IN RE: GOOGLE (2025)

OPINION

Relator Google, LLC has filed two petitions for writ of mandamus, complaining that trial courts in Midland County and in Victoria County abused their discretion by failing to compel the deposition of the State of Texas in enforcement actions against Google.¹ In the Midland case, Google also sought to compel the deposition of the Office of the Attorney General in the alternative. Because Google is entitled to depose the State of Texas, we grant relief in part in both proceedings to allow a deposition of the State to go forward, while reserving for the respective trial courts to decide the scope and parameters of those depositions. We also deny Google's alternative request in the Midland case to compel a deposition of the Office of the Attorney General.

BACKGROUND

The State of Texas sued Google in Midland County for alleged violations of the Texas Deceptive Trade Practices Act, Tex. Bus. & Com. Code § 17.41-.63, and the Texas Capture or Use of Biometric Identifier Act, id. § 503.001, alleging that Google improperly captures Texas consumers’ biometric identifiers without their consent. The State also sued Google in Victoria County under the Deceptive Trade Practices Act for allegedly collecting consumers’ locations and browsing information unlawfully.

After exchange of written discovery, in each case Google noticed the deposition of a representative of the State of Texas, the plaintiff, for an oral deposition. In the Midland case, Google sought to depose the State on 18 different topics, and in the Victoria case sought a deposition on 32 different topics, all under Rule 199 of the Texas Rules of Civil Procedure. The State moved to quash the depositions and obtained an automatic stay under Rule 199.4. In the Midland case, Google also noticed the deposition of the Office of the Attorney General, again under Rule 199, with the same 18 topics listed. The State again moved to quash the deposition and automatically stayed the deposition. See Tex. R. Civ. P. 199.4.

In each case, Google filed a motion to compel the State's deposition and, in the Midland case, also sought in the alternative to compel the deposition of the Office of the Attorney General.² The State responded in each case by taking the position that Rule 199 does not ever permit a deposition of a representative of the State and that, even if it did, the information sought by Google is protected by various privileges and duplicative of its written discovery. The State also opposed the deposition of the Office of the Attorney General in the Midland action on the same grounds.

After a hearing in each case, the trial courts denied Google's motions to compel the State's deposition in full and did not address the scope of the topics Google listed.³ Google then sought mandamus relief. To obtain such relief, Google must show that the trial court abused its discretion and that it has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding).

DISCUSSION

Because the trial courts refused to compel any deposition of the State, the first question we must address is whether Google is allowed to depose the State of Texas under Rule 199 of the Texas Rules of Civil Procedure. This issue appears to be one of first impression in Texas.⁴ When interpreting a procedural rule, we first look to the plain language of the rule. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 579 (Tex. 2012). We therefore begin our analysis, as the parties do, with the language of Rule 199.

Rule 199.1(a) allows a party to take the deposition of “any person or entity.” Tex. R. Civ. P. 199.1(a). Rule 199.2(b) then provides specific instructions on the procedure for noticing a deposition, including the deposition of a corporate representative. “The notice must state the name of the witness, which may be either an individual or a public or private corporation, partnership, association, governmental agency, or other organization.” Id. R. 199.2(b)(1). In addition, the deposition notice must “describe with reasonable particularity the matters on which examination is requested.” Id.

The State argues that it, as a sovereign entity, does not fall within the purview of Rule 199 and that, as a result, its deposition is never proper in an enforcement action. According to the State, if it files an action as a sovereign to enforce its laws, it does not have to designate a representative to sit for a deposition if requested. The State cites no precedential authority for this position; rather, it relies on the argument that the language of Rule 199 does not contemplate the deposition of a sovereign entity like the State of Texas. We disagree.

Rule 199, by its very terms, is broad enough in scope to allow for a deposition of the State of Texas. Rule 199.1 provides that a party is entitled to take the deposition of “any person or entity,” Id. R. 199.1(a), and the State acknowledges that the State of Texas is an “entity.” The rule's language is broad and, standing alone, suggests the State is subject to a deposition. In addition, although not binding on our analysis here, the Code Construction Act defines a “person” broadly as including a “corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity.” Tex. Gov't Code § 311.005(2).⁵ This conclusion is consistent with the Texas Supreme Court's admonishment that the Texas Rules of Civil Procedure “must be ‘liberally construed to allow the litigants to obtain the fullest knowledge of the facts and issues prior to trial.’ ” In re K & L Auto Crushers, LLC, 627 S.W.3d 239, 251 (Tex. 2021) (orig. proceeding) (quoting Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990) (orig. proceeding)); see also In re Westside Roofing, LLC, No. 03-23-00219-CV, 2024 WL 79864, at *2 (Tex. App.—Austin Jan. 5, 2024, orig. proceeding) (mem. op.).⁶ We hold that the language of Rule 199.1, whether construing the word “person” or “entity,” includes the State of Texas.

The State, however, contends that the language of Rule 199.1 is not controlling because it is not specific to corporate representative depositions. The State relies on the fact that it, as a sovereign entity, is not listed anywhere in Rule 199.2, the portion of the rule specific to deposition notices, because it is not a “governmental agency.” We need not decide today whether the State is correct that it does not qualify as a “governmental agency” under the Rule because Rule 199.2 also includes the right to notice the deposition of any “other organization,” which, when read in harmony with the broad language of Rule 199.1, is consistent with the rule that a party is entitled to the deposition of “any person or entity.” In addition, the language of Rule 199.2 is permissive, providing that the noticed witness “may be” of the types of organizations listed; by its own terms, Rule 199.2’s list is not exhaustive and instead must match the breadth of Rule 199.1. The Rule's language is unambiguously broad and certainly encompasses a right to depose any entity that is a party to a lawsuit. Under any other interpretation, a party against whom an enforcement action is filed could never depose the only adverse party in the lawsuit. We find no support for such an illogical conclusion in the language of the rule itself.⁷

The State also argues—and the dissenting opinion accepts—that Google's deposition notice necessarily means that counsel for the State, the Office of the Attorney General, will have to testify on behalf of the State. Not so. A party may choose who will testify in response to an organizational deposition notice; in fact, a party may designate different individuals to testify on each individual topic if it so chooses. Tex. R. Civ. P. 199.2(b)(1). If the State, in response to an organizational deposition notice, chooses to have its counsel sit for a deposition in this situation, that is a problem of its own creation and is not a necessary “constitutional problem” on which we should base our opinion, as the dissent suggests. It is also an issue each trial court may address, as discussed below, when setting the parameters for the deposition.

Having concluded that the State of Texas is subject to a deposition under Rule 199 in an enforcement action, we now turn to whether the trial courts abused their discretion in failing to compel the State's depositions in light of the State's objections to Google's deposition notices. In other words, we must decide whether each trial court could have, without saying so in its order, sustained the State's objections to all of Google's deposition topics, such that it was not an abuse of discretion for it to refuse to compel the State's deposition. In performing this analysis, we are mindful that the party opposing discovery, here the State of Texas, has the burden of proof in resisting the noticed depositions in the trial courts. State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991). Before we decide if the State met its burden and, concomitantly, whether the trial courts abused their discretion, we must first look to case law on what is required in terms of proof by the party resisting discovery.

The parties to a suit may generally obtain discovery of information that is not privileged and is relevant to the subject matter of the pending action. In re USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding) (citing Tex. R. Civ. P. 192.3(a)). Even if evidence sought in discovery would not be admissible at trial, it is discoverable so long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” Tex. R. Civ. P. 192.3(a). Trial courts can, nevertheless, limit discovery based on concerns for proportionality; for example, if the discovery sought is cumulative or obtainable from another source that is less burdensome or expensive, or if the burden of the proposed discovery outweighs its benefit, the trial court can limit the discovery sought or deny it altogether. In re K & L Auto Crushers, LLC, 627 S.W.3d at 248 (citing Tex. R. Civ. P. 192.4).

Against this backdrop, the State, as the party resisting Google's motion to compel, had the burden to plead and prove to the trial court the basis for its objections to the deposition, including any evidence necessary to support its position. Lowry, 802 S.W.2d at 671. Rule 193.4(a) requires that a party seeking to exclude a matter from discovery must produce any evidence necessary to support such a claim. Tex. R. Civ. P. 193.4(a). The Texas Supreme Court has distinguished discovery objections that do not require evidence, such as an objection to relevance, from those that do, such as claims of privilege, burdensomeness, or proportionality concerns. See, e.g., In re K & L Auto Crushers, 627 S.W.3d at 253 (noting that mere allegations of burden are insufficient absent proof); In re USAA, 624 S.W.3d at 792 (concluding that party must support proportionality complaints with evidence and may not rely on conclusory allegations); In re National Lloyds Ins. Co., 532 S.W.3d 794, 804 (Tex. 2017) (orig. proceeding) (explaining that, except in limited circumstances where responsive documents themselves are sufficient proof, party asserting privilege in opposition to discovery request “must establish by testimony or affidavit a prima facie case for the privilege”); In re Union Pac. Res. Co., 22 S.W.3d 338, 340 (Tex. 1999) (orig. proceeding) (requiring no evidence to support relevance objection).

The State failed to meet its burden in resisting at least some of Google's requested deposition topics in both cases. The State contended, for example, that the topics Google noticed included matters protected by work-product privilege; yet the State provided the trial courts with no evidence to support any such claim of privilege. It also objected to some topics on the grounds of burdensomeness and duplication—what amounts to a proportionality objection—again without providing evidence to support those objections as required. Although the State contended in each trial court that Google's deposition request was cumulative and duplicative of written discovery already exchanged, the State's responses to Google's motions provided Google's written discovery requests, but, in large part, not the State's answers to Google's written discovery (which Google claims are incomplete).⁸ Thus, there is nothing in either record demonstrating that Google's requested depositions were duplicative of information it had already received in written discovery.

Lastly, although some of its objections, such as relevance and overbreadth, did not necessarily require it to produce supporting evidence, the State failed to make any such objections with regard to at least three of Google's proposed topics (topics 1, 7, and 15) in the Midland case and to several topics in the Victoria case, as well (topics 1, 9, and 15, for example). In other words, Google noticed the State's deposition on at least a few topics in each case on which either the State: (1) did not provide necessary evidence to support its objections; or (2) did not make an objection that could have stood on its own, without evidence, such as relevance or overbreadth. At a minimum, the trial courts should have held that the State failed to meet its burden on these topics and should have compelled the State's deposition in some limited form rather than issuing a general order that Google is not entitled to any deposition.

In short, although it may have had legitimate grounds for claiming Google's deposition request and the topics listed were duplicative or implicate privileged topics, the State failed to sufficiently prove its objections to at least some of Google's deposition topics. Instead, it relied on its sweeping claim that it never has to sit for a deposition in an enforcement action, even though it admits that some of the deposition topics are relevant to its lawsuit against Google.⁹

In light of this lack of proof and, in some instances, failure to object by the State, each trial court abused its discretion in denying Google's motion to compel the State's deposition. Google lacks an adequate appellate remedy because its inability to take the deposition of the only party suing it on subjects that the plaintiff admits are relevant goes to the very heart of Google's ability to mount a defense to the allegations against it, and because a reviewing court will be unable to evaluate the effect of the trial court's denial of discovery from the State. See In re K & L Auto Crushers, 627 S.W.3d at 256; Able Supply Co. v. Moye, 898 S.W.2d 766, 772 (Tex. 1995); see also In re Liberty Cnty. Mut. Ins. Co., 679 S.W.3d 170, 176 (Tex. 2023) (orig. proceeding).

This conclusion, however, does not end the trial courts’ management of these discovery disputes. Even when a party is entitled to a particular method of discovery, a trial court still has broad discretion to shape that discovery and provide parameters for it. In re National Lloyds Ins. Co., 532 S.W.3d at 802. It is apparent from the record in the Midland case that Google's specific deposition topics were not the focus of the hearing; the trial court concluded that Google was not entitled to a deposition at all, consistent with the State's arguments to that effect. And, although the State argued about Google's listed topics at the hearing in Victoria, the focus of the hearing was, again, the State's position that no deposition is allowed. There is nothing in the record showing that either trial court attempted to narrow the topics Google listed; instead, they each issued a wholesale denial of Google's right to depose the State. Since we hold that Google is, in fact, entitled to take the State's deposition as a threshold matter, we believe it is appropriate for each trial court to consider and decide, as it should have done at the outset, the parameters of the State's deposition, including the topics on which the deposition is allowed to proceed. By our opinion today, we are not suggesting that the trial courts in the underlying proceedings have no power at this point to limit Google's topics or to set guideposts for the depositions; rather, our holding is narrow—that the trial courts’ blanket refusals to compel any deposition of the State were an abuse of their discretion.

Lastly, as an alternative to the State's deposition, Google also noticed the deposition of the Office of the Attorney General in the Midland case. The Office of the Attorney General, however, is not a party to the underlying lawsuit; instead, it is a separate agency that serves as counsel for the State of Texas in the lawsuit. Assuming without deciding that Google would possibly be allowed to depose the Office of the Attorney General, Google did not follow proper procedure in noticing the deposition because it was required to subpoena the Office of the Attorney General, as a third party to the suit. See Tex. R. Civ. P. 205. No such subpoena is in the record before us. We therefore deny mandamus relief as to Google's deposition notice for the Office of the Attorney General in the Midland action.

CONCLUSION

In sum, because Google is entitled to a deposition of the State of Texas, we conditionally grant mandamus relief in both the Midland and Victoria actions. We deny mandamus relief as to Google's motion to compel a deposition of the Office of the Attorney General in the Midland action. The writs will issue only if the trial courts fail to vacate their orders and to reconsider the motions to compel consistent with this opinion.¹⁰

DISSENTING OPINION

For over a century, no rule of procedure was ever written or construed to authorize oral depositions of “the State of Texas.” Until recently, no one ever tried. I would not recognize such an innovation here. Every topic sought in the proposed deposition must be disclosed under Rule 194 without a request from anyone, without any work-product objection, and without subjecting “the State” or its attorneys to cross-examination under oath.¹ Since Google has other adequate legal remedies without this unprecedented deposition, I would deny relief.

I. The text of Rule 199

The Court orders “the State” to be deposed when it appears as a party, postponing the scope and parameters of such depositions for further litigation. But neither the text nor the history of Rule 199 support such an extraordinary development in Texas law.

A. Rule 199.1: “any person or entity”

The Court orders a deposition of the State because Rule 199 “by its very terms” provides that a party may take the testimony of “any person or entity.”² But the use of the word “any” here is ambiguous in scope and breadth; it can mean “a” (I don't have any choice), “some” (I don't have any more witnesses), or “every” (any lawyer should know that). Yet we “must avoid taking literalism too literally and adopting a wooden construction foreclosed by the legal text's context.”³ In the context here, “any” cannot mean “every” because there have always been rules barring many kinds of depositions an eager attorney might request.

For example, Texas law does not allow a party to depose apex officials,⁴ or opposing counsel,⁵ or consulting experts,⁶ or persons facing criminal charges on the same facts,⁷ at least not without prior proof of necessity or some other exception. The general rule stated in Rule 199 has never been construed to overrule these and other specific historical exceptions to it.⁸ For 60 years, the predecessors of current Rule 199 specifically said so; oral depositions of “any party and any witness” have been authorized by statute since 1919, but always subject to an explicit reservation for other legal rules that might apply:

The testimony of any witness, and of any party to a suit, by oral deposition and answer may be taken in any civil case in any of the District and County Courts of this State, in any instance where depositions are now authorized by law to be taken.9

This limitation to depositions “now authorized by law” was carried forward verbatim into Rule 199 when the rules of civil procedure were first adopted in the 1940s.¹⁰ It was dropped 65 years later in 1984,¹¹ not to adopt a rule that anything goes,¹² but simply to recognize the obvious: Rule 199's general rule for depositions does not override all other specific rules limiting them.¹³ This is a case of first impression precisely because no one ever thought for almost 100 years that the ordinary meaning of “any person or entity” in Rule 199 meant “Texas” or its attorneys could be routinely deposed.

B. Rule 199.2: “governmental agency” or “other organization”

To bolster this expansive reading of Rule 199.1, the Court cites a list in Rule 199.2 of legal entities that must designate a representative for a party deposition. But nothing in that list compares to “the State”:

The notice must state the name of the witness, which may be either an individual or a public or private corporation, partnership, association, governmental agency, or other organization. If an organization is named as the witness, the notice must describe with reasonable particularity the matters on which examination is requested. In response, the organization named in the notice must - a reasonable time before the deposition - designate one or more individuals to testify on its behalf and set forth, for each individual designated, the matters on which the individual will testify.

Tex. R. Civ. P. 199.2(b)(1) (emphasis added). Google argues that the State falls within the terms “governmental agency” or “other organization.” The Court declines to address the former but agrees with the latter. I disagree with both.

First, the State of Texas is sui generis. It is not a single agency or organization, consisting instead of three departments, each separate from the others, and none of which “shall exercise any power properly attached to either of the others.”¹⁴ Under this constitutional separation of the State's governmental powers, exceptions “are never to be implied in the least” but “must be expressly permitted by the Constitution itself.”¹⁵ Officers of each department are independently elected by the people, and nothing requires them to have the same party affiliation or priorities. The State's Executive department does not speak for the Legislature,¹⁶ and neither the Legislative nor the Executive departments supplant the Judicial department's duty to say what the law is.¹⁷ This division of State powers and election of all their officers ensures that State government is of, by, and for the people of Texas. In such an arrangement, it is hard to say who should testify for “the State.”

Nor is the State a “governmental agency.” As the Supreme Court recently noted, a suit filed “on behalf of the state” is not a suit filed “on behalf of a governmental subdivision or agency.”¹⁸ The State is the government, not an agency of the government. As the Restatement says, an agency relationship “arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal's behalf.”¹⁹ The same entity cannot serve as both a principal and an agent; and without both, there is no agency. The Code Construction Act (which the Court notes) defines “person” to include many of the same legal entities listed in Rule 199.2—but specifically adds “government” to the list.²⁰ If that Act applies to the court rules of procedure (which I doubt), it illustrates what the Supreme Court specifically left out of Rule 199.2: the State government.

Nor is the State swept into Rule 199 by the catchall phrase “other organization.” When specific items in a list “are followed by a catchall ‘other,’ the doctrine of ejusdem generis teaches that the latter must be limited to things like the former.”²¹ “Texas” is not like a corporation, partnership, association, governmental agency, or other organization; it is the whole ball of wax. Unlike any “other organizations” in Rule 199, the State has the powers of the purse and of the sword, enjoys broad immunity from suit and liability, and answers to the people alone rather than a subgroup of them.

The first clause of the Texas Constitution declares, “Texas is a free and independent State, subject only to the Constitution of the United States.”²² I would not subject “the State” to depositions under oath at the beck and call of any counterparty, at least not without something more explicit than we have in Rule 199. Suits by or against a state administrative agency or a state officer in an official capacity are different, because in those cases there is a person who can testify or appoint someone to do so on the agency's behalf. But in suits by or against the State, there is only the State itself and its legal counsel. I would not hold that Rule 199 by implication or accident answers the question before us here.

II. The Attorney General's Role in Enforcement Actions

The Court's construction of Rule 199 ignores another critical rule of construction that will create a host of problems. The Office of the Attorney General (“OAG”) has constitutional and statutory duties to represent the State in hundreds of cases as a party and as counsel. Adding a requirement that it testify as a witness on behalf of the State by oral deposition will create professional conflicts that would make it impossible for OAG to fulfill those duties.

A. Attorney General as party and as trial counsel

Several hundred state laws authorize the Attorney General to “bring an action” to enforce the statutes and collect civil penalties.²³ That includes the DTPA and the CUBI, the two statutes here.²⁴ In such cases, OAG acts in dual capacities: as trial counsel, and as a party, even though it asserts the rights of private citizens rather than its own.²⁵

As one of the six executive officers of the State listed in the Texas Constitution,²⁶ the Attorney General has standing to sue on behalf of the State as a party. In Farmers Group, Inc. v. Lubin, the Supreme Court of Texas held that a statute authorizing the Attorney General “to bring an action” for enforcement “appears to authorize attorneys general to file suit in their own right,” since “it is a party who brings a case, not its attorney.” 222 S.W.3d 417, 424 (Tex. 2007). The Texas disciplinary rules recognize that government lawyers often exercise legal duties ordinarily reposed in parties rather than their attorneys.²⁷

Yet the Attorney General also has constitutional and statutory duties to act as the attorney for the State. OAG has a statutory duty to “prosecute and defend all actions in which the state is interested” in the appellate courts,²⁸ and a constitutional duty to do the same in the Texas Supreme Court.²⁹ While no general statute authorizes the OAG to represent the State in trial courts, the Legislature has repeatedly authorized it to “bring” suits like this enforcement action.³⁰

In its dual capacity as counsel and party, OAG must follow the rules applicable to both. “When the state becomes a litigant in the courts it must observe and is bound by the same rules of procedure that bind all other litigants, except where special provision is made to the contrary.”³¹ Special provisions have been made for the State for issues like supersedeas,³² offers of settlement,³³ and interlocutory appeals.³⁴ In Lubin, the Supreme Court held that special provision must also be made to harmonize the OAG's dual roles, so that court rules are not “applied in a way that renders [OAG] actions impossible, a result that would frustrate the Legislature's intent.”³⁵

The statute in Lubin authorized the OAG to bring a “class action” asserting unlawful insurance practices.³⁶ The Court held that did not require OAG to recruit private policyholders to meet legal requirements of typicality “in the traditional sense,” as that could introduce conflicts between the private and public claimants and “inevitably restrict the broad discretionary power attorneys general need to carry out their constitutional duties.”³⁷ Instead, “the typicality, adequacy, and other prerequisites for all class actions must be applied to the damage claims asserted by an attorney general, rather than to that official personally.”³⁸ As the Court concluded, it would be absurd to apply procedural rules to the OAG in a way that would make it impossible for it to comply with its substantive legal duties: “Class actions were designed in part to ensure law enforcement by private attorneys general; it would be absurd to construe them to prevent the same kind of suit by a real attorney general.”³⁹

B. Attorney General as party, as trial counsel, and as witness

The Court's opinion complicates this accommodation by construing Rule 199 to require the OAG to act in a third capacity: as a witness at an oral deposition of the State. This problem does not generally arise in suits by or against a state administrative agency or a state officer in an official capacity, because in those cases there is a person who can testify or appoint someone to do so on the agency's behalf. But in suits by or against the State, there is only the State itself and its legal counsel at OAG. And under the Texas Disciplinary Rules, an attorney cannot act as both trial counsel and a witness in the same case. Rule 3.08 provides:

A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client.40

Nor can an attorney weaponize this rule by calling opposing counsel to testify as a witness: “A tribunal should not permit a lawyer to call opposing trial counsel as a witness unless there is a compelling need for the lawyer's testimony.”⁴¹

Several important policies support this long-standing rule. Cross-examination is inherently confrontational, and unlikely to foster the professionalism needed to keep antagonism in bounds. As the Supreme Court recently affirmed, “Pointing the finger at opposing counsel results in palpable harm by undermining the basic premise that a trial provides impartial and equal justice.”⁴² At worst, it can invite a shift in the focus of litigation from which lawyer's arguments are correct to which lawyer is a liar. Lawyers cannot always verify under oath all contentions and legal theories that zealous advocacy may require them to assert.⁴³ Testimony by trial counsel also blurs the line between witnesses (who speak from personal knowledge) and legal counsel (who speak from what they have been told).⁴⁴

This problem cannot be cured by requiring the OAG to hire someone outside that office to testify under oath regarding the State's contentions, facts, and claims. Those are the constitutional and statutory legal duties of the OAG—whose head is accountable to the voters—and cannot be handed over to unaccountable outsiders. The OAG may retain outside attorneys to represent the State, but only if the Attorney General approves;⁴⁵ this decision and the extra costs it may impose are not among the routine powers delegated to the courts. And since the rule barring lawyers from testifying as witnesses applies to all lawyers in the same firm,⁴⁶ if one OAG lawyer testifies as a witness for the State the rest may be barred as well.

Google claims it seeks to depose the OAG not in its “role as counsel” but only “as the agency that received any consumer complaints.” [Pet. at 25-26] But the OAG is not merely a receptacle for complaints; like any other lawyers, it must analyze and decide how to act on them. Google also argues that attorneys help clients prepare for “virtually all corporate representative depositions.” But trial attorneys usually cannot volunteer to testify in their client's place. Requiring opposing counsel to testify under oath is simply different from other discovery responses.

This problem likely extends far beyond enforcement actions. This Court has exclusive intermediate appellate jurisdiction of suits “challenging the constitutionality or validity of a state statute or rule” in which “the attorney general is a party to the case.”⁴⁷ But if every “party” can be deposed, every litigant challenging the validity of a state statute or rule can now depose the OAG or force its attorneys to withdraw. This will soon get out of hand.

III. The Alternate Solution

The discovery rules themselves provide a solution for special cases like deposing “the State.” While the permissible forms of discovery “may be taken in any order or sequence,”⁴⁸ the rules also provide that any discovery tool may be limited if the same information “is obtainable from some other source that is more convenient, less burdensome, or less expensive.”⁴⁹ Creating a conflict requiring OAG attorneys to recuse themselves in state litigation or risk their bar licenses would be burdensome, and frustrating the Legislature's chosen agent to enforce many of the State's laws is worse than “inconvenient.”

Google says it seeks only “non-privileged matters such as the State's contentions and the underlying facts.” [Reply br. at 12] These are precisely the topics for which Rule 194 mandates immediate and full disclosure at the outset of a case.⁵⁰ The State assures us it has “never argued that Google will be unable to depose the State's trial witnesses” [Resp. Br. at 24] and concedes that Google may obtain the requested information through “other avenues of discovery, such as interrogatories, including contention interrogatories, requests for production, and depositions of witnesses with knowledge of the facts.” [Resp. Br. at 30]

Requiring Google to pursue answers to mandated disclosures rather than skipping ahead to an oral deposition would avoid several problems. First, it avoids any conflict between OAG's various capacities, as disclosures are not signed by a party or attorney under oath but by a party's attorney “to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry.”⁵¹ Second, it avoids all work-product disputes, as the disclosure rules do not permit them.⁵² Third, they do not estop or bind the State in future cases, as the disclosures are “not admissible and may not be used for impeachment.”⁵³

Google says the State's disclosures have been inadequate. If so, that “would be an abuse of the discovery process,”⁵⁴ and justify the trial court in compelling full disclosure ․ or barring introduction of evidence that should have been disclosed.⁵⁵ If a trial court fails to order full and adequate disclosures, an appellate court can.⁵⁶ Due to these available legal remedies which Google apparently has yet to pursue, I would hold that it is not entitled to mandamus relief.

IV. Conclusion

We must construe court rules to avoid potential constitutional problems,⁵⁷ including those that make it impossible for the OAG to fulfill its constitutional and statutory duties to enforce of the State's laws. Because the Court's opinion appears likely to multiply these constitutional problems in future cases, I respectfully dissent.

FOOTNOTES

1.   By order dated August 26, 2024, the Texas Supreme Court transferred these original proceedings to this Court. See Tex. Sup. Ct. Misc. Docket No. 24-9055 (Aug. 26, 2024). We consolidate the proceedings solely for the purpose of this opinion.

2.   Google's petition for writ of mandamus from the Victoria case suggests that Google also sought to compel the deposition of the Office of the Attorney General in that case. The record before us from the Victoria case, however, does not include a deposition notice for the Office of the Attorney General, nor does Google's motion to compel seek that relief.

3.   In the Victoria case, Google also filed a motion for rehearing and sought leave to amend its deposition notice, which the trial court also denied.

4.   Google and the State cite to various trial court orders in other enforcement actions, some of which allow a deposition of the State to go forward in an enforcement action, and others that do not. We do not find any of these orders particularly persuasive, and they are certainly not dispositive of the legal issue before us. Neither party cites to a case that squarely addresses the issue before us, and we have found none.The dissent suggests that the reason this case is one of first impression is that “no one has ever tried” to take the State's deposition. The orders Google attaches to its mandamus petition show that is incorrect. It is more likely that the State has, in the past, reached agreements on such depositions but is now testing the waters for the first time to see if any appellate court will make a rule that such depositions are not allowed going forward.

5.   Although the Texas Rules of Civil Procedure are not codified, the Code Construction Act can be used in interpreting them because the Texas Supreme Court passes the rules pursuant to its authority under Section 22.004 of the Government Code, in addition to its constitutional authority. See Tex. Gov't Code § 311.002(4) (providing that Act applies to “each rule adopted under a code”); see also In re Casterline, 476 S.W.3d 38, 43-44 (Tex. App.—Corpus Christi-Edinburg 2014, orig. proceeding) (using Act as aid in interpreting Texas Rules of Civil Procedure); see also Huston v. U.S. Bank Nat'l Ass'n, 359 S.W.3d 679, 681 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (stating that Act is aid in interpreting procedural rules); BASF Fina Petrochemicals Ltd. P'ship v. H.B. Zachry Co., 168 S.W.3d 867, 871 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (same).

6.   A rule or policy of “liberal” construction is simply the reverse of a rule of “strict” construction, in that both are applied to reach a decision when the statute or rule under consideration is ambiguous. See, e.g., Malouf v. State ex rels. Ellis, 694 S.W.3d 712, 720 (Tex. 2024) (“Like all common-law construction rules, ․ the rule of lenity applies only to the extent the statute at issue is unclear or ambiguous. Indeed, to say that a statute will be ‘strictly construed’ is simply to say that any uncertain or ambiguous provision will be construed in favor of a particular party or result.”). Accordingly, although we do not reach such a conclusion here, if Rule 199 contains an ambiguity—susceptibility to more than one reasonable interpretation—we are required to resolve such ambiguity by using the construction that allows the greater scope or degree of discovery.

7.   We also note that Rule 199.2(b)(1) is patterned after Federal Rule of Civil Procedure 30(b)(6). See, e.g., In re Dodson, No. 12-23-00207-CV, 2023 WL 5969609, at *3 (Tex. App.—Tyler Sept. 13, 2023, orig. proceeding) (mem. op.) (“This procedure [of Tex. R. Civ. P. 199.2] is modeled after Federal Rule 30(b)(6).”); In re FedEx Ground Package Sys., Inc., 609 S.W.3d 153, 160 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding), mand. granted on other grounds sub nom. In re Brown, 653 S.W.3d 721 (Tex. 2022) (orig. proceeding) (per curiam). We may look to federal authority for guidance when state and federal laws contain analogous language even if they are not identical. See Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 505 (Tex. 2012). Our research has uncovered numerous cases in which a deposition of “the United States” was allowed under Federal Rule 30(b)(6). See, e.g., A.R. v. Dudek, No. 12-60460-CIV, 2015 WL 9450354 (S.D. Fla. May 20, 2015); U.S., ex rel. Fry v. Health All. of Greater Cincinnati, No. 1:03-CV-167, 2009 WL 5227661, at *2 (S.D. Ohio Nov. 20, 2009); United States v. Magnesium Corp. of Am., No. 2:01-CV-40 DB, 2006 WL 6924985, at *5 (D. Utah Nov. 27, 2006); United States v. CNA Fin. Corp., No. A98-285 CV, 2005 WL 8159495 (D. Alaska Dec. 28, 2005). These cases lend further support to our holding.

8.   The State seems to suggest—and the dissent appears to agree—that because written discovery is available to Google, that means Google is not also entitled to a deposition. The Texas Supreme Court has confronted this argument before and has made clear it does “not agree with the conclusory assertion that a deposition is inherently more burdensome than written discovery. Moreover, the rules do not favor one discovery method over another or require that those methods be enlisted in any particular order.” In re USAA Gen. Indem. Co., 624 S.W.3d 782, 792 (Tex. 2021) (orig. proceeding).

9.   The State attempts to remedy its lack of proof by filing a supplemental record in each original proceeding. Google has filed a Motion to Strike portions of the State's supplemental record in each proceeding, contending that this Court cannot consider such evidence because it was not before the trial courts when they made their rulings. We agree with this contention. See In re M-I L.L.C., 505 S.W.3d 569, 574 (Tex. 2016) (orig. proceeding) (“In determining whether a trial court abused its discretion, a reviewing court is generally bound by the record before the trial court at the time its decision was made.”). We therefore grant Google's Motion to Strike in each proceeding.

10.   On January 9, 2025, with these original proceedings pending, the Thirteenth Court of Appeals issued an opinion in the Victoria County action, reversing the trial court's denial of Google's special appearance and dismissing all of the State's claims against Google in that action for lack of personal jurisdiction. State of Texas v. Google, No. 13-23-00114-CV, 2025 WL 52611 (Tex. App.—Corpus Christi-Edinburg Jan. 9, 2025, no pet. h.) (mem. op). Accordingly, our grant of relief as to the Victoria County action, and thus the Victoria County trial court's obligation to comply, is further conditioned on the issuance of a subsequent and final appellate decision, either by the Thirteenth Court of Appeals on rehearing or by the Texas Supreme Court on petition for review, affirming the Victoria County trial court's denial of Google's special appearance.

1.   See Tex. R. Civ. P. 194.

2.   Ante at 5 (citing Tex. R. Civ. P. 199.1(a).

3.   Point Energy Partners Permian, LLC v. MRC Permian Co., 669 S.W.3d 796, 808 (Tex. 2023) (brackets omitted); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 356 (2012) (“Adhering to the fair meaning of the text ․ does not limit one to the hyperliteral meaning of each word in the text.”).

4.   See In re Am. Airlines, Inc., 634 S.W.3d 38, 40 (Tex. 2021) (orig. proceeding) (prohibiting deposition of high-level corporate officials without prior showing of unique or superior personal knowledge of discoverable information).

5.   See, e.g., In re Baptist Hosps. of Se. Tex., 172 S.W.3d 136, 145 (Tex. App.—Beaumont 2005, orig. proceeding) (“[C]ompelling a deposition of the opposing party's attorney of record concerning the subject matter of the litigation is inappropriate under most circumstances.”).

6.   Tex. R. Civ. P. 192.3(e) (“The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable.”).

7.   See U.S. Const. amend. V; Tex. Const. art. I, § 10; see also In re Peters, 699 S.W.3d 307, 310 (Tex. 2024) (holding privilege against self-incrimination “prevails over the civil justice system's needs” unless it is “perfectly clear” information sought “cannot possibly have [any] tendency to incriminate”).

8.   See Ditech Servicing, LLC v. Perez, 669 S.W.3d 188, 194 (Tex. 2023) (“[T]he specific controls over the general.”).

9.   Act of Feb. 17, 1919, 36th Leg., R.S., ch. 5, § 2, 1919 Tex. Gen. Laws 5, 5 (emphasis added).

10.   See Tex. R. Civ. P. 199, 4 Tex. B.J. 489, 518 (1940) (“The testimony of any witness and of any party to a suit may be taken in any civil case in any district or county court of this State by oral deposition and answer in any instance where depositions are now authorized to be taken.” (emphasis added)).

11.   Order of Dec. 5, 1983, 47 Tex. B.J. 16, 28 (eff. April 1, 1984).

12.   See, e.g., Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d 553, 559 (Tex. 2015) (holding that repeal replaces prior law with silence, not with the opposite policy).

13.   See Tex. Gov't Code § 311.026(b) (“Special or Local Provision Prevails Over General”); Ditech Servicing, 669 S.W.3d at 194.

14.   Tex. Const. art. II, § 1.

15.   Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566, 570 (Tex. 2013).

16.   Perry v. Del Rio, 67 S.W.3d 85, 93 (Tex. 2001).

17.   See In re Texas House of Representatives, 702 S.W.3d 330, 333-34 (Tex. 2024). (holding legislative committee's authority to compel testimony does not include the power to override a judicially scheduled execution).

18.   State v. Shahan, 658 S.W.3d 300, 303–04 (Tex. 2022).

19.   Restatement (Third) of Agency § 1.01 (2006).

20.   Compare Tex. Gov't Code § 311.005(2) (“ ‘Person’ includes [a] corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity.” (emphasis added)), with Tex. R. Civ. P. 199.2(b)(1) (providing for deposition of “an individual or a public or private corporation, partnership, association, governmental agency, or other organization”).

21.   Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496, 504 (Tex. 2015); see also U.S. Fid. & Guar. Co. v. Goudeau, 272 S.W.3d 603, 606 (Tex. 2008) (holding that under noscitur a sociis canon, courts cannot “ascribe to one word a meaning so broad that it is inconsistent with its accompanying words”).

22.   Tex. Const. art. I, § 1.

23.   See, e.g., Tex. Agric. Code §§ 41.1011, 76.156, 122.359; Tex. Bus. & Com. Code §§ 15.21, 17.953, 20.11, 21A.003, 72.004, 72.051, 74.006, 93.010, 107.005, 114.0104, 302.302, 321.107, 324.102, 501.002, 521.151; Tex. Bus. Org. Code §§ 9.052, 21.802, 140A.101; Tex. Educ. Code §§ 12.122, 312.155; Tex. Elec. Code § 18.065; Tex. Fam. Code §§ 33.012, 261.107; Tex. Fin. Code § 89.102; Tex. Transp. Code §§ 111.058, 548.6015.

24.   See Tex. Bus. & Com. Code §§ 17.47 (providing consumer protection division of the OAG “may bring an action in the name of the state”), 503.001(d) (“The attorney general may bring an action to recover the civil penalty.”).

25.   Farmers Grp., Inc. v. Lubin, 222 S.W.3d 417, 424–25 (Tex. 2007).

26.   See Tex. Const. art. IV, § 1.

27.   Tex. Disciplinary Rules Prof'l Conduct, preamble cmt. 13.

28.   Tex. Gov't Code § 402.021.

29.   See Tex. Const. art. IV, § 22 (“The Attorney General shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party”).

30.   See El Paso Elec. Co. v. Tex. Dept. of Ins., 937 S.W.2d 432, 438 (Tex. 1996).

31.   Tex. Dep't of Corr. v. Herring, 513 S.W.2d 6, 7 (Tex. 1974) (quoting Tex. Co. v. State, 281 S.W.2d 83, 90 (Tex. 1955) (emphasis added)).

32.   See, e.g., Tex. Civ. Prac. & Rem. Code § 6.001; Tex. R. App. P. 29.1.

33.   See Tex. R. Civ. P. 167.1(c).

34.   Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).

35.   See 222 S.W.3d at 420.

36.   See id.

37.   Id. at 425.

38.   Id. at 426 (emphasis added).

39.   Id. at 427 (internal footnote omitted).

40.   Tex. Disciplinary Rules Prof'l Conduct R. 3.08(a). The rule contains exceptions for uncontested issues, formalities, legal fees, and substantial hardship that do not apply here. An exception for a lawyer to act as trial counsel “appearing pro se” does not apply because the Attorney General is acting in different capacities as a party (a designated state executive for bringing suit) and trial counsel).

41.   Restatement (Third) of the Law Governing Lawyers § 108(4) (2000).

42.   Alonzo v. John, 689 S.W.3d 911, 914 (Tex. 2024).

43.   Tex. Disciplinary Rules Prof'l Conduct, preamble ¶ 3.

44.   Restatement (Third) of the Law Governing Lawyers § 108(4) cmt. 4.

45.   Tex. Gov't Code § 402.0212.

46.   Tex. Disciplinary Rules Prof'l Conduct, R. 3.08(c).

47.   Tex. Gov't Code § 22.220(d)(2).

48.   Tex. R. Civ. P. 192.2(b).

49.   Id. R. 192.4(a).

50.   See id. R. 194.2(b) & cmt. 2. Specifically, Google sought to depose the State on numerous topics that duplicate the initial disclosures required by Rule 194, including the State's (1) legal theories, (2) factual bases of claims or defenses, (3) calculation of penalties and damages, (4) anticipated witnesses, (5) anticipated testifying experts, and (6) supporting documents [MR89–90].The deadline was 30 days after Google's answer was due, which was over a year ago. Id.

51.   See id. R. 191.3(b).

52.   Id. R. 193.5.

53.   Id. R. 194.6; cf. Tex. Gov't Code § 402.004 (“An admission, agreement, or waiver made by the attorney general in an action or suit to which the state is a party does not prejudice the rights of the state.”).

54.   Tex. R. Civ. P. 194, cmt. 1.

55.   Id. R. 193.6(a).

56.   See, e.g., In re Dawson, 550 S.W.3d 625, 630 (Tex. 2018) (orig. proceeding).

57.   See Abbott v. Harris Cnty., 672 S.W.3d 1, 16 (Tex. 2023).

Scott K. Field, Justice