 
 




                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-17-00416-CV
                              _________________


                           IN RE STEPHEN MORRIS

________________________________________________________________________

                              Original Proceeding
              410th District Court of Montgomery County, Texas
                       Trial Cause No. 14-05-05365-CV
________________________________________________________________________

                          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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