                                   NO. 07-01-0283-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                 SEPTEMBER 20, 2001

                          ______________________________


                        IN RE ENERGAS COMPANY, RELATOR


                        _________________________________


                                CONCURRING OPINION


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


       I concur in the opinion and judgment of the majority but write separately to clarify

my position regarding the absence of adequate legal remedy. That is, to win mandamus,

the applicant must generally prove that 1) the trial court clearly abused its discretion and

2) the applicant lacks an adequate legal remedy. Walker v. Packer, 827 S.W.2d 833,

837(Tex. 1992). Here, we found that the trial court abused its discretion in permitting

discovery with regard to request for production No. 24. This was so because the time

period encompassed by the request was unrestricted.           Having found that Energas

Company satisfied the first prong of Packer, we normally would be required to consider the

second prong, i.e. the lack of adequate legal remedy. However, the Supreme Court in In
re American Optical Corp., 988 S.W.2d 711 (Tex. 1998) granted mandamus under factual

circumstances similar to those before us without first considering whether the applicant

had an adequate legal remedy. Instead, it merely concluded that the trial court abused its

discretion because the requests there at issue were not tied to any particular products or

time periods. Id. at 713. Then, it deigned to conditionally grant a writ of mandamus. Id.

at 714. Granting the writ simply after finding an abuse of discretion implies that one need

not satisfy the second prong of Packer in circumstances like those before us. And, though

I question the policy behind relieving one from satisfying both aspects of Packer, we are

nonetheless bound to follow the Supreme Court’s lead, as evinced in In re American

Optical. So, that is why I concur in the majority’s opinion.



                                                 Brian Quinn
                                                   Justice
Publish.




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