In Re Office of the Attorney General of the State of Texas v. the State of Texas

Petition for Writ of Mandamus Denied and Majority and Dissenting Opinions
filed August 21, 2025.

In The

Fifteenth Court of Appeals

NO. 15-24-00106-CV

IN RE OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF
TEXAS, Relator

ORIGINAL PROCEEDING
WRIT OF MANDAMUS
200th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-24-004200

DISSENTING OPINION
I respectfully dissent for the reasons stated in my dissenting opinion in In re
Office of the Attorney General of the State of Texas, No. 15-24-00091-CV, 2025 WL
___ (Tex. App.—15th Dist. Aug. 4, 2025, orig. proceeding) (Brister, C.J.,
dissenting). I agree with the Court that nothing grants OAG authority to demand a
pre-suit deposition in all corporate investigations as a matter of law. But when the
Governor of Texas specifically requests that the Office of the Attorney General
(“OAG”) investigate a colorable claim that a corporation is contributing to a state
crisis by violating state law, it is an abuse of discretion to deny a request for a pre-
suit deposition unless outweighed by an equally serious and substantial burden on
the deponent. There being no such showing here, I would conditionally grant relief.
I write briefly again here because I disagree with the Court’s additional ground
that dismissing OAG’s request was proper due to “the thin record before the trial
court,” consisting of “only three exhibits.” OAG’s evidentiary record here actually
contains 36 exhibits with over 300 pages, proved up by affidavit and filed with the
court clerk. This was not simply a verified petition, as the Court would have it; these
were exhibits filed seven weeks after the petition, proved up by affidavit, and
submitted to the clerk two days before the hearing in the trial court as evidence for
that hearing. Nothing in Rule 202 says such evidence doesn’t count unless formally
admitted at an evidentiary hearing. I would not block an investigation by the
Executive Branch of state government into potential factors contributing to a state
of disaster by imposing an evidentiary requirement that our rules do not state.

I. The facts OAG proved support its request as a matter of law
The focus of OAG’s investigation here differs from that in our earlier opinion.
OAG asserts that Team Brownsville Inc. (“TBI”) may have violated state criminal
laws,1 by transferring federal funds that could be spent only within the U.S. to
entities operating in Mexico. OAG’s verified petition included an affidavit by its
trial counsel verifying as “true and correct” the following alleged facts:

• Governor Abbott asked OAG to investigate claims that NGOs “may be
engaged in unlawfully orchestrating certain border crossings” in a letter
dated December 14, 2022 (providing a link to that letter);

• OAG “has a reasonable basis to believe” TBI is one of the NGOs “assisting

1
Citing TEX. PENAL CODE §§ 37.10, 37.101.

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immigrants seeking to enter the United States,” citing a statement by TBI’s
Board President that it “performs work in Mexico,” and statements by
former TBI board members and volunteers that it has sent grants intended
for services in Brownsville “to unknown persons in Mexico with little to
no accountability as to its use”; and

• other TBI documents OAG had in hand (which it tendered in camera “at
the Court’s invitation” as a public filing “would seriously compromise
OAG’s investigation”) indicate funds “have been used for unauthorized,
and potentially illegal, practices.”

The petition requested a pre-suit deposition under Rule 202 regarding TBI’s “rules
practices, and procedures” for requesting government funds, and distributing them
to “immigrants, refugees, or aliens,” or “to other nongovernmental entities.”
Two days before the hearing on its petition, OAG filed 36 exhibits in support,
all proved up by affidavit. They present the following direct and circumstantial
evidence:

• FEMA awarded $350 million in 2023 to the Emergency Food and Shelter
National Board Program to help nonprofit and faith-based organizations
provide shelter and other services to persons “recently encountered by the
Department of Homeland Security”;

• the EFS program prohibits using those funds for “expenditures made
outside of the United States” or “services provided to families and
individuals outside of the United States”;

• one of TBI’s bank account statements shows it received $92,330 from “Efs
Natl Brd Pgm” on September 11, 2023; and

• 20 TBI checks and ACH bank transfers from the same account show it sent
funds to organizations whose websites and other documents indicate they
provide humanitarian services in Mexico.

TBI’s counsel did not object to the authenticity of these documents; as he

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conceded, “Most of them come from our files.”2 TBI objected instead to hearsay,
relevance (“I have no idea what these are”), and “conclusory, general, and vague.”
But the exhibits were all federal statutes, records, and reports that are not hearsay,3
bank statements and checks proved up by a records custodian, 4 and copies of
websites whose accuracy can be checked by following a link OAG proved. OAG’s
verified petition and counsel’s argument at the hearing explained their relevance.
And in any event, Rule 202 pleadings are not to be strictly construed; the standard
is “less stringent than those normally required” as the party requesting party “will
often not know enough facts” to be more specific, and likely wouldn’t need a pre-
suit deposition if it did. 5
OAG’s burden under Rule 202 was not to prove that TBI was improperly
funneling federal funds to Mexico for expenditures there; that is for trial. The issue
here is whether the benefit outweighed the burden of requiring a TBI corporate
witness to sit for single pre-suit corporate deposition and explain why the
circumstantial evidence OAG had produced was not suspicious. In that context,
OAG’s documents were “relevant” if, read together and in context, they had “any
tendency” to support the likelihood that OAG had a legitimate claim.6 Given the
undisputed evidence that Governor Abbott specifically requested OAG’s
investigation during a major health and safety crisis, it was an abuse of discretion to
deny such a simple request unless it was outweighed by some equally extraordinary
burden. There is no such evidence here, or even a suggestion of it.

2
See also TEX. R. EVID. 902(5) (providing that publications “purporting to be issued by a
public authority” are self-authenticating).
3
See id. 803(8).
4
See id. 803(6).
5
Combs v. Tex. Civil Rights Project, 410 S.W.3d 529, 535–36 (Tex. App.—Austin 2013,
pet. denied).
6
See TEX. R. EVID. 401.

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II. Rule 202 presents a discovery motion, not a trial
In response to OAG’s record exhibits, TBI filed no affidavits or exhibits, and
offered no witnesses or evidence at the hearing. It instead urged the trial court to
disregard all OAG’s evidence because it had not been “admitted”: “There’s no
evidence in front of you that’s been admitted that can allow this deposition to go on.
And even if you were to look at the verified complaint, it’s based on hearsay.” This
emphasis on admissibility of evidence at a Rule 202 hearing reflects a basic
misunderstanding of the procedure: It is not a trial.
A Rule 202 motion does not result in a judgment; it is effectively a motion for
pre-suit discovery. Courts conduct many pre-trial hearings “entirely on paper,” and
are deemed to have “considered evidence at the hearing” even if it is “based solely
on affidavits and exhibits filed beforehand.” 7 Nothing in the Rule 202 prohibits that
practice; it was important here because no other discovery responses were yet
available, and the trial court had limited each side at the oral hearing to one hour. To
cover its bases, OAG filed its documentary evidence with the clerk and tendered it
to the trial judge at the hearing.
But the trial judge was having none of it. She declined to consider any of
OAG’s exhibits unless she formally admitted them: “I guess you’ll have to convince
me which ones should be admitted.” This Court likewise errs by focusing solely on
the “three exhibits that were admitted at the hearing” and disregarding everything
else. Evidence filed with the clerk and at the hearing is evidence in the record;
ignoring it by choosing not to “admit” it is an abuse of discretion.
Rule 202 is a rule for discovery. It appears in the section of the Rules of Civil

7
Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 783 (Tex. 2005).

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Procedure titled “Discovery.”8 Many of those rules address whether discovery
responses can be admitted or excluded at trial, 9 but none require evidence to request
them. 10 It would be odd to require admissible evidence as a condition to obtain
admissible evidence. In the case of Rule 202, the party most likely to have the
personal knowledge needed to prove up requested information is the party that has
it—but objects to being deposed about it. We cannot require admissible evidence to
obtain a pre-suit deposition when a pre-suit deposition is the only way to get it. I
recognize that many of our fellow courts of appeals have held otherwise, but neither
the Texas Supreme Court nor Rule 202 have ever said so.
This does not mean that pre-suit depositions should be routinely granted. They
“never have been intended for routine use,” and there are “practical as well as due
process problems with demanding discovery from someone before telling them what
the issues are.”11 “The intrusion into otherwise private matters authorized by Rule
202 outside a lawsuit is not to be taken lightly.” 12 But while these concerns require
close judicial scrutiny before granting a Rule 202 petition, they do not require
satellite litigation or a mini-trial replete with sponsoring witnesses and hearsay
objections to make the findings the rule requires. OAG’s verified petition, plus its
exhibits filed with the clerk, plus its arguments at the oral hearing explained why
this is not a routine case, what the issues are, and why the circumstantial evidence
available showed the likely benefit outweighed the burden. TBI objected that this
did not prove whether it had done anything wrong, but that is the burden at trial, not

8
See TEX. R. CIV. P., Part II § 9.B.
9
See, e.g., TEX. R. CIV. P. 192.3(f), (g); 193.6(a); 199.5(d); 201.1(f); 203.6(b); 215.2(b)(4).
10
The only discovery rule requiring evidence does so for objections to discovery based on
privilege, and in that instance expressly provides that evidence may be offered “either by testimony
at the hearing or by affidavits served on opposing parties.” Id. R. 199.6.
11
In re Jorden, 249 S.W.3d 416, 423 (Tex. 2008).
12
In re Does, 337 S.W.3d 862, 865 (Tex. 2011).

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here. What TBI never explained is why a deposition in the critical context here was
outweighed by the burden of a single deposition.
The two companion cases this Court has recently addressed demonstrate why
“admissible evidence” was not required in either. In both cases, the context was a
border crises and the Governor’s request to investigate NGOs as a potential
contributing source. No judge in Texas could have been unaware of the border crisis;
a judicial response that declined to judicially notice that crisis would not inspire
confidence in our abilities. In the case involving Catholic Charities, the corporation’s
documents contained neither plans nor procedures for excluding aid to persons
unlawfully in the U.S., a fact on the face of those records that required neither a
sponsoring witness nor a business records affidavit. And in the present case, TBI’s
bank records appear to show receipt of funds that could not be spent in Mexico and
transfers to Mexico from the same account. No one suggested in either case that
these records were forged or unreliable, nor on the other hand that they were
conclusive; but while these facts may not represent the whole story, in neither case
was there any “admissible evidence” that they did not.
There is one final reason a punctilious application of the rules governing
admissibility at trial is inappropriate here: the OAG was investigating a potential
quo warranto action. Absent a statutory limitation, the Constitution gives the
Attorney General “sole discretion” to decide when to file such actions, in part to
prevent “the judiciary from broadly reading statutes as impliedly limiting that
authority.”13 It is not for us to decide whether OAG “appears to have enough
evidence to go forward with its quo warranto lawsuit”; that choice is solely for the
Attorney General. Forcing OAG to file suit first rather than seek a pre-suit deposition
impinges on that discretion. One tool the Supreme Court has used when the

13
Paxton v. Annunciation House, Inc., 2025 WL 1536224, at *11–12 (Tex. May 30, 2025).

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constitutional duties of two branches of state government conflict (as those of OAG
and the courts arguably do here) is whether one branch could accommodate the other
without seriously infringing on the duties of either.14 Accommodating OAG’s Rule
202 request requires no more than what appellate courts often do: “consider the
priorities of the other branches of Texas government.” 15 I believe the trial court
abused its discretion by failing to do that here.

Conclusion
I would not hold (as the Court says) that courts must grant all deposition
requests by a coordinate branch of State government every time a disaster occurs.
But we are required to be “sensitive to a coordinate branch’s authority, its
entitlement to respect, and the presumptions of good faith and regularity that it is
owed.”16 We fall short of that duty by addressing this case as if there were no crisis
at the border, a fact nobody including TBI ever denied.
There was no conflicting evidence here. TBI presented nothing but the
arguments of counsel—which the Court reminds us is not evidence. OAG had no
burden to prove TBI’s expenditures were unlawful, and TBI had no burden to prove
they were not. But OAG offered evidence of (1) the Governor’s request to OAG in
the context of a border crises, and (2) TBI’s transfer of money to Mexico from an
account that also held federal funds for which that was prohibited. It was an abuse
of discretion to deny a request for a pre-suit deposition absent a showing that the
benefit of finding out the truth here substantially outweighed the burden of taking a

14
See, e.g., Webster v. Comm’n for Lawyer Discipline, 704 S.W.3d 478, 484 (Tex. 2024); In
re Tex. House of Representatives, 702 S.W.3d 330, 340 (Tex. 2024).
15
In re Gulf Expl., LLC, 289 S.W.3d 836, 842 (Tex. 2009) (citing In re McAllen Med. Ctr.,
Inc., 275 S.W.3d 458, 461 (Tex. 2008)); see Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 451
(Tex. 2012).
16
Webster v. Comm’n for Lawyer Discipline, 704 S.W.3d 478, 496 (Tex. 2024).

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single deposition as a matter of law. Because the Court holds otherwise, I
respectfully dissent.

/s/ Scott A. Brister
Scott A. Brister
Chief Justice

Panel consists of Chief Justice Brister and Justices Field and Farris.

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