CROSSOVER: Rule 202 Mandamus: No Presuit Deposition Without Admissible Evidence of Necessity or Burden-Benefit

In re Makayla Montoya-Frazier and Buckle Bunnies Fund, 02-26-00062-CV, August 13, 2026.

On appeal from 355th District Court of Hood County, Texas

Synopsis

A trial court abuses its discretion by granting a Texas Rule of Civil Procedure 202 presuit deposition petition without admissible evidence supporting Rule 202.4’s required findings. Where the Rule 202 target is an anticipated defendant, mandamus—not appeal—is the proper vehicle to obtain relief, and the order must be vacated.

Relevance to Family Law

This opinion matters in family law because Rule 202 practice appears regularly at the edges of divorce, SAPCR, property, fraud, trust, and enforcement disputes. Lawyers sometimes consider presuit discovery to identify hidden assets, trace community funds, investigate third-party transfers, preserve testimony before a filing, or evaluate potential claims involving fiduciary misconduct, reimbursement, or standing. This case is a sharp reminder that a Rule 202 petition is not a shortcut to merits discovery: in family-law-adjacent litigation, the petitioner must present admissible evidence establishing either that the likely benefit of the requested deposition outweighs its burden or expense or that the deposition may prevent a failure or delay of justice. Argument, verified pleadings alone, attached media reports, and lawyer briefing will not substitute for proof.

Case Summary

Fact Summary

Zach Maxwell filed a verified Rule 202 petition seeking to depose Makayla Montoya-Frazier, a founder and member of Buckle Bunnies Fund, and to compel production of documents through a subpoena incorporated into the petition. He asserted that the deposition was necessary both to investigate potential claims and to avoid a delay or failure of justice in anticipated litigation. The requested document production was extensive and included materials concerning the organization’s funding streams and the identities of officers, employees, volunteers, board members, and donors.

Montoya-Frazier and Buckle Bunnies Fund opposed the petition and challenged it on multiple grounds, including the absence of evidentiary support for the findings required by Rule 202.4. In response, Montoya-Frazier submitted an unsworn declaration addressing the burden of compliance, the breadth of the requests, and the potential consequences of compelled disclosure. Maxwell, by contrast, relied principally on his verified petition, briefing, and attached news articles that he contended reflected Montoya-Frazier’s public statements.

The Fort Worth Court of Appeals treated the matter as an original proceeding because the record and party admissions established that Montoya-Frazier and Buckle Bunnies Fund were anticipated defendants in the contemplated suit. That characterization mattered because, under Texas Rule 202 jurisprudence, a presuit deposition order directed at an anticipated defendant is not subject to interlocutory appeal and must be challenged by mandamus.

Issues Decided

• Whether Texas Rule of Civil Procedure 202.4 requires admissible evidence to support the trial court’s findings that:
• the likely benefit of allowing the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure, or
• the deposition may prevent a failure or delay of justice in an anticipated suit.
• Whether a trial court abuses its discretion by granting a Rule 202 petition without such evidentiary support.
• Whether mandamus is the proper remedy when the Rule 202 target is an anticipated defendant.
• Whether the appeal should be dismissed for want of jurisdiction because the Rule 202 order was ancillary rather than final.

Rules Applied

The court applied Texas Rule of Civil Procedure 202, especially Rule 202.1, Rule 202.2, and Rule 202.4. Rule 202 permits presuit depositions in limited circumstances either to perpetuate or obtain testimony for an anticipated suit or to investigate a potential claim or suit. But Rule 202.4 imposes a gatekeeping function: the trial court must find either that allowing the deposition may prevent a failure or delay of justice in an anticipated suit, or that the likely benefit of the deposition to investigate a potential claim outweighs the burden or expense.

The court also relied on the established distinction between Rule 202 orders directed at anticipated defendants and orders directed at nonparties. Under In re Jorden, 249 S.W.3d 416 (Tex. 2008) (orig. proceeding), and the Fort Worth court’s prior en banc decision in Montoya Frazier v. Maxwell (Buckle Bunnies I), 734 S.W.3d 1 (Tex. App.—Fort Worth 2025, pet. denied), a Rule 202 order against an anticipated defendant is ancillary, nonfinal, and reviewable by mandamus rather than appeal.

Embedded in the opinion is a basic but critical evidentiary rule: Rule 202 findings must rest on admissible evidence, not merely on pleadings, unsworn factual assertions in briefing, or unauthenticated media materials offered for the truth of the matter asserted. A verified petition may verify that documents are what they purport to be, but that does not necessarily render the contents competent proof of the substantive Rule 202 predicates.

Application

The court focused on the evidentiary gap. Maxwell had asked the trial court to compel a presuit deposition and broad document production, but he did not furnish admissible evidence establishing either of Rule 202.4’s required predicates. His position depended largely on his verified petition, attached news articles, and later-filed briefing that asserted the requested discovery would help identify potential defendants and avoid limitations problems. That was not enough.

Rule 202 is not self-executing. The trial court must make specific findings, and those findings must be supported by competent evidence in the record. The court of appeals concluded that the materials Maxwell relied on did not supply that evidentiary foundation. The news articles were not admissible proof of the underlying factual propositions necessary to justify presuit discovery, and lawyer argument in briefing could not fill the gap. On the other side of the ledger, Montoya-Frazier had placed burden evidence before the trial court through her declaration, addressing the scope of the requests and the practical and constitutional consequences of compelled disclosure.

The appellate court therefore treated the order as one entered without the evidentiary basis Rule 202 requires. Once the court determined the respondents were anticipated defendants, the procedural path became straightforward. Because no adequate appellate remedy existed, mandamus was the proper mechanism, and vacatur of the Rule 202 order was required.

Holding

The court held that a presuit deposition order under Texas Rule of Civil Procedure 202.4 is an abuse of discretion unless the record contains admissible evidence supporting the trial court’s required findings. Specifically, there must be competent proof that the likely benefit of the requested deposition outweighs its burden or expense, or that the deposition may prevent a failure or delay of justice. Without that proof, a Rule 202 order cannot stand.

The court also held that when the target of the Rule 202 petition is an anticipated defendant, mandamus is the proper remedy because the order is ancillary and nonappealable. For that reason, the court conditionally granted mandamus relief, ordered the trial court to vacate its order granting the Rule 202 petition and to render an order denying it, and dismissed the attempted appeal for want of jurisdiction.

Practical Application

For family law litigators, the opinion is a procedural warning and a strategic guide. If you are considering a Rule 202 petition before filing a divorce, SAPCR, partition, constructive-trust, fiduciary-duty, or fraudulent-transfer case, you must build an evidence record first. If your theory is that a presuit deposition is necessary to locate dissipated community assets, identify the custodian of business records, preserve testimony from an elderly family member, or investigate whether a third party received transferred marital property, the petition must be accompanied by admissible evidence addressing necessity and proportionality in Rule 202 terms.

The opinion also gives respondents a clean attack path. If your client is the likely defendant in a contemplated family-law-related action, scrutinize whether the petitioner has offered actual evidence or only allegations, exhibits attached to a petition, and lawyer argument. If the order issues without a competent evidentiary basis, this case strongly supports mandamus relief. In practice, that may arise where a spouse seeks presuit discovery into closely held entities, trusts, cryptocurrency accounts, paramour transfers, estate-planning vehicles, or donor and investor records before filing substantive claims.

In custody and SAPCR contexts, the case matters in a narrower but still important way. Rule 202 may be invoked to preserve testimony or investigate threshold issues such as standing, parentage-related facts, or jurisdictional facts tied to a future filing. But the same rule applies: the petitioner must prove, with admissible evidence, why the deposition is justified now and why its likely benefit outweighs the burden. Courts are not permitted to infer Rule 202.4 findings from the seriousness of the allegations alone.

For practitioners on both sides, this opinion reinforces that Rule 202 should remain exceptional. If ordinary post-filing discovery will adequately address the issue, that reality will often undermine a claim that presuit discovery is necessary to prevent a failure or delay of justice. In many family law settings, the better course may be to file the substantive case, seek temporary orders, and then use conventional discovery tools with the protections and relevance constraints that accompany an active suit.

Checklists

For the Rule 202 Petitioner

• Identify whether the request is to perpetuate testimony for an anticipated suit or to investigate a potential claim.
• Plead the Rule 202 elements with precision, including the anticipated subject matter of the suit and the specific reasons the deposition is needed.
• Present admissible evidence supporting Rule 202.4’s required finding:
• evidence that the deposition may prevent a failure or delay of justice, or
• evidence that the likely benefit outweighs the burden or expense.
• Use competent summary-proof materials where appropriate, such as:
• affidavits or declarations based on personal knowledge,
• authenticated business records,
• properly supported documentary exhibits.
• Tie the requested topics and document categories narrowly to the stated Rule 202 purpose.
• Explain why ordinary post-filing discovery is inadequate or unavailable.
• Address burden, confidentiality, privacy, and proportionality up front.
• If requesting document production with the deposition, tailor requests carefully and be prepared to justify each category.

For the Rule 202 Respondent

• Determine immediately whether your client is an anticipated defendant; if so, preserve the mandamus path.
• Object that Rule 202.4 findings must be supported by admissible evidence, not merely by pleadings or argument.
• Challenge hearsay, lack of authentication, and conclusory assertions in the petitioner’s materials.
• Put on your own burden evidence through affidavit or declaration:
• time and cost of compliance,
• overbreadth,
• confidentiality concerns,
• privacy interests,
• third-party impacts.
• Argue that the petitioner can file suit and use ordinary discovery instead.
• Seek narrowing, protective limitations, or denial if the request extends beyond Rule 202’s limited purpose.
• If the order is signed despite the evidentiary defect, evaluate mandamus immediately.

For Family Law Use Cases

• In hidden-asset investigations, gather admissible facts showing why presuit discovery is needed before filing rather than through post-filing discovery.
• In anticipated reimbursement or fiduciary-duty claims, connect the deposition to a specific claim, witness, or missing information.
• In cases involving elderly or ill witnesses, document the risk that testimony may be lost without a presuit deposition.
• In trust, entity, or third-party transfer disputes, define the target records and testimony with narrow precision.
• In custody-related presuit matters, show why the testimony is necessary to avoid a failure or delay of justice and why immediate filing is not the better procedural route.
• Always prepare for a proportionality challenge, especially where requested materials include donor lists, ownership records, account data, or other sensitive information.

To Avoid the Non-Prevailing Party’s Problem

• Do not assume a verified petition alone will satisfy Rule 202.4.
• Do not rely on unauthenticated news reports or similar materials as substantive proof.
• Do not expect attorney argument in briefing to substitute for evidence.
• Do not seek broad merits discovery under the label of Rule 202 investigation.
• Do not ignore the burden side of the equation; the record must support the balancing finding.
• Do not overlook whether the target is an anticipated defendant, because that affects both jurisdiction and remedy.

Citation

In re Makayla Montoya-Frazier and Buckle Bunnies Fund, No. 02-26-00062-CV (Tex. App.—Fort Worth Aug. 13, 2026, orig. proceeding) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

The procedural rule this case reinforces is straightforward but consequential: a Rule 202 presuit deposition may be ordered only after the trial court receives admissible evidence supporting one of Rule 202.4’s two statutory findings. In family law practice, that mechanism can arise before a divorce or SAPCR is filed when counsel seeks to preserve a witness’s testimony, investigate whether marital assets were transferred to third parties, identify the proper party controlling a business or trust, or develop facts relevant to standing or a related civil claim. This opinion confirms that the procedure is evidentiary, not merely pleading-based. If the proposed deponent is an anticipated defendant in the later family-law-related suit, review proceeds by mandamus, and the absence of competent Rule 202 proof is a strong basis to vacate the order.

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