                                          NO. 07-05-0206-CV

                                    IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                 PANEL D

                                         JUNE 1, 2006
                               ______________________________

                                  In re RUSSELL JAY REGER
                             _________________________________

               FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

                  NO. 05-03-19,935; HON. HAROLD PHELAN, PRESIDING
                          _______________________________

                                          Opinion
                              _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

        Russell Jay Reger (Reger), an indigent inmate, appeals from an order dismissing

his “Petition [under Texas Rule of Civil Procedure 202] to Take Deposition to Investigate

Potential Claim.”1 The trial court dismissed the petition because Reger allegedly failed to

comply with Rule 202.2(f)(1) and (2) of the Rules of Civil Procedure and with §14.004 of

the Civil Practice and Remedies Code. Reger contends in four issues that the trial court

abused its discretion 1) by dismissing as moot his motion to request the Attorney General’s

office to show its authority to appear in the case, 2) by finding that he failed to comply with

Rule 202.2(f) of the Rules of Civil Procedure, 3) by finding that he failed to comply with the



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          It has been held that such an order is a final, appealable one if the petition seeks discovery from a
third party against whom a suit is not co ntem plated . Thomas v. Fitzgerald, 166 S.W .3d 746, 747 (Tex. App.–
W aco 200 5, no pet.).
Civil Practice and Remedies Code, and 4) by dismissing his discovery proceeding on

procedural grounds “when the underlying potential claim stemmed from a void judgment”

in a criminal case. We affirm the order of the trial court.

       Assuming arguendo, that any of the issues of Reger had foundation and the trial

court erred in dismissing on the grounds it did, we find the error harmless. This is so for

several reasons. First, Rule 202 is found in the Texas Rules of Civil Procedure. Next, the

Texas Rules of Civil Procedure “govern the procedure . . . in all actions of a civil nature.”

TEX . R. CIV. P. 2.   Third, a proceeding of the ilk described in Rule 202 is not an

independent suit, but a proceeding “ancillary to [an] anticipated suit.” Office Employees

Int’l Union v. Southwestern Drug Corp., 391 S.W.2d 404, 406 (Tex. 1965). Fourth,

combining the presence of Rule 202 in the Rules of Civil Procedure with the fact that

those rules govern civil proceedings, and with the truism that a Rule 202 proceeding is

ancillary to an anticipated suit, we conclude that the anticipated suit must itself be civil in

nature.

       Fifth, it is beyond dispute that Reger seeks to depose the trial judge who presided

over his criminal trial to obtain evidence to nullify his felony conviction for murder. Sixth,

effort to nullify a felony conviction must be undertaken via habeas corpus instituted per art.

11.07 of the Texas Code of Criminal Procedure. And, seventh, an art. 11.07 habeas

proceeding is not civil in nature, but criminal. Ex parte Rieck, 144 S.W.3d 510, 516 (Tex.

Crim. App. 2004). So, because the anticipated suit or claim Reger desired to initiate is

criminal, as opposed to civil in nature, the relief afforded under Rule 202 was unavailable

to him.



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       In sum, criminal matters have their own rules of discovery, such as they are. We

opt not to enhance that body of rules by engrafting on to them Texas Rule of Civil

Procedure 202. We leave that to the courts of last resort. Accordingly, the order of

dismissal is affirmed.



                                               Brian Quinn
                                               Chief Justice




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