Opinion issued July 2, 2024

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-24-00161-CV

———————————

IN RE ROBERT WALSH, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Non-party Relator Robert Walsh filed a Petition for Writ of Mandamus 

arguing the trial court abused its discretion by granting Real Party in Interest Johnson 

Fence and Masonry, LLC’s Motion to Compel his oral deposition. 

We conditionally grant the relief sought.
2

Background

The underlying case is the second of two suits filed involving generally the 

same underlying facts. In the first suit, currently pending before the 165th District 

Court of Harris County, Relator Robert Walsh sued Real Party Johnson Fence and 

Masonry, LLC, asserting that “[Relator] entered into a valid and enforceable 

employment contract with [Real Party],” and that “[Real Party] breached the contract 

. . . [by] fail[ing] to pay [Relator] [the] sums owed . . .” (“First Suit”).

1

 Real Party 

deposed Relator and later sought to retake his deposition. On May 15, 2023, the trial 

court denied without prejudice Real Party’s motion to retake Relator’s deposition. 

In the second filed suit, currently pending before the 11th District Court of 

Harris County, Real Party sued Relator’s brother, Stephen Anthony Walsh (“Steve 

Walsh”), and other defendants for their alleged participation in tortious conduct and 

for civil conspiracy (“Second Suit”).

2

 Relator is not a named party in the Second 

Suit. The Second Suit is the underlying case in this original proceeding. 

1 The first lawsuit, Cause No 2022-02795, Robert M. Walsh v. Johnson Fence and 

Masonry, LLC doing business as Johnson Services Company, is pending in the 

165th District Court of Harris County, Texas. 

2 The underlying case is Johnson Fence and Masonry, LLC v. Stephen Anthony 

Walsh, Anna Marie Valdez, Teresita Tezeno a/k/a Teresita N. Valdez, 

JBlakeConstruction LLC, ROS Construction Services, S.O.A. Construction 

Services, LLC, Amados Tractors Inc., Olver Amado Cureno-Nava, Fernando Ivan 

Cureno, Amado Cureno, Ayleen Estefania Esparza, Ballew Construction, LLC, 

Ashley Robert Ballew, Lena Cruz Ballew, Alexander Nicolas Valdez, and John Does 

1–10, Cause No. 2022-75023, pending in the 11th District Court of Harris County, 

Texas, the Honorable Kristen Hawkins presiding.
3

On November 22, 2023, Real Party’s counsel emailed Relator’s counsel in the 

First Suit to request the non-party deposition of Relator in the Second Suit. Relator 

responded expressing opposition to the request. On December 28, 2023, Real Party 

filed a Motion to Compel Relator’s deposition arguing that “[Relator] was the Vice 

President of Operations for [Real Party][,] . . . [and had] hired [defendant] Steve 

[Walsh to work] as a project manager, later promoting [him] to Senior Project 

Manager.” Real Party argued that “[Relator] and [his brother] Steve [Walsh had] 

used their senior positions with Real Party to enrich themselves . . . [and] . . . [i]n 

light of [Relator’s] role in [d]efendants’ fraudulent and tortious conspiracy, his 

deposition testimony [was] essential to Real Party’s prosecution of its claims against 

[d]efendants.” 

Real Party noticed its Motion to Compel for hearing on February 12, 2024. 

Relator, a non-party to the Second Suit, did not appear at the hearing. After hearing 

argument from Real Party’s counsel, the trial court granted an order compelling 

Relator’s oral deposition.

Four days later, on February 16, 2024, Relator filed an Emergency Motion to

Reconsider and to Void the Court’s Order, asserting that because “[Relator] is not 

before th[e] [c]ourt as a party and was never subpoenaed for a deposition, . . . [he] 
4

has no legal obligation to participate in discovery.”

3

 Relator argued that Real Party 

was “attempt[ing] to circumvent the 165th [District Court]’s denial of the same 

request [Real Party] made [in the First Suit] on September 26, 2023, with the same 

arguments repeated to this [c]ourt.” In addition to filing his Motion to Reconsider, 

Relator sent a letter to the trial court in this matter and to the 165th District Court in 

the First Suit, requesting an emergency hearing regarding the trial court’s February 

12, 2024 Order compelling his oral deposition.

In response to Relator’s Motion to Reconsider, Real Party argued that “[i]t 

was not necessary for [Real Party] to issue a subpoena to [Relator]” under Texas 

Rule of Civil Procedure 205.1 because “Rule 205.1 states that a party can compel 

discovery from a non-party ‘by obtaining a court order,’ which [Real Party] plainly 

did.”4 Real Party argued that Rule 205.1 applies only to a person “who is not a party 

or subject to a party’s control.” Relying on Rule 199.3, Real Party argued that 

because Relator “is employed by or subject to the control of [named] [d]efendant 

S.O.A. Construction Services, LLC” (“S.O.A.”), Relator “is subject to the control of 

a party to this case, [and as such,] notice alone was sufficient.”5 In support of its 

3 Relator refiled his Motion to Reconsider, and noticed it for a ndanthearing on 

February 26, 2024. 

4 See TEX. R. CIV. P. 205.1 (governing discovery from non-parties).

5 See TEX. R. CIV. P. 199.3 (stating that witness may be compelled to attend 

deposition either by subpoena, or if witness “is retained by, employed by, or 
5

contention that Relator is employed by or subject to the control of S.O.A., Real Party 

attached to its response an excerpt from the deposition of Steve Walsh dated 

December 13, 2023, that stated:

Q. Where does [Relator] work now? 

A. He does work for us at S.O.A. 

Real Party argued that it had moved to compel Relator’s deposition because 

Relator had refused to submit to a deposition, stating: “We do not agree. Let’s see 

what the [c]ourt says.” Real Party continued, “[i]f [Relator] had stated a willingness 

to sit for his deposition upon [Real Party’s] issuance of a subpoena, [Real Party] 

would have obliged (despite having no obligation to do so).” Real Party argued that 

the Order of the 165th District Court denying the reopening of Relator’s deposition 

in the First Suit was irrelevant because “[Real Party] deposed [Relator] in a separate 

lawsuit before [it] knew the details of the . . . conspiracy to defraud [it].” (emphasis 

in original). 

During the hearing on Relator’s Motion to Reconsider, the trial court asked 

Relator:

So, we already had a hearing on this issue and you all chose not to 

participate. You didn’t file a response and you didn’t come to the 

hearing. Why should I reconsider my ruling?

otherwise subject to the control of a party,” by notice of deposition on the party’s 

attorney).
6

Relator responded:

So, we believe, it is our position, that we are – [Relator] was not subject 

to the jurisdiction of this court. There was no subpoena issued for him. 

He is not a party to this case. 

And while I have read in [Real Party’s] response to our motion that he 

is working or under the control of S.O.A. Construction, which I believe 

is the defendant in this case, [Relator] is not an employee. 

He has performed work as a 1099 contractor, but he was never actually 

employed by them or issued a W-2. And we did not receive a subpoena 

nor a notice of this deposition. We were just asked via email, basically, 

after the fact, with the order, when he would be available for a 

deposition.

At the conclusion of the hearing, the trial court orally denied Relator’s Motion to

Reconsider.

On February 27, 2024, Relator filed this Petition for Writ of Mandamus, 

arguing that because he is “not a party before the trial court, and the trial court 

compelled his deposition without issuance of a subpoena . . . the trial court abused 

its discretion.” Relator argued that Real Party never served Relator with a notice of 

deposition, and even if it had, it would have been insufficient because “[Relator] was 

not employed by, retained by, or otherwise subject to the control of a party; [and] 

therefore” a subpoena is required. Relator also filed an Emergency Motion to Abate 

the trial court’s order compelling his deposition. 

Real Party filed a response to Relator’s Petition for Writ of Mandamus and 

his Motion to Abate. On February 29, 2024, this Court granted Relator’s Motion 
7

and stayed his deposition pending this Court’s adjudication of his Petition for Writ 

of Mandamus. Also on February 29, 2024, Real Party served Relator and S.O.A by 

electronic service with a Notice of Intent to Take Oral Deposition on March 6, 2024. 

Real Party also attempted to serve Relator with a Subpoena Duces Tecum, issued on 

February 29, 2024, scheduling Relator’s deposition for March 6, 2024. 

On March 2, 2024, the trial court signed a written order denying Relator’s 

Motion to Reconsider and ordering Relator to submit to a deposition by no later than 

March 8, 2024. In its order, the trial court stated that Relator had “neither filed a 

response nor appeared at the [February 12, 2024] hearing” on Real Party’s Motion 

to Compel his deposition. The trial court further held “there [was] evidence that 

[Relator] is employed and under the control of Defendant[,]” and it held that “the 

rulings of the 165th [District Court] [were] not binding.” 

In its response to Relator’s Petition for Writ of Mandamus, Real Party argues,

among other things, that “[b]y failing to respond to [its] motion to compel, [Relator] 

waived the issues he complains about in this original proceeding.” Real Party further 

argues that “[t]he issues [Relator] complains about are moot” because after Relator 

filed its Petition, Real Party issued a notice of deposition and a subpoena to Relator,

thus mooting his requested relief.

Relator replied, arguing that “[u]ntil a [c]ourt acquires proper jurisdiction over 

a person, that person has no obligation to do anything — including respond[] to 
8

motions.” Relator also argues that “the issue presented to this Court is not moot 

because [Real Party] is relying [on the issuance of] a subpoena not yet served on 

[Relator].” 

Standard of Review

Mandamus relief is appropriate when the trial court abuses its discretion, and 

the relator lacks an adequate remedy by appeal. In re AutoNation, Inc., 228 S.W.3d 

663, 667 (Tex. 2007) (orig. proceeding); In re Prudential Ins. Co of America, 148 

S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court abuses its 

discretion when there is “a clear failure by the trial court to analyze or apply the law 

correctly.” Walker v. Packer, 827 S.W.3d 833, 840 (Tex. 1992) (orig. proceeding).

“An order for discovery that is contrary to the Texas Rules is typically reviewable 

by mandamus.” In re Prince, No. 14-06-00895-CV, 2006 WL 3589484, at *2 (Tex. 

App.—Houston [14th Dist.] Dec. 12, 2006, original proceeding) (mem. op.). 

Additionally, mandamus will lie to correct an order that the trial court had no power 

or jurisdiction to render. Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431 

(Tex. 1986) (orig. proceeding); Decker v. Lindsay, 824 S.W.2d 247, 249 (Tex. 

App.—Houston [1st Dist.] 1992, orig. proceeding) (“Mandamus relief may be 

afforded where the trial court’s order is void.”). 
9

Discussion

“The scope of discovery is largely within the discretion of the trial court.” In

re Prince, 2006 WL 3589484, at *2 (citing Dillard Dep't Stores, Inc. v. Hall, 909 

S.W.2d 491, 492 (Tex. 1995)). “However, the trial court abuses its discretion by 

ordering discovery that exceeds [what is] permitted by the rules of procedure.” Id. 

(citing Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995)). 

A. There is No Evidence of Control

Under Texas Rules of Civil Procedure, a non-party witness may be compelled 

to attend a deposition only by subpoena or as otherwise provided for under Rule

205.1. See TEX. R. CIV. P. 205.1. Rule 205.1, entitled “Forms of Discovery; 

Subpoena Requirement,” states that “[a] party may compel discovery from a 

nonparty—that is, a person who is not a party or subject to a party’s control—only

by obtaining a court order under Rules 196.7, 202, or 204, or by serving a subpoena

compelling: (a) an oral deposition.” Id.

Real Party did not compel non-party Relator to submit to a deposition with 

the service of a subpoena as required by Rule 205.1.

6

 Nor did Real Party move for 

6 When Real Party first moved to compel Relator’s deposition, Real Party did not 

serve Relator with a subpoena, nor did it serve Relator with a subpoena in response 

to Relator’s Motion to Reconsider. The record reflects that Real Party first 

requested issuance of a subpoena for Relator’s deposition after Relator filed his 

Petition for Writ of Mandamus, and the record reflects that the subpoena has not 

been served. In its response, Real Party claims that Relator “dodged [the subpoena] 

and would not accept service.” 
10

a court order under Rules 196.7, 202, or 204.

7

 Real Party nonetheless argues that 

the trial court’s order compelling Relator’s deposition was proper because Rule 

205.1, “which requires a party to serve a subpoena on a nonparty, does not apply.” 

According to Real Party, “there is evidence in the record to support the trial court’s 

factual determination that [Relator] is subject to the control of a defendant in the 

underlying action,” and thus Real Party “was not required to serve him with a 

subpoena.” 

Real Party relies on Rules 199.3 and 205.1 for the premise that Relator is 

employed by or otherwise subject to the control of defendant S.O.A., and 

consequently, a subpoena was not necessary to compel his deposition. See TEX. R.

CIV. P. 199.3, 205.1. Rule 199.3, entitled “Compelling Witness to Attend,” provides 

that:

A party may compel [a] witness to attend the oral deposition by serving 

the witness with a subpoena under Rule 176. If the witness is a party 

or is retained by, employed by, or otherwise subject to the control of a 

party, however, service of the notice of oral deposition upon the party’s 

attorney has the same effect as a subpoena served on the witness. 

TEX. R. CIV. P. 199.3. Rule 199.3 and Rule 205.1 together encompass three 

categories of nonparties who may be compelled to a deposition without being 

7 Rule 196.7 relates to a request or motion for entry upon property. See TEX. R. CIV.

P. 196.7. Rule 202 governs the taking of depositions in anticipation of a suit or to 

investigate claims. See TEX. R. CIV. P. 202. And Rule 204 governs mental or 

physical examinations. See TEX. R. CIV. P. 204. None of these situations are 

applicable in this case.
11

subpoenaed: (1) employees; (2) retained experts; and (3) witnesses who are 

“otherwise subject to the control of a party.” In re Reaud, 286 S.W.3d 574, 578

(Tex. App.—Beaumont 2009, orig. proceeding) (analyzing Rules 199.3 and 205.1,

and concluding that the rules permit deposition of non-party witness without 

subpoena in only three situations). 

Real Party contends that Relator “is subject to the control of a defendant in 

the underlying action” and thus, pursuant to Rule 199.3, a subpoena was not 

necessary. But the record does not support Real Party’s proposition. When Real 

Party first moved to compel Relator’s deposition, and the trial court granted his 

Motion to Compel, Real Party did not argue that Relator was subject to the control 

of a party in the underlying action.8 The trial court thus could not have granted the 

motion on that basis. It was not until Relator filed its Motion to Reconsider that Real 

Party argued for the first time that Relator was “subject to the control” of a defendant

in the First Suit. But the evidence Real Party submitted does not support its 

argument. 

The only evidence Real Party produced in support of its argument that Relator 

is subject to the control of a party in the lawsuit is a one-page excerpt from the 

8

In its Motion to Compel, Real Party argued only that the trial court should order the 

deposition of Relator because Relator possessed “discoverable information” 

relevant to Real Party’s underlying claims. Real Party did not cite Rule 205.1 or 

Rule 199.3 in its Motion to Compel. 
12

deposition of Steve Walsh, which Real Party attached to its response. The one-page 

deposition excerpt redacts all but two lines from the deposition page and states, 

without more:

Based on this excerpt, which provides no context or explanation, Real Party argues 

that Relator is subject to the control of S.O.A. But the quoted excerpt does not 

support such a leaping conclusion. 

 Rule 199.3 and Rule 205.1 do not define what it means to be “otherwise subject 

to the control of a party.” TEX. R. CIV. P. 199.3. But other appellate courts have 
13

clarified that the doctrine of ejusdem generis9“limits the undefined, general term 

‘otherwise controlled’ as used in Rules 199.3 and 205.1 to include only control of 

the same kind, class, or nature as the types of control parties would have over 

employees or retained experts.” In re Reaud, 286 S.W.3d at 580 (holding that “these 

two rules do not extend to nonparties over whom the party does not have the type of 

control as it has over an employee or retained expert”). “Although the rationale is 

not expressed in the rules, we assume the employee-nonparty-witness is required to 

appear because his employer has the ability to establish his terms of employment, to 

fire him, and to decide whether he received a future promotion or demotion.” Id. at 

579.

There was no evidence presented to the trial court that S.O.A. employs 

Relator, or that S.O.A has the type of control over Relator that it has over employees. 

During the hearing on his Motion to Reconsider, Relator explained to the trial court 

that he “is not an employee” of S.O.A. and that he “was never actually employed by 

[S.O.A] or issued a W-2[,]” but rather “he ha[d] performed work as a 1099 

contractor.” The only evidence Real Party produced in response was a two-line 

deposition excerpt from Steve Walsh stating that Relator “does work” for S.O.A. 

9 Ejusdem generis means that “when words of a general nature are used in connection 

with the designation of particular objects or classes of persons or things, the 

meaning of the general words will be restricted to the particular designation.” State 

v. Fidelity and Deposit Co. of Maryland, 223 S.W.3d 309, 312 (Tex. 2007).
14

This evidence, alone, is insufficient to establish that Relator was employed by or 

otherwise subject to the control of S.O.A. for purposes of Rule 199.3. In re Reaud, 

286 S.W.3d at 580 (explaining that “otherwise subject to the control of a party” 

contemplates that party has same types of control employer has over employee). 

There was thus no evidence to support the trial court’s finding that Relator “is 

employed and under the control of [S.O.A.].” Consequently, a subpoena was 

necessary to compel Relator’s deposition and it was error for the trial court to issue 

an order compelling Relator’s deposition without one. See TEX. R. CIV. P. 205.1; In

re Mosser Mallers PLLC, No. 05-08-00259-CV, 2008 WL 963170, at *2 (Tex. 

App.—Dallas Apr. 9, 2008, orig. proceeding) (mem. op.) (holding that “real parties 

did not compel . . . non-party relator with the service of subpoena as required by rule 

205” and “conclud[ing] [that] the trial court acted without personal jurisdiction over 

the [non-party] relator and abused its discretion in granting real parties’ motion to 

compel”); Cf. In re Prince, 2006 WL 3589484, at *3 (holding that real party 

“properly moved to compel [non-party relator’s] compliance with [a] subpoena”;

granting mandamus relief on other grounds).

B. Relator’s Actions Did Not Waive the Subpoena Requirement 

Real Party argues that “[Relator] waived the issues he now complains about” 

in his Petition for Writ of Mandamus because “he failed to respond to [Real Party’s] 
15

motion [to compel] or attend the hearing [on the motion],” even though he “had 

notice of the motion and hearing to compel [his] deposition.” We disagree. 

To issue a binding order against a party, a trial court must possess personal 

jurisdiction over that party in the proceeding in which the order is rendered. See

CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996) (orig. proceeding). “Generally, 

a trial [court] has control over only those parties properly before the court.” In re

Proassurance Ins. Co., No. 05-15-01256-CV, 2016 WL 25645, at *3 (Tex. App.—

Dallas Jan. 4, 2016, orig. proceeding) (mem. op.) (citing Haas v. George, 71 S.W.3d 

904, 915 (Tex. App.—Texarkana 2002, no pet.)). When a trial court lacks 

jurisdiction to render a particular order, the order is void. See In re Green Oaks

Hosp. Subsidiary, L.P., 297 S.W.3d 452, 455-56 (Tex. App.—Dallas 2009, orig. 

proceeding); Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602, 635–36 (Tex. 

App.—Houston [14th Dist.] 2009, pet. denied) (holding trial court’s order enforcing 

confidentiality agreement between former intervenor and party to lawsuit, void 

because former intervenor was nonparty to suit when trial court issued order).

Relator is not a named party in the First Suit. Thus, irrespective of his absence 

from the hearing on Real Party’s motion to compel or his lack of response, the trial 

court lacked jurisdiction to issue an order compelling his deposition without the 

issuance of a subpoena. See In re Proassurance Ins. Co., 2016 WL 25645, at *2 
16

(trial court “lacked jurisdiction to order . . . non-party . . . to appear”). Relator 

therefore did not waive the issues he raises in his petition.

C. Relator’s Petition for Writ of Mandamus is Not Moot

After Relator filed his Petition for Writ of Mandamus, Real Party issued a

Notice of Intent to Take the Oral Deposition of Relator and a Subpoena Duces 

Tecum, scheduling Relator’s deposition for March 6, 2024. As a result, Real Party 

contends Relator’s Petition is moot. We disagree.

A notice of deposition alone is insufficient to compel Relator’s deposition 

because, as we have already concluded, the record does not support Real Party’s 

argument that Relator is employed by or otherwise subject to the control of S.O.A. 

And while Real Party asserts that it has now “issued a subpoena,” Real Party 

concedes that Relator has not been served.

10 Moreover, even though a subpoena has 

issued, the trial court’s order compelling Relator’s deposition without a subpoena 

remains, and as we have concluded, it was an abuse of discretion for the court to 

have entered it. We thus do not agree that Relator’s Petition for Writ of Mandamus

seeking vacatur of the trial court’s erroneous order is moot.

10 In its response to the Petition, Real Party states that it “attempted to serve [Relator] 

with a subpoena,” but was not able to serve him. 
17

D. No Adequate Appellate Remedy 

Relator lacks an adequate remedy by appeal. Relator is not a party to the 

Second Suit, and he thus lacks the right to a direct appeal from the trial court’s order 

compelling his deposition. See In re Prince, 2006 WL 3589484, at *2 (holding there

was no adequate remedy because relator “is not a party to the lawsuit” and “he has

no right to appeal”); City of Houston v. Chambers, 899 S.W.2d 306, 308 (Tex.

App.—Houston [14th Dist.] 1995, orig. proceeding) (because city was not party to 

lawsuit, it “has no adequate remedy by appeal, [and] mandamus may lie”).

Conclusion

We conditionally grant mandamus relief and direct the trial court to vacate its

March 2, 2024 order compelling the deposition of Relator. A writ will issue only if 

the trial court fails to comply. We lift the stay issued on March 2, 2024, and dismiss 

any pending motions as moot. 

PER CURIAM

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.