Full Opinion

NUMBER 13-26-00452-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG BERNARDO DIAZ, Appellant, v. DELIA CAVAZOS-GAMEZ, Appellee. ON APPEAL FROM THE COUNTY COURT AT LAW NO. 9 OF HIDALGO COUNTY, TEXAS NUMBER 13-26-00469-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG IN RE BERNARDO DIAZ AND ALEPH DEVELOPMENT, LLC ON PETITION FOR WRIT OF MANDAMUS MEMORANDUM OPINION Before Chief Justice Tijerina and Justices West and Cron Memorandum Opinion by Chief Justice Tijerina By notice of appeal filed in our appellate cause number 13-26-00452-CV, appellant Bernardo Diaz challenges orders granting his presuit deposition and denying his motion to dismiss. By petition for writ of mandamus filed in our appellate cause number 13-26- 00469-CV, relators Diaz and Aleph Development, LLC (Aleph) assail these same orders. 1 We address the appeal and petition for writ of mandamus together in a single memorandum opinion in the interests of judicial economy and efficiency. We conditionally grant the petition for writ of mandamus, and we dismiss the appeal as moot. I. BACKGROUND On February 10, 2026, appellee and real party in interest Delia Cavazos-Gamez filed a “Rule 202 Petition for Oral Deposition and Records Production with Verification” seeking the presuit depositions of the corporate representative for Upper Valley Mail Services (UVMS) and its owner Patrick Hettler. Cavazos-Gamez alleged that she sought these presuit depositions to investigate “the use of improperly released confidential records and violations of Texas and Federal election laws with regard to the production and/or mass mailing of a negative campaign mailer” sent “to Harlingen District 1 residents 1 The appeal and original proceeding arise from trial court cause number CL-26-0913-I in the County Court at Law No. 9 of Hidalgo County, Texas, and the respondent is the Honorable Patricia O’Caña- Olivarez. See id. R. 52.2. 2 in order to influence the District 1 Commissioner election.” The Rule 202 petition stated that: [Cavazos-Gamez] asserts that her confidential records from the City of Harlingen were improperly accessed and then released by Harlingen officials acting ultra vires with respect to the Texas Public Information Act, common law privacy interests, and the City charter. Based on information and belief, the records were obtained by City officials and then released for use for personal and political reasons in a subsequent Harlingen election campaign. The improperly released records were used in a negative campaign mailer, mailed out to Harlingen District 1 residents in order to influence the District 1 Commissioner election against [Cavazos-Gamez] and in favor of her opponent Richard Uribe. (Footnote omitted). In the petition, Cavazos-Gamez explained that she had been “improperly arrested” for an “alleged domestic disturbance” but the charges against her were ultimately dismissed. She asserted that she sent an open records request to the Harlingen Police Department to obtain the records regarding this incident, and it provided her with a redacted copy of her case report but did not provide her with a copy of her mugshot. Cavazos-Gamez alleged that she had recently discovered “from a paper trail created internally within the City of Harlingen” that Michael Kester, then serving as the Harlingen Police Chief, had procured her unredacted case report and mugshot in response to a request from Harlingen Mayor Norma Sepulveda, and Kester forwarded them to Harlingen City Manager Gabriel Gonzalez. The unredacted case report and mugshot included a timestamp denoting the specific time that they were downloaded by the Harlingen Police Department. Cavazos-Gamez alleged that the objectionable campaign mailer containing her mugshot and portions of the case report included the same timestamp as those records that were procured by Kester in response to the Mayor’s request, and that the materials used in the campaign mailer “were the exact same 3 documents” that Kester provided to Gonzalez and Sepulveda. In this regard, Cavazos- Gamez asserted that Sepulveda and outgoing Commissioner Ford Kinsley “were known to have publicly endorsed candidate Uribe.” Cavazos-Gamez alleged that UVMS and Hettler produced and/or mailed the campaign mailer; however, the campaign mailer failed to contain a required disclaimer regarding who paid for it. Cavazos-Gamez thus requested the trial court to order the presuit depositions of Hettler and a representative for UVMS, and she further requested the production of documents to investigate the circumstances surrounding the campaign mailer as well as “any other potential parties.” She alleged that Rule 202 depositions may be ordered when the petitioner anticipates the institution of a suit in which the petitioner may be a party and when the petitioner seeks to investigate a potential claim and that “[b]oth standards apply and are satisfied in this case.” See TEX. R. CIV. P. 202.1, 202.4(a). On March 10, 2026, the trial court granted the Rule 202 petition allowing Cavazos- Gamez to take the requested depositions. However, Cavazos-Gamez thereafter agreed to forego the depositions because Hettler and UVMS agreed to produce all documents regarding or related to or containing information as to the hiring or retention of UVMS/[Hettler] to distribute or mail a campaign mailer to Harlingen residents out of a McAllen Post office using Postage Permit 333 related to the Harlingen City commission election campaign of Petitioner. This includes invoices and any emails related to retention of [UVMS and Hettler] for this purpose. See TEX. R. CIV. P. 11. Cavazos-Gamez further agreed to “dismiss the petition” upon receipt of these documents. Nevertheless, instead of dismissing her petition, Cavazos-Gamez filed a “Verified First Amended Original Petition for Oral Deposition and Records Production Pursuant to Rule 202 of the Texas Rules of Civil Procedure.” In her first amended petition, Cavazos- 4 Gamez sought to depose Diaz and a corporate representative for Aleph. Cavazos-Gamez reiterated the allegation made in her original petition that she sought these depositions to investigate “the use of improperly released confidential records and violations of Texas and Federal election laws with regard to the production and/or mass mailing of a negative campaign mailer” sent “to Harlingen District 1 residents in order to influence the District 1 Commissioner election.” The first amended original petition further stated that: [Cavazos-Gamez] asserts that the confidential records were improperly accessed and then released by elected officials and possibly others acting ultra vires with respect to the Texas Public Information Act, common law privacy interests, and applicable provisions of a city charter. Based on information and belief, the records were obtained by elected officials and possibly others and then released for use for personal and political reasons in a subsequent election campaign. The improperly released records were used in a negative campaign mailer by mailing them out to residents in order to influence the election against [Cavazos-Gamez] and in favor of her opponent [Uribe]. (Formatting modified; internal footnote omitted). Cavazos-Gamez alleged that Diaz and Aleph produced the flyer using a postage permit owned by UVMS, but the campaign mailer failed to include a required statutory disclaimer regarding who paid for it. The first amended original petition stated that Cavazos-Gamez sought the depositions of Diaz and Aleph to investigate various facts and circumstances regarding the mailer, including, inter alia, who provided the information contained in the campaign mailer and “any other potential parties.” In connection with the requested depositions, Cavazos-Gamez also sought the production of six categories of documents pertaining to the preparation of the campaign mailer. Cavazos-Gamez again alleged that she had met the standard to obtain these presuit depositions both for use in an anticipated suit and to investigate a potential claim or suit. See id. R. 202.1, 202.4. She thereafter filed a motion for partial dismissal as to her claims against Hettler and UVMS, and the trial court granted her motion. 5 Diaz and Aleph filed a motion to dismiss Cavazos-Gamez’s first amended original petition pursuant to the Texas Citizens Participation Act (TCPA), Texas Rule of Civil Procedure 91(a), and Texas Rule of Civil Procedure 202. See TEX. R. CIV. P. 91a, 202; TEX. CIV. PRAC. & REM. CODE §§ 27.003, 27.008, 51.014(a)(12). Their pleading included briefing regarding these issues, a general denial, a notice that discovery was automatically stayed, and a request for attorney’s fees and sanctions. Cavazos-Gamez filed a response to the motion to dismiss in opposition to all relief sought. On June 4, 2026, the trial court signed an order granting Cavazos-Gamez’s first amended original petition, thereby allowing Cavazos-Gamez to depose Diaz and Aleph’s corporate representative. The trial court’s order found that the likely benefit of allowing the depositions to investigate a potential claim outweighed the burden or expense of the procedure and that allowing the depositions may prevent a failure or delay of justice in an anticipated suit. See TEX. R. CIV. P. 202.4(a). The trial court ordered the depositions to take place within ten days, limited the topics to those contained in the petition, and ordered Diaz and Aleph to produce six categories of documents prior to the deposition. The order recited that the notice period was “shortened as allowed by law” because the witnesses were served with citation and notice of hearing and made no objection.” By separate order also signed on June 4, 2026, the trial court denied the motion to dismiss. This appeal and original proceeding ensued. II. RULE 202 DEPOSITIONS Texas Rule of Civil Procedure 202 allows a party to “petition the court for an order authorizing the taking of a deposition” before suit is filed in two circumstances: “(a) to perpetuate or obtain the person’s own testimony or that of any other person for use in an 6 anticipated suit; or (b) to investigate a potential claim or suit.” TEX. R. CIV. P. 202.1; see In re East, 476 S.W.3d 61, 65 (Tex. App.—Corpus Christi–Edinburg 2014, orig. proceeding). Rule 202.2 governs the form and requirements for such a petition. See TEX. R. CIV. P. 202.2; In re Reassure Am. Life Ins., 421 S.W.3d 165, 171–74 (Tex. App.— Corpus Christi–Edinburg 2013, orig. proceeding). The trial court “must order a deposition to be taken if, but only if,” it finds either that “allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit” or that “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.” TEX. R. CIV. P. 202.4(a); see In re Jorden, 249 S.W.3d 416, 423 (Tex. 2008) (orig. proceeding). In either event, such a finding is required and may not be implied from the record. In re Does, 337 S.W.3d 862, 864–65 (Tex. 2011) (orig. proceeding) (per curiam); Rodriguez v. Cantu, 581 S.W.3d 859, 867 (Tex. App.—Corpus Christi–Edinburg 2019, no pet.) (combined app. & orig. proceeding). The petitioner has the burden to present the trial court with a “basis” for this finding. In re Does, 337 S.W.3d at 865; see Gordon Indep. Sch. Dist. v. Hinkson, 661 S.W.3d 922, 928 (Tex. App.—Eastland 2023, no pet.). “The law is clear that a petitioner seeking a presuit deposition must present evidence to meet its burden to establish the facts necessary to obtain the deposition.” In re East, 476 S.W.3d at 68; see In re Valley Tel. Coop., Inc., No. 13-25-00438-CV, 2025 WL 2995467, at *3 (Tex. App.—Corpus Christi–Edinburg Oct. 24, 2025, orig. proceeding) (mem. op.). “Rule 202 depositions are not now and never have been intended for routine use.” In re Jorden, 249 S.W.3d at 423; see Gordon Indep. Sch. Dist., 661 S.W.3d at 929; 7 Rodriguez, 581 S.W.3d at 868. Seeking discovery from a deponent before a lawsuit has been filed presents both practical and due process problems. See In re Jorden, 249 S.W.3d at 423; In re Office of Att’y Gen., 722 S.W.3d 292, 297 (Tex. App.—15th Dist. 2025, orig. proceeding). Therefore, “[c]ourts must strictly limit and carefully supervise [presuit] discovery to prevent abuse” of Rule 202. In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding) (per curiam); see Gordon Indep. Sch. Dist., 661 S.W.3d at 929; see also In re Hernandez, No. 13-21-00244-CV, 2022 WL 627232, at *9 (Tex. App.— Corpus Christi–Edinburg Mar. 3, 2022, orig. proceeding) (mem. op.). III. JURISDICTION We first address our jurisdiction over this interlocutory appeal and petition for writ of mandamus. See Haynes & Boone, LLP v. NFTD, LLC, 631 S.W.3d 65, 71 (Tex. 2021). Both the appeal and original proceeding arise, in relevant part, from the trial court’s order granting presuit depositions. An order granting a presuit deposition is appealable when it is sought from someone against whom suit is not anticipated. In re Jorden, 249 S.W.3d at 419; Montoya-Frazier v. Maxwell, 734 S.W.3d 1, 11 (Tex. App.—Fort Worth 2025, pet. denied); Rodriguez, 581 S.W.3d at 866. When an order granting a presuit deposition is sought from an anticipated defendant, the order “is considered ancillary to the subsequent suit, and thus neither final nor appealable.” In re Jorden, 249 S.W.3d at 419. Here, Cavazos-Gamez’s first amended original petition asserts that she is seeking the depositions both to perpetuate or obtain testimony for use in an anticipated suit and that she is seeking to investigate a potential claim. See TEX. R. CIV. P. 202.1, 202.2(d). Thus, although Diaz asserts that he and Aleph are “third party witnesses,” they assail the trial court’s order by both appeal and mandamus “to ensure review regardless of how this 8 Court characterizes the [o]rder.” Cavazos-Gamez contends that the mandamus should be dismissed “[b]ecause [Diaz and Aleph] have filed an appeal,” and because her first amended original petition does not expressly state that she “anticipates a suit in this matter against the relators as parties.” Cavazos-Gamez sought the presuit depositions, in part, in anticipation of suit against Diaz and Aleph, and thus the trial court’s order would not be reviewable by ordinary appeal. See In re Wolfe, 341 S.W.3d at 933; In re Jorden, 249 S.W.3d at 419. Further, Diaz and Aleph assert that they lack an adequate remedy by appeal because the depositions, once taken, “cannot be undone.” We agree. As explained by the Supreme Court of Texas: “Appeal from a trial court’s discovery order is not adequate if: (1) the appellate court would not be able to cure the trial court’s error on appeal [or] (2) the party’s ability to present a viable claim or defense is vitiated or severely compromised.” In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998)[ (orig. proceeding)]. [The relator] has a right to proper application of the discovery rules governing depositions, and if discovery takes place under an improper order, the error cannot be rectified on appeal. See, e.g., In re Berry, 578 S.W.3d 173, 182 (Tex. App.—Corpus Christi–Edinburg 2019, orig. proceeding) (“Mandamus is proper here because the [deposition] order is not permitted by the Texas Rules of Civil Procedure and because any discovery undertaken pursuant to the order cannot be undone.”). As we have consistently held, parties lack an adequate appellate remedy from orders compelling discovery beyond what the rules allow. Such is the case here. “[O]nce the deposition has been taken, it cannot be untaken.” In re Liberty Cnty. Mut. Ins.[], 557 S.W.3d 851, 858 (Tex. App.— Houston [14th Dist.] 2018, orig. proceeding). In re Millwork, 631 S.W.3d 706, 714–15 (Tex. 2021) (orig. proceeding) (per curiam) (internal footnote omitted). Thus, we determine that Diaz and Aleph lack an adequate remedy by appeal, and we proceed to address their claims in the petition for writ of mandamus. 9 IV. PETITION FOR WRIT OF MANDAMUS In their petition for writ of mandamus, Diaz and Aleph contend that the trial court abused its discretion by ordering discovery that Rule 202 does not permit and by denying their motion to dismiss. They present six issues in support of these contentions. In their first issue, Diaz and Aleph assert that the trial court abused its discretion “because the petition defines a cause of action against both the City of Harlingen and named City officials, but the petitioner never served them, as Rules 202.2(f) and 202.3(a) require.” Diaz and Aleph argue that Cavazos-Gamez “identified her adverse parties, then removed and failed to serve them.” Diaz and Aleph further contend: When a petitioner anticipates suit, Rule 202 does not leave the identification and service of adverse parties to the petitioner’s discretion. The petition must state the names of the persons the petitioner “expects to have interests adverse to petitioner’s in the anticipated suit,” TEX. R. CIV. P. 202.2(f), and at least fifteen days before the hearing the petitioner must serve those persons with the petition and notice of the hearing, TEX. R. CIV. P. 202.3(a). The requirement is not a formality; it guarantees the persons whose conduct is under investigation notice and an opportunity to appear and contest the discovery before a court authorizes it. The petitioner invoked the anticipated-suit standard and obtained the Order on that basis: the Order finds that the depositions “may prevent a failure or delay of justice in an anticipated suit.” Rule 202.3(a)’s duty to serve the persons she expects to have adverse interests was therefore triggered. [Cavazos-Gamez’s] own pleadings show that she knew exactly who those persons were and removed them to avoid serving them. Her original petition named them and tied each to the alleged wrong. The amended petition then surgically removed every one of those references: the City of Harlingen, the Mayor, the City Manager, and the Chief disappear, and the named officials become “elected officials and possibly others.” A petitioner who named her adverse parties, quoted their communications, and dated their conduct in a verified petition cannot be heard to say a month later that she could not identify them. The amendment stripped from the face of the pleading the very persons Rules 202.2(f) and 202.3(a) required her to name and serve, so that the discovery could proceed against their interests without their knowledge. (Formatting modified; internal citations omitted). 10 Cavazos-Gamez counters this argument by asserting that her first amended petition “substantially complies” with Rule 202’s requirements. We disagree. If suit is anticipated, the petition “must” state the names, addresses, and telephone numbers of the persons petitioner expects to have interests adverse to petitioner’s in the anticipated suit or state that this information cannot be ascertained through diligent inquiry and describe those persons. See TEX. R. CIV. P. 202(f). Cavazos-Gamez’s first amended petition fails to do either. Cavazos-Gamez further asserts that she “unquestionably” sought presuit discovery “primarily” to investigate a potential claim and the trial court could have granted her petition on this ground. A review of the record in this case indicates otherwise. As stated previously, Cavazos-Gamez first sought the presuit depositions of Hettler and a corporate representative of UVMS. Her original petition seeking those depositions specifically tracks the transmission and/or use of the alleged confidential information to or among Hettler, UVMS, former Police Chief Michael Kester, City Manager Gabriel Gonzalez, Mayor Norma Sepulveda, and implicates former City Commissioner Ford Kinsley and former City Commissioner Richard Uribe. The trial court granted this petition, and UVMS and Hettler provided Gamez with documents regarding their involvement in the campaign mailer. Cavazos-Gamez’s first amended petition omits any discussion of the transmission and use of her alleged confidential information, and it further omits any mention of Hettler, Kester, Gonzalez, Sepulveda, and Kinsley. Nevertheless, Cavazos-Gamez’s first amended original petition alleges that “confidential records were improperly accessed and then released by elected officials and possibly others,” and the petition invokes causes of 11 action for violations of Texas and Federal election law, the Texas Public Information Act, the city charter, and common law privacy interests. The first amended original petition sought the deposition of Diaz to investigate the foregoing and “any other potential parties,” and it invokes authority regarding “pre-litigation depositions.” In short, based on her allegations, Cavazos-Gamez has existing claims based on firm factual foundations, and she has more than enough information to institute litigation without the need for additional presuit discovery. Given our directive to strictly limit and carefully supervise presuit discovery, see In re Wolfe, 341 S.W.3d at 933, we conclude that the trial court could not have granted Cavazos-Gamez’s first amended petition on grounds that the presuit depositions were necessary to investigate potential claims. Accordingly, we determine that the trial court abused its discretion by granting Cavazos- Gamez’s first amended original petition for presuit depositions. Having reached this conclusion, we need not address Diaz’s and Aleph’s remaining issues. See TEX. R. APP. P. 47.4. We lift the stay previously imposed in this case. We conditionally grant the petition for writ of mandamus, and we direct the trial court to vacate its orders of June 4, 2026. V. APPEAL By six issues in the appeal, Diaz again contends that the trial court abused its discretion by granting the Rule 202 petition and by denying their motion to dismiss Cavazos-Gamez’s claims. We have already determined that the trial court erred in granting the Rule 202 petition in the petition for writ of mandamus and, therefore, the issues in this appeal have been rendered moot. See Abbott v. Mex. Am. Legislative Caucus, Tex. House of Representatives, 647 S.W.3d 681, 689 (Tex. 2022); Heckman v. 12 Williamson County, 369 S.W.3d 137, 162 (Tex. 2012). Therefore, we dismiss the appeal as moot. VI. CONCLUSION We conditionally grant the petition for writ of mandamus filed in our appellate cause number 13-26-00469-CV. We direct the trial court to vacate its June 4, 2026 orders and to proceed in accordance with this memorandum opinion. Our writ issue only if the trial court fails to promptly comply. We dismiss the appeal in our appellate cause number 13- 26-00452-CV as moot. JAIME TIJERINA Chief Justice Delivered and filed on the 31st day of August, 2026. 13