In Re EOG Resources, Inc. v. the State of Texas

Fourth Court of Appeals
                                        San Antonio, Texas

                                   MEMORANDUM OPINION
                                           No. 04-25-00574-CV

                                    IN RE EOG RESOURCES INC

                                     Original Mandamus Proceeding 1

Opinion by:       Irene Rios, Justice

Sitting:          Rebeca C. Martinez, Chief Justice
                  Irene Rios, Justice
                  Lori I. Valenzuela, Justice

Delivered and Filed: April 15, 2026

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           Relator EOG Resources, Inc. (“EOG”) seeks mandamus relief from a discovery order

requiring production of documents identified as items 3, 4, 5, 10, and 15 in its Second Amended

Privilege Log. The trial court concluded EOG waived its attorney-client privilege and ordered the

documents produced. We conditionally grant the petition for writ of mandamus.

                                               BACKGROUND

           The underlying litigation concerns title to certain mineral interests and related royalty

rights. The dispute has been pending in the Bexar County probate courts since 2015 and has been



1
  This proceeding arises out of Cause No. 2015-PC-2618, styled Broadway National Bank, Trustee of the Mary
Frances Evers Trust v. Yates Energy Corporation, EOG Resources, Inc., Jalapeno Corporation, Enerquest Oil &
Gas, LLC, ACG3 Mineral Interests, Ltd., Glassell Non-Operated Interests, Ltd., Curry Glassell, Dke Dyersdale,
Inc., Cathy Dohnalek, Walter H. Mengden, Jr., Whmiii Dubose, LLC., Joseph Mengden, Carl C. Mengden, Susan
Mengden, Michael C. Mengden, Pati-dubose, Inc., pending in the Probate Court No. 3, Bexar County, Texas, the
Honorable Barbie Scharf-Zeldes presiding.
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the subject of prior appellate review. See Yates Energy Corp. v. Broadway Nat’l Bank, Tr. of Mary

Frances Evers Tr., 609 S.W.3d 140 (Tex. App.—San Antonio 2018), rev’d and remanded, 631

S.W.3d 16 (Tex. 2021); Yates Energy Corp. v. Broadway Nat’l Bank, Tr. of Mary Frances Evers

Tr., No. 04-17-00310-CV, 2022 WL 3047107, at *12 (Tex. App.—San Antonio Aug. 3, 2022, pet.

denied) (mem. op.). Relevant to this mandamus proceeding, an issue in the case that remains

unresolved is whether EOG acquired certain mineral interests as a bona fide purchaser.

         During discovery, real party in interest Broadway National Bank (“Broadway”) sought

documents from EOG that could be relevant to this issue. EOG withheld some responsive

documents as privileged attorney-client communications. To support its claims of privilege, EOG

produced a privilege log identifying the documents it had withheld and submitted affidavits from

corporate representatives describing the nature of the communications. EOG later tendered the

disputed documents to the trial court for in camera inspection.

         At a hearing on Broadway’s motion to set EOG’s privilege claims for rulings, the parties

addressed several items on the privilege log, including items 3, 4, 5, 10, and 15. These materials

consist of title opinions, attorney memoranda, and communications between EOG and its counsel

concerning the status of the mineral interests at issue. After conducting an in camera review, the

trial court signed an order finding EOG had waived its attorney-client privilege and requiring EOG

to produce the documents. EOG then filed this petition for writ of mandamus challenging that

order.

                                     MANDAMUS STANDARD

         Mandamus is an extraordinary remedy available when the relator establishes (1) the trial

court abused its discretion and (2) the relator has no adequate remedy by appeal. In re Prudential

Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827

S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion when it fails to

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correctly analyze or apply the law. Walker, 827 S.W.2d at 840. Discovery orders requiring

disclosure of privileged information constitute an abuse of discretion when the privilege applies.

Id. at 843. Because the disclosure of privileged information cannot be cured on appeal, mandamus

relief is appropriate when a trial court erroneously orders privileged documents produced. Id.; In

re Texas Dep’t of Transp., 639 S.W.3d 289, 293 (Tex. App.—San Antonio 2021, orig. proceeding).

                                               DISCUSSION

        The parties dispute whether the trial court abused its discretion by concluding EOG waived

its attorney-client privilege as to items 3, 4, 5, 10, and 15. They also dispute whether Broadway

withdrew its request for rulings on certain of these items during the hearing. 1

1.      Abuse of Discretion

        A.      Attorney-Client Privilege

        Texas Rule of Evidence 503 protects confidential communications between a client and its

attorney made for the purpose of facilitating the rendition of legal services. TEX. R. EVID. 503(b).

The privilege extends to communications between the lawyer and client as well as communications

among their representatives concerning the subject of the representation. In re XL Specialty Ins.

Co., 373 S.W.3d 46, 49–50 (Tex. 2012) (orig. proceeding). A party asserting the privilege must

present evidence establishing a prima facie claim of privilege. In re Christus Santa Rosa Health

Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding); Jordan v. Court of Appeals, 701 S.W.2d

644, 648–49 (Tex. 1985) (orig. proceeding). This burden may be satisfied by producing a privilege

log and supporting affidavits describing the nature of the withheld documents. In re Christus Santa

Rosa, 492 S.W.3d 276, 279.

        Here, the record reflects EOG produced a detailed privilege log and affidavits from

corporate representatives explaining the privileged nature of the communications. EOG also


1
 Because mandamus relief is warranted, we need not reach EOG’s contention that Broadway withdrew its requests.
See TEX. R. APP. P. 47.1.
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tendered the disputed documents to the trial court for in camera review. This evidence established

a prima facie claim of attorney-client privilege. The burden therefore shifted to Broadway to

establish its assertion of waiver. Id.

        B.      Voluntary Disclosure

        Broadway argues EOG waived its privilege by producing a redacted legal memorandum

and related communications referencing legal advice concerning the same subject matter as the

withheld documents. A privilege holder waives the privilege if it voluntarily discloses “any

significant part of the privileged matter.” TEX. R. EVID. 511(a)(1). However, waiver occurs only

when the disclosure reveals a significant portion of the privileged communication itself. In re

Richardson Motorsports, Ltd., 690 S.W.3d 42, 58 (Tex. 2024) (orig. proceeding). Disclosure of

the same subject matter does not waive the privilege unless the disclosure quotes from or

unambiguously refers to and describes a significant portion of the privileged communication. Univ.

of Tex. Sys. v. Franklin Ctr. for Gov’t & Pub. Integrity, 675 S.W.3d 273, 288 (Tex. 2023). Further,

the use of privileged information is not necessarily a waiver. In re Patricia A. Mansell, No. 04-99-

00556-CV, 1999 WL 792690, at *3 (Tex. App.—San Antonio Oct. 6, 1999, orig. proceeding) (not

designated for publication) (holding attorney’s discussion of party’s legal theories in letter to

opposing counsel did not waive privilege to material supporting those legal theories).

        The record shows that EOG produced a redacted version of a 2013 memorandum from

EOG’s title attorney, Paul Barker, which is described on its privilege log as “Legal memorandum

discussing title” (“2013 Memorandum”). EOG also voluntarily produced an email dated October

3, 2013 (“October 2013 email”). The 2013 Memorandum contains a discussion of the 2006

Correction Mineral Deed, including legal advice to EOG regarding the invalidity of the deed and

the need for EOG to obtain an Amended Correction Mineral Deed executed by all parties to the

Deed. The October 2013 email states, “…our title attorney has advised the need for an Amended

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Correction Mineral Deed for the referenced Trust.” Broadway argues that disclosure of the 2013

Memorandum and the October 2013 email waived EOG’s attorney-client privilege as to the

withheld items.

       We have reviewed the withheld documents, which EOG filed under seal. We hold EOG

did not waive its attorney-client privilege as to any of the withheld items (items 3, 4, 5, 10, and

15) because the 2013 Memorandum and the October 2013 email do not constitute disclosure of a

“significant part” of these privileged communications. The creation of the 2013 Memorandum

does not depend or rely upon the information or content of any of the withheld items. Nor does the

2013 Memorandum quote from or reveal a significant part of the privileged material. As to the

October 03, 2013 email, it is an internal communication, in which EOG discusses legal theories

based on the advice of its attorney. The email does not disclose the underlying legal advice. To the

extent the memorandum and email reflect that EOG used its counsel’s legal advice, this use does

not constitute waiver. See Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993) (orig.

proceeding).

       C.      Offensive-Use Waiver

       Broadway also contends EOG waived privilege through offensive use. Offensive-use

waiver applies when (1) the party asserting the privilege seeks affirmative relief, (2) the privileged

information would probably determine the outcome of the cause of action asserted, and (3) the

evidence is otherwise unavailable. See Republic Ins. Co., 856 S.W.2d at 163.

       The first requirement is not satisfied here. EOG is defending against Broadway’s claims

and asserting defenses. EOG is not seeking affirmative relief.

       To qualify as a claim for affirmative relief, a defensive pleading must allege that
       the defendant has a cause of action, independent of the plaintiff’s claim, on which
       it could recover benefits, compensation or relief, even though the plaintiff may
       abandon its cause of action or fail to establish it.



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General Land Office v. Oxy U.S.A., Inc., 789 S.W.2d 569, 570 (Tex.1990) (citations omitted); see

Toyo Seat Co., Ltd. v. Garcia, No. 04-07-00427-CV, 2008 WL 182505, at *2 (Tex. App.—San

Antonio Jan. 23, 2008, no pet.). A party’s defensive posture does not constitute a request for

affirmative relief for purposes of offensive-use waiver. See BHP Petroleum Co. Inc. v. Millard,

800 S.W.2d 838, 841 (Tex. 1990) (orig. proceeding).

       Accordingly, the record does not support a finding that EOG waived its attorney-client

privilege as to the withheld items through voluntary disclosure or through offensive use, and we

hold the trial court abused its discretion by ordering the disclosure of the privileged items. See

Walker, 827 S.W.2d at 843.

2.     Adequate Remedy by Appeal

       An order requiring disclosure of privileged communications leaves the privilege holder

without an adequate remedy by appeal because the confidentiality of the communications cannot

be restored once the information is disclosed. Walker, 827 S.W.2d at 843. Here, mandamus relief

is appropriate because the trial court’s order requires the disclosure of EOG’s privileged

communications.

                                            CONCLUSION

       The record does not support the trial court’s determination that EOG waived the attorney-

client privilege as to items 3, 4, 5, 10, or 15. The trial court therefore abused its discretion by

ordering production of those documents.

       We conditionally grant the petition for writ of mandamus and direct the trial court to vacate

its order requiring production of items 3, 4, 5, 10, and 15 from EOG’s Second Amended Privilege

Log. The writ will issue only if the trial court fails to comply.


                                                   Irene Rios, Justice



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