Opinion issued March = 13,=20 2008
Layton Duer=20
represented Alexander during Alexander's three-day criminal trial =
in May=20
1998. Pursuant to a request filed under the authority of Texas =
Rule of=20
Civil Procedure 202.1(b), Alexander attempted to depose Duer. =
Without=20
conducting a hearing, the trial court denied appellant's request =
to depose=20
Duer. Alexander argues that the trial court erred in denying the =
request=20
because the court mistakenly assumed that "the nature of the case =
was a=20
civil suit against the deponent when in fact the nature of the =
case is a=20
non-adversarial Verified Petition for the Deposition to =
Investigate=20
Potential Claim." Regardless, we lack jurisdiction to hear this=20
appeal. Alexander=20
sought to depose Duer to investigate a potential legal malpractice =
claim=20
against Duer. Alexander's Verified Petition for Deposition to =
Investigate=20
Claim states in pertinent part that "Petitioner seeks to depose =
Mr. Layton=20
Duer, in order to investigate a potential claim arising out of the =
trial=20
of Petitioner in the 176th District Court, 301 Jacinto Ave., =
Houston,=20
Texas 77002, on May 5-8, 1998, wherein the deponent may have =
committed=20
legal malpractice resulting from his representation of =
Petitioner."=20
Rule 202 of=20
the Texas Rules of Civil Procedure permits the taking of a =
deposition to=20
either perpetuate testimony or obtain testimony for use in =
anticipation of=20
suit or to investigate a potential claim or suit. Tex. R. =
Civ. P.=20
202.1 (a)-(b). The ruling of a trial court is a final appealable =
order=20
only if the deposition sought is against a third party against =
whom suit=20
is not contemplated. IFS Sec. Group, Inc. v. Am. Equity =
Ins., 175=20
S.W.3d 560, 563 (Tex. App.--Dallas 2005, no pet.); Thomas v.=20
Fitzgerald, 166 S.W.3d 746, 747 (Tex. App.--Waco 2005, no =
pet.).=20
However, if the individual seeking the discovery either =
contemplates or is=20
already suing the person he wishes to depose, the trial court's =
ruling is=20
interlocutory. IFS Sec. Group, 175 S.W.3d at 563;=20
Thomas, 166 S.W.3d at 747. In this case, the record =
clearly=20
demonstrates that Alexander is seeking discovery from his former =
lawyer,=20
against whom he intends to file a legal malpractice case. =
Accordingly, the=20
order is interlocutory in nature. Our=20
jurisdiction over interlocutory appeals is specified by statute. =
Stary=20
v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998). There is no =
statute=20
authorizing interlocutory appeal from an order denying a =
deposition of a=20
person against whom suit is contemplated; therefore, we have no=20
jurisdiction over this appeal.
The appeal=20
is dismissed for want of jurisdiction. George C.=20
Hanks, Jr. Panel=20
consists of Justices Nuchia, Hanks, and Higley.