TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-26-00497-CV
In re Adelide Ybarra and Leon Barba
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
Relators Adelide Ybarra and Leon Barba seek mandamus relief from orders by the
trial court in the underlying will contest, part of a probate proceeding.1 Relators complain of orders
that (1) struck their pleading that sought to admit to probate a purported 2018 will (the 2018 Will)
executed by decedent Juan Rosales Perez (Decedent) and denied them leave to file the pleading at
issue and (2) prevent them from deposing their medical expert. As part of the will contest, Relators
oppose the application of real party in interest Lawrence Perez (RPI) to admit to probate a
purported 2022 will (the 2022 Will) executed by Decedent.
We conclude that the trial court abused its discretion by striking Relators’ pleading
regarding the 2018 Will—the court struck it based on retroactively imposing a docket-control
deadline even though when Relators tendered the pleading for filing, there was no deadline applicable to the pleading. We also conclude that the trial court abused its discretion by preventing
Relators from deposing their medical expert—the expert’s testimony is undisputedly discoverable,
1 The proceeding is cause No. C-1-PB-24-000908; In the Estate of Juan Rosales Perez a/k/a Juan R. Perez, Deceased; before the Probate Court No. 2 of Travis County. so the court could not prohibit the deposition on the grounds that the expert’s testimony will not
be admissible at trial because he lacks a Texas medical license, an admissibility requirement for
this will contest for which neither we nor the parties have found any support in the law. An appeal
is inadequate to remedy these actions. Finally, regarding Relators’ separate, due-process issue
about the trial court’s purported sua sponte raising of an objection relating to the will contest’s
future final trial that testimony that is not given live and in person in court is inadmissible, we do
not reach the issue because Relators did not timely present it first to the trial court. We thus conditionally grant in part and deny in part mandamus relief.
I
The underlying probate proceeding has for some time involved competing applications to admit purported wills to probate. In 2024, early in the proceeding, Relator Barba applied
for admission of the 2018 Will to probate, in a pleading styled “Application for Probate of Will
and for Letters Testamentary Pursuant to Texas Estates Code 401.001 Will Not Producible in
Court.” Soon after, Jose Alba applied for admission of the 2022 Will to probate. But although
that will named Alba as independent executor, he declined to serve in the role. By 2025, Ybarra
had joined Barba as a plaintiff applying for admission of the 2018 Will to probate, and RPI had
joined the suit as a party applying for admission of the 2022 Will to probate.
Relators sought to depose their medical expert. In October 2025, they disclosed
that their expert, Dr. Keith Klein, a California medical doctor, would offer expert opinions about
Decedent’s cognitive abilities and understanding with regard to the 2022 Will. The same month,
Relators served RPI with a notice that they intended to take Dr. Klein’s deposition via remote
2
electronic means and to use his deposition testimony at trial. RPI moved to quash that deposition
and for a protective order prohibiting it from taking place. The deposition did not go forward.
Relators began advocating for a different will. They filed a “First Amended Petition” and in it not only contested RPI’s application regarding the 2022 Will but also applied for
admission to probate of a purported 2012 will (the 2012 Will) executed by Decedent. This
pleading does not mention the 2018 Will.
In November 2025, the trial court held an oral hearing on RPI’s motion to quash
and for a protective order, and several important matters arose during the hearing. Although the
court ultimately denied the motion, the court told the parties that any testimony offered during the
future final trial of the will contest must be given live and in person in court at the trial. In response,
Relators’ counsel represented that Dr. Klein would appear at the final trial in person. Also during
the hearing, the court referred to a proposed docket-control order but advised the parties that the
draft order was missing certain pretrial dates and had the wrong time for the beginning of the future
final trial. Later, the trial court expressed “frustrat[ion] with . . . how the discovery is conducted
in a way that’s basically” increasing the expenses of the suit, including the expenses to be borne
by Decedent’s estate. The court said that it would order Relators to pay $10,000 into the registry
of the court to secure certain of the estate’s costs and order RPI to pay $5,000 for the same purpose.
During the discussion about costs, Relators’ counsel told the court that Relators were withdrawing
the 2018 Will and putting forward the 2012 Will in its place. Soon after the hearing, Relators filed
a “Notice of Nonsuit Without Prejudice” nonsuiting their pleading applying for admission of the
2018 Will to probate.
The state of the pleadings changed again in 2026. The court rendered a partial
summary judgment for RPI. The judgment reflects the court’s ruling that Relators take nothing on
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their application to admit the 2012 Will to probate. And it states, “There is no request to probate
the 2018 Will in a live pleading.” The court signed that judgment on February 2, 2026. Nine days
later, Ybarra filed a pleading styled “Application for Probate of Will and for Letters Testamentary
Pursuant to Texas Estates Code 401.001 Will Not Producible in Court.” The pleading applies for
admission of the 2018 Will to probate and asks that Barba be appointed independent executor.
After the February 11 pleading’s filing, the court signed its docket-control order.
The order, signed February 17, sets a February 1 deadline for all amended pleadings to be filed.
Relators resumed their efforts to depose Dr. Klein. In March, they notified RPI of
their intent both to depose Dr. Klein via remote electronic means and to use his deposition testimony at trial “and for any other purpose authorized by” Texas law.
RPI moved to quash this deposition and for a protective order prohibiting it. He
also moved that Relators’ February 11 pleading be struck because, he argued, it was subject to the
docket-control order’s February 1 deadline and Relators had not been given leave to file the
pleading. These motions were heard during an oral hearing in April.
Early in the hearing, RPI’s counsel explained a relationship between the proposed
docket-control order and the trial court’s February partial summary judgment. Counsel said that a
docket-control order was agreed to and drafted in October 2025. Yet during the November 2025
hearing, the court, as mentioned above, had explained to the parties that there were deficiencies in
the draft order. RPI’s counsel then added that the court had “held off” from signing any docketcontrol order “because [the court] asked [RPI’s counsel] to file a motion for summary judgment
and wait to do the [docket-control order] until after there was a ruling on that—or sign a final
[docket-control order] until after there was a ruling on that.” In line with counsel’s explanation,
4
the trial court had signed the partial summary judgment on February 2 and had then signed its
docket-control order on February 17.
After argument at the hearing on the motion to strike, the trial court announced its
intent to strike the February 11 pleading. Then during the argument on the motion to quash and
for a protective order, the court questioned both sides about whether Dr. Klein had a Texas medical
license and whether a witness lacking a Texas medical license could offer expert opinion testimony
in a Texas will contest about the decedent’s sound mind or testamentary capacity. Amid the questioning, Relators’ counsel expressed that they now intended to use Dr. Klein’s deposition testimony at the final trial of the will contest in place of live, in-person testimony from him. She
asserted that the Rules of Civil Procedure allow such a use of a deposition. After final arguments
from both sides, the court explained that it would grant the motion to quash and for a protective
order because Dr. Klein lacks a Texas medical license and thus could not testify at the final trial.
The trial court signed orders striking the pleading and granting the motion to quash and for a protective order the day after this oral hearing.
Within a week, Relators moved for leave to file, and for reconsideration of the
striking of, their February 11 pleading. In the same span of time, they notified RPI of their intent
to take Dr. Klein’s deposition in person. RPI responded by moving for sanctions against Relators’
counsel because, RPI argued, the notice of intent to take the in-person deposition violated the
court’s protective order.
The court denied Relators’ motion for leave and reconsideration. And it granted
RPI’s sanctions motion, requiring Relators’ counsel to pay RPI’s counsel $1,800. Relators then
filed their mandamus petition and supplemental mandamus petition, initiating this original proceeding before us.
5
II
Mandamus issues to correct a trial court’s abuse of discretion for which the relator
lacks an adequate remedy by appeal. See In re H.E.B. Grocery Co., 492 S.W.3d 300, 302–05 (Tex.
2016) (orig. proceeding) (per curiam); In re Kona Coast Venture, LTD, 730 S.W.3d 683, 690–94
(Tex. App.—Austin 2026, orig. proceeding [mand. denied]).
III
Two of Relators’ five issues concern their struck pleading, by which they applied
for admission of the 2018 Will to probate. In one issue, they contend that mandamus is necessary
to correct the striking of the pleading from the record, and in the other, they contend that mandamus
is necessary to correct the trial court’s denial of their motion for leave to file the pleading. They
argue that the court’s order striking the pleading improperly relied on a purported procedural default by them and that the court instead should have striven to reach the merits of their claims
regarding the 2018 Will.2
RPI moved the trial court to strike the pleading, relying as support on the docketcontrol order. See In re WL & D, No. 14-23-00413-CV, 2023 WL 4503851, at *2 n.2 (Tex.
App.—Houston [14th Dist.] July 13, 2023, orig. proceeding) (mem. op.) (identifying real party in
interest’s “only argument” before trial court to support court’s striking of relator’s filing, action
which appellate court would go on to conclude was abuse of discretion); In re Kelm, 569 S.W.3d
2 As Relators argued to the trial court during the April 2026 oral hearing:
[T]he [docket-control] order wasn’t issued, Your Honor, on the date—this wasn’t
in effect on the date that we filed our new action. . . . It wasn’t an order, Your Honor. It was floating out there. I am the one that continued to contact the Court about
is this a valid order? Have we agreed to this order? Is this order signed?
6
232, 240–41 (Tex. App.—Houston [1st Dist.] 2018, orig. proceeding) (concluding that trial court
abused its discretion by striking pleadings when “the only stated reason” for that action misperceived and misapplied the law). Although Relators had tendered the pleading to the trial-court
clerk via e-filing on February 11, 2026, and the clerk stamped the pleading as filed as of that date,
the trial court signed its docket-control order six days later, on February 17, and the order sets a
February 1 deadline for “[a]ll amended pleadings.”3 RPI relies on this deadline as the reason that
Relators’ pleading should have been struck. There is no other court-ordered pleadings deadline in
the record, and the February 11 pleading was filed well before the seven-days-before-trial period
addressed in Rule of Civil Procedure 63.
A trial court abuses its discretion, and a relator lacks an adequate remedy by appeal,
when the court’s docket-control order retroactively imposes a filing deadline that results in the
striking of filings that were properly filed when they were filed. See In re Saddles Blazin, LLC,
No. 09-19-00302-CV, 2019 WL 5607905, at *3–4 (Tex. App.—Beaumont Oct. 31, 2019, orig.
proceeding) (mem. op.); In re Esparza, No. 08-23-00256-CV, 2024 WL 1834377, at *5–7 (Tex.
App.—El Paso Apr. 26, 2024, orig. proceeding [mand. denied]) (mem. op.); Beamon v. O’Neill,
865 S.W.2d 583, 584–85 (Tex. App.—Houston [14th Dist.] 1993, orig. proceeding); see also
TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 919–20 (Tex. 1991) (orig. proceeding)
(reasoning that appeals are usually inadequate to remedy trial-court orders that strike pleadings but
that do not result in rendition of appealable judgment); WL & D, 2023 WL 4503851, at *3 (holding
3 The Relators argue alternatively that their February 11 pleading did not constitute an amended pleading, while RPI argues that it does. But even if we agree with RPI on this point, Relators still have shown an abuse of discretion by the trial court for which they lack an adequate remedy by appeal.
7
that trial court abused its discretion by striking filing based on deadline that was not set by docketcontrol order then in place when filing was filed but was imposed only retroactively by court).
When Relators tendered their February 11 pleading to their e-filing service provider
and served the pleading on the other parties via the e-filing service provider, there was no courtordered pleadings deadline in place, and Rule 63’s pleadings deadline did not bar the pleading.
Therefore, the pleading was “deemed in law” to be filed on February 11. See Warner v. Glass,
135 S.W.3d 681, 684 (Tex. 2004) (per curiam); accord Jamar v. Patterson, 868 S.W.2d 318, 319
(Tex. 1993) (per curiam) (“[A] document is ‘filed’ when it is tendered to the clerk, or otherwise
put under the custody or control of the clerk.”); see also Tex. R. Civ. P. 21(a) (“Every pleading . . . must be filed with the clerk of the court in writing, . . . and at the same time a true copy
must be served on all other parties.”), (f)(5) (“An electronically filed document is deemed filed
when transmitted to the filing party’s electronic filing service provider . . . .”), 74 (“The filing of
pleadings, other papers and exhibits as required by these rules shall be made by filing them with
the clerk of the court . . . .”). Neither trial courts nor their clerks have unfettered discretion to reject
proper filings. See Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 666 (Tex. App.—Houston
[14th Dist.] 2012, pet. denied). Because Relators on February 11 filed their pleading in compliance with the deadlines, or lack thereof, that applied to that pleading, the trial court abused its
discretion by striking the pleading based on a retroactive imposition of the docket-control order’s
deadline for amended pleadings, and Relators lack an adequate remedy by appeal.4 See Saddles
4 The trial court’s order striking Relators’ pleading is not a final judgment under the special rules that apply to probate-court proceedings. See In re Est. of Wheatfall, 729 S.W.3d 788, 792 (Tex. 2026) (per curiam) (concluding that order admitting will to probate was not final because order did not unequivocally express intent to finally dispose of all issues related to will’s validity and record showed that trial court believed that will contest was still to be adjudicated); In re Guardianship of Thrash, 610 S.W.3d 74, 77–79 (Tex. App.—San Antonio 2020, pet. denied) (con8
Blazin, 2019 WL 5607905, at *3–4; Esparza, 2024 WL 1834377, at *5–7; Beamon, 865 S.W.2d
at 584–85; see also Rockhold v. Lucky Tiger Oil Co., 4 S.W.2d 1046, 1052 (Tex. App.—Amarillo
1927, writ dism’d w.o.j.) (instructing that pleading not stricken should be considered).
RPI argues that mandamus should not issue here because even if the docket-control
order’s February 1 deadline does not itself bar Relators’ pleading, Relators agreed to that deadline
and should be held to that agreement. Rule of Civil Procedure 11 governs when agreements between attorneys about pending suits are enforceable. See Knapp Med. Ctr. v. De La Garza, 238
S.W.3d 767, 768 (Tex. 2007) (per curiam) (“Rule 11 is a minimum requirement for enforcement
of all agreements concerning pending suits.” (quoting Kennedy v. Hyde, 682 S.W.2d 525, 528
(Tex. 1984))). Under the rule, no agreement between attorneys or parties touching any suit pending
will be enforced unless it is in writing, signed and filed with the papers as part of the record, or
unless it is made in open court and entered of record. Tex. R. Civ. P. 11. Because there is no
evidence of any written agreement signed by the parties, or of any agreement made in open court
and entered of record, that Relators could not file their pleading after February 1, no agreement
respecting that deadline is enforceable against Relators. See London Mkt. Cos. v. Schattman, 811
S.W.2d 550, 551–52 (Tex. 1991) (orig. proceeding) (per curiam); Diaz v. State & Cnty. Mut. Fire
Ins. Co., No. 04-06-00373-CV, 2007 WL 1481560, at *2 (Tex. App.—San Antonio May 23, 2007,
no pet.) (mem. op.). No other grounds supported by the record support the trial court’s order
striking Relators’ pleading.
In sum as to the February 11 pleading, we conclude both that the trial court abused
its discretion by issuing its order striking the pleading and that Relators lack an adequate remedy
cluding that order striking pleadings was not final judgment because striking of pleadings did not amount “conclusively adjudicate” claims).
9
by appeal. We conditionally grant mandamus relief directing the trial court to vacate its order
striking the pleading. We thus need not reach Relators’ arguments about whether the court also
abused its discretion by denying them leave to file the pleading. Once the order striking the pleading is vacated, the February 11 pleading will again be “deemed in law” to be filed of record in the
probate proceeding. See Warner, 135 S.W.3d at 684; accord Jamar, 868 S.W.2d at 319.
IV
Relators’ remaining three issues concern the trial court’s actions surrounding Relators’ attempts to depose their medical expert, Dr. Klein, a physician who practices internal medicine and nephrology. Relators intend to use testimony by Dr. Klein to show that Decedent lacked
mental capacity in 2022 and so could not have properly executed the 2022 Will and that the will
was thus executed only because of fraud or undue influence.
By their remaining issues, Relators contend that the court abused its discretion
(1) by issuing orders quashing their notice of a deposition of Dr. Klein that was to be conducted
by remote electronic means, see Tex. R. Civ. P. 199.1(b); granting RPI protection from that deposition; and sanctioning Relators’ counsel for later issuing a notice of an in-person deposition of
Dr. Klein and (2) by purportedly raising objections for RPI sua sponte that Dr. Klein’s deposition
could not be conducted virtually and that any recording of his deposition could not be shown at
the final trial of the will contest for any purpose.
A
We first address the trial court’s limitation on Relators’ ability to depose Dr. Klein,
whether in person or by remote electronic means. The circumstances leading up to the Relators’
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noticing that deposition, and the circumstances surrounding the court’s ensuing sanctions order,
are necessary background.
When Relators first issued a notice of deposition of Dr. Klein, they said in the notice
that the deposition would be conducted via Zoom or other remote electronic means. RPI moved
to quash that notice, in time to invoke the Rule of Civil Procedure 199.4 automatic stay. The trial
court ultimately denied this motion, but in the oral hearing on the motion, the court told the parties
that any witnesses whose testimony a party might put forward at trial must appear at the trial in
person to give that testimony: “[I]f you do a jury trial, if you do any kind of trial, it’s going to be
in person. No virtual testimony is allowed.” When Relators’ counsel asked for clarity about
whether Dr. Klein could appear for the trial live via Zoom, the court answered, “No.”
About 15 weeks after this hearing, Relators issued a second notice of a deposition
of Dr. Klein to be conducted via Zoom or other remote electronic means and stated in the notice
that they intended to use his deposition testimony “at the trial in this matter and for any other
purpose authorized” by Texas law. RPI moved to quash this second notice and for a protective
order “prohibit[ing] the discovery in the manner sought and stated as intended to be used.”
During the April 2026 oral hearing, the trial court made clear that it was granting
the motion because Dr. Klein’s medical license is not a Texas medical license. The topic first
arose on the heels of RPI’s counsel’s statement that Dr. Klein does not live in Texas. The court
asked counsel whether Dr. Klein was licensed in Texas, and counsel responded, “He is not.” The
court asked Relators’ counsel if she agreed that Dr. Klein is not licensed in Texas, and counsel
argued that Dr. Klein need not be for his expert testimony to be admissible. The court asked,
“Well, you do have to [be licensed in Texas] if you were to testify for incapacity in a guardianship
case, though; right?” Relators’ counsel responded that this suit is not a guardianship case.
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The court pressed the point further. It asked Relators’ counsel, “But if he is testifying as to legal incapacity under Texas law, doesn’t he have to be licensed under Texas?” And it
then made clear that this licensure issue is the basis for granting RPI’s motion to quash and for a
protective order:
[T]his doctor is not licensed in the State of Texas, [so] there would be a question
about the ability for this doctor to testify as an expert regarding Texas incapacity
that we would hear in a will contest. I think a Texas—or a doctor has to be licensed
in the State of Texas in order to render expert opinion about incapacity as it relates
to Texas law. So, in that instance, also to protect the cost of needing to depose a
witness that ultimately cannot be used at trial, I’m going to grant the motion to
quash and the protective order.
Relators’ counsel asked: “So are you saying, Your Honor, that he is not qualified to testify at trial?
Is that this ruling?” The Court made clear that it was:
The Court: Yeah, I mean, that’s part of that. It sounds like he won’t be able to—
you won’t be able to depose him. I mean, I have indicated to you all the reason
why. It sounds like if there is a Daubert challenge to introduce this live testimony,
just not without deposition, that that’s going to be my same issue, unless you guys
brief it and tell me I’m wrong otherwise. Okay.
[Relators’ counsel]: So just let me be clear. So your ruling is, is that this doctor,
because he is not licensed in Texas, cannot testify at the hearing in this matter?
The Court: On the trial in this matter, yes.
See Kelm, 569 S.W.3d at 240–41 (conditionally granting mandamus relief when “the only stated
reason” for trial court’s action showed abuse of discretion). The court granted RPI’s motion to
quash and for a protective order.5
5 But the court denied the portion of the motion that sought an award of attorneys’ fees.
12
A week after the order’s signing, Relators issued a notice of a deposition of
Dr. Klein to be conducted in person in California, where Dr. Klein lives and works. RPI moved
for contempt and for sanctions because of this deposition notice. He argued that the court’s order
both quashing the deposition that was to be conducted virtually and granting protection from that
deposition prevented Relators from deposing Dr. Klein in person.
The court soon after issued an order granting RPI’s sanctions motion, ordering Relators’ counsel to pay RPI’s counsel $1,800 as a sanction. The amount represents, the order says,
certain reasonable and necessary attorneys’ fees charged by RPI’s counsel, and RPI’s sanctions
motion indicates that the fees were incurred because of his counsel’s work on the motion. The
sanctions order, given all the surrounding circumstances, has prevented Relators from deposing
Dr. Klein in person. See Global Servs., Inc. v. Bianchi, 901 S.W.2d 934, 938–39 (Tex. 1995) (orig.
proceeding) (conditionally granting mandamus relief from sanctions order whose effect was to
prohibit relator from conducting any discovery); In re State Auto Prop. & Cas. Ins. Co., 348
S.W.3d 499, 502–03 (Tex. App.—Dallas 2011, orig. proceeding [mand. dism’d]) (conditionally
granting mandamus relief from order that prohibited party from asking certain deposition questions
and that preemptively sanctioned party for asking any such question).
Regarding whether Dr. Klein’s testimony would be admissible at the final trial despite his lack of a Texas medical license, we have not found, and RPI has not pointed us to, any
authority to support a ruling that Dr. Klein’s testimony would not be admissible because of the
Texas-licensure issue. Cf. Tex. R. Evid. 702 (providing conditions for admissibility of expert
opinion testimony but lacking any Texas-licensure requirement); State v. Northborough Ctr., Inc.,
987 S.W.2d 187, 194 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (“[T]here is no language in Rule 702 which can be construed as requiring a witness to have a license in order to
13
testify as an expert.” (citing Southland Lloyd’s Ins. Co. v. Tomberlain, 919 S.W.2d 822, 827 (Tex.
App.—Texarkana 1996, writ denied))). The trial court alluded to certain evidentiary requirements
in guardianship proceedings. See, e.g., Tex. Est. Code § 1101.103(a)(1)–(2); Act of May 25, 2023,
88th Leg., R.S., ch. 938, § 2, 2023 Tex. Gen. Laws 2996, 2996 (codified at Tex. Est. Code
§ 1202.152(a)); Act of May 27, 2023, 88th Leg., R.S., ch. 939, § 15, 2023 Tex. Gen. Laws 2998,
3006 (also codified at Tex. Est. Code § 1202.152(a)).6 But we have found no authority providing
that medical-expert opinion testimony that would be admissible under Rule of Evidence 702 is not
admissible when the expert is testifying in a Texas will contest about whether the decedent was of
sound mind when executing a will7 but the expert lacks a Texas medical license. And even this
issue aside, nothing before the trial court showed that Dr. Klein’s testimony was not discoverable
by deposition, irrespective of its trial admissibility. See In re Dodson, No. 12-23-00207-CV, 2023
WL 5969609, at *3 (Tex. App.—Tyler Sept. 13, 2023, orig. proceeding) (mem. op.) (conditionally
granting mandamus relief from trial court’s order quashing deposition while recognizing that “[a]
person has knowledge of relevant facts if he has or may have knowledge of any discoverable matter, whether or not he has admissible information or personal knowledge of the facts” (emphasis
added)). When a trial court quashes a deposition seeking discoverable testimony solely because
during the deposition itself objections and claims of privilege will preclude any substantive testi6 The Legislature codified two versions of Estates Code section 1202.152(a). Even so, both versions include a Texas-licensure requirement regarding certain guardianship proceedings.
7 See Tex. Est. Code § 256.152(a)(2)(B) (“sound mind” requirement for wills); Duke v. Falk, 463 S.W.2d 245, 254 (Tex. App.—Austin 1971, no writ) (“The terms testamentary capacity and sound mind in cases involving validity of a will mean the same thing.”); Act of May 26, 2009, 81st Leg., R.S., ch. 680, § 1, 2009 Tex. Gen. Laws 1512, 1512, 1608 (enacting Section 256.152 alongside numerous other provisions of new Estates Code and intending all to be merely “a nonsubstantive revision of provisions of the Texas Probate Code relating to decedents’ estates”).
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mony, the court abuses its discretion because the party seeking the deposition is still entitled to it
because the deponent’s testimony is discoverable. See Hilliard v. Heard, 666 S.W.2d 584, 585
(Tex. App.—Houston [1st Dist.] 1984, orig. proceeding). Even more so then is it an abuse of
discretion for a trial court to quash a deposition seeking discoverable testimony for reasons based
not on the testimony’s preclusion during the deposition itself but on the testimony’s purported
inadmissibility at the later trial.
The scenario here is much like the one that our sister court addressed in Smith,
Wright & Weed, P.C. v. Stone. See generally 818 S.W.2d 926 (Tex. App.—Houston [14th Dist.]
1991, orig. proceeding). There, the trial court quashed a deposition of a witness, Cherry, for a
reason that it told the parties on the record: “But I wanted you-all to know that part of the reason
had to do with whether or not there is any relevancy in anything that Mr. Cherry would say.” Id.
at 928. Our sister court concluded that the trial court had abused its discretion, requiring mandamus relief: “Whether Cherry’s testimony is admissible or will lead to discoverable evidence cannot
be determined until his deposition is taken. . . . We find the trial court committed a clear abuse of
discretion by quashing the taking of Cherry’s deposition upon the assumption that his answers
would not be relevant.” Id.
The relevance of Cherry’s deposition testimony is like the issue here of the admissibility of Dr. Klein’s testimony. Irrespective of whether his testimony will be admissible at trial,
his testimony is undisputedly discoverable by the discovery method that Relators advocate here, a
deposition. See Tex. R. Civ. P. 192.1(g) (oral deposition is “permissible form[] of discovery”).
No other grounds supported by the record support the trial court’s refusal to allow Relators to
depose Dr. Klein. The trial court thus abused its discretion by preventing Relators from taking
Dr. Klein’s deposition either in person, by sanctioning Relators’ counsel for the attempt to take
15
that in-person deposition, or by remote electronic means, by granting the motion to quash and for
a protective order. Relators lack an adequate remedy by appeal for this abuse of discretion. See
Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 558 (Tex. 1990) (orig. proceeding) (“[M]andamus
is the only remedy because the protective order shields the witnesses from deposition and thereby
prevents the evidence from being part of the record. Therefore, it would be impossible to determine on appeal if the denial were harmful error.”); Dodson, 2023 WL 5969609, at *4 (“ . . . Relator
lacks an adequate remedy by appeal. As a result of Respondent’s ruling, Blauert’s deposition
testimony would not be included in the appellate record and the substance thereof would be unknown, leaving this Court unable to evaluate the impact of the erroneous ruling on appeal and
therefore unable to cure the error on appeal.”). We conditionally grant mandamus relief directing
the trial court to allow Relators to depose Dr. Klein.
B
What remains of Relators’ issues and arguments is their contention about the trial
court’s purportedly raising an objection sua sponte that Dr. Klein’s deposition testimony could not
be shown at the future final trial of the will contest because all the trial testimony must be given
live and in person. Relators are asserting a violation of their right to due process. They argue that
because the trial court raised the live-testimony objection sua sponte during an oral hearing, they
were not prepared to be heard on that objection and so were given constitutionally inadequate
notice and opportunity to be heard on the topic.8 The trial court raised the issue during the oral
8 Relators do not specify whether their arguments rest on the federal constitutional right to due process or on the Texas constitutional right to due course of law or whether they invoke any protection that the Texas Due Course Clause may offer over and above that offered by the federal Due Process Clause. We thus assume here that the two clauses offer the same protection regarding
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hearing on RPI’s first motion to quash, but that first motion was denied. The second oral hearing—
the one leading to the grant of RPI’s second motion to quash and for a protective order—took place
five months after the first hearing occurred.
The preservation principles embodied by Rule of Appellate Procedure 33.1 apply
in mandamus proceedings. See In re Hopkins, No. 03-17-00429-CV, 2017 WL 6503080, at *1
(Tex. App.—Austin Dec. 12, 2017, orig. proceeding) (mem. op.); In re Polyamerica, LLC, 271
S.W.3d 442, 448 (Tex. App.—El Paso 2008, orig. proceeding). Those principles require that a
party make a timely request, objection, or motion to the trial court that states the grounds for the
ruling that the complaining party seeks from the court with sufficient specificity to make the court
aware of the complaint. See Tex. R. App. P. 33.1(a)(1)(A).
Here, when the trial court said during the hearing on the first motion that all testimony at the future final trial of the will contest must be presented live and in person, Relator failed
to make the court aware of a complaint that its raising of that objection sua sponte was a violation
of Relator’s due-process rights.9 Even if Relator made that complaint at the months-later oral
notice and an opportunity to be heard. See Paxton v. Annunciation House, Inc., 719 S.W.3d 555, 588 (Tex. 2025).
9 We stress that we understand Relators’ complaint to be about the sua sponte raising of the objection and not about any pre-trial exclusion of testimony that would otherwise have been offered at trial but that would not have been given live and in person in court. At the future final trial, should the parties dispute an offer of evidence when it is made, then the court and parties may address that dispute in the ordinary course; we are not deciding that evidence-exclusion issue here partly because Relators have not presented it for decision. For example, the trial court alluded to its local rules, and the parties may contest the application of the local rules concerning in-person trial testimony when testimony is offered at the future final trial. See Reveal v. West, 764 S.W.2d 8, 11 (Tex. App.—Houston [1st Dist.] 1988, orig. proceeding) (“We decline to rule on the question of the admissibility of Dr. Butler’s report during the trial on the merits, but we hold that the trial court has authority to make a pretrial ruling on the admissibility of Dr. Butler’s report. We also note that a trial court may reconsider its pretrial rulings, either before trial or during trial.”); see
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hearing on the second motion, by that time any due-process complaint about the sua sponte raising
of the live-testimony objection at the first hearing was untimely. Therefore, for lack of a timely
due-process complaint made to the trial court, we do not reach this remaining portion of Relators’
mandamus arguments.
* * *
We conditionally grant in part and deny in part Relators’ request for mandamus
relief. We direct the trial court to vacate its order striking Relators’ February 11 pleading, and we
direct the court to allow Relators to depose Dr. Klein. We do not reach Relators’ due-process
complaint about the purported sua sponte raising of an objection to trial testimony that is not live
and in person. We are confident that the trial court will comply, so our writ will issue only if it
does not.
Chari L. Kelly, Justice
Before Justices Triana, Kelly, and Ellis
Filed: September 29, 2026
generally Loc. R. for Prob. Cts. No. One and No. Two of Travis Cnty., Tex., available at https://topics.txcourts.gov/LocalRulesPublic/PreviewAttachment/1990.
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