1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

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NO. 09-17-00416-CV



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IN RE STEPHEN MORRIS

___________________ __________________ __________________ _________________ Original Proceeding 410th District Court of Montgomery County, Texas Trial Cause No. 14-05-05365-CV

___________________ __________________ __________________ _________________ MEMORANDUM OPINION On October 4, 2017, the trial court or dered Stephen Morris, a non-party, to make a diligent search and produce all doc uments responsive to the subpoena duces tecum of the real party in interest, Total Rod Concepts, Inc. (“TRC”), at a location in the city where Morris resides. In two issues presented in a petition for a writ of mandamus, Morris contends the trial court lacked personal jurisdiction over him and abused its discretion by compelling produc tion in compliance with a subpoena that violated the mileage limitations for a subpoe na issued to a non-party. We stayed the trial court’s order and TRC filed a response to Morris’s mandamus petition.2 TRC filed a notice of se rvice of document subpoena. See generally Tex. R. Civ. P. 205.2. The subpoena summoned Mo rris to appear in Houston and produce documents. See generally Tex. R. Civ. P. 205.1(d). It was served on Morris in Goliad, Texas. See generally Tex. R. Civ. P. 176.5. No motion to quash was filed. After the time for compliance with the s ubpoena expired, TRC filed a motion to compel production. See generally Tex. R. Civ. P. 176.8(a) . On October 4, 2017, the trial court conducted a hearing on the motion to compel. No reco rd of the hearing has been filed in this original proceeding. See Tex. R. App. P. 52.7(a)(2). At the conclusion of the hearing, the trial cour t signed an order compelling production of documents in Goliad, the city where Mo rris resides and was served with the subpoena. Morris argues that the trial court l acks personal jurisdiction over him because he is not a party to the lawsuit. He furt her contends the subpoena is void because it compelled him to travel 166 miles to produ ce documents in the City of Houston, which he argues exceeds the di stance limitation on subpoenas. See Tex. R. Civ. P. 176.3(a) (“A person may not be require d by subpoena to appear or produce documents or other things in a county th at is more than 150 miles from where the person resides or is served”). TRC argue s Morris’s compliance with the subpoena was required under the rules that a llow discovery from non-parties. See generally3 Tex. R. Civ. P. 176.6(a), (c), 205.1. It further contends the plain language of Rule 176.3 permits requiring production in res ponse to a subpoena anywhere in any county with a border located within 150 mi les of Morris’s residence in Goliad. At the hearing on TRC’s motion to compel, at which Morris appeared, the trial court modified the location at which Morris was to produce the documents to allow production in the county of his residence. A writ of mandamus is an extraordinary remedy that may be issued to correct a clear abuse of discretion when that abuse cannot be remedied by appeal. See In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer , 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). After reviewing the petition, the response, and the appendices, we conclude that Morris has not established that the trial court cl early abused its discretion by ordering him to produce documents in Goliad, Texas. Ac cordingly, we lift our stay order of October 31, 2017, and deny the pe tition for a writ of mandamus. See Tex. R. App. P. 52.8(a). PETITION DENIED. PER CURIAM Submitted on November 13, 2017 Opinion Delivered December 7, 2017 Before McKeithen, C.J., Kr eger and Johnson, JJ.