Motion for Rehearing Denied; Memorandum Opinion of December 10, 2013 

Withdrawn; Petition for Writ of Mandamus Denied; and Substitute 

Memorandum Opinion filed January 9, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00877-CV

IN RE BELL HOT SHOT COMPANY AND MELVIN WAYNE BALL, 

Relators

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

125th District Court

Harris County, Texas

Trial Court Cause No. 2010-39439

SUBSTITUTE MEMORANDUM OPINION

We issued an opinion in this case on December 10, 2013, denying a petition 

for writ of mandamus. Relators Bell Hot Shot Company and Melvin Wayne Ball 

subsequently filed a motion for rehearing. Without changing our previous 

disposition, we deny the motion for rehearing, withdraw our earlier opinion, and 

issue this substitute opinion.
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BACKGROUND

Tim York, the real party in interest, sued the relators for personal injuries 

allegedly sustained in an automobile accident. Since the collision, York has 

complained of cognitive issues affecting his memory, concentration, and other 

mental functions. He also has reported having multiple symptoms of depression.

To develop his claim for past and future medical expenses, York submitted 

to an evaluation by Doctor John W. Largen, a neuropsychologist. Doctor Largen 

performed a series of tests and found that York’s test scores were “not consistent 

with organic brain impairment.” Doctor Largen concluded that York “did not 

likely sustain organic brain injury” from his recent automobile accident, and that 

York’s reported cognitive symptoms “are likely due to other factors such as pain, 

fatigue, and generalized distress.”

The data and report from Doctor Largen’s evaluation were reviewed by 

Doctor Francisco I. Perez, a clinical psychologist retained by the relators. Doctor 

Perez filed an affidavit in which he agreed with Doctor Largen’s conclusions, 

testifying that York demonstrated “no evidence of a cognitive impairment in need 

of brain injury rehabilitation.”

Despite having the opinions from both Doctor Largen and Doctor Perez, the 

relators filed a motion to submit York to another psychological evaluation, 

asserting that additional “testing is necessary in order to validate or dispute 

[York’s] mental allegations.” The trial court denied the motion in a written order 

dated August 29, 2013. In their petition for writ of mandamus, the relators ask that 

we compel the trial judge to vacate this order and grant their motion for 

independent psychological evaluation.
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ANALYSIS

Mandamus is appropriate when the relator demonstrates that the trial court 

clearly abused its discretion and there is no adequate remedy by appeal. See In re 

Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). On mandamus review 

of factual issues, a trial court will be held to have abused its discretion only if the 

relator establishes that the trial court could have reached but one decision, and not 

the decision it made. See Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) 

(orig. proceeding). Mandamus review of legal issues is not deferential. A trial court 

abuses its discretion if it clearly fails to analyze the law correctly or apply the law 

to the facts of the case. See In re Cerberus Capital Mgmt., 164 S.W.3d 379, 382

(Tex. 2005) (orig. proceeding) (per curiam).

Under Rule 204.1, a party may move for an order compelling another party 

to submit to a physical or mental examination by a qualified physician or 

psychologist. See Tex. R. Civ. P. 204.1(a)(1). To obtain a court order for a mental 

examination pursuant to this rule, the moving party must show good cause and 

either (1) that the mental condition of a party is in controversy, or (2) that the 

responding party has designated a psychologist as a testifying expert or disclosed a 

psychologist’s records for potential use at trial. See Tex. R. Civ. P. 204.1(c). York 

does not dispute that his mental condition is in controversy. Therefore, we need 

only consider whether good cause was shown for the independent examination.

Good cause requires a balancing of the competing interests of the party’s 

right of privacy and the movant’s right to a fair trial. See Coates v. Whittington, 

758 S.W.2d 749, 753 (Tex. 1988) (addressing predecessor to Rule 204). This 

requirement may be satisfied only when the movant satisfies the following three 

elements. First, the examination must be relevant to issues that are genuinely in 
4

controversy in the case. Id. Second, there must be a reasonable nexus between the 

condition in controversy and the examination sought. Id. Finally, there must be no 

less intrusive means to obtaining the desired information than through a compelled 

examination. Id.

The third element is the main issue in this mandamus proceeding. The 

relators contend that there is no valid alternative to a second examination. But,

Doctor Largen’s report already undermines York’s claim that he suffers from 

mental injuries, and the relators’ own expert, Doctor Perez, has reached the same 

conclusion that there is no evidence of organic brain impairment. The trial court 

did not abuse its discretion by determining that the relators have not shown good 

cause for an independent psychological evaluation. Compare Sherwood Lane 

Assocs. v. O’Neill, 782 S.W.2d 942, 945 (Tex. App.—Houston [1st Dist.] 1990, 

orig. proceeding) (evaluation warranted where the “trial court’s action severely 

restrict[ed] relators’ opportunity to discover facts that may contradict the opinions 

of the minor’s expert witnesses”), with In re Thuesen, No. 14-13-00174-CV, 2013 

WL 1461790, at *3 (Tex. App.—Houston [14th Dist.] Apr. 11, 2013, orig. 

proceeding) (trial court did not abuse its discretion by denying motion where 

relator failed to establish that discovery from the identified medical professional 

was insufficient).

CONCLUSION

Because the relators have not established that the trial court clearly abused 

its discretion, we deny the petition for writ of mandamus.

 PER CURIAM

Panel consists of Chief Justice Frost and Justices Boyce and Jamison.