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IFS Security Group10/31/2005
ively demonstrate the appellate court's jurisdiction, the appeal must be dismissed. See Parks, 112 S.W.3d at 160.
B. Applicable Law
An appellate court's jurisdiction is established exclusively by constitutional and statutory enactments. See, e.g., Tex. Const. art. V, § 6; Tex. Gov't Code Ann. § 22.220 (Vernon 2004 & Supp. 2005). As a general rule, an appeal may be taken only from a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (discussing finality of summary judgment order).
Texas Rule of Civil Procedure 202 provides that a person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either: (1) to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit; or (2) to investigate a potential claim or suit. See Tex. R. Civ. P. 202.1. Texas Rule of Civil Procedure 202 applies to all discovery before a lawsuit is filed. Prior to 1999, when rule 202 was promulgated, this subject was covered by former rule 187 governing depositions to perpetuate testimony and former rule 737 governing bills of discovery. See Tex. R. Civ. P. 202 cmt. 1. Accordingly, courts may use previous interpretations of former rules 187 and 737 to aid their interpretation of rule 202.
Under the former rules, an order granting a request for presuit discovery from a third party who is not contemplated as a potential party to a lawsuit is a final, appealable order because it resolves all discovery issues between the parties. See Ross Stores, Inc. v. Redken Lab., Inc., 810 S.W.2d 741, 742 (Tex. 1991) (discussing bill of discovery under repealed rule 737); Dallas Joint Stock Land Bank v. Rawlins, 129 S.W.2d 485, 487 (Tex. Civ. App.-Dallas 1939, orig. proceeding) (discussing bill of discovery), cited with approval in Dallas Joint Stock Land Bank v. State ex rel. Cobb, 135 Tex. 25, 31, 137 S.W.2d 993, 996 (Tex. 1940) (discussing bill of discovery); cf. Vega v. Davila, 31 S.W.3d 376, 378 (Tex. App.-Corpus Christi 2000, no pet.) (discussing denial of motion to quash); Pelt v. State Bd. of Ins., 802 S.W.2d 822, 827-28 (Tex. App.-Austin 1990, no writ) (concluding no jurisdiction to review respondent's appeal of order denying motion to quash subpoena duces tecum of nonparty to administrative proceeding because order not final and appealable, but distinguishing from action in equity against third party to determine whether action maintainable against another party). Likewise, an order pursuant to rule 202 allowing discovery against a third party not liable to the petitioner would be final for purposes of appeal. See Thomas v. Fitzgerald, 166 S.W.3d 746, 747 (Tex. App.-Waco 2005, no pet.).
However, an order under the former rules granting a request for presuit discovery from a party against whom a lawsuit is pending or contemplated is not a final, appealable order because it is in aid of and incident to the anticipated suit. See Office Empl. Int'l Union Local 277, AFL-CIO v. Sw. Drug Corp., 391 S.W.2d 404, 405-06 (Tex. 1965) (discussing deposition to perpetuate discovery under former rule 187 and commenting that question whether order denying right to presuit deposition is final and appealable is not before court); Jacintoport Corp. v. Almanza, 987 S.W.2d 901, 903 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (discussing order imposing sanctions for failure to produce documents pursuant to bill of discovery); In re Petition of Am. State Bank to Obtain Testimony of Wade & Willmon to Investigate a Potential Claim by Petitioner, No. 07-03-0483-CV, 2005 WL 1967262, *3 (Tex. App.-Amarillo Aug. 16, 2005, pet. filed) (discussing rule 202). Similarly, an order pursua
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