the motion in part, giving them until June 30 and ordered that “NO FURTHER EXTENSIONS WILL BE GRANTED.” See Tex. R. App. P. 52.8(a)–(b) & 52.10 (implicitly requiring expedited consideration of mandamus petitions); see also 2nd Tex. App. (Fort Worth) Internal Operating Procedures (last updated April 2025) (stating that in original proceedings, the court generally sets a 10-day deadline if it requests a response and a 5-day deadline for any reply but that “[s]ometimes circumstances warrant a shorter or longer deadline”). 19  III. Issues Presented In the first issue, Montoya-Frazier argues that she has no adequate remedy at law that will protect her from having to submit to an improper deposition. 22 In the second issue, she argues that the trial court abused its discretion by granting the Rule 202 petition because Maxwell failed to present any admissible evidence that the benefit of discovery would outweigh its burden or that the discovery sought is necessary to prevent a failure or delay of justice. In the third issue, in multiple sub-issues, Montoya-Frazier contends that the trial court abused its discretion by granting the Rule 202 petition because Maxwell (1) failed to identify the type of Rule 202 relief sought; (2) failed to follow the pleading rules applicable to an anticipated-suit petition; (3) failed to follow the venue provisions for a claim-investigation petition; (4) made a request for document discovery that is not allowed under Rule 202; and (5) made a request to investigate claims, including criminal claims, that he has no authority to investigate. And in the fourth issue, she asserts that the trial court abused its discretion by ordering pretrial discovery of a potential claim made under an unconstitutional statute. Maxwell responds that mandamus is the appropriate vehicle to consider these issues, that Montoya-Frazier and BBF waived their right to mandamus relief “by waiting Montoya-Frazier and BBF have expressed their belief that mandamus is the 22 appropriate vehicle for review but have stated that they simultaneously pursued the appeal to preserve their rights under either outcome. 20 for nearly three years after the district court’s ruling before petitioning this Court for mandamus relief,” and that the trial court did not clearly abuse its discretion by granting his Rule 202 petition. IV. Standard of Review We review a Rule 202 order for an abuse of discretion under both the appellate and mandamus standards. See In re Does, 337 S.W.3d 862, 865 (Tex. 2011) (orig. proceeding); MCR Oil Tools, LLC v. Dillard, No. 02-25-00055-CV, 2025 WL 2884207, at *2 (Tex. App.—Fort Worth Oct. 9, 2025, no pet.) (mem. op.). A trial court abuses its discretion when it fails to correctly analyze or apply the law to the undisputed facts, when it acts arbitrarily or unreasonably, or when its ruling is based on factual assertions unsupported by the record. See In re H.E.B. Grocery Co., 492 S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). Further, a trial court has no discretion in determining what the law is or in applying the law to the facts. Walker, 827 S.W.2d at 840. A trial court’s error of law or erroneous application of law to facts is always an abuse of discretion. In re Illinois Nat’l Ins., 685 S.W.3d 826, 835 (Tex. 2024) (orig. proceeding) (citing In re Facebook, Inc., 625 S.W.3d 80, 86 (Tex. 2021) (orig. proceeding)). Ordering discovery that exceeds what our procedural rules permit is an abuse of discretion. In re Off. of Att’y Gen., 702 S.W.3d 360, 364 (Tex. 2024) (orig. proceeding). To obtain mandamus relief, a relator must also show that he or she has no adequate appellate remedy. See In re Acad., Ltd., 625 S.W.3d 19, 25 (Tex. 2021) (orig. 21 proceeding). An appeal is inadequate “when parties are in danger of permanently losing substantial rights,” which occurs when “the appellate court would not be able to cure the error.” Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 641 (Tex. 2021); see In re K & L Auto Crushers, LLC, 627 S.W.3d 239, 256 (Tex. 2021) (orig. proceeding) (explaining why many discovery violations cannot be remedied on appeal); see also In re Halbert, No. 02-25-00684-CV, 2026 WL 406037, at *3 (Tex. App.—Fort Worth Feb. 12, 2026, orig. proceeding) (mem. op.) (observing that “[o]nce taken, depositions cannot be ‘untaken’” and that mandamus thus may be used to set aside an improper Rule 202 order). V. Rule 202 We explained in Buckle Bunnies I that Rule 202 “is a detailed rule for particular circumstances,” that it is limited “[b]ecause it intrudes into otherwise private matters,” and that its use is to be carefully supervised and not to be taken lightly. 734 S.W.3d at 10–11 (referencing Does, 337 S.W.3d at 865). As a presuit-discovery rule, Rule 202 is considerably more limited than the regular discovery rules that apply after a lawsuit is filed. Id. at 11. In Buckle Bunnies I, we listed some of the very specific rules that govern granting a Rule 202 petition, particularly that because its procedures are “equitable in nature,” a trial court “must not permit it to be used inequitably.” Id. (citations omitted); see Does, 337 S.W.3d at 865 (agreeing that judges should maintain an active oversight role to ensure that Rule 202 discovery is not misused). 22  We also observed in Buckle Bunnies I that because a Rule 202 petition does not seek to vindicate a claim, limitations can run before the Rule 202 potential-claim investigation has been completed. 734 S.W.3d at 26–27; see Glassdoor, Inc. v. Andra Grp., LP, 575 S.W.3d 523, 530 (Tex. 2019) (explaining that a petitioner could have filed suit and conducted discovery but chose instead to proceed under Rule 202, “thereby risking the timeliness of its potential claims”). 23 We have also previously stated that a Rule 202 petitioner must present evidence—not just allegations—to obtain a presuit deposition and to support a finding either that, with respect to potential claims, the requested deposition’s likely benefit outweighs its burden or that it may prevent a failure or delay of justice in an anticipated suit. See Tex. R. Civ. P. 202.4(a)(1), (2); Buckle Bunnies I, 734 S.W.3d at 11; MCR Oil Tools, LLC, 2025 WL 2884207, at *5; Arlington ISD v. Williams, Nos. 02-23-00142-CV & 02-23-00155-CV, 2023 WL 8643040, at *11 (Tex. App.—Fort Worth Dec. 14, 2023, orig. proceeding) [mand. denied] (mem. op.); In re Kaddatz, No. 02-23-00336-CV, 2023 WL 7210337, at *4 (Tex. App.—Fort Worth Nov. 2, 2023, orig. proceeding) (mem. op.). In Glassdoor, the supreme court observed that while limitations is an affirmative 23 defense, “where the statute of limitations runs on a claim as a matter of law while a Rule 202 petition seeking to investigate that claim is being litigated, the Rule 202 proceeding is rendered moot.” 575 S.W.3d at 527 n.3. In that case, when the limitations period had conclusively run on the potent