In Re Daniel A. Hunt v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-24-00070-CV

IN RE DANIEL A. HUNT

Original Mandamus Proceeding

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION

On October 10, 2024, the Honorable Steven Kirkland1 (Respondent) entered an order

granting Ironhorse Unlimited, Inc., and Phillip Surls’s (Real Parties in Interest or RPIs) verified

petition to take Daniel A. Hunt’s (Relator) presuit oral deposition, pursuant to Rule 202 of the

Texas Rules of Civil Procedure (Rule 202 order).2 By that order, Relator was not only ordered to

sit for a deposition but was further ordered to produce documents responsive to a twenty-seven-

item request for production. On October 23, 2024, Relator filed a petition for a writ of

mandamus maintaining that the trial court abused its discretion when it granted RPI’s Rule 202

petition.3 Relator argues that there was no evidence to support the trial court’s finding that the

likely benefit of allowing Relator’s deposition to go forward outweighed the burden or expense

of taking his deposition. Relator asks this Court to grant his petition for a writ of mandamus and

to instruct the trial court to set aside its order authorizing RPIs to take Relator’s presuit

deposition.

Because we find that RPIs failed to show that the likely benefit of taking Relator’s presuit

deposition outweighed the burden and expense of doing so, we conditionally grant his petition

for a writ of mandamus and direct Respondent to vacate its Rule 202 order. The writ will issue

only if the trial court fails to vacate its order within ten days of the date of this opinion.

1
The 173rd Judicial District Court was sitting for the 392nd Judicial District Court.
2
Rule 202 of the Texas Rules of Civil Procedure permits a person to petition a trial court for an order authorizing a
deposition before a lawsuit is filed. TEX. R. CIV. P. 202.1.
3
Originally filed in the Twelfth Court of Appeals, this original proceeding was transferred to this Court by the Texas
Supreme Court after all three justices of the Twelfth Court of Appeals recused. See TEX. GOV’T CODE ANN.
§ 73.001 (Supp.). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of
this Court on any relevant issue. See TEX. R. APP. P. 41.3.
2
I. Standard of Review

Mandamus will issue “only when the mandamus record establishes (1) a clear abuse of

discretion . . . , and (2) the absence of a clear and adequate remedy at law.” In re Blakeney, 254

S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding) (citing Cantu v. Longoria, 878

S.W.2d 131, 132 (Tex. 1994) (per curiam) (orig. proceeding)). A trial court abuses its discretion

when it acts unreasonably, arbitrarily, or without reference to any guiding principles. Walker v.

Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). The party seeking mandamus

relief has the burden to provide the court with a sufficient record to support its requested relief.

Id. at 837.

“A trial . . . court has no discretion in determining what the law is or in applying the law

to the facts . . . .” In re Jorden, 249 S.W.3d 416, 424 (Tex. 2008) (orig. proceeding); Huie v.

DeShazo, 922 S.W.2d 920, 927 (Tex. 1996) (orig. proceeding) (quoting Walker, 827 S.W.2d at

840). “Consequently, the trial court’s erroneous legal conclusion, even in an unsettled area of

law, is an abuse of discretion.” Huie, 922 S.W.2d at 927–28.

II. Background

In their Rule 202 petition, RPIs state,

8. On or about February 6, 2024, [RPIs] received a draft proposed
resolution of the Henderson County Republican Party (“HCRP”) which contained
numerous false and disparaging statements about [RPIs]. The proposed resolution
referenced that it had been “proposed by McKenzie Brown, Precinct 4W
Chairman” (the “Proposed Resolution”).[4]

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The proposed resolution at issue contained, in part, the following language:

WHEREAS the public property known as “The Cut Off” has been illegally and illegitimately
removed from the public’s access, thus taking an important public resource from the citizens of
Henderson County & the State of Texas, by Phillip Surls, IronHorse Unlimited[,] Inc.
3
On February 7, 2024, the attorney for RPIs delivered a cease-and-desist letter to Brown,

“along with a litigation hold notice to preserve all evidence.” According to their Rule 202

petition, Brown responded to their letter by communicating with RPI’s attorney. Brown

informed RPI’s attorney that Relator had asked her to draft the proposed resolution and that she

should encourage HCRP to adopt it at its next meeting. In addition, Brown said that she

discussed the contents of the proposed resolution with a representative of a group called Save

The Cutoff and that she drafted the proposed resolution with help from Bud Morton and Relator.5

Because Brown responded to their cease-and-desist letter, RPI decided that they would not file a

lawsuit against Brown.

RPIs also asserted in their petition that, on February 7, their attorney attempted to contact

Relator by phone multiple times but that he was unsuccessful. RPI’s attorney left voice

messages informing Relator that the calls were being made in an attempt “to prevent publication

and HCRP adoption of the Proposed Resolution and avoid litigation.” Relator did not return the

phone calls of RPI’s counsel. On February 22, 2024, RPI’s attorney delivered a cease-and-desist

....

WHEREAS in April of 2022[,] the Henderson County Commissioners approved a Notice of
Violation to be issued to Phillip Surls & IronHorse Ranch, for actions prohibited by the County’s
Floodplain Ordinance & in violation of FEMAs flood plain regulations, which impact flood
insurance rates throughout Henderson County.

THEREFORE, BE IT RESOLVED that the Henderson County Republican Party supports the
Henderson County Commissioners Court and the State of Texas working together to return The
Cut Off to the public domain, to be used by the citizens of the Great State of Texas.

According to Brown, the proposed resolution was posted on the “Save The Cutoff Facebook page.”

Over Relator’s objection, the trial court admitted Brown’s sworn affidavit, which, for the most part, corresponded
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with the assertions contained in RPI’s Rule 202 petition.
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letter to Relator, demanding that he retract the identified defamatory statements pursuant to

Section 73.055 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.

CODE ANN. § 73.055. The cease-and-desist letter stated, in part,

It has recently come to our attention that you have published defamatory
statements concerning Surls and Ironhorse. Specifically, beginning on or about
February 5, 2024, you circulated to the Henderson County Republican Party
precinct chairs a proposed resolution entitled “Resolution for The Cut Off”
(“Resolution”). The Resolution contains numerous false and defamatory
statements regarding Surls and Ironhorse. The false and defamatory publications
concerned Surls’ and Ironhorse’s character, behavior, ethics, and reputation in the
community. The false and disparaging publications included: “‘The Cut Off’ has
been illegally and illegitimately removed from the public’s access, thus taking an
important public resource from the citizens of Henderson County & the State of
Texas, by Phillip Surls and Ironhorse Unlimited, Inc.”; “there has been clear
historical precedent shown, that this land does not belong to the adjoining private
landowner”; “the landowner has been instructed by the Texas Department of
Transportation”; “The illegal construction of a pipe fence”; “Mr. Surls
constructed the fence on an unauthorized fill, which impacts the waters of the
United States”; “the Texas Parks and Wildlife Department’s Kills and Spills
Team has investigated the unauthorized levee constructed by Mr. Surls, and
estimated a fish kill of 19,709 at a value of $804,633.45”; and “in April of 2022
the Henderson County Commissioners approved a Notice of Violation to be
issued to Phillip Surls & IronHorse Ranch[.]”

In particular, it has come to my attention that you published the proposed
resolution knowing full well that it contained the false statement concerning
$804,633.45 value. When the erroneous dollar figure was drawn to your
attention, you chose to proceed with publication of the false information instead
of changing the proposed resolution to contain the correct dollar figure.

In addition, your conduct is even more egregious because you are fully
aware the disputed matters between the Save the Cutoff group, Ironhorse, and
Surls are being actively litigated in three separated lawsuits . . . .

This behavior will not be tolerated. Accordingly, you are hereby
demanded to cease and desist your persistent, malicious, and intentional actions
including, but not limited to making false, disparaging, or defamatory
publications regarding Surls or Ironhorse to any person or entity.

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This letter acts as your final warning to discontinue this harassing conduct
before Surls and Ironhorse pursue civil legal action against you, including
injunctive relief. . . .

The letter continued,

This letter is sent in satisfaction of TEX. CIV. PRAC. & REM. CODE § 73.055,
commonly referred to as the “Defamation Mitigation Act.” Failure to timely
adhere to all demands of this letter will result in a lawsuit being filed against you
and exemplary damages sought to the fullest extent allowed under Texas Law.”

(Emphasis added). According to RPIs, Relator did not acknowledge receipt of the cease-and-

desist letter.

RPIs further maintained that “[p]re-suit discovery exists for the very purpose [RPIs] seek

to advance: investigation into [Relator]’s injurious defamation in his private communications

with others.” They continued, “As the driver of [RPI]’s potential claims[,] [Relator] knows

many more details and has greater knowledge of what he did, why he did what he did, and with

whom he conspired to defame [RPIs] in bringing about the creation of the Proposed Resolution,

its publication, and its adoption by the HCRP.” According to RPIs, “counsel’s unsuccessful

attempts to obtain the necessary information from [Relator] prove[d] that [they] c[ould] only

obtain the necessary information through th[e] Rule 202 Petition.”

On June 3, 2024, the trial court held a hearing on RPI’s petition to take Relator’s presuit

deposition. Surls, who is the owner of Ironhorse, testified that he wanted to investigate Relator’s

involvement with the “Henderson County Republican Party[,] Resolution for The Cut Off.”

Surls explained that he wanted to find out the “[w]ho, when, why, where. Why - - that’s it.” He

wanted to know who told Relator “to do it[,]” and why Relator got involved with crafting the

resolution. According to Surls, he was concerned about his reputation, explaining, “In our
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business,[6] our reputation is everything, and when people - - you make a mistake in our line of

business, people get - - can possibly get hurt or die, and so it’s very confidence driven, a good

reputation.” Surls said that he learned of the proposed resolution when an individual contacted

him that it had been posted on Facebook. Surls began attempting to contact Relator through

phone calls, emails, and then the cease-and-desist letter, to which Relator did not respond.

Surls testified that he did not agree with the statement contained in the proposed

resolution that he “illegally and illegitimately removed” “the public property known as the

cutoff.” He also maintained that Ironhorse had nothing to do with removal of the property.

Furthermore, Surls stated, among other concerns with the proposed resolution, that Ironhorse had

not been contacted by the Texas Parks and Wildlife Department. Surls said he “definitely” had

an issue with the statement that the “Texas Parks & Wildlife Department’s Kills and Spills

Team” “investigated an unauthorized levee constructed by Mr. Surls and estimated fish kill

19,000 at a value of [$]804,000.[00].” According to Surls, the department never contacted him

about the issue nor did it ever fine him for unsuitable conduct. Surls stated that he was

concerned that the publication of the resolution would have a negative effect on two other

lawsuits in which he was involved. Surls conceded that his understanding of Relator’s

involvement in the proposed resolution was based, in large part, on Brown’s statements to him.

Surls asked, “If [Relator] didn’t have anything to hide, why wouldn’t he answer a phone call or

emails or talk to us?”

6
Surls was in the gas pipeline business.
7
Surls testified that he did not know how much inconvenience or expense Relator would

incur if the deposition went forward. Surls did, though, respond to questions on those subjects

by bringing up his own expense and consternation at being involved in legal proceedings, as can

be seen from the following exchange:

Q. . . . [D]o you understand that what you’re pursuing today is
inconvenient for Mr. Hunt?

A. Do you want to talk about inconvenient? How would you like to
be sitting right here?

[Counsel for RPIs]: Calm down.

After listening to the testimony and hearing arguments of counsel, on October 10, 2024,

Respondent entered an order granting RPI’s Rule 202 petition, finding “that the likely benefit of

allowing [RPIs] to take [Relator’s] deposition to investigate a potential claim outweigh[ed] the

burden or expense of the procedure.”

III. Discussion

Rule 202.4 of the Texas Rules of Civil Procedure states,

(a) Required Findings. The court must order a deposition to be taken, if, 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.

TEX. R. CIV. P. 202.4(a).

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“Rule 202 depositions are not now and never have been intended for routine use. There

are practical as well as due process problems with demanding discovery from someone before

telling them what the issues are.” In re Jorden, 249 S.W.3d at 423. Consequently, “[c]ourts

must strictly limit and carefully supervise pre-suit discovery to prevent abuse of the rule.” In re

Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (per curiam) (orig. proceeding). Furthermore, it is the

Rule 202 petitioner’s burden to establish the facts necessary to obtain the requested deposition.

See In re Hewlett Packard, 212 S.W.3d 356, 363–64 (Tex. App.—Austin 2006, orig. proceeding

[mandamus denied]).

Here, RPIs argued to the trial court that they needed information from Relator to

determine whether they should file against him what presumably would be a defamation lawsuit.

RPIs were therefore required to show that obtaining that information via Relator’s presuit

deposition outweighed the burden or expense incurred by Relator. RPIs failed to meet their

burden.

By the time RPIs filed their petition to take Relator’s presuit deposition, they were

already in possession of an abundance of information, including, but not limited to, the

following: (1) who actually prepared the draft of the resolution, (2) who asked that person to

prepare the draft, (3) the names of additional persons who were involved in its preparation,

(4) the approximate date the resolution was drafted, (5) by what means the draft was

disseminated to the public, (6) what property was at issue, (7) the substance of the complaints

against RPIs, and (8) the manner in which the alleged defamatory statements caused them harm.

9
Further, RPI’s cease-and-desist letter spoke directly to RPI’s understanding of the state of

mind of Relator: “knowing full well,” “egregious,” “fully aware,” “malicious,” and

“intentional.” RPI’s cease-and-desist letter did not express any uncertainty, or need for

information, before filing suit. Instead, RPI’s cease-and-desist letter stated in stern terms that, if

the complained-of statements were not withdrawn, a lawsuit would be filed “within 5 days” of

Relator’s receipt of the letter. At the hearing, Surls testified that he had already concluded that

Relator persisted in the publication knowing that the publication was false. We express no

position on the merits of those matters, but instead, we summarize the information available to

RPIs, and RPI’s own assessment of that information, at the time RPIs sought the Rule 202

deposition.

Given the information already available to RPIs at the time they sought to take the Rule

202 deposition, any benefit to be gained from it is marginal. Further, the balancing required by

Rule 202 is different than what was and is proposed by RPIs.

At the hearing, Surls testified, “Instead of wasting this Court’s time in a full-blown

lawsuit, I would like to talk to [Relator] and find out . . . why he had McKenzie Brown do these

things knowing they were false.” RPI’s counsel echoed that desired relief: “[W]hy would

[Relator] knowingly publish false things [about Surls] and add in his company? That’s what the

Rule 202 is for.”

The balancing RPIs proposed to the trial court amounted to a comparison of the relative

expense of a Rule 202 deposition with that of a trial. RPI’s proposed balancing entirely omitted

consideration of the burden or expense of the procedure on Relator. Again, in our Court, RPIs

10
presented similar arguments, asserting that a Rule 202 deposition potentially saves the time and

expense of trial7 and that the burden on Relator, the would-be-deponent, need not be considered.8

RPI’s position is similar to arguments considered, and rejected, by the Austin Court of

Appeals. See id. There, three employees left Dell Computer Company and went to work for

Hewlett-Packard. Id. at 359. Dell suspected that the employees were “misappropriating Dell’s

trade secrets for the benefit of Hewlett–Packard and [sought] to investigate its suspicions by

utilizing rule 202 pre-suit depositions of its former employees.” Id. Dell urged that Rule 202

depositions were warranted because “[i]f it turns out that the deposition[s] [reveal] a legitimate

explanation and we do not want to go forward, the depositions haven’t been in waste because it

saved everybody a lot of time and energy that would be expended if there was actually a lawsuit

filed.” Id. at 361 (first alteration in original). The court rejected Dell’s deposition-to-trial

comparison, stating:

Dell’s view of rule 202’s benefit/burden analysis would allow individuals or
companies to take pre-suit depositions of business competitors in a broad range of
circumstances because the expense of taking a limited number of depositions can
almost always be argued to be less than the expense of filing and prosecuting a
lawsuit.

Id. at 362. The court assessed the balance by holding that any benefit to Dell from finding out

whether suit was warranted was outweighed by “the burden imposed on the potential deponents”

in that case. Id.

“Mr. Surls’ decision not to file a defamation suit against Mrs. Brown, and to instead pursue a Rule 202 deposition,
7

was designed to avoid wasting the Court’s time, and save the expense of a lawsuit.”
8
“Relator argues there is no evidence in the record that Surls knew the burden on Mr. Hunt. There does not need to
be any such evidence in order for [the] trial court’s finding to be supported by sufficient evidence and the [o]rder to
be valid. TEX. R. CIV. P. 202.4(a)(2) imposes on petitioner the burden to present evidence of ‘the burden or expense
of the procedure’ not the burden or expense on the proposed deponent (Hunt).” (Footnotes omitted).
11
We likewise hold that RPI’s deposition-to-trial comparison is an improper expression of

the balance of Rule 202.4(a)(2). We further reject RPI’s position that the balancing can be done

without taking into consideration the burden or expense on the would-be deponent.

RPIs had already determined to their satisfaction that Relator had acted maliciously.

RPIs had already determined to sue Relator. RPIs used an improper balancing approach and,

hence, failed to provide the trial court with evidence to carry their burden under a proper

balancing.

III. Conclusion

A deposition, once taken, “cannot be untaken.” In re Millwork, 631 S.W.3d 706, 715

(Tex. 2021) (per curiam) (orig. proceeding) (quoting In re Liberty Cnty. Mut. Ins. Co., 557

S.W.3d 851, 858 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding)). Keeping that in

mind, the Texas Supreme Court has “consistently held” that “parties lack an adequate appellate

remedy from orders compelling discovery beyond what the rules allow.” Id. at 714; see In re

Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (per curiam) (orig. proceeding).

Consequently, it is well settled that an erroneous “Rule 202 [order] may be set aside [via]

mandamus.” In re Wolfe, 341 S.W.3d at 933.

12
We, therefore, find that Respondent erred when it granted RPI’s petition to take Relator’s

presuit deposition. We conditionally grant Relator’s petition for a writ of mandamus and direct

Respondent to vacate its order. The writ will issue only if the trial court fails to vacate its order

within ten days of the date of this opinion.

Jeff Rambin
Justice

Date Submitted: December 16, 2024
Date Decided: December 17, 2024

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