IN RE: UNIVERSAL PRESSURE PUMPING (2026)

OPINION

The Civil Practice and Remedies Code says that a trial court “shall” grant a timely motion for leave to designate a responsible third party that pleads sufficient facts about the party's alleged responsibility. Tex. Civ. Prac. & Rem. Code § 33.004(a). We conclude that the trial court abused its discretion in denying Universal Pressure Pumping, Inc.’s motion for leave to designate, and Universal does not have an adequate remedy by appeal. We conditionally grant the petition for writ of mandamus.

I. Background

Hydrochloric acid leaked at an oil and gas wellsite in Karnes County, Texas. Plaintiffs Kyle Myrick, Johnny Aguirre, Trinidad Garcia, III, Christopher Cardona, Ernesto Cardona, Harold Medina, Joseph Rubio, and Benny Phan alleged the hydrochloric acid moved downwind to where they were working, causing injuries to their eyes, nose, throat, and lungs.

Plaintiffs sued almost two years later—sixteen days before the expiration of the two-year statute of limitations—asserting negligence claims against Universal and a number of other defendants. Plaintiffs alleged that the defendants were negligent in various respects, including failure to inspect, maintain, repair, and service “the area where the leaking was coming from”; failure to properly plan, supervise, and train employees working in the areas; and failure to implement and properly abide by safety protocols. Plaintiffs served Universal with their original and first amended petition thirty-six days after the expiration of the limitations period.

The parties proceeded with discovery. Universal's initial disclosures stated that it was “not aware of any potentially responsible parties at this time.” After Plaintiffs filed their second amended petition, repeating allegations of negligence and also alleging that Universal was one of the entities that controlled the premises where they were injured, Universal identified two potential responsible third parties: GR Energy Services (Plaintiffs’ employer) and Clean Blast Services, Inc. (the entity that had worked on the interior lining of the chemical storage tank).

Universal filed its motion for leave to designate responsible third parties four months before the October 20, 2025 trial setting. In the motion, Universal sought to designate the two responsible third parties it had previously disclosed. Plaintiffs objected, arguing that the motion was untimely under sections 33.004(a) and 33.004(d) and did not plead sufficient facts under section 33.004(g). The trial court denied the motion without granting Universal leave to replead its allegations. This mandamus followed.

II. Analysis

A party seeking mandamus relief must show both that the trial court clearly abused its discretion and that it lacks an adequate remedy by ordinary appeal. See In re Coppola, 535 S.W.3d 506, 508 (Tex. 2017); In re Spring Creek Ranch Cmty. Ass'n, Inc., No. 14-23-00283-CV, 2024 WL 1872881, at *2 (Tex. App.—Houston [14th Dist.] Apr. 30, 2024, orig. proceeding). Both prongs are satisfied here.

A. Responsible Third Parties

An individual defendant is generally liable only for the damages equal to its own percentage of responsibility. In re E. Tex. Med. Ctr. Athens, 712 S.W.3d 88, 91 (Tex. 2025); Spring Creek Ranch Cmty. Ass'n, Inc., 2024 WL 1872881, at *2 (citing Tex. Civ. Prac. & Rem. Code §§ 33.002(a)(1), 33.003). To that end, defendants are permitted to designate “responsible third parties” who the plaintiffs haven't sued but who the defendants allege “have caused or contributed to causing in any way the harm for which recovery of damages is sought.” Id. (citing Tex. Civ. Prac. & Rem. Code §§ 33.004(a), 33.011(6)).

Defendants must timely seek leave to file this designation. Tex. Civ. Prac. & Rem. Code § 33.004(a)). Parties opposing the designation have the right to object to the motion for leave, but the court shall grant leave unless the objection establishes that the defendant: (1) didn't plead sufficient facts about the alleged responsibility to satisfy pleading requirements; and (2) still didn't plead sufficient facts after having been granted leave to replead. Id. at § 33.004(g); see In re Cordish Co., 617 S.W.3d 909, 913 (Tex. App.—Houston [14th Dist.] 2021, orig. proceeding).

1. The motion for leave was filed timely

Chapter 33 imposes two timeliness requirements that are relevant here. Universal must show that it met both; it did.

First, a motion for leave must be filed “on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date.” Tex. Civ. Prac. & Rem. Code § 33.004(a). The sixty days are measured from the trial date at the time the motion for leave to designate is filed, not an earlier trial date that has been moved. Coppola, 535 S.W.3d at 508. This rule makes sense—the sixty-day requirement is intended to give plaintiffs a chance to prepare before actually going to trial. Here, Universal filed its motion more than sixty days before the then-trial date of October 20, 2025.

Second, a defendant may not file a motion for leave after the expiration of the statute of limitations if it has failed to comply with its duty to timely disclose that the person may be designated as a responsible third party. Tex. Civ. Prac. & Rem. Code § 33.004(d). This rule prevents a defendant from keeping the identity of a responsible party secret until after the plaintiff's limitations period has run and then proceeding to trial against an empty chair. In re Mobile Mini, Inc., 596 S.W.3d 781, 785 (Tex. 2020) (orig. proceeding) (per curiam).

Universal moved for leave to designate GR Energy Services and Clean Blast Services in June 2025—after the expiration of the statute of limitations. We therefore must decide whether Universal's disclosures filed that same month complied with its duty to timely disclose—if they did not, then the trial court did not abuse its discretion in denying its motion for leave.

The Supreme Court has repeatedly held that a plaintiff's decision to file suit just before the end of limitations excuses a defendant's failure to disclose. Mobile Mini, Inc., 596 S.W.3d at 785 (“Mobile Mini's failure to disclose Nolana's identity before limitations expired was the natural consequence of Covarubbias's decision to wait to file suit until limitations were nearing terminus.”). The same is true when, as here, a defendant is sued before limitations but served afterwards. See In re WL&D Ventures, LLC, No. 14-23-00413-CV, 2023 WL 4503851 (Tex. App.—Houston [14th Dist.] 2023, orig. proceeding) (holding a motion to designate a responsible third party was timely filed, despite the expiration of the applicable limitations period, as “relators were not served with the [underlying] lawsuit until after limitations had expired”); In re EAN Holdings, LLC, 697 S.W.3d 407, 411-12 (Tex. App.—El Paso 2024, orig. proceeding) (where defendant was served “almost a week after limitations expired,” Section 33.004(d) did not deprive defendant of right to designate responsible third parties) (emphasis in original)). When a plaintiff has waited until nearly the expiration of limitations to file suit, the “gamesmanship” by defendants that section 33.004(d) operates to prevent is not present; the defendant's failure is “the natural consequence” of the plaintiff's own decision. See Mobile Mini, Inc., 596 S.W.3d at 785.

Here, Plaintiffs sued sixteen days before limitations expired and did not serve Universal until thirty-six days after limitations expired. It was therefore impossible for Universal to disclose the responsible third parties prior to the expiration of limitations.

Plaintiffs fault Universal for waiting almost two years after service to identify the two proposed responsible third parties, even though, Plaintiffs argue, it already knew about their role in the incident based on discovery. This argument is off base. “A defendant's discovery conduct occurring solely after the expiration of the plaintiffs’ limitations period against the responsible third party is immaterial to the issue of timely disclosure for purposes of Section 33.004(d).” In re Bertrand, 602 S.W.3d 691, 706 (Tex. App.—Fort Worth 2020, orig. proceeding); see also EAN Holdings, LLC, 697 S.W.3d at 411-12; In re Modern Senior Living, LLC, No., 05-22-00283-CV, 2022 WL 2187396, at *5-6 (Tex. App.—Dallas June 17, 2022, orig. proceeding) (mem. op.); In re MAF Indus., Inc., No. 13-20-00255-CV, 2020 WL 6158248, at *5 (Tex. App.—Corpus Christi Oct. 19, 2020, orig. proceeding) (mem. op.). As our sister court reasoned, “[n]o authority supports the conclusion that Section 33.004(d) was intended to serve as a statutory discovery sanction for conduct solely occurring after limitations had expired.” Bertrand, 602 S.W.3d at 705; see also In re Bustamante, 510 S.W.3d 732, 736-37 (Tex. App.—San Antonio 2016, orig. proceeding). Universal's alleged post-limitations discovery conduct was not grounds for the trial court's denial of Universal's timely filed motion to designate responsible third parties under section 33.004(d). See Modern Senior Living, LLC, 2022 WL 2187396, at *6.

2. The motion for leave pleaded sufficient facts

Plaintiffs also argue that the trial court's denial of Universal's motion for leave to designate was not an abuse of discretion because Universal didn't plead sufficient facts about the alleged responsibility to satisfy pleading requirements. Tex. Civ. Prac. & Rem. Code § 33.004(g); see Cordish Co., 617 S.W.3d at 913.

Section 33.004(g) imports Texas Rule of Civil Procedure 47, which requires “a short statement of the cause of action sufficient to give fair notice of the claim involved.” Tex. R. Civ. P. 47(a); see In re YRC Inc., 646 S.W.3d 805, 809–10 (Tex. 2022) (orig. proceeding) (per curiam). A movant must satisfy only this fair-notice requirement on a motion for leave to designate a responsible third party under section 30.004. See id. at 809–10. The trial court is restricted to evaluating the sufficiency of the facts pleaded by the party moving for leave to designate (here, Universal) and is not permitted to review the truth of the allegations or consider the strength of the evidence. See Cordish Co., 617 S.W.3d at 914.

Universal's motion for leave satisfied this pleading standard as to the proposed responsible third parties. It alleged that the owner of the tank had hired Clean Blast Services to apply the interior spray-on coating in the chemical tank, but its defective work allowed the hydrochloric acid to penetrate the lining and create pinholes, from which the acid leaked. It also alleged that Plaintiffs’ employer, GR Energy Services, failed to provide its employees with respirators, failed to train them how to respond to hazards from nearby sites, and failed to notify its employees that there was hydrochloric acid on site. As such, the trial court abused its discretion in denying Universal's motion.

What is more, even if Universal's motion failed to satisfy these pleading requirements, section 33.004(g)(2) required the trial court to provide Universal an opportunity to replead. See Tex. Civ. Prac. & Rem. Code 33.004(g)(2). The trial court lacked discretion to deny the motion without affording Universal that opportunity. See YRC Inc., 646 S.W.3d at 810; Coppola, 535 S.W.3d at 508; Metro. Transit Auth. of Harris Cnty. v. Smith, 656 S.W.3d 867, 882-83 (Tex. App.—Houston [14th Dist.] 2022, no pet.); In re Smith, 366 S.W.3d 282, 288 (Tex. App.—Dallas 2012, orig. proceeding) (“[T]he trial judge was statutorily required to give relators an opportunity to replead before denying their motion, regardless of whether they made a specific request for time to replead.”). The trial court did not provide Universal an opportunity to replead, which serves as an independent basis for concluding it abused its discretion.

B. Universal has No Adequate Remedy by Appeal

It is well settled that a party aggrieved by the erroneous denial of its motion for leave to designate responsible third parties has no adequate remedy by appeal. Mobile Mini, Inc., 596 S.W.3d at 787–88; Coppola, 535 S.W.3d at 510; Spring Creek Ranch Cmty. Ass'n, Inc., 2024 WL 1872881, at *2; Cordish Co., 617 S.W.3d at 913. As explained by the Texas Supreme Court, “[a]llowing a case to proceed to trial despite erroneous denial of a responsible-third party designation ‘would skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation of the relator's defense in ways unlikely to be apparent in the appellate record.’ ” Coppola, 535 S.W.3d at 509 (quoting CVR Energy, Inc., 500 S.W.3d 67, 81-82 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding)).

In this case, the trial court's denial of Universal's motion for leave was an abuse of discretion; thus, Universal does not have an adequate remedy by appeal. See YRC Inc., 646 S.W.3d at 810; Mobile Mini, Inc., 596 S.W.3d at 788; Coppola, 535 S.W.3d at 510; Spring Creek Ranch Cmty. Ass'n, Inc., 2024 WL 1872881, at *2-3; Cordish Co., 617 S.W.3d at 913.

III. Conclusion

We conditionally grant Universal's petition for writ of mandamus. We order the trial judge to vacate its August 14, 2025 order denying Universal's motion and issue an order granting Universal's motion designating GR Energy Services and Clean Blast Services as responsible third parties. We are confident that the trial court will comply, and the writ will issue only if it does not. We further lift our September 29, 2025 order staying the underlying proceeding.

Katy Boatman, Justice