Eddie Dale Underwood v. the State of Texas ( 2021 )

Opinion filed December 9, 2021
In The
Eleventh Court of Appeals
___________
No. 11-21-00246-CV
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EDDIE DALE UNDERWOOD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 025324
MEMORANDUM OPINION
Appellant, Eddie Dale Underwood, has filed a pro se notice of appeal from an
order in which the trial court denied Appellant’s Rule 202 petition for pre-suit
depositions. See TEX. R. CIV. P. 202. Under Rule 202, a person may petition a trial
court for an order that authorizes the taking of a deposition to either (1) investigate
a potential claim or suit or (2) perpetuate or obtain testimony for use in an anticipated
suit. TEX. R. CIV. P. 202.1. The documents on file in this court show that Appellant
filed a Rule 202 petition in anticipation of a lawsuit that he intends to file to complain
about various ultra vires acts allegedly committed by state officials and employees
involved in the filing and handling of matters related to Appellant’s criminal
conviction. We dismiss the appeal.
The clerk of this court wrote Appellant on October 27, 2021, and informed
him that the order from which he attempted to appeal did not appear to be an
appealable order. We requested that Appellant respond and show grounds to
continue the appeal. We have received a response from Appellant in which he
asserts that the order entered by the trial court under Rule 202 of the Texas Rules of
Civil Procedure “operate[s] as a final appealable order and is immediately subject to
appellate review.” We disagree.
Unless specifically authorized by statute, appeals may be taken only from
final judgments. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840–41 (Tex.
2007); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A ruling on a
Rule 202 petition constitutes a final, appealable order “only if [the pre-suit
deposition is] sought from someone against whom suit is not anticipated.” In re
Jorden, 249 S.W.3d 416, 419 (Tex. 2008). On the other hand, an order granting or
denying a Rule 202 petition for the deposition of a person against whom suit is
contemplated is “considered ancillary to the subsequent suit, and thus neither final
nor appealable.” Id.; see Caress v. Fortier, 576 S.W.3d 778, 781 (Tex. App.—
Houston [1st Dist.] 2019, pet. denied); In re Alexander, 251 S.W.3d 798, 799 (Tex.
App.—Houston [1st Dist.] 2008, no pet.); Thomas v. Fitzgerald, 166 S.W.3d 746(Tex. App.—Waco 2005, no pet.).
In his Rule 202 petition for pre-suit depositions, Appellant asserted that
various government officials and employees, whom Appellant sought to depose,
colluded to deprive Appellant of his constitutional right of access to the courts and
due process of law. Appellant sought to depose the district judge, the district
attorney, the district clerk, a deputy clerk, the district judge’s court administrator,
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and the presiding judge of the local administrative judicial region. Thus, Appellant
sought to depose persons against whom he contemplated a lawsuit. Consequently,
the trial court’s order denying Appellant’s Rule 202 petition is not a final, appealable
order. See Jorden, 249 S.W.3d at 419. Furthermore, there is no statute authorizing
an interlocutory appeal from an order denying a Rule 202 petition to depose a person
against whom suit is contemplated. Alexander, 251 S.W.3d at 799. Because no
appealable order has been entered in this case, we have no jurisdiction to entertain
this appeal.
Consequently, we dismiss the appeal for want of jurisdiction. See TEX. R.
APP. P. 42.3.
PER CURIAM
December 9, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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