COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE LEO G. CLICK JR.
On Petition for Writ of Mandamus.
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
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).
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.
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
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
The respondent in this original proceeding is the Honorable Joseph Patrick Kelly, presiding
judge of the 267th Judicial District Court of Refugio County, Texas.
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
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
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
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,
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.
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.
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.
The relator has the burden of establishing both prerequisites to
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
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
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).
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,
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
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).
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
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.