                              NUMBER 13-13-00682-CV

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


                                  IN RE LEO G. CLICK JR.


                           On Petition for Writ of Mandamus.


                                            OPINION

                  Before Justices Rodriguez, Garza, and Perkes
                           Opinion by Justice Perkes1

        Relator, Leo G. Click Jr., filed a petition for writ of mandamus and motion for

temporary relief and stay in the above cause on December 10, 2013, seeking to avoid

producing a hair sample in a wrongful death and personal injury lawsuit. By order

issued the following day, this Court granted the motion for temporary relief and stayed

the trial court’s order of November 25, 2013 and any subsequent written order that



        1
          See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so. When granting relief, the court must hand down an opinion as in any other case.”);
TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).

                                                   1
would require the production of a hair sample. See TEX. R. APP. P. 52.10(b).2 This

Court requested and received a response to the petition for writ of mandamus from the

real parties in interest, Carlos H. Lowenberg Jr., individually and as independent

executor to the estate of Nicole K. Lowenberg and as next friend of Nicolas A.

Lowenberg and Carlos H. Lowenberg, III (“Tres”), minors. See id. R. 52.4, 52.87. We

conditionally grant the petition for writ of mandamus.

                                          I. BACKGROUND

       The underlying lawsuit arises from a vehicular accident occurring on or about

August 18, 2013 on Highway 35 in Refugio County, Texas. Nicole K. Lowenberg was

driving southbound with her two sons, Nicolas and Tres, and their friend Samson

Stoffregen. Relator, driving northbound in a truck owned by Dalton Trucking, Inc. and

Dalton Crane L.C. (collectively “Dalton”), veered into oncoming traffic and hit the

Lowenberg’s vehicle head-on. Nicole and Samson died in the crash. Nicolas and Tres

suffered personal injuries. On August 30, 2013, the real parties brought suit against

Dalton and Click for, inter alia, negligence, negligent hiring, supervision, training and

retention of employees, negligence per se, negligent entrustment, and gross

negligence.

       At issue in this original proceeding is a motion filed by the real parties on or about

October 11, 2013 seeking to examine relator’s hair follicle samples for controlled

substances under Texas Rules of Civil Procedure 196.1(b) and 204.1(a). See TEX. R.

CIV. P. 196.1(b), 204.1(a). According to the motion, the police officer’s report stated that

a contributing factor for the crash was that relator was fatigued and/or asleep. The


       2
           The respondent in this original proceeding is the Honorable Joseph Patrick Kelly, presiding
judge of the 267th Judicial District Court of Refugio County, Texas.
                                                  2
motion further stated that relator was currently on parole for “multiple criminal matters,”

including “possession of a controlled substance with the intent to manufacture, a second

degree felony.”   The real parties contended that relator’s physical condition was in

controversy because the police report showed that relator was fatigued or asleep at the

time of the crash and relator’s past drug convictions provided good cause for the

testing, thus entitling the real parties to test relator’s hair samples for controlled

substances.

       Relator filed a response to the real parties motion contending, inter alia, that his

physical condition was not in controversy and that the real parties had not demonstrated

good cause for the examination because no evidence showed that alcohol or drugs

were involved in the accident. Relator supported his response with an affidavit from Dr.

Vik Beberta, a medical toxicologist and emergency room physician, who opined, inter

alia, that: hair testing has “limited use” in determining whether an individual’s hair has

been exposed to a potential drug because a test can reflect drug usage by bystanders

rather than the individual subject to testing; and hair cleaning and manipulation, hair

pigment, color, race, dosage of drug exposure, and sampling methods can all affect the

availability and existence of drugs in the hair at the time of testing. Dr. Beberta stated

that in “situations like the present case, hair testing is no longer considered a

scientifically reliable method to determine whether an individual used drugs, when the

individual used drugs, or whether the individual was impaired or intoxicated by a

particular drug found in the hair.” Dr. Beberta further opined that testing hair samples

more than ninety days after an alleged drug exposure was scientifically unreliable.

       The trial court held a hearing on the motion on November 25, 2013. At the

hearing, counsel for the real parties informed the court that he had agreed to withhold
                                            3
discovery until after the case had been mediated; however, the real parties wished to

obtain relator’s hair sample and have it placed in an envelope to be held in the trial

court’s file so it could be tested if the parties were not able to resolve the case at

mediation. On November 29, 2013, the trial court granted the real parties’ motion. The

order states in relevant part:

              It is ordered that Defendant Leo G. Click produce by December 4,
        2013, hair samples. Said hair samples are to be placed in a sealed
        envelope and delivered to the District Court of Refugio County, Texas and
        are to be retained in the file until such time as Plaintiffs present at a
        hearing evidence and good cause to support the submission of hair
        samples for examination.

By agreement, the parties extended the deadline for production until December 11,

2013.

        By four issues, relator contends that the trial court abused its discretion when

ordering the production of the hair sample because:           (1) the real parties failed to

produce evidence that relator’s physical condition was in controversy; (2) the real

parties failed to produce evidence that there was good cause for the examination; (3)

there was unrebutted expert testimony that there was no possible relevance to or

scientific reliability for the hair sample testing; and (4) the testing was a violation of the

relator’s constitutional rights against unreasonable seizure of the hair sample.            In

response, the real parties contend that relator possesses an adequate appellate

remedy; the request is within the confines of proper discovery under Rule 192.3 of the

Texas Rules of Civil Procedure insofar as it is relevant and may lead to the discovery of

admissible evidence; and the request does not violate relator’s constitutional rights

regarding unreasonable search and seizures or the right to privacy.




                                              4
                                  II. STANDARD OF REVIEW

       To be entitled to the extraordinary relief of a writ of mandamus, the relator must

show that the trial court abused its discretion and that there is no adequate remedy by

appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding).     The relator has the burden of establishing both prerequisites to

mandamus relief.       In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.

proceeding). This burden is a heavy one. See In re Epic Holdings, Inc., 985 S.W.2d 41

(Tex. 1998) (orig. proceeding).

       The scope of discovery is generally within the trial court's discretion. Dillard

Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995).             Parties may seek

discovery "regarding any matter that is not privileged and is relevant to the subject

matter of the pending action . . . ." TEX. R. CIV. P. 192.3(a). Information is relevant if it

tends to make the existence of a fact that is of consequence to the determination of the

action more or less probable than it would be without the information. TEX. R. EVID. 401.

However, a trial court abuses its discretion when it orders discovery exceeding the

scope permitted by the rules of procedure. In re CSX Corp., 124 S.W.3d at 152.

       In the instant case, the real parties contend that relator possesses an adequate

remedy by appeal and thus mandamus relief is unavailable. However, mandamus relief

is available when the trial court compels production beyond the permissible bounds of

discovery.     In re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009) (orig.

proceeding); In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig.

proceeding). Specifically, for example, a party will not have an adequate remedy by

appeal: (1) when the appellate court would not be able to cure the trial court's discovery

error; (2) where the party's ability to present a viable claim or defense at trial is vitiated
                                              5
or severely compromised by the trial court's discovery error; and (3) where the trial court

disallows discovery and the missing discovery cannot be made a part of the appellate

record or the trial court, after proper request, refuses to make it part of the record. In re

Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding); Walker v. Packer,

827 S.W.2d 833, 843 (Tex.1992) (orig. proceeding).

                                       III. ANALYSIS

       Rule 204 of the Texas Rules of Civil Procedure pertains generally to physical and

mental examinations. See TEX. R. CIV. P. 204.1–204.5. Under Rule 204.1, a party may,

no later than thirty days before the end of the applicable discovery period, move for an

order compelling another party to submit to a physical or mental examination by a

qualified physician or psychologist. See id. R. 204.1(a)(1). Under the circumstances

present in this case, the party seeking the examination must show both (1) good cause

and (2) that the mental or physical condition of a party is in controversy. See id. R.

204.1(c)(1); Coates v. Whittington, 758 S.W.2d 749, 752 (Tex. 1988) (orig. proceeding)

(interpreting former rule 167a regarding the propriety of an order requiring a mental

examination); In re Commitment of Hatchell, 343 S.W.3d 560, 562–63 (Tex. App.—

Beaumont 2011, orig. proceeding).          These requirements may not be met with

“conclusory allegations” in the movant’s pleadings or by “mere relevance to the case.”

Coates, 758 S.W.2d at 751; see In re Transwestern Publ’g Co., 96 S.W.3d 501, 505

(Tex. App.—Fort Worth 2002, orig. proceeding). The “good cause” element requires a

balancing of the competing interests of the party's right of privacy and the movant's right

to a fair trial. See Coates, 758 S.W.2d at 753. In order to show good cause, the

movant must establish that: (1) the examination is relevant to issues that are genuinely

in controversy in the case and the examination would produce, or would likely lead to,
                                             6
relevant evidence; (2) a reasonable nexus exists between the condition in controversy

and the examination sought; and (3) it is not possible to obtain the desired information

through means that are less intrusive than a compelled examination. Id. at 751; In re

Transwestern Publ’g Co., 96 S.W.3d at 505; In re Caballero, 36 S.W.3d 143, 144 (Tex.

App.—Corpus Christi 2000, orig. proceeding).

       As an initial matter, the real parties contend that the foregoing requirements are

irrelevant because the trial court did not order an examination under Rule 204, but

instead only ordered the production of the hair sample, and the order requires the real

parties to thereafter produce evidence that good cause exists for the examination. We

conclude, however, that the prerequisites of Rule 204 apply not only to the examination

itself, but also the production of a physical sample. Rule 204 applies expressly to

orders compelling a party to “submit” to examination and compelling a party to

“produce” a person for examination. See TEX. R. CIV. P. 204.1(a)(1),(2). Moreover, it is

fundamental that the rules and law pertaining to the scope of discovery apply to the

production of discovery, not only what the recipient does with the fruits of the discovery.

See id. R. 192.3(a).

       We therefore turn to the requirements of Rule 204. See generally id. R. 204. As

a threshold matter, the text of the order requiring production indicates that good cause

for the examination had not yet been established at the time that the order was

rendered. Further, applying the foregoing analysis regarding good cause to this case,

the relator has presented unrebutted expert testimony that hair testing more than ninety

days after exposure is not scientifically reliable to determine whether a person used a

drug at a particular time, or was intoxicated or impaired from a drug at a particular point

in time. In other words, the evidence before the trial court did not establish that the
                                            7
requested examination is relevant to issues that are genuinely in controversy in the

case and the examination would produce, or would likely lead to, relevant evidence, or

that a reasonable nexus exists between the condition in controversy and the

examination sought. See, e.g., Coates, 758 S.W.2d at 751. Moreover the real parties

have made no attempt to show that it is not possible to obtain the desired information

through less intrusive means. See id. Accordingly, based on the record presented and

the arguments of the parties, we conclude that the real parties have not shown in this

case that good cause exists for an examination. Because the real parties failed to make

the requisite showings under Rule 204, the trial court erred in ordering the production of

the hair sample. See generally TEX. R. CIV. P. 204.1(c).

                                     IV. CONCLUSION

      The stay previously imposed by this Court is LIFTED.          See TEX. R. APP. P.

52.10(b) ("Unless vacated or modified, an order granting temporary relief is effective

until the case is finally decided."). We CONDITIONALLY GRANT the petition for writ of

mandamus.      The trial court is directed to vacate its November 29, 2013 order

compelling relator to produce a hair sample. The writ will issue only in the event that

respondent fails to comply.


                                                JUSTICE GREGORY T. PERKES

Delivered and filed the
6th day of January, 2014.




                                            8
