IN THE

TENTH COURT OF APPEALS

No. 10-24-00028-CV

IN RE GABRIEL MORENO

Original Proceeding

From the 66th District Court

Hill County, Texas

Trial Court No. CV069-21DC

MEMORANDUM OPINION

In this original proceeding, Relator Gabriel Moreno seeks mandamus relief from 

the trial court’s January 2, 2024 order granting Real Party in Interest REP Transports, 

LLC’s motion to compel an independent medical examination of him without conditions. 

We conditionally grant Moreno’s mandamus petition.

Background 

The underlying case arises from a motor vehicle collision that occurred on 

Interstate 35 in Hill County on January 21, 2021. Moreno and REP Transports, LLC have 

sued each other for negligence. In his live pleading, Moreno specifically asserts that his
In re Moreno Page 2

vehicle was violently struck, and he sustained life threatening injuries, 

including blunt force trauma to his head, neck, back, arms and legs. He was 

hospitalized and diagnosed with multiple fractures and trauma, which 

were treated long term. He has also sustained a traumatic brain injury 

which has caused emotional suffering. These injuries limited his past 

wages and future earning potential.

REP Transports, LLC filed a motion to compel an independent medical 

examination of Moreno under Rule of Civil Procedure 204.1. See generally TEX. R. CIV. P.

204.1. Moreno responded, opposing REP Transports, LLC’s motion to compel. The trial 

court conducted a hearing and, on January 2, 2024, signed an order granting REP 

Transports, LLC’s motion to compel. The order required Moreno to submit to an 

independent medical examination before February 1, 2024.

On January 29, 2024, Moreno filed his mandamus petition in this Court, along with 

a motion to stay the trial court’s January 2, 2024 order. We granted Moreno’s motion to 

stay the trial court’s order.

Discussion

Mandamus is an extraordinary remedy, available only when the relator can show 

both that: (1) the trial court clearly abused its discretion; and (2) there is no adequate 

remedy by way of appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (per 

curiam) (orig. proceeding); see Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. 

proceeding). An abuse of discretion occurs when a trial court’s ruling is arbitrary and 

unreasonable, made without regard for guiding legal principles or supporting evidence. 

In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding) (citing 

Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012)). Similarly, a trial court abuses 
In re Moreno Page 3

its discretion when it fails to analyze or apply the law correctly to the facts. Id.; In re 

H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (per curiam) (orig. proceeding).

Rule of Civil Procedure 204.1 governs whether a party may obtain a physical or 

mental examination of another party. H.E.B. Grocery Co., 492 S.W.3d at 303. Under Rule 

204.1, a party may, no later than thirty days before the end of the applicable discovery

period, move for an order compelling another party to submit to a physical or mental 

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

psychologist. TEX. R. CIV. P. 204.1(a)(1). The trial court may grant the Rule 204.1 motion 

if the movant shows both (1) that “good cause” exists for the examination and (2) that the 

mental or physical condition of the party the movant seeks to examine is in controversy 

or that the party responding to the motion has designated a psychologist as a testifying 

expert or has disclosed a psychologist’s records for possible use at trial. See id. R. 204.1(c); 

H.E.B. Grocery Co., 492 S.W.3d at 303.

The rule’s “good cause requirement . . . balance[s] the movant’s right to a 

fair trial and the other party’s right to privacy.” . . . H.E.B. Grocery Co., 492 

S.W.3d [at] 303 . . . . To establish good cause, the movant must show that 

(1) the examination is relevant to the issue in controversy and is likely to 

lead to relevant evidence, (2) there is a “reasonable nexus between the 

examination and the condition in controversy,” and (3) the desired 

information “cannot be obtained by less intrusive means.” Id.

In re Sherwin-Williams Co., 668 S.W.3d 368, 370–71 (Tex. 2023) (per curiam) (orig. 

proceeding).

Here, Moreno does not dispute that his mental or physical condition is in 

controversy. Moreno does contend, however, that REP Transports, LLC failed to offer 

any evidence in support of its Rule 204.1 motion showing the necessity or scope of the 
In re Moreno Page 4

examination or showing that the information could not be obtained through less intrusive 

means. Moreno argues that the trial court therefore clearly abused its discretion in 

granting REP Transports, LLC’s Rule 204.1 motion.

In its Rule 204.1 motion, REP Transports, LLC requested that the trial court require 

Moreno to submit to an independent medical examination by Dr. Lauren Woodruff 

Rasmussen, a neuropsychologist. REP Transports, LLC explained in the motion that the 

examination would be “designed to evaluate [Moreno’s] function in the following 

domains: 1) general intelligence; 2) attention/concentration; 3) sensation-perception; 4) 

motor-praxis; 5) language; 6) new learning and memory; 7) higher level cognitionexecutive function; 8) emotional status; and 9) response validity.” REP Transports, LLC 

also stated in the motion: “[Moreno’s] pleadings, discovery responses, and testimony 

place [his] physical and mental condition in controversy and give[] REP Transport[s] 

good cause for an [independent medical examination] under Rule 204.1(a).” REP 

Transports, LLC further noted both in the Rule 204.1 motion and at the hearing on the 

motion that Moreno has designated a neuropsychologist, Dr. Richard Fulbright, to testify 

on Moreno’s behalf. 

But REP Transports, LLC did not attach any evidence to its motion. Nor did REP 

Transports, LLC introduce any evidence at the hearing on the motion. 

Under Rule 204.1, even if the person to be examined has designated a psychologist 

to testify regarding his mental condition, the party seeking the examination must still 

demonstrate “good cause” for the examination. In re Transwestern Publ’g Co., 96 S.W.3d 

501, 506 (Tex. App.—Fort Worth 2002, orig. proceeding); see TEX. R. CIV. P. 204.1(c). 
In re Moreno Page 5

“Good cause” is not assumed merely because a psychologist has been appointed to testify 

as an expert regarding a party’s mental condition. Transwestern Publ’g Co., 96 S.W.3d at 

506. Furthermore, the requirements of Rule 204.1 are not satisfied by “conclusory 

allegations” in the movant’s pleadings or by “mere relevance to the case.” See H.E.B. 

Grocery Co., 492 S.W.3d at 303 (quoting Coates v. Whittington, 758 S.W.2d 749, 751 (Tex. 

1988) (orig. proceeding) (interpreting Rule 204.1’s predecessor)). 

We therefore conclude that REP Transports, LLC failed to show that “good cause” 

exists for the independent medical examination of Moreno. Because of REP Transports, 

LLC’s failure, we further conclude that the trial court abused its discretion in granting 

REP Transports, LLC’s motion to compel the independent medical examination of 

Moreno. See TEX. R. CIV. P. 204.1(c); Sherwin-Williams Co., 668 S.W.3d at 370–71.

“Notwithstanding that abuse of discretion, we will not grant mandamus relief if 

there is a clear and adequate remedy at law, such as a normal appeal.” Sherwin-Williams 

Co., 668 S.W.3d at 372 (quoting H.E.B. Grocery Co., 492 S.W.3d at 304 (internal quotations 

omitted)). We conclude that an appeal of the trial court’s order after trial would not 

provide an adequate remedy because the examination would violate Moreno’s privacy 

rights. See In re Estabrook, No. 10-20-00175-CV, 2020 WL 6192923, at *4 (Tex. App.—Waco 

Oct. 21, 2020, orig. proceeding) (mem. op.).

For the foregoing reasons, we sustain Moreno’s first issue. Because we have 

sustained Moreno’s first issue, we need not reach his second issue regarding the breadth

of the order.
In re Moreno Page 6

Conclusion

We lift our stay of the trial court’s January 2, 2024 order granting REP Transports, 

LLC’s motion to compel the independent medical examination of Moreno and 

conditionally grant Moreno’s mandamus petition. A writ will issue only if the trial court 

fails to vacate its January 2, 2024 order within twenty-one days of the date of this opinion. 

MATT JOHNSON

Justice

Before Chief Justice Gray,

Justice Johnson, and 

Justice Smith

(Chief Justice Gray concurs.)

Petition conditionally granted

Opinion delivered and filed March 21, 2024

[OT06]