In re Makayla Montoya-Frazier and Buckle Bunnies Fund, 02-26-00053-CV, August 13, 2026.
On appeal from 355th District Court of Hood County, Texas
Synopsis
Texas Rule 202 relief requires evidence, not argument. In this Fort Worth mandamus decision, the court held that a trial court cannot order presuit discovery unless the petitioner presents admissible evidence supporting Rule 202.4’s mandatory findings that the likely benefit outweighs the burden or expense, or that the discovery is needed to prevent a failure or delay of justice.
Relevance to Family Law
This ruling matters in family law because Rule 202 is sometimes considered before a divorce, SAPCR, partition, fraud-on-the-community claim, or enforcement-related suit when a party believes key facts or documents are being concealed. Montoya-Frazier reinforces that presuit discovery is not a shortcut to ordinary merits discovery: if a practitioner seeks a pre-filing deposition or document production to identify assets, trace transfers, investigate coercive conduct affecting conservatorship litigation, or preserve testimony before filing, the petition must be supported by admissible proof establishing necessity or a favorable burden-benefit balance. Conversely, family lawyers resisting Rule 202 relief now have a stronger mandamus record where the petition rests only on pleadings, briefing, attachments lacking evidentiary foundation, or attorney argument.
Case Summary
Fact Summary
Zach Maxwell filed a verified petition under Texas Rule of Civil Procedure 202 seeking to depose Makayla Montoya-Frazier and obtain documents from her through an incorporated subpoena. He asserted that the requested presuit discovery was necessary both to investigate potential claims and to avoid a failure or delay of justice in anticipated litigation. The petition was supported primarily by attached news articles, statutory materials, correspondence, and the proposed deposition notice and subpoena.
Montoya-Frazier and Buckle Bunnies Fund objected and challenged the petition on multiple grounds, including the absence of evidentiary support for Rule 202.4’s required findings. In response, Montoya-Frazier submitted an unsworn declaration addressing the burdens of compliance, the nature of the organization’s activities, and the consequences of compelled disclosure of internal and donor-related information. The trial court nevertheless granted the Rule 202 petition and ordered the deposition and production.
The Fort Worth Court of Appeals treated the matter procedurally as mandamus, not appeal, because the record and the parties’ admissions established that Montoya-Frazier and Buckle Bunnies Fund would be defendants in the anticipated suit. The core question therefore became whether the trial court could grant Rule 202 relief on this record absent admissible evidence supporting the mandatory findings required by Rule 202.4.
Issues Decided
- Whether Rule 202.4 requires admissible evidence supporting the trial court’s findings that:
- the likely benefit of allowing the requested presuit discovery outweighs the burden or expense, or
- the requested discovery is needed to prevent a failure or delay of justice.
- Whether a trial court abuses its discretion by granting a Rule 202 petition when those findings are unsupported by admissible evidence.
- Whether mandamus is the proper remedy when the Rule 202 order is directed to anticipated defendants and no adequate appellate remedy exists.
- Whether the appeal should be dismissed for want of jurisdiction because the Rule 202 order was ancillary rather than final.
Rules Applied
Rule 202 permits presuit depositions either to perpetuate or obtain testimony for use in an anticipated suit or to investigate a potential claim or suit. But Rule 202 relief is limited by Rule 202.4, which requires the trial court to find either that allowing the deposition may prevent a failure or delay of justice or that the likely benefit of the requested discovery outweighs its burden or expense. Those are not discretionary niceties; they are mandatory predicates to relief.
The court relied on the Texas Supreme Court’s instruction that Rule 202 is not a routine discovery device and must be strictly cabined. The opinion specifically invoked In re Does, 337 S.W.3d 862 (Tex. 2011), for the proposition that Rule 202 requires judicial restraint and adherence to its textual limits, and In re East, 476 S.W.3d 61 (Tex. App.—Corpus Christi–Edinburg 2014, orig. proceeding), for the principle that the required Rule 202.4 findings must be supported by evidence rather than conclusory assertions.
The court also applied the established jurisdictional distinction recognized in prior Rule 202 cases: when presuit discovery is sought from an anticipated party, the resulting order is ancillary and not appealable, making mandamus the proper vehicle. The opinion cited In re Jorden, 249 S.W.3d 416 (Tex. 2008), and the court’s own earlier en banc decision in Montoya Frazier v. Maxwell (Buckle Bunnies I), 734 S.W.3d 1 (Tex. App.—Fort Worth 2025, pet. denied).
Application
The Fort Worth court focused on a basic but often underappreciated distinction: a verified petition, attached materials, and lawyer argument do not automatically constitute admissible evidence sufficient to support Rule 202.4 findings. Maxwell argued that presuit discovery was necessary to identify possible defendants and facts before limitations expired, and that the likely benefits outweighed the burden. But the appellate court found no competent evidentiary showing establishing either side of Rule 202.4’s required calculus.
The court’s reasoning tracks the structure of the rule itself. Rule 202 is not self-executing upon allegation. A petitioner must present evidence from which the trial court can actually determine that presuit discovery is justified. Here, the record reflected assertions in briefing, a verified petition, and media articles attached to filings, but not admissible evidence establishing necessity or demonstrating why the requested deposition and document production met the rule’s burden-benefit requirement. On the other side of the ledger, the respondents had raised burden and confidentiality concerns, including the scope of requested internal organizational and donor information. Without competent proof supporting the Rule 202.4 findings, the trial court lacked a proper evidentiary basis to compel presuit discovery.
That deficiency mattered because Rule 202 imposes substantive gatekeeping. The appellate court treated the absence of evidence not as a minor procedural imperfection but as a failure of a mandatory prerequisite. Once the court concluded that the Rule 202 order was directed at anticipated defendants, mandamus became the appropriate remedy because there was no adequate remedy by appeal. The court therefore conditionally granted mandamus and directed the trial court to vacate its order and deny the petition.
Holding
The court held that presuit discovery under Texas Rule of Civil Procedure 202 is unavailable unless the petitioner presents admissible evidence supporting one of Rule 202.4’s required findings: either that the likely benefit of the requested discovery outweighs its burden or expense, or that the discovery is needed to prevent a failure or delay of justice. A trial court abuses its discretion by granting a Rule 202 petition without such evidentiary support.
The court further held that because Montoya-Frazier and Buckle Bunnies Fund were anticipated defendants in the contemplated litigation, the Rule 202 order was ancillary rather than final. As a result, appeal was unavailable, mandamus was the sole adequate remedy, and the appeal had to be dismissed for want of jurisdiction.
Finally, the court conditionally granted mandamus and ordered the trial court to vacate its order granting the Rule 202 petition and to render an order denying it. The court did not reach every remaining issue because the absence of evidentiary support for Rule 202.4 findings was dispositive.
Practical Application
For Texas family litigators, the immediate lesson is that Rule 202 should be approached as an extraordinary presuit tool requiring a real evidentiary record. If you need presuit discovery before filing a divorce or SAPCR-related action—for example, to preserve testimony from a terminally ill witness, identify assets transferred through nonparty entities before a fraud-on-the-community case, or investigate whether trust, business, or cryptocurrency records exist and where they are held—you must prove why ordinary post-filing discovery will not suffice and why the specific requested discovery satisfies Rule 202.4.
On the defensive side, this case gives practitioners a direct framework for resisting overbroad or unsupported Rule 202 requests in family-law-adjacent disputes. A responding party should test whether the petitioner has offered competent evidence, not merely suspicion, pleadings, or argument. In many domestic cases, the burden component will be substantial where the requested production reaches private financial records, donor or third-party identities, trade-secret-like business information in a closely held entity, protected health information, communications affecting minors, or electronic data requiring forensic collection.
In property litigation, the case is particularly useful where one spouse seeks presuit access to company records, books, or testimony from business managers before filing divorce or partition claims. The petitioner should be prepared to establish with evidence why filing first and using temporary orders, injunctions, expedited discovery, or ordinary requests for production would not adequately address the problem. In custody matters, the same principle applies if presuit discovery is sought to investigate allegations relevant to conservatorship or child safety. The court will expect evidence of necessity, not generalized concern.
Strategically, Montoya-Frazier also underscores that if the Rule 202 target is an anticipated defendant, the real appellate posture may be mandamus rather than direct appeal. That should shape both your trial-court record and your emergency response plan.
Checklists
Building a Rule 202 Petition That Can Survive Review
- Identify whether the petition is to perpetuate testimony, investigate a potential claim, or prevent a failure or delay of justice.
- Plead the anticipated claim or suit with enough specificity to show why presuit discovery is tied to a cognizable dispute.
- Offer admissible evidence, not just allegations, to support the Rule 202.4 finding you want the trial court to make.
- If relying on burden-benefit, present evidence addressing both sides of the equation.
- If relying on failure or delay of justice, show concretely why post-filing remedies are inadequate.
- Narrow the deposition topics and document requests to the minimum necessary to accomplish the stated Rule 202 purpose.
- Lay proper evidentiary foundation for exhibits, declarations, affidavits, and business records.
- Request express Rule 202.4 findings in the order.
Opposing a Rule 202 Petition in a Family Law Context
- Challenge whether the petitioner has offered competent evidence supporting either Rule 202.4 pathway.
- Distinguish verified pleadings from admissible evidence.
- Object to unauthenticated articles, hearsay materials, conclusory affidavits, and attorney argument used as substitutes for proof.
- Develop evidence of burden, expense, confidentiality concerns, and the availability of less intrusive alternatives.
- Show that ordinary post-filing family-law procedures would address the asserted need.
- Attack overbreadth in requested testimony, ESI, financial records, third-party identities, and sensitive personal data.
- Preserve objections to scope, privacy, privilege, and proportionality.
- If your client is an anticipated defendant, evaluate mandamus immediately.
Using Rule 202 Before Divorce, SAPCR, or Property Litigation
- Determine whether the real need is preservation of evidence or ordinary discovery in aid of a contemplated suit.
- Consider whether temporary restraining orders, temporary injunctions, standing orders, expedited merits filing, or post-filing discovery would solve the problem more cleanly.
- If asset dissipation is the concern, prepare evidence showing immediacy and why filing first is impracticable.
- If witness preservation is the concern, document age, illness, unavailability risk, or other facts showing likely loss of testimony.
- Tailor requests to specific accounts, entities, transactions, or subjects rather than broad “all documents” categories.
- Anticipate privacy issues involving children, medical information, nonparty business data, and financial account records.
Protecting the Record for Mandamus
- Obtain a reporter’s record of the Rule 202 hearing.
- Offer and admit all supporting or opposing evidence formally.
- Secure rulings on evidentiary objections.
- Request that the trial court state or sign the Rule 202.4 findings expressly.
- Make sure the order clearly identifies the permitted deposition and production scope.
- If relief is granted against an anticipated defendant, analyze mandamus deadlines and seek emergency relief promptly.
Family Law Crossover
The procedural rule this case reinforces is straightforward: Rule 202 presuit discovery is available only if the trial court has admissible evidence supporting one of Rule 202.4’s mandatory findings. In a family law matter, that issue can arise when counsel seeks a pre-suit deposition or document production before filing a divorce, SAPCR, partition, reimbursement, constructive-fraud, or third-party property case. For example, a practitioner may want presuit testimony from a business manager about imminent destruction of records, or narrowly tailored production from a nonparty custodian to preserve evidence of asset transfers before a community-property claim is filed. Under Montoya-Frazier, the court cannot grant that relief based on suspicion, pleading allegations, or briefing alone. The petitioner must build an evidentiary record showing either that the specific presuit discovery is needed to prevent a failure or delay of justice or that its likely benefit outweighs its burden or expense. If the target is an anticipated defendant, any erroneous order will likely be reviewed by mandamus rather than direct appeal.
Citation
In re Makayla Montoya-Frazier and Buckle Bunnies Fund, No. 02-26-00053-CV, ___ S.W.3d ___ (Tex. App.—Fort Worth Aug. 13, 2026, orig. proceeding) (mem. op.); consolidated with No. 02-26-00062-CV.
Full Opinion
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