Texas Civil Procedure Rule 202 through the Personal Jurisdiction Looking Glass

I. Introduction 213II. PERSONAL JURISDICTION WAIVER AND RULE 202 215III. TROOPER THROUGH THE PERSONAL JURISDICTION LOOKING GLASS 220A. Non-Resident-Oriented Procedural Protection 220B. Plaintiff-Oriented Procedure with Non-Resident Safeguards 223IV. DUE PROCESS PERSONAL JURISDICTION'S COMITY AND LIBERTY PRINCIPLES 225A. The Rule of Territoriality: Personal Jurisdiction 's Origin 226B. Reciprocal Fairness Replaces Territoriality 228C. A Brief Return to Territoriality 230D. Liberty's Role Personal Jurisdiction Analyses 232E. Personal Jurisdiction Principles Flux 234F. Defendant-Oriented Principles: Comity and Liberty......237V. THE LIBERTY AND COMITY PRINCIPLES IN PLAY 243VI. RULE 202 ' S FUTURE IN TEXAS COURTS 244A. Rule 202 and the Liberty Principle 245B. Rule 202 and the Comity Principle 249C. Rule 202 Constitutionally Requires Personal Jurisdiction 250VII. CONCLUSION 253I. IntroductionRule 202 of the Texas Rules of Civil Procedure has historically aided plaintiffs investigating potential claims by vesting courts with the authority to order potential defendants to submit to pre-suit depositions. The rule requires petitioners to file a Rule 202 petition in a court.1 Recently, the Texas Supreme Court held a 5^4 decision that a proper under Rule 202 is one where venue would be proper, where the court can exercise jurisdiction over the subject matter, and where the court may assert personal jurisdiction over the defendant.2While the court declined to address the question of whether Rule 202 would violate the Fourteenth Amendment's Due Process Clause absent a personal jurisdiction requirement,3 the court's decision inescapably raises two related constitutional questions: whether submitting to a Rule 202 deposition constitutes a waiver of personal jurisdiction the ensuing proceedings, and whether a court's Rule 202 personal jurisdiction judgment binds the parties on that issue at the trial court if the petitioner files suit a Texas court.Rule 202 allows a Texas court4 to order a non-resident defendant to submit to the court's jurisdiction over what a petitioner identifies as the subject matter of an anticipated suit.5 One might conclude that failure to object to personal jurisdiction at this pre-suit stage may act as a waiver when a plaintiff files an action concerning the same controversy a Texas court where venue is and when the predicate jurisdictional facts are the same.6 Likewise, one might conclude that the Rule 202 court's judgment on the issue is res judicata or that a defendant is estopped from re-litigating the issue at the trial level.7Lower courts faced with these issues will vary their decisions based on where they locate the constitutional interest at stake. The two opinions Trooper offer two historical views governing personal jurisdiction due process concerns; one view centers the due process inquiry on the non-resident defendant's liberty interest,8 while the other centers the due process inquiry on the forum's interest, buffered only by a non-resident's potential inconvenience.9Part I of this Article begins by providing a brief account of personal jurisdiction waiver. …