In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-17-00416-CV
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IN RE STEPHEN MORRIS
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Original Proceeding
410th District Court of Montgomery County, Texas
Trial Cause No. 14-05-05365-CV
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MEMORANDUM OPINION
On October 4, 2017, the trial court ordered Stephen Morris, a non-party, to
make a diligent search and produce all documents responsive to the subpoena duces
tecum of the real party in interest, Total Rod Concepts, Inc. (“TRC”), at a location
in the city where Morris resides. In two issues presented in a petition for a writ of
mandamus, Morris contends the trial court lacked personal jurisdiction over him and
abused its discretion by compelling production in compliance with a subpoena that
violated the mileage limitations for a subpoena issued to a non-party. We stayed the
trial court’s order and TRC filed a response to Morris’s mandamus petition.
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TRC filed a notice of service of document subpoena. See generally Tex. R.
Civ. P. 205.2. The subpoena summoned Morris to appear in Houston and produce
documents. See generally Tex. R. Civ. P. 205.1(d). It was served on Morris in
Goliad, Texas. See generally Tex. R. Civ. P. 176.5. No motion to quash was filed.
After the time for compliance with the subpoena expired, TRC filed a motion to
compel production. See generally Tex. R. Civ. P. 176.8(a). On October 4, 2017, the
trial court conducted a hearing on the motion to compel. No record of the hearing
has been filed in this original proceeding. See Tex. R. App. P. 52.7(a)(2). At the
conclusion of the hearing, the trial court signed an order compelling production of
documents in Goliad, the city where Morris resides and was served with the
subpoena.
Morris argues that the trial court lacks personal jurisdiction over him because
he is not a party to the lawsuit. He further contends the subpoena is void because it
compelled him to travel 166 miles to produce documents in the City of Houston,
which he argues exceeds the distance limitation on subpoenas. See Tex. R. Civ. P.
176.3(a) (“A person may not be required by subpoena to appear or produce
documents or other things in a county that is more than 150 miles from where the
person resides or is served”). TRC argues Morris’s compliance with the subpoena
was required under the rules that allow discovery from non-parties. See generally
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Tex. R. Civ. P. 176.6(a), (c), 205.1. It further contends the plain language of Rule
176.3 permits requiring production in response to a subpoena anywhere in any
county with a border located within 150 miles of Morris’s residence in Goliad. At
the hearing on TRC’s motion to compel, at which Morris appeared, the trial court
modified the location at which Morris was to produce the documents to allow
production in the county of his residence.
A writ of mandamus is an extraordinary remedy that may be issued to correct
a clear abuse of discretion when that abuse cannot be remedied by appeal. See In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding);
Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). After
reviewing the petition, the response, and the appendices, we conclude that Morris
has not established that the trial court clearly abused its discretion by ordering him
to produce documents in Goliad, Texas. Accordingly, we lift our stay order of
October 31, 2017, and deny the petition for a writ of mandamus. See Tex. R. App.
P. 52.8(a).
PETITION DENIED.
PER CURIAM
Submitted on November 13, 2017
Opinion Delivered December 7, 2017
Before McKeithen, C.J., Kreger and Johnson, JJ.
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