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

Opinion

In the

Court of Appeals

Second Appellate District of Texas at Fort Worth

___________________________

No. 02-26-00053-CV

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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

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No. 02-26-00062-CV

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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

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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.

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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

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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).

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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.

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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,

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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).

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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.

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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.”

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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.

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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.”).

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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).

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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).

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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.

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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.”

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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.

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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).

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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”).

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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.

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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.

22

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).

23

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 potential claims the petitioner sought to investigate under Rule 202, the petition for presuit discovery became moot, and the supreme court dismissed the case for want of jurisdiction. Id. at 531.

24

A Rule 202 petitioner cannot rely upon a verified pleading to meet its burden of proving the facts asserted in its petition. Kaddatz, 2023 WL 7210337, at *4; see Williams, 2023 WL 8643040, at *11 (stating that the Rule 202 petitioners “had the burden to both plead and prove that the likely benefit of allowing them to take the requested depositions to investigate their potential claims outweighed the depositions’ burden or expense” (emphasis added)). The required findings likewise cannot be implied in support of the trial court’s order. Does, 337 S.W.3d at 865. Granting a petition that fails to meet its Rule 202 burden is an abuse of discretion. See In re Guillory, No. 13-23-00410-CV, 2024 WL 2066830, at *7 (Tex. App.—Corpus Christi–Edinburg May 8, 2024, orig. proceeding) (mem. op.). And the request for production of documents in a Rule 202 petition is improper. DeAngelis, 556 S.W.3d at 858.

As pointed out by Montoya-Frazier and BBF in both the trial court and in this consolidated proceeding, Maxwell’s Rule 202 petition was insufficient on many grounds, most—if not all—of which should have prevented its granting. In the interest of judicial economy, we will address the most immediately apparent deficiencies showing a clear abuse of discretion, 24 see id., but we must first resolve the procedural appeal-versus-mandamus issue. See Jorden, 249 S.W.3d at 419; see also M.O. Dental Lab v.

24 We do not reach the arguments on SB 8’s constitutionality because the principle of judicial restraint requires us to avoid deciding constitutional questions when a case can be decided on nonconstitutional grounds. See T.L. v. Cook Children’s Med. Ctr., 607 S.W.3d 9, 35 (Tex. App.—Fort Worth 2020, pet. denied).

25

Rape, 139 S.W.3d 671, 673 (Tex. 2004) (requiring appellate court to review issues affecting jurisdiction). A. Appellate and original proceedings Presuit deposition orders are appealable only if sought from a third party “against whom suit is not anticipated” or contemplated. Jorden, 249 S.W.3d at 419. If the petition indicates that the person from whom a presuit deposition is sought may be a defendant in a future lawsuit, then appeal is not an option. See id.

On its face, Maxwell’s Rule 202 petition makes abundantly clear that he wanted to depose Montoya-Frazier not only based on his anticipation of instituting suit against her and BBF but also because he wanted “to investigate potential claims that he or others might bring . . . against any person or organization that performed or aided or abetted an illegal post-heartbeat abortion,” i.e., Montoya-Frazier and BBF. [Emphasis added.] See Tex. R. Civ. P. 202.2(d)(1)–(2). Because the Rule 202 petition shows that Maxwell considered both Montoya-Frazier and BBF as anticipated or potential defendants under either subsection of Rule 202.2(d), 25 we dismiss the appeal for want of jurisdiction. See Jorden, 249 S.W.3d at 419.

Given Maxwell’s subsequent, somewhat ambiguous assertions in another court 25

about future lawsuits, Montoya-Frazier and BBF had reason to file both an original proceeding and appeal in this court in an abundance of caution. In his combined response and appellee’s brief here, however, Maxwell makes clear that he “continues to anticipate litigation against Montoya-Frazier and [BBF].”

26

B. Laches Maxwell contends that Montoya-Frazier waited too long to seek mandamus relief, arguing that “there was no obstacle” to pursuing mandamus as to the portion of the trial court’s order granting the Rule 202 petition while the TCPA interlocutory appeal was pending. He asserts that this delay of “nearly three years,” for which she “has offered no explanation,” was unreasonable.

Waiting too long to file a petition for writ of mandamus can be a tactical error if there is no objectively good reason for the delay. See In re Am. Airlines, Inc., 634 S.W.3d 38, 42–43 (Tex. 2021) (orig. proceeding)26 (citing In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 676 (Tex. 2009) (orig. proceeding) (delay warranted27), and Rivercenter Assocs. v.

26 In American Airlines, the relator “reasonably explained the year-long period between the trial court’s order compelling [the apex] deposition” and filing its mandamus petition in the court of appeals. 634 S.W.3d at 43. That is, the relator showed that it did not receive notice of the order compelling the deposition until four months after its issuance, at which point the parties were on notice in that order that a new notice designating deposition topics had to be served, and—as of the issuance of the supreme court’s opinion—“neither [the new notice nor designation] ha[d] occurred, with no explanation on [real party’s] part.” Id. When the trial date loomed, the relator “prudently sought mandamus relief to avoid the necessity of rescheduling the trial.” Id.

27 In International Profit Associates, the relator moved to dismiss in January 2006 based on a forum-selection clause and timely pursued a hearing on the motion, but the trial court did not rule on it for over a year and then did not sign the corrected order—despite the relator’s efforts—until October 2007. 274 S.W.3d at 675–76. The relator did not receive the corrected order until December 2007. Id. at 675. The relator then filed a mandamus petition in January 2008 in the court of appeals, which denied it in February 2008; the relator filed its petition in the supreme court in March 2008. Id. at 676. The supreme court held that based on the record and the relator’s explanations, the relator had not “slumber[ed] on its rights” to the extent that it had waived its right to seek mandamus relief, id. at 676–77, and “declined to charge the relator with the trial

27

Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding) (unjustified delay 28)); see also In re Whataburger Rests. LLC, 645 S.W.3d 188, 193, 198 (Tex. 2022) (orig. proceeding).

However, to invoke the equitable doctrine of laches, the real party in interest ordinarily must show both an unreasonable delay by the relator in asserting its rights29 and also the real party in interest’s good faith and detrimental change in position because of the delay. In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding) (observing that real party in interest had failed to show a detrimental change in position between the time the motion for reconsideration was denied in the trial court in December 2008 and the mandamus petition’s filing in the court of appeals in March 2009).

court’s and opposing party’s ‘errors and delays’” that had hindered the relator’s ability to initiate mandamus proceedings, Am. Airlines, 634 S.W.3d at 43 (discussing Int’l Profit Assocs., 274 S.W.3d at 676–77).

28 In Rivercenter Associates, the relator sued, and the real parties filed a jury demand on March 17, 1992. 858 S.W.2d at 367. On July 14, 1992, the relator moved to set a trial date on the jury docket. Id. Two weeks later, however, the relator moved to quash based on jury-waiver provisions in the parties’ agreements. Id. Because the record revealed no justification for the relator’s four-month delay to assert the jury-waiver provisions, the court held that the relator had not shown diligent pursuit of a right to a non-jury trial. Id.

29 In Whataburger, for example, the supreme court held that there was no unreasonable delay when the relator acted promptly as soon as it learned about the trial court’s order for which the trial court clerk had failed to give timely notice. 645 S.W.3d at 193–94 (“By the time Whataburger received notice of the trial court’s order, 153 days had passed.”).

28

Further, a real party in interest can waive laches by failing to complain about a relator’s lack of timeliness in the trial court, particularly if the relator had a good reason to wait. The supreme court addressed this good-reason-to-wait situation in In re Chefs’ Produce of Houston, Inc., 667 S.W.3d 297, 302 n.3 (Tex. 2023). In that case, the real party in interest did not raise laches in either the trial court or the intermediate court. Id. However, even if it had, the supreme court stated that such an argument was meritless when the relator sought reconsideration and then mandamus relief shortly after the supreme court issued an opinion directly on point, stating that “[s]eeking reconsideration—and when that failed, mandamus relief—in light of a significant, on-point opinion from the state’s civil court of last resort is hardly dilatory.” Id.

Here, the TCPA appeal stayed all of the trial-court proceedings as of April 4, 2023. See Tex. Civ. Prac. & Rem. Code § 51.014(b). 30 Maxwell acknowledges this in his brief, stating that the TCPA appeal “triggered an automatic stay of the Rule 202 proceedings” until this court issued its mandate after the supreme court denied review. He agrees that because of the automatic stay, he was unable to take presuit

30 Filing a TCPA motion suspends all discovery until the trial court rules on the motion, with an exception—on showing of good cause—for the trial court to allow specified and limited discovery relevant to the TCPA motion. Tex. Civ. Prac. & Rem. Code §§ 27.003(c), .006(b). If the trial court denies the TCPA motion or a denial occurs by operation of law, then the movant may bring an interlocutory appeal. Id. § 51.014(a)(12). Under Section 51.014(b), that appeal not only stays “commencement of a trial in the trial court pending resolution of the [interlocutory] appeal” but also “stays all other proceedings in the trial court pending resolution of that appeal.” Id. § 51.014(b) (emphasis added).

29

discovery until the TCPA appeal concluded and our mandate issued. Montoya-Frazier and BBF filed the mandamus petition on January 26, 2026, a little over a month after our mandate issued on December 8, 2025. Nothing in the record indicates that Maxwell attempted to arrange the deposition during that time.

Maxwell contends that there was no obstacle in 2023 to Montoya-Frazier’s pursuit of mandamus relief and that she had no excuse for failing to seek mandamus alongside the TCPA appeal. Without citation to authority, he asserts that mandamus should have been sought at that time so that this court could “consider the merits of the pre-suit discovery order alongside the TCPA issue in a single consolidated proceeding.”

We disagree that the stay of proceedings in the trial court and the interlocutory appeal presented no obstacle. We consolidated this appeal and original proceeding because the issues presented were the same. We could not have done so, however, with the TCPA appeal, which we had to take en banc to address the continued viability of DeAngelis after the TCPA’s 2019 amendments. See Buckle Bunnies I, 734 S.W.3d at 5–6.31

31 Maxwell now characterizes Buckle Bunnies I as “a meritless appeal to delay court-ordered discovery for two and a half years,” in contrast to his TCPA response in the trial court and his appellee’s brief in that case seeking to preserve for review his contention that the TCPA did not apply to a Rule 202 proceeding. An en banc proceeding is required to overrule our own precedent. Mitschke v. Borromeo, 645 S.W.3d 251, 256 & n.8 (Tex. 2022) (explaining that all courts should “make clear when they are repudiating their own case law”). Further, higher authorities that may supersede an intermediate court’s prior decision include supreme court decisions or new legislation. Id. at 256–57.

30

Further, when the stay went into effect, Montoya-Frazier was in no immediate danger of having her deposition taken under Rule 202. Although we ultimately resolved the trial court’s denial of the TCPA motion against Montoya-Frazier and BBF, if we had instead resolved that interlocutory appeal in their favor based on our then-existing precedent in DeAngelis, addressing the propriety of the Rule 202 order on mandamus at the same time would have been a waste of judicial resources, particularly as any relief to Montoya-Frazier and BBF on the TCPA claim would have presented an adequate appellate remedy. See K & L Auto Crushers, 627 S.W.3d at 256 (requiring a relator to show that she lacks an adequate appellate remedy for mandamus relief); see also Buckle Bunnies I, 734 S.W.3d at 34 & n.19 (declining to reach remaining issues on TCPA’s applicability and not addressing whether Rule 202’s requirements were met). We conclude that Montoya-Frazier and BBF—like other relators who have been delayed through no fault of their own—have not waived their right to petition for mandamus

Buckle Bunnies I involved reconsidering our precedent and construing and applying an amended statute as well as considering our sister courts’ interpretations of the amended statute and post-DeAngelis supreme-court authority. See 734 S.W.3d at 5– 6, 12–34. The appeal was not meritless, and Maxwell insults not only his opposing parties but also this court by suggesting otherwise, particularly in light of his earlier arguments. See Tex. R. App. P. 41.2(c) (“En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court’s decisions or unless extraordinary circumstances require en banc consideration.”); see also 2nd Tex. App. (Fort Worth) Internal Operating Procedures (last updated April 2025) (stating that the court rarely sits en banc and that it hears an average of three such cases a year).

31

relief. See Chefs’ Prod. of Hous., 667 S.W.3d at 302 n.3; Am. Airlines, 634 S.W.3d at 43; Int’l Profit Assocs., 274 S.W.3d at 676–77.

Furthermore, Maxwell does not argue—the record does not reflect—that he took any action in the trial court after our mandate issued to complain about delay, to demonstrate on the record that the delay had been unreasonable, or to show that he suffered a good faith and detrimental change because of it. See Laibe Corp., 307 S.W.3d at 318. We will not deny Montoya-Frazier and BBF’s mandamus petition based on laches. See id. C. Clear abuse of discretion Maxwell contends that Montoya-Frazier cannot show a clear abuse of discretion, and he attacks her contention that there is no evidence to support his petition under either Rule 202.4 basis, citing his “multiple news articles” to which the trial court overruled her objections.

A Rule 202 petitioner must present evidence—not just allegations—to obtain a Rule 202 deposition and to support one of the trial court’s required findings under Rule 202.4. See Buckle Bunnies I, 734 S.W.3d at 11; MCR Oil Tools, LLC, 2025 WL 2884207, at *5; Kaddatz, 2023 WL 7210337, at *4; see also DeAngelis, 556 S.W.3d at 855 (“A petitioner seeking pre-suit discovery under Rule 202 must present evidence to meet its burden to establish the facts necessary to obtain such discovery.”). In DeAngelis, for example, we noted that the parties seeking presuit discovery “provide[d] absolutely no evidence of the ultimate question necessary to determine whether the Rule

32

202 [p]etition should be granted,” i.e., why the requested discovery prevented a failure or delay of justice in an anticipated suit or why the benefit of the requested deposition to investigate potential claims outweighed the burden or expense of the procedure. 556 S.W.3d at 857.

Further, a Rule 202 petitioner cannot rely on documents attached to its verified petition; to be considered, those documents must be introduced into evidence at the hearing. MCR Oil Tools, LLC, 2025 WL 2884207, at *5 (affirming order denying Rule 202 petition when petitioner relied on petition’s attachment without having it admitted into evidence at the Rule 202 hearing and without presenting any witness testimony at the Rule 202 hearing); see also In re Law, No. 14-26-00232-CV, 2026 WL 1552406, at *3 (Tex. App.—Houston [14th Dist.] June 2, 2026, orig. proceeding) (per curiam) (mem. op.) (granting relief from Rule 202 order because Rule 202 petitioner could not rely on documents attached to its verified petition without introducing them into evidence at the hearing). The arguments of counsel at a Rule 202 hearing are not evidence. Law, 2026 WL 1552406, at *3.

As noted, Rule 202 authorizes presuit depositions for two distinct purposes, which carry different burdens under Rule 202.4(a). Hon. Jerry Simoneaux & co-authors, Discovery in Trust and Estate Disputes, 50 State Bar of Tex. Prof. Dev. Program, Advanced Estate Planning & Probate 13, 13.1 (2026). “The first standard—prevention of [a] failure or delay of justice[, which applies when suit is anticipated]—is arguably more permissive in its framing; the second, with its explicit weighing requirement, has

33

generated more litigation over what constitutes adequate proof of benefit.” Id. at 13.1– .2 (noting that courts “have declined petitions that invoke one purpose while the facts suggest the other,” and that “the characterization of the petition’s purpose can affect both the showing required and the scope of permissible discovery”). 32 1. Anticipated-suit petition For an anticipated-suit petition, the trial court must find that allowing the deposition “may prevent a failure or delay of justice.” Tex. R. Civ. P. 202.4(a)(1). However, “[t]here is a difference between mere delay in obtaining discovery and delay in justice.” In re Costco Wholesale Corp., No. 14-25-00955-CV, 2026 WL 1140909, at *4 (Tex. App.—Houston [14th Dist.] Apr. 28, 2026, orig. proceeding). Routine merits discovery that can be obtained once suit is filed is insufficient to show prevention of a failure or delay of justice. Id. at *5; see In re Hochheim Prairie Farm Mut. Ins., 115 S.W.3d 793, 796 (Tex. App.—Beaumont 2003, orig. proceeding) (“Given that the real parties in interest adduced no evidence of imminent loss of the witnesses’ testimony, the [burden] to the insurance company in having to submit its employees for deposition far outweighs any benefit to the real parties in interest.”); see also Simoneaux, supra, at 13.4 (stating that although the “perpetuation” standard is more permissive in its literal

32 Maxwell argues that he could pursue both standards in the same Rule 202 petition and that Montoya-Frazier did not raise the single-standard argument in the trial court. However, the record reflects that her counsel raised this argument during the February 2023 hearing.

34

framing through the use of “may,” “it still requires a genuine showing that the testimony sought is at risk of being unavailable in the anticipated suit,” such as showing “the age or illness of the witness, the witness’s intention to leave the jurisdiction, or other circumstances suggesting that delay will compromise access to the testimony”).

2. Investigation petition For an investigation-of-potential-claim-or-suit petition, the trial court must find—and the petitioner must both plead and prove—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.” See Tex. R. Civ. P. 202.4(a)(2); In re Acclarent, Inc., No. 02-24-00228-CV, 2024 WL 2873617, at *3 (Tex. App.—Fort Worth June 7, 2024, orig. proceeding) (mem. op.); Kaddatz, 2023 WL 7210337, at *4; see also MCR Oil Tools, LLC, 2025 WL 2884207, at *3.

The petition must explain why a presuit deposition is needed as opposed to a deposition after the filing of a lawsuit. Acclarent, 2024 WL 2873617, at *3. Conclusory allegations that merely track Rule 202’s language without explaining why the requested discovery must be obtained before filing suit and why the benefit of doing so outweighs the burden to the deponent are insufficient. Id. at *4. And it is not the deponent’s burden to allege and prove the extent to which the relief would be burdensome. Id.; see Halbert, 2026 WL 406037, at *6 (observing that Rule 202 petitioner bore the burden of proof and noting that the customary burdens of depositions have little bearing on the benefit-and-burden analysis applicable to presuit depositions); see also Guillory,

35

2024 WL 2066830, at *4 (“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.” (quoting In re East, 476 S.W.3d 61, 68 (Tex. App.—Corpus Christi– Edinburg 2014, orig. proceeding)).

We granted relief in Halbert when, among other things, the evidence presented at the Rule 202 hearing by the petitioner “provided the trial court with unremarkable information—appearing for depositions was inherently inconvenient—coupled with his partisan opinion that the inconvenience was outweighed by the benefit [real party] expected from the depositions.” 2026 WL 406037, at *7. Such evidence, we noted, has little bearing on the applicable Rule 202 benefit-and-burden analysis.33 Id. at *7– 8 (observing that real party was using Rule 202 improperly to investigate existing claims and that it failed to meet its burden of showing that the likely benefit outweighed the burden); see Guillory, 2024 WL 2066830, at *6 (holding real party’s assertions in its petition—which were not evidence—insufficient as to the deposition’s low burden or expense because relator’s living where the deposition would occur and real party’s

33 We also noted in Halbert that the real party’s representative twice acknowledged at the Rule 202 hearing that it had valid claims against the relator based on information the real party already had. 2026 WL 406037, at *4. We noted, “[B]ased on the record, neither [the real party] nor the trial court saw [the real party] as having just potential claims. Rather, both saw it as having existing claims with firm factual foundations.” Id. at *5. For Rule 202 purposes, because the real party already had more than enough information to institute litigation without resorting to Rule 202, the requested presuit discovery was unnecessary. Id.

36

counsel’s intending to work with relator to schedule it for a mutually convenient time and place pursuant to the civil procedure rules had “little bearing on the benefit and burden analysis applicable to presuit depositions”); see also Kaddatz, 2023 WL 7210337, at *5 (observing that similar allegations merely tracked Rule 202’s language and conceded no more than was required under the discovery rules, making the petition insufficient on its face to show a need for presuit discovery).

Additionally, pending litigation involving the same parties and similar allegations “suggests that the requested presuit discovery is unnecessary because [the real party] has already investigated its potential claims, or, alternatively, . . . the discovery at issue could occur in the ongoing litigation.” Guillory, 2024 WL 2066830, at *7. As our sister court has noted, allowing a presuit deposition when the petitioner fails to show that the presuit discovery is necessary irrespective of pending litigation fails to comport with the supreme court’s admonition to “strictly limit and carefully supervise” presuit discovery. Id. (quoting In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding) (per curiam)).

3. Analysis Maxwell argues that the news articles met his evidentiary burden. He also asserts that the trial court admitted the news articles into evidence when it overruled Montoya-Frazier’s objections on March 10, 2023, and that the trial court did not clearly abuse its discretion by overruling those objections.

At the outset, we note that Maxwell actually offered no evidence at the Rule 202 hearing to support either Rule 202 basis, although at one point he argued that one

37

of the articles he attached “should be admitted” as a statement against interest. Nonetheless, the trial court apparently treated Maxwell’s attachments as admitted except where otherwise noted in its evidentiary rulings.34 Accordingly, we will review those attachments to determine whether they support the required Rule 202 findings. See Kaddatz, 2023 WL 7210337, at *6 (considering, but not accepting, real party’s argument that although he did not formally offer any evidence at the hearing, the trial court had considered his petition’s exhibits by reference and that mandamus relief would be pointless because he would simply use the magic words “I hereby move to admit” the evidence on the next go-round to ensure that the exhibits were formally admitted, and noting that even if real party’s evidence had been admitted and considered, it was insufficient to meet Rule 202’s requirements).

As expressed in his brief, Maxwell relies on the Prism and SAR articles to support the trial court’s findings that Montoya-Frazier’s deposition “will prevent a failure or delay of justice in an anticipated suit” and that the likely benefit “outweighs the burden or expense of the procedure.” He argues, “One can certainly draw a ‘rational inference’ from this evidence that Montoya-Frazier and [BBF] act without regard for the law and that they ‘may’ be engaged in violations of the Texas Heartbeat Act that would be uncovered in pre-suit discovery,” apparently referring to Montoya-Frazier’s medical and

Nothing in the March 10, 2023 order states that the articles were admitted into 34

evidence other than by implication.

38

employment history, her statement in the Prism article that BBF’s work had been “nonstop” during the pandemic, and her statement in the SAR article that “[t]here are definitely people who are trying to catch us” regarding BBF’s having helped Texans access and pay for abortions. The SAR article also contained Montoya-Frazier’s statement that she had received two-cease-and-desist letters demanding that BBF halt operations and her acknowledgment of the “increased emotional toll this work now takes.”35 Maxwell relies on the WPM article about the Texas-licensed doctor in New

35 To the extent the trial court could have found these particular statements to continue to apply when it granted the Rule 202 petition in March 2023, rather than supporting the required findings under Rule 202.4(a), they tend to suggest that the requested presuit discovery would have been unnecessary because Maxwell had enough information to sue Montoya-Frazier and BBF under SB 8’s aiding-and-abetting provision. See DeAngelis, 556 S.W.3d at 857 (reaching same conclusion regarding evidence of alleged defamatory statements suggesting petitioners had “more than enough information to file an action for defamation without resorting to Rule 202”); see also Halbert, 2026 WL 406037, at *8 (granting relief from Rule 202 order allowing the investigating of existing—not potential—claims).

Maxwell contends now—in this combined appeal and original proceeding—that if he sued Montoya-Frazier and BBF before obtaining “clear and specific evidence” of an SB 8 violation, they would respond by filing a TCPA motion and that he therefore needs the presuit-discovery evidence before he sues because, after a TCPA motion is filed, he will not have access to discovery.

Maxwell did not make this argument in the trial court. To the contrary, he argued there that if his Rule 202 petition implicated the TCPA, “he ha[d] ‘clear and specific evidence’ from Montoya-Frazier’s admissions that her organization is flouting Texas’s abortion laws” and her public statements “acknowledging that she and [BBF] assist self-managed abortions in Texas and help Texas residents obtain abortion pills from out-of-state providers.” See Halbert, 2026 WL 406037, at *5, *8 (granting mandamus relief when record showed that real party was “not investigating potential claims but

39

Mexico to support his assertion that “there are plenty of Texas-licensed physicians who dispense abortion drugs in neighboring states—especially in the aftermath of Dobbs.”36 Maxwell ignores the effect of Dobbs going forward as to Montoya-Frazier and BBF, as opposed to the other entities, individuals, and activities referenced in the articles. See Weldon, 722 S.W.3d at 43. The Prism article was published in 2021, before SB 8’s effective date. The SAR article was published a year later, on August 1, 2022, a month after Dobbs, but it noted that the Texas “trigger law” would “ban nearly all abortions starting on Aug[ust] 25[, 2022].”

Maxwell filed his Rule 202 petition on September 1, 2022, with nothing more to show that Montoya-Frazier and BBF had taken—or might have taken—any of the referenced actions since then. See id. (noting that Dobbs made SB 8 “mostly a footnote”). He nonetheless argues that the “chilling” burden argued by Montoya-Frazier as to associational rights and operational risk “is only because she and [BBF] have violated

was, instead, investigating existing claims; thus, [real party] was using Rule 202 improperly”).

Further, the TCPA provides for specified and limited discovery relevant to the motion either “[o]n a motion by a party or on the court’s own motion and on a showing of good cause,” see Tex. Civ. Prac. & Rem. Code § 27.006(b), and Maxwell does not explain why this exception would not apply to him.

36 To the contrary, the article’s author interviewed and described a sole doctor as “alone on the southern edge of America, at the westernmost corner of the country’s second biggest state. And if Roe v. Wade is overturned, [he] soon may be one of the only abortion providers in the western United States.”

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the law and exposed their accomplices to civil liability and murder charges” and because BBF’s activities “are illegal, so any threats to its continued operations do not qualify as a reason to deny discovery.”

To the contrary, Montoya-Frazier’s December 5, 2022 declaration, which was admitted into evidence at the Rule 202 hearing, set forth that since September 2021, BBF had not provided funding to support the provision of abortion services by Texas-licensed physicians37 and that it also used its funding to support other, non-abortion-related activities, such as providing to low-income Texans access to Narcan and fentanyl test strips, diapers, and groceries. Maxwell put on no evidence to contradict her assertion or to show how the benefit of taking the deposition would outweigh the burden of possibly cutting off funding for these other—completely

37 SB 8, now Texas Health and Safety Code Sections 171.201–.212, defines “physician” as “an individual licensed to practice medicine in this state.” Tex. Health & Safety Code § 171.201(4) (emphasis added). Under Section 171.204, “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child . . . or failed to perform a test to detect a fetal heartbeat.” Id. § 171.204(a). As pertinent here, a private citizen

may bring a civil action against any person who . . . knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion . . . if the abortion is performed or induced in violation of this subchapter . . . or intends to engage in the conduct described [above].

Id. § 171.208(a)(2)–(3).

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legal—activities benefiting low-income third parties. Cf. Buckle Bunnies I, 734 S.W.3d at 11 (stating that Rule 202’s procedures are “equitable in nature”).

Furthermore, despite his reliance on the above articles, Maxwell put on no evidence to show why the benefit of the presuit deposition would outweigh its burden, much less any evidence to contradict Montoya-Frazier’s declaration explaining why the presuit deposition would be burdensome, expensive, and dangerous to her and to BBF’s volunteers and donors by chilling their associational rights and potentially exposing them to death threats and doxing. See Illinois Nat’l Ins., 685 S.W.3d at 835; see also Kaddatz, 2023 WL 7210337, at *7 (“[Real party’s] bald assertion that it needs pre-suit discovery to determine whether it has legitimate claims against [relator] personally is insufficient to justify the burden of pre-suit discovery.”); cf. Buckle Bunnies I, 734 S.W.3d at 11 (stating that a trial court must not permit Rule 202 to be used inequitably). Instead, he argues— without citation to authority—that the online news articles attached to his petition “comfortably” produced evidence that the benefits/burden analysis tipped in his favor.

Maxwell also failed to indicate why a presuit deposition of Montoya-Frazier was necessary when related state and federal lawsuits were already pending in which third-party discovery could be sought. Cf. Tex. R. Civ. P. 199.1–.6 (regarding oral depositions in an existing lawsuit), 200.1–.4 (regarding depositions upon written questions in an existing lawsuit), 205.1–.3 (regarding discovery from a nonparty in an existing lawsuit). Thus, he failed to present evidence tying his requested presuit discovery to either required finding.

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Without reaching the form evidentiary objections overruled by the trial court, we conclude that the trial court clearly abused its discretion by entering a Rule 202 order based on either of the required but unsupported findings. See Tex. R. Civ. P. 202.4(a)(1)–(2).

Finally, the trial court ordered Montoya-Frazier to produce the documents requested by Maxwell, but a request for production of documents in a Rule 202 petition is improper. See DeAngelis, 556 S.W.3d at 858.38 Thus, the trial court also clearly abused its discretion by granting Maxwell’s improper documents request and by then ordering document production under Rule 202. See id. We sustain the second issue and part of the third issue without reaching the third issue’s remaining sub-issues or the fourth issue. See Tex. R. App. P. 47.1. D. No adequate appellate remedy Because the record reflects that Montoya-Frazier and BBF were targets of anticipated or potential litigation, they could not bring a direct appeal of the trial court’s Rule 202 order. See Jorden, 249 S.W.3d at 419; see also Elec. Reliability Council of Tex., Inc., 619 S.W.3d at 641 (explaining when an appeal will be inadequate); Halbert, 2026 WL 406037, at *3 (observing that “[o]nce taken, depositions cannot be ‘untaken’”). We sustain the first issue.

38 Maxwell acknowledges that only depositions are authorized under Rule 202 but nonetheless invites us to rely on contrary authority from our sister courts to reach the result he desires. We decline the invitation.

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VI. Conclusion

Because the record reflects that the trial court clearly abused its discretion by granting Maxwell’s Rule 202 motion, we sustain the second issue and part of the third issue in the original proceeding, and because Montoya-Frazier and BBF have shown they lack an adequate appellate remedy, we sustain the first issue in the original proceeding. 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 in cause number 02-26-00053-CV.

/s/ Mike Wallach

Mike Wallach

Justice

Delivered: August 13, 2026