Opinion issued May 7, 2021

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-21-00212-CV

———————————

IN RE TEAM INDUSTRIAL SERVICES, INC. AND SID CAMMERESI, 

Relators

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relators, Team Industrial Services, Inc. and Sid Cammeresi, have filed a 

petition for writ of mandamus, challenging the trial court’s order granting the motion 

to enforce a subpoena served by real party in interest, Kelly Most, Individually and 

as Personal Representative of the Estate of Jesse Henson, on Sid Cammeresi. 
2

Relators also filed a motion for emergency relief, which we granted, staying the trial 

court’s order.1

 We grant the petition.

Background

The underlying trial court case is a wrongful death lawsuit filed by the family 

of Jesse Henson, who died from burns sustained when a steam turbine failed at a 

coal-fired power plant in Kansas. According to relators’ petition, Sid Cammeresi, a 

former employee of Team Industrial, was designated as an expert witness for Team 

Industrial. Real party deposed Cammeresi in February 2020. The case was 

previously set for trial in August 2020, and a subpoena was served on Cammeresi in 

July 2020. That August 2020 trial setting was continued until January 12, 2021. 

Real party served Cammeresi with another subpoena on November 20, 2020 to 

appear at the Smart Financial Center in Sugarland, Texas on January 12, 2021 for 

trial. The trial setting in January was continued until May 4, 2021. No new subpoena 

for Cammeresi to appear at the May 2021 trial setting was served. Between the 

January 2021 and May 2021 trial settings, Cammeresi moved from Texas City to 

Indiana.

1 The underlying case is Kelli Most, Individually and as Personal Representative of 

the Estate of Jesse Henson, cause number 18-DCV-256883, pending in the 268th 

District Court of Fort Bend County, Texas, the Hon. R. O’Neil Williams presiding.
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On May 3, 2021—the day before trial was set to begin—real party filed an 

emergency motion to enforce the subpoena issued in November 2020. An 

emergency hearing was held on May 3, 2021, and the trial court signed an order on 

May 3, 2021, granting the motion, and stating as follows:

Specifically, the Court finds that the witness was served 

with a valid subpoena and that the witness was never 

discharged by the court or by the party summoning the 

witness from compliance with that subpoena. The 

subpoena remains in effect and the Court expects the 

witness to comply with it by attending trial on May 4, 2021 

from day to day until lawfully discharged. If the witness 

does not comply, he may be deemed a [sic] contempt of 

the Court and may be punished by fine or confinement or 

both.

Analysis

To be entitled to mandamus relief, a petitioner must show both that the trial 

court abused its discretion and that there is no adequate remedy by appeal. In re 

Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex. 2004). “[A] clear failure by the trial 

court to analyze or apply the law correctly will constitute an abuse of discretion.” 

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). 

1. The trial court lacked authority to compel Cammeresi to appear

Rule 176.1 requires a subpoena to be in a certain form and include the time, 

place, and nature of action required by the person to whom the subpoena is directed. 

TEX. R. CIV. P. 176.1. No new subpoena was served on Cammeresi for the May 4, 

2021 trial. Instead, the trial court granted real party’s motion to enforce and issued 
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an order enforcing the subpoena issued in November 2020 for the January 12, 2021 

trial setting which was continued. Moreover, the subpoena commanded Cammeresi 

to appear at the Smart Financial Center when the current trial location is at the Fort 

Bend County Courthouse. Accordingly, the subpoena no longer complies with Rule 

176.1 because the place specified in the subpoena is incorrect and the time specified 

for Cammeresi to appear, “the 12th day of January 2021, at 9:00 A.M.”, has passed. 

Courts addressing similar situations have held that the complained-of subpoena has 

either expired or the witness is no longer subject to the subpoena. See, e.g., In re 

Tyson Foods, Inc., No. 12-17-00156-CV, 2017 WL 3225051, at *2 (Tex. App.—

Tyler July 31, 2017, orig. proceeding) (mem. op.) (holding that subpoena that had 

issued for trial date that was continued had expired rendering issue concerning 

motion to quash subpoena moot); see also TEX. R. CIV. P. 176.1(e) (requiring that 

subpoena state time and place witness must appear).

Real party argues that Cammeresi had to seek protection in the trial court 

before seeking mandamus relief, but that was an impossibility. Rule 176.6(e) 

requires a person seeking protection from a trial subpoena to seek protection from 

the subpoena before the time specified for compliance. The time specified in the 

subpoena for compliance was January 12, 2021.

A trial court has no authority to require a witness by subpoena to attend trial 

“in a county that is more than 150 miles from where the witness resides or is served.” 
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TEX. R. CIV. P. 176.3(a); see In re FedEx Ground Package Sys., Inc., 609 S.W.3d 

153, 159–60 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (holding that 

trial court abused its discretion in denying motion to quash subpoena and for 

protective order of witness who lived more than 150 miles from courthouse); In re 

Proassurance Ins. Co., No. 05-15-01256-CV, 2016 WL 25645, at *2 (Tex. App.—

Dallas Jan. 4, 2016, orig. proceeding) (mem. op.) (holding that trial court lacked 

authority to compel non-party who lived more than 150 miles from courthouse to 

appear in court); Dr. Pepper Co. v. Davis, 745 S.W.2d 470, 471 (Tex. App.—Austin 

1988, orig. proceeding) (granting mandamus relief on ground that trial court was 

without power to issue subpoena or otherwise compel witness to appear at trial when 

witness lived outside the subpoena power of the trial court); see also In re Prince, 

No. 14-06-00895-CV, 2006 WL 3589484, at *3 (Tex. App.—Houston [14th Dist.] 

Dec. 12, 2006, orig. proceeding) (mem. op.) (per curiam) (holding that orders

contrary to Texas Rules of Procedure are typically reviewable by mandamus)

Because the subpoena issued in November 2020 had expired and the trial court 

lacked authority to compel Cammeresi, who lives more than 150 miles from the Fort 

Bend courthouse, to appear for trial, relators have established that the trial abused 

its discretion. 
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2. No adequate remedy by appeal

Relators complain that they lack a remedy by appeal because Cammeresi will 

be forced to travel without proper notice to appear at trial and, if he does so, his 

complaint will become moot. Relators argue that, if Cammeresi is forced to appear 

and testify this week, he will be forced to change his plans and schedule, possibly at 

substantial expense. Moreover, if he appears, relators assert that Cammeresi will be 

served with a subpoena that will be authorized because he will have been served 

while within the trial court’s 150-mile subpoena power and any challenge to the trial 

court’s order would then be rendered moot.

Cammeresi is not a party and therefore, has no remedy by appeal to challenge 

the trial court’s order. See City of Houston v. Chambers, 899 S.W.2d 306, 308 (Tex. 

App.—Houston [14th Dist.] 1995, orig. proceeding).

3. Subject-Matter Jurisdiction

Real party contends that mandamus relief is not warranted here and that this 

Court lacks jurisdiction because relators lack standing and the issue is not ripe for 

mandamus relief. We disagree.

“Standing is a constitutional prerequisite to maintaining suit in either federal 

or state court.” Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). The doctrine of 

standing “identifies suits appropriate for judicial resolution.” Patel v. Tex. Dep’t. of 

Licensing and Reg., 469 S.W.3d 69, 77 (Tex. 2015). Generally, unless standing is 
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conferred by statute, a plaintiff must possess “an interest in a conflict distinct from 

that of the general public, such that the defendant’s actions have caused the plaintiff 

some particular injury.” See Williams, 52 S.W.3d at 178.

Cammeresi has standing to challenge the trial court’s order because the order 

exceeded the court’s authority and deemed Cammeresi’s failure to appear under an 

expired subpoena as contempt of court. See Hennessy v. Marshall, 682 S.W.2d 340, 

343 & n.1 (Tex. App.—Dallas 1984, no writ) (holding that relators had standing to 

seek mandamus relief because no other viable alternative for obtaining relief existed 

other than to refuse to comply, which would subject them to incarceration for 

contempt). 

Rule 176.6(f) permits a person commanded to attend trial to object or move 

for protection “before the court at the time and place specified for compliance.” TEX.

R. CIV. P. 176.6(f). Because the trial court signed the order on May 3, 2021, granting 

real party’s motion to enforce the subpoena which specified the time for appearance 

at 9:00 A.M. on January 12, 2021, Cammeresi could not move for protection from 

the subpoena before the time specified for compliance. And thus, Cammeresi as a 

non-party, is left with mandamus as his only viable option for challenging the trial 

court’s order which deems his failure to appear as contempt of court and would 

subject him to punishment as set out in the trial court’s order. See Hennessy, 682 

S.W.2d at 343 & n.1.
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Team Industrial did seek protection in the trial court. Team Industrial filed a 

response to real party’s motion to enforce the November subpoena and a motion for 

protection from real party’s attempt to seek enforcement of an invalid subpoena. 

Real party claims that Team Industrial had no standing to challenge the trial 

court’s order, which related to a subpoena served on Cammeresi, not Team 

Industrial. In ASI Aviation, LLC, the court denied a petition for writ of mandamus 

filed by ASI that sought relief and a nonparty because the nonparty could have 

sought relief for itself and could have been a party to the original proceeding. No. 

10-13-00334-CV, 2014 WL 104487, at *1 (Tex. App.—Waco Jan. 9, 2014, orig. 

proceeding) (mem. op.). Unlike this case, the nonparty in ASI did not seek 

mandamus relief as a party to the original proceeding. See id. Here, however, 

Cammeresi has joined as a party to the petition.

Team Industrial responds that it has standing because it filed a motion in the 

trial court seeking protection from real party’s motion to enforce the subpoena and 

the trial court’s last-minute order compelling Cammeresi to appear requires Team 

Industrial to prepare, question, and defend Cammeresi’s testimony with little or no 

time to prepare. This is an interest and injury distinct from Cammeresi’s and one 

that is sufficient to confer standing to challenge the trial court’s order by mandamus. 

See DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304–05 (Tex. 2008) (injury 

supporting standing must be “actual or imminent, not hypothetical” and must be 
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particularized and concrete); Tex. Lottery Comm’n v. Scientific Games Int’l, Inc., 99 

S.W.3d 376, 380 (Tex. App.—Austin 2003, pet. denied) (to show standing, person 

must show justiciable interest in the form of “an actual or imminent threat of injury 

peculiar to one’s circumstances and not suffered by the public generally”). 

Real party also contends that the issue of enforcement of the subpoena is not 

ripe because any potential enforcement by contempt is only threatened and thus, 

contingent. The ripeness doctrine requires courts to consider whether, at the time a 

lawsuit is filed, the facts are sufficiently developed to show that an injury has or is 

likely to occur and is not contingent or remote. See Patel, 469 S.W.3d at 78. This 

doctrine applies to mandamus proceedings. See In re Penney, No. 05-14-00503-CV, 

2014 WL 2532307, at *2 (Tex. App.—Dallas June 4, 2014, orig. proceeding) (mem. 

op.) (citing Perry v. Del Rio, 66 S.W.3d 239, 248 (Tex. 2001) (orig. proceeding).

Here, the trial court has ordered Cammeresi to appear at trial or be deemed in

contempt of court. Cammeresi has demonstrated both his standing to seek 

mandamus review and that the controversy is ripe for mandamus review. 

Cammeresi need not wait to be punished for failure to comply with a subpoena,

which the trial court lacked authority to enforce. 

Conclusion

Because we conclude that relators have established their entitlement to 

mandamus relief, we conditionally grant the petition for writ of mandamus and direct 
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the trial court to vacate its May 3, 2021 order. See TEX. R. APP. P. 52.8(c). We are 

confident that the trial court will promptly comply. The writ will issue only if it does 

not. 

PER CURIAM

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