ROCKY SALINAS v. IN RE ROCKY SALINAS (2026)

OPINION

Appellant Rocky L. Salinas appeals via two issues the trial court's order that requires him to produce his cell phone to a third-party forensic examiner and prohibits him from destroying the phone or any videos/photos of appellee Yvonne Tovar saved on the phone or the cloud.¹ Salinas also filed a petition for writ of mandamus.² While we lack jurisdiction over Salinas's first appellate issue, and dismiss the same, we determine that the trial court's order compelling production of the phone violates Salinas's Fifth Amendment right against self-incrimination. Therefore, we lift the stay previously imposed, deny the petition for writ of mandamus because Salinas has an adequate remedy by appeal, dismiss the appeal in part due to lack of jurisdiction, reverse the trial court's order in part to the extent it compels production of appellant's cell phone, and remand for modification.

I. BACKGROUND

This case arises from a sensitive alleged invasion of privacy by Salinas against Tovar. Salinas is a dentist who owns and operates RGV Smiles in Pharr. Tovar is a former employee of RGV Smiles who worked as a dental hygienist. According to Tovar, Salinas intentionally hid his cell phone in the women's restrooms “to record women while unclothed and using the toilet” and later viewed the videos/photos for his sexual gratification.

Tovar alleged that on February 5, 2025, she discovered Salinas's cell phone in the bathroom and confronted him about it. Tovar then reported him to the Pharr Police Department (PPD) and made a formal criminal complaint. She claimed that the police requested Salinas's cell phone and that Salinas had either hidden or destroyed the cell phone and the files pertaining to Tovar.

She filed suit on March 10, 2025, asserting a cause of action for invasion of privacy. She also sought a temporary restraining order and injunction preventing Salinas from destroying the videos/photos by ordering preservation of the cell phone, the files on the cell phone, and iCloud uploads of the files. The trial court issued a temporary restraining order and then set a hearing for the temporary injunction. Tovar also served a hearing subpoena and subpoena duces tecum commanding Salinas to produce his cell phone and videos/photos of Tovar at the hearing. Salinas moved to quash the subpoena.

On April 8, 2025, the trial court held a hearing regarding the request for temporary injunction and motion to quash. The trial court orally denied Salinas's motion to quash, but Salinas did not appear with his cell phone or any digital files as directed by the subpoena duces tecum. Tovar's counsel argued the injunction was needed to secure the phone, the files, and any cloud files that the phone may have automatically uploaded or preserved. Salinas's counsel stated that Salinas did not have the phone anymore and would not testify regarding its location due to his Fifth Amendment rights. Salinas was called to the stand and refused to answer any questions pursuant to such rights. Tovar's counsel argued that Salinas was defying the subpoena.

Tovar testified regarding the February 5, 2025 incident. She discovered Salinas's cell phone in the restroom and realized it was recording her. She deleted the video and confronted Salinas, who she claims apologized for taking the video. She further testified that all iPhones have cloud capabilities and that deleted videos go to a deleted files subfolder on the phone and are uploaded to the iCloud. Her counsel argued for the injunction based on her testimony.

The trial court denied the motion to quash and granted the application for temporary injunction with an oral ruling that Salinas's cell phone be preserved and handed to his counsel under seal for an appointed third-party examiner to review Salinas's phone and iCloud data. Salinas's counsel responded that there was no phone for Salinas to produce and objected to the scope of the order. The parties further argued regarding spoliation and protection of the evidence.

The trial court memorialized its oral order in written form on July 18, 2025. Of note, the order mandated that Salinas was:

prohibited from deleting, destroying, erasing, manipulating, or hiding:

(a) [Salinas's] cell phone which was used to video record Plaintiff Tovar on February 5, 2025;

(b) the video recordings or files and photos Salinas took of Plaintiff Tovar on February 5, 2025, and;

(c) the video recordings or files and photos Salinas took of Plaintiff Tovar on February 5, 2025, which are contained upon any internet cloud-based file archive or online backup or storage facility including Salinas[‘s] Apple iCloud account linked to Salinas[‘s] cell phone.

IT IS FURTHER ORDERED that [Salinas] shall produce his Apple iPhone or cell phone that he used and possessed on February 5, 2025, and deliver said phone to the Court's appointed Examiner to hold during the pendency of this action under a strict possessive order as provided below. The Examiner shall extract from [Salinas's] phone, if possible, the videos photos, digital traces and images allegedly taken by [Salinas] or [Tovar] on February 5, 2025. The Examiner shall extract the videos, photos, digital traces and images allegedly taken by [Salinas] of [Tovar] on February 5, 2025 from [Salinas's] icloud account or similar internet cloud based archive(s) which may have mirror images, videos and data from [Salinas's] phone. The Examiner is hereby provided with the authority to take any and all reasonable actions to extract and obtain the videos, photos, digital traces and images as specified herein.

This accelerated interlocutory appeal and writ of mandamus followed. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4); TEX. R. APP. P. 52.

II. ANALYSIS

We address the mandamus relief first before moving onto the interlocutory appeal.

A. Mandamus Jurisdiction

By petition for writ of mandamus, Salinas asserts that the trial court's July 18, 2025 order violates his Fifth Amendment right against self-incrimination, and he argues that: (1) the trial court failed to separately analyze each question posed to Salinas regarding the application of the privilege against self-incrimination; (2) the phone and its related cloud storage or online storage contain testimonial communications by Salinas; and (3) the “Order of Protection” that requires Salinas to deliver his phone to a third-party forensic examiner inadequately protects Salinas and results in the violation of his privilege against self-incrimination. Tovar responded that the order constitutes a mere discovery ruling. Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem. Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show “that (1) the trial court clearly abused its discretion and (2) the party seeking relief lacks an adequate remedy on appeal.” In re Ill. Nat'l Ins., 685 S.W.3d 826, 834 (Tex. 2024) (orig. proceeding); see In re Prudential Ins. Co. of Am., 148 S.W.3d at 138; Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). “Mandamus is meant for circumstances involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 641 (Tex. 2021) (orig. proceeding) (citation modified).

Unless an interlocutory appeal is authorized by statute, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The Texas Civil Practice and Remedies Code authorizes an interlocutory appeal from an order that “grants or refuses a temporary injunction.” TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4). “The right to appeal a temporary injunction thus is a well-established feature of Texas law that expedites review of a potentially burdensome order.” Harley Channelview Props., LLC v. Harley Marine Gulf, LLC, 690 S.W.3d 32, 38 (Tex. 2024). We first examine whether the order at issue constitutes an appealable temporary injunction that cannot be addressed by mandamus.

The “character and function of an order” determines its classification and “matters of form” do not. Id. at 39 (quoting Qwest Commc'ns Corp. v. AT & T Corp., 24 S.W.3d 334, 336 (Tex. 2000) (per curiam)); see In re Tex. Nat. Res. Conservation Comm'n, 85 S.W.3d 201, 205 (Tex. 2002) (orig. proceeding); Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992). “[A]n order that ‘places restrictions on [a party] and is made effective immediately so that it operates during the pendency of the suit ․ functions as a temporary injunction.’ ” Harley Channelview Props., LLC, 690 S.W.3d at 39 (quoting Qwest Commc'ns Corp., 24 S.W.3d at 337). We determine “whether the order restricts (or commands) a party's conduct during the suit, based on a determination that the opposing party has demonstrated a probable right to relief.” Id.; see Qwest Commc'ns, 24 S.W.3d at 335 (“One function of injunctive relief is to restrain motion and to enforce inaction.”). An order's failure to meet the procedural requirements for a temporary injunction may render the order void but will not change the order's classification. See Harley Channelview Props., LLC, 690 S.W.3d at 39. The Texas Supreme Court recently applied these tenets to conclude that an order requiring one party to immediately convey property to the other to enforce a summary judgment ruling constituted a temporary injunction because, while defective, the order: (1) required the enjoined party to perform; (2) was made effective and operated while the suit remained pending; (3) compelled performance based on a determination that the opposing party's claim had merit; and (4) took immediate effect before final judgment was rendered. See id. at 35.

Here, the trial court's order required Salinas to procure his phone for examination. The order was effective during the pendency of the lawsuit, affirmatively based on a determination that Tovar had established a probable right to relief, and took immediate effect before rendition of a final judgment. See id. Further, though the order refers to itself both as a “Temporary Restraining Order” and a “Temporary Injunction,” the record already contains a previous temporary restraining order, and the order on appeal sets a date for a bench trial on the merits. Compare TEX. R. CIV. P. 680 (“Every restraining order shall include an order setting a certain date for hearing on the temporary or permanent injunction sought.”) with id. R. 683 (“Every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought.”). Accordingly, we reject Tovar's claims that the order constitutes, effectively, a mere discovery ruling, and we conclude instead that the order is an appealable temporary injunction. See Harley Channelview Props., LLC, 690 S.W.3d at 41 (stating that “[d]iscovery orders do not engage directly with the merits of the case; they compel compliance with procedural rules that govern the litigation process”).

Salinas has filed an interlocutory appeal of the trial court's order in appellate cause number 13-25-00395-CV as allowed under Section 51.014(a)(4) of the Texas Civil Practice and Remedies Code. Therefore, we have jurisdiction over the appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4). Moreover, Salinas has an adequate remedy by appeal, and we deny his petition for writ of mandamus for that reason. See In re Ill. Nat'l Ins., 685 S.W.3d 826, 834 (Tex. 2024) (orig. proceeding) (noting that, to obtain mandamus relief, a relator must show, among other things, that it “lacks an adequate remedy on appeal”); Sargeant v. Al Saleh, 512 S.W.3d 399, 408 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.) (combined app. & orig. proceeding [mand. denied]).

B. Interlocutory Appeal

By his first issue in the appeal, Salinas argues the trial court abused its discretion by sua sponte appointing a forensic examiner. By his second issue, he argues that the order violates his Fifth Amendment right against compelled self-incrimination.

1. Mootness as to Production of the Phone

Tovar asserts that this appeal is moot because Salinas judicially admitted that the phone he used on February 5, 2025, no longer exists, and, thus, there is no live controversy between the parties. Tovar further argues that Salinas lacks standing to bring the appeal because he no longer has the phone. Salinas did not reply to Tovar's contentions regarding mootness. If an appeal is moot, then we lack subject matter jurisdiction. Tex. Dep't of Family & Protective Servs. v. Grassroots Leadership, Inc., 717 S.W.3d 854, 866 (Tex. 2025) (noting that “courts never have subject-matter jurisdiction over cases that are nonjusticiable” and that “[t]he most familiar justiciability doctrines are standing, mootness, and ripeness”).

Here, the order prohibited Salinas and others from “deleting, destroying, erasing, manipulating, or hiding ․ [Salinas's] cell phone which was used to video record [Tovar] on February 5, 2025,” “the video recordings or files and photos Salinas took of [Tovar]” on that date, and any such recordings or files “which are contained upon any internet cloud-based file archive or online backup or storage facility including Salinas' Apple iCloud account linked to Salinas' cell phone.” The order further required Salinas to “produce his Apple iPhone or cell phone that he used and possessed on February 5, 2025, and deliver said phone to the [trial court's] appointed Examiner,” who “shall extract from [Salinas's] phone, if possible, the videos, photos, digital traces and images allegedly taken by [Salinas] of [Tovar] on February 5, 2025” and “shall extract [the same] from [Salinas's] [iCloud] account or similar internet cloud based archive(s) which may have mirror images, videos and data from [Salinas's] phone.” However, Salinas's counsel informed the trial court that Salinas no longer had the phone that he possessed on February 5, 2025, and that Salinas “doesn't have a link to the iCloud.”

A case becomes moot if, after the time of filing, there ceases to be “a justiciable controversy between the parties—that is, if the issues presented are no longer ‘live,’ or if the parties lack a legally cognizable interest in the outcome.” Abbott v. Mex. Am. Legislative Caucus, Tex. House of Representatives, 647 S.W.3d 681, 689 (Tex. 2022) (quoting Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex. 2012)). Stated otherwise, “a case is moot when the court's action on the merits cannot affect the parties' rights or interests.” Id. (quoting Heckman, 369 S.W.3d at 162). The mootness doctrine ensures that courts refrain from issuing “advisory opinions—not because such opinions would be useless, but because issuing them would not resolve a live dispute between actually adverse parties and therefore would not constitute an exercise of the judicial power.” Grassroots Leadership, Inc., 717 S.W.3d at 873.

The party asserting mootness “must prove that intervening events make it ‘impossible for a court to grant any effectual relief whatever to the prevailing party.’ ” Id. at 876. In this regard, only some claims or issues may become moot, and courts retain jurisdiction to adjudicate other claims or issues that are not moot. See id. at 877. There are two recognized “exceptions” to the mootness doctrine, the collateral consequences exception and the capable-of-repetition exception, which “elucidate when a case that seems moot actually remains live for reasons that might not be immediately apparent.” Id. at 883.

Tovar points to the testimony from Salinas's counsel as the primary basis for her claim of mootness. Generally, counsel's arguments are not evidence but, if “during an evidentiary hearing, counsel makes unsworn factual statements as an officer of the court, on the record and without objection from opposing counsel, such statements are properly considered as evidence.” In re Estate of Brown, 704 S.W.3d 428, 435 (Tex. 2024) (quoting Rasco v. Ducars Inv., LLC, No. 02-21-00375-CV, 2022 WL 4373499, at *8 n.3 (Tex. App.—Fort Worth Sept. 22, 2022, no pet.) (mem. op.)). These statements must also clearly be based on the attorney's personal knowledge. Id. at 436.

The record indicates an evidentiary hearing occurred and Salinas's counsel specifically stated he was making representations as an officer of the court and such statements were on the record. See id. at 435. Tovar's counsel did not object to such statements. See id. The only factor not clear from the record is whether such statements are based on Salinas's counsel's personal knowledge. See id. at 436. He does not elaborate in his statements how he came by his knowledge and whether he is simply reflecting matters his client told him or something he personally knows. However, because the statements must be “clearly” based on the attorney's personal knowledge, we cannot consider this testimony to be evidence. See id. at 436.

Regardless, this does not prove that the appeal is moot. Without considering this testimony, there is nothing in the record indicating the status of the phone. Because the record does not have any evidence that the phone or cloud files are destroyed or beyond reach, we cannot find that Tovar has proven it is impossible for this order to provide relief. See Grassroots Leadership, Inc., 717 S.W.3d at 876. The burden is on Tovar to prove mootness and without Salinas's counsel's testimony, Tovar has no evidence to support her argument on mootness. See id.

Further, even if we were to consider Salinas's counsel's statements as evidence, they do not support Tovar's argument. While Salinas's counsel stated Salinas lost the cell phone and lacks access to his iCloud, there is no specific testimony regarding the permanent destruction of either the phone or digital files. Nothing in the record indicates that the cell phone was destroyed or will remain permanently inaccessible. While there was a statement that “there is no phone to be given,” this does not preclude the possibility of the phone ever being accessible again. Per the trial court's order, Salinas was mandated to obtain the phone and produce it to the examiner. While Salinas's counsel's representations to the trial court indicated that at present there was no phone, if Salinas zealously complied with the order as was his obligation and found the phone, then the trial court's order would no longer be moot. Because the burden lies on Tovar to show that it is impossible for the trial court to grant relief, we find that she has not met that burden. See id.

The same reasoning applies to the iCloud data, if not more so. The only record statement regarding this issue is that Salinas did not have a link to his iCloud account. This statement does not preclude Salinas obtaining a link to the iCloud account or seeking access to it from the appropriate company or source. The nature of cloud computing and data is that it is accessible wherever there is an internet connection and not bound to merely one device. The possibility of subpoenaing Apple for this data remains open as well. Therefore, Salinas counsel's statement does not render the trial court's order moot because access to the iCloud data is not impossible based on the record. See id. Accordingly, we reject Tovar's assertion of mootness.

2. Appointment of Forensic Examiner

We next turn to Salinas's first issue in his interlocutory appeal regarding his contention that the trial court abused its discretion by sua sponte appointing a third-party forensic examiner. Absent specific statutory authority permitting an interlocutory appeal as to a certain issue, we lack jurisdiction to review an interlocutory order. See Young v. Cook Child.'s Health Plan, 726 S.W.3d 541, 546 (Tex. App.—15th Dist., 2025, pet. filed). Appointment of a forensic examiner is not designated as an appealable interlocutory order. See Dey v. Seilevel Partners, LP, 2022 WL 2982511, at *3 (Tex. App.—Amarillo July 28, 2022, no pet.) (mem. op.) (“[W]e agree with Seilevel that an order for forensic examination is not one designated by the Legislature as appealable ․”); TEX. CIV. PRAC. & REM. CODE § 51.014. While the order compelling production of Salinas's cell phone is properly characterized as a temporary injunction, mere appointment of an examiner does not require performance from Salinas in any sense and thus does not carry injunctive effect. See Harley Channelview Props., LLC, 690 S.W.3d at 35.

Accordingly, we must dismiss Salinas's first issue for lack of jurisdiction.

3. Production to Forensic Examiner

The Fifth Amendment to the United States Constitution provides that “[n]o person ․ shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. The privilege against self-incrimination provided by the Constitution “extends to civil litigation and may operate as a bar against discovery.” In re Peters, 699 S.W.3d 307, 310 (Tex. 2024) (orig. proceeding) (per curiam); see Tex. Dep't of Pub. Safety Officers Ass'n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995). “The privilege against self-incrimination applies to testimony that could directly incriminate a witness or furnish an evidentiary link that might tend to incriminate him.” In re Peters, 699 S.W.3d at 310. To invoke the privilege, “the witness need only show that an answer to the question is likely to be hazardous to him.” Ex parte Butler, 522 S.W.2d 196, 198 (Tex. 1975) (orig. proceeding). However, for the privilege to apply, the witness's refusal to testify must be made in good faith and must be justifiable under the circumstances. See In re Peters, 699 S.W.3d at 310. For a trial court to compel a witness to answer over the assertion of the privilege, “it must be perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer(s) cannot possibly have such tendency to incriminate.” Id. (citation modified).

“[A] valid assertion of the privilege prevails over the civil justice system's needs.” Id. at 311. However, in civil cases, juries may make negative inferences based on the assertion of the privilege, and the trial court can subsequently prohibit the witness from introducing evidence on the subject. See Denton, 897 S.W.2d at 760. “Thus, a civil defendant can be forced to choose between asserting his privilege against self-incrimination or losing his civil suit.” In re Speer, 965 S.W.2d 41, 46 (Tex. App.—Fort Worth 1998, orig. proceeding).

Here, Salinas invoked his right against self-incrimination. It is undisputed that there is a pending criminal case against him based on the same acts that form the basis of the underlying civil case. However, Tovar asserts that the right against self-incrimination does not extend to the contents of Salinas's phone or its cloud or online storage. As presented in this case, we disagree.

Our sister courts that have considered this issue have uniformly held, and we concur, that the privilege extends to the production of a phone when it may furnish a link in the chain of evidence needed for prosecution of a crime. See In re H.J., No. 04-24-00344-CV, 2024 WL 4363745, at *2–3 (Tex. App.—San Antonio Oct. 2, 2024, orig. proceeding) (mem. op.) (upholding an assertion of the privilege in a suit involving the parent-child relationship for a trial court's discovery ruling requiring the production of electronic information on an iPhone); In re Charles, No. 01-18-01112-CV, 2019 WL 2621749, at *3 (Tex. App.—Houston [1st Dist.] June 27, 2019, orig. proceeding) (mem. op.) (upholding the assertion of the privilege in a civil wrongful death case for a trial court's discovery ruling requiring the “relator to give information from his phone, including emails, text messages or multimedia messages on the day of the incident” because “information from relator's phone could include pictures of the evening or details of the plans for the evening that would provide the State with a link in the chain of evidence needed to prosecute appellant in the criminal trial”).

Considering the circumstances here, we conclude the production sought could furnish a link in the chain of evidence needed to prosecute Salinas for a crime because possession of the alleged video on his personal phone and metadata from the phone could substantiate the criminal allegations. The Fifth Amendment protects an individual from incriminating himself by the actions the trial court has compelled in this case; therefore, Salinas can properly assert the privilege. See In re Peters, 699 S.W.3d at 310; Ex parte Butler, 522 S.W.2d at 198. Further, while the trial court has ordered that any discovery obtained pursuant to its order would be held under seal, we note that any potential protective or confidentiality agreement would not suffice to protect Salinas's rights against self-incrimination under the Fifth Amendment. See In re H.J., 2024 WL 4363745, at *3; In re Nichol, 602 S.W.3d 595, 604 (Tex. App.—El Paso 2019, orig. proceeding) (noting there are “federal court decisions holding that grand juries can use criminal subpoenas to obtain information subject to a civil protective order, meaning that in actuality the protective order could provide [relator] no protection at all with respect to the parallel criminal proceedings”). We therefore sustain Salinas's second issue.

III. CONCLUSION

We lift the stay previously imposed, deny the petition for writ of mandamus because Salinas has an adequate remedy by appeal, and dismiss Salinas's appeal in part to the extent it challenges the appointment of a forensic examiner. However, we reverse the portion of the trial court's order compelling production of appellant's phone in contravention of Salinas's Fifth Amendment right against self-incrimination and remand the case for the trial court to modify its order granting the application for temporary injunction to exclude any mandate to produce Salinas's cell phone.

Delivered and filed on the 11th day of March, 2026.

FOOTNOTES

1.   Appellate cause number 13-25-00395-CV.

2.   Appellate cause number 13-25-00646-CV.

YSMAEL D. FONSECA Justice