Jurisdiction and Venue
§ 15.1Jurisdictional Limits of Trial Courts
§ 15.1:1Jurisdiction Generally
“Subject-matter jurisdiction refers to the kinds of controversies a court has authority to hear, as determined by the constitution, jurisdictional statutes, and the pleadings.” Perry v. Del Rio, 53 S.W.3d 818, 824 (Tex. App.—Austin), appeal dismissed, 66 S.W.3d 239 (Tex. 2001). When a statute creates a right and prescribes a remedy to enforce that right, a court has subject-matter jurisdiction to act in the manner provided by the statute that created that right. Tarrant Appraisal District v. Gateway Center Associates, Ltd., 34 S.W.3d 712, 714 (Tex. App.—Fort Worth 2000, no pet.).
Texas courts have limited subject-matter jurisdiction; they have no power to act other than that specifically given by the Texas Constitution or by statute. Subject-matter jurisdiction is essential to the authority of a court to decide a case. Texas Ass’n of Business v. Texas Air Control Board, 852 S.W.2d 440, 443 (Tex. 1993). Subject-matter jurisdiction is an issue that may not be waived by the parties and may be raised for the first time on appeal. Texas Ass’n of Business, 852 S.W.2d at 445; see also Acosta v. State, 70 S.W.3d 921, 922–23 (Tex. App.—El Paso 2002, no pet.); Ex parte Cross, 69 S.W.3d 810, 813 (Tex. App.—El Paso 2002, no pet.) (question of law subject to sua sponte review by the court of appeals).
For a court to exercise subject-matter jurisdiction over a case, a party must allege facts that affirmatively demonstrate the court’s jurisdiction to hear that case. Mogayzel v. Texas Department of Transportation, 66 S.W.3d 459, 463 (Tex. App.—Fort Worth 2001, pet. denied). When incurable defects are shown on the face of a plaintiff’s pleadings, the court lacks subject-matter jurisdiction. City of Longview v. Head, 33 S.W.3d 47, 54 (Tex. App.—Tyler 2000, no pet.) (dismissal required when subject-matter jurisdiction lacking regardless of stage of proceeding). Any decision rendered by a court not having jurisdiction is void. Cleveland v. Ward, 285 S.W. 1063, 1071 (Tex. 1926), overruled on other grounds by Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992); In re Burlington Northern & Santa Fe Railway Co., 12 S.W.3d 891, 895 (Tex. App.—Houston [14th Dist.] 2000, mandamus denied); Solomon, Lambert, Roth & Associates v. Kidd, 904 S.W.2d 896, 901 (Tex. App.—Houston [1st Dist.] 1995, no writ). Subject-matter jurisdiction is a power that exists by operation of law and may not be conferred on any court by consent of the parties or by waiver. Burke v. Satterfield, 525 S.W.2d 950, 953 (Tex. 1975); Walls Regional Hospital v. Altaras, 903 S.W.2d 36, 40–41 (Tex. App.—Waco 1994, no writ); Nash v. Civil Service Commission, 864 S.W.2d 163, 166 (Tex. App.—Tyler 1993, no writ). In contrast, although a court may not have jurisdiction over a party, that party may appear and consent to personal jurisdiction. Campsey v. Brumley, 55 S.W.2d 810, 812 (Tex. Comm’n App. 1932, holding approved). When jurisdiction has been properly acquired, no subsequent event will serve to divest the court of jurisdiction. Color Tile, Inc. v. Ramsey, 905 S.W.2d 620, 622 (Tex. App.—Houston [14th Dist.] 1995, no writ).
The amount claimed generally determines which court has jurisdiction. See section 15.2 below. Many statutory courts have special jurisdictional requirements, and the attorney should always consult the statute creating the particular court. The following sections summarize the jurisdictional scheme of Texas trial courts.
Justice courts, as creatures of statute, are governed by a legislative grant of jurisdiction. Color Tile, Inc. v. Ramsey, 905 S.W.2d 620, 622 (Tex. App.—Houston [14th Dist.] 1995, no writ). Justice courts have original jurisdiction of—
1.civil matters in which the amount in controversy is $10,000 or less, exclusive of interest (unless the district or county court has exclusive jurisdiction over the case);
2.forcible entry and detainer cases;
3.foreclosures of mortgages and enforcement of liens on personal property when the amount in controversy is otherwise within the justice court’s jurisdiction; and
4.cases arising under chapter 707 of the Transportation Code, outside a municipality’s territorial limits.
A justice of the peace has also the power to issue writs of attachment, garnishment, and sequestration in cases in which the court otherwise has jurisdiction, Tex. Gov’t Code § 27.032, and the power to issue distress warrants, Tex. R. Civ. P. 610.
Small claims cases are lawsuits brought for the recovery of money damages, civil penalties, personal property, or other relief allowed by law, in amounts not more than $10,000, excluding statutory interest and court costs but including attorney’s fees, if any. Tex. R. Civ. P. 500.3. Effective September 1, 2013, small claims courts as such were abolished in Texas, and small claims cases were moved to the justice courts. Acts 2011, 82d Leg., 1st C.S., ch. 3, § 5.06 (HB 79), eff. Sept. 1, 2013.
§ 15.1:3Constitutional County Court
The Texas Constitution provides for a constitutional county court in each county of the state. See Tex. Const. art. V, § 15. Constitutional county courts have—
1.concurrent jurisdiction with justice courts if the amount in controversy exceeds $200 but does not exceed $10,000, exclusive of interest;
2.concurrent jurisdiction with district courts if the amount in controversy exceeds $500 but does not exceed $5,000, exclusive of interest; and
3.the power to issue writs necessary to enforce the court’s jurisdiction, specifically including writs of mandamus, attachment, garnishment, injunction, sequestration, certiorari, and supersedeas.
Tex. Gov’t Code §§ 26.042(a), 26.051; see also Tex. Const. art. V, § 16.
Among other matters, the constitutional county court does not have jurisdiction in a suit for the enforcement of a lien on land or a suit for the trial of the right to property valued at $500 or more and levied on under a writ of execution, sequestration, or attachment. Tex. Gov’t Code § 26.043(2), (6). To enforce their jurisdictional authority, constitutional county courts have extensive writ jurisdiction. See Tex. Gov’t Code §§ 26.050–.051.
§ 15.1:4Statutory County Court (County Court at Law)
In larger counties, the legislature has established statutory county courts that effectively displace the constitutional county court. See Tex. Const. art. V, § 1. Statutorily created county courts at law that have concurrent jurisdiction with constitutional county courts also have concurrent jurisdiction with district courts if the amount in controversy, as alleged in the petition, exceeds $500 but does not exceed $100,000, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs. Tex. Gov’t Code § 25.0003(c)(1). The statutes relating to statutory county courts of each county are in chapter 25 of the Texas Government Code. The statute creating the particular court should always be consulted. See, e.g., Tex. Gov’t Code § 25.0592 (Dallas County), § 25.0732 (El Paso County), § 25.0862 (Galveston County) (examples of statutory county courts that have concurrent jurisdiction with the district court in civil cases regardless of amount in controversy); see also Tex. Gov’t Code § 25.1252 (Jefferson County), § 25.1542 (Lubbock County), § 25.2292 (Travis County) (examples of counties that have raised the maximum jurisdictional amount for the statutory county courts). A statutory county court may issue writs of injunction, mandamus, sequestration, attachment, garnishment, certiorari, supersedeas, and all writs necessary to enforce its jurisdiction. Tex. Gov’t Code § 25.0004(a). The statutory county court has concurrent jurisdiction with district courts in eminent domain cases (Tex. Prop. Code § 21.001) and with constitutional county courts in probate matters (unless a county has a statutory probate court) (Tex. Gov’t Code § 25.0003(d)–(e)).
District courts are courts of general jurisdiction and have exclusive, original jurisdiction over cases that are not within the subject-matter jurisdiction of any other court. Tex. Const. art. V, §§ 1, 8. Neither the Texas Constitution nor the Texas Government Code prescribes a minimum or maximum amount in controversy for district court jurisdiction. See Tex. Const. art. V, § 8; Tex. Gov’t Code §§ 24.007–.008. By legislative act in 1985, the prior constitutional and statutory $500 minimum jurisdiction was repealed. Following the 1985 legislative repeals and subsequent appellate court disagreements on minimum jurisdiction, the supreme court held that the district courts may no longer have a jurisdictional minimum amount in controversy. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 n.4 (Tex. 2000).
District courts may have concurrent jurisdiction with one or more inferior courts. District courts may issue writs of mandamus, injunction, sequestration, attachment, garnishment, certiorari, supersedeas, and all other writs necessary to enforce their jurisdiction. Tex. Gov’t Code § 24.011.
§ 15.2Jurisdictional Amount in Controversy
§ 15.2:1Amount in Controversy Generally
When subject matter is not exclusive, the amount in controversy determines the court with jurisdiction. That amount is determined from the plaintiff’s pleadings, unless the defendant alleges and proves that the allegations are fraudulently made for the purpose of conferring jurisdiction that otherwise would not exist. Lane v. Davis, 337 S.W.2d 292, 293–94 (Tex. Civ. App.—San Antonio 1960, no writ). The plaintiff may not arbitrarily reduce a liquidated claim to an amount within the jurisdictional limits of the justice courts. Hooper Lumber Co. v. Texas Fixture Co., 230 S.W. 141 (Tex. 1921). The amount in controversy established in the plaintiff’s pleadings, not the proof of his allegations or the result of the case, determines jurisdiction. Brannon v. Pacific Employers Insurance Co., 224 S.W.2d 466, 469 (Tex. 1949); Campsey v. Brumley, 55 S.W.2d 810, 812 (Tex. Comm’n App. 1932, holding approved). Each type of court has its own formula for calculating the amount in controversy. Whether attorney’s fees, costs, or penalties are added to the debt when figuring the amount in controversy depends on the governing statute of the court in question. Many of the statutes creating the county courts at law have specific items that may or may not be included in the amount in controversy. See, e.g., Sears, Roebuck & Co. v. Big Bend Motor Inn, Inc., 818 S.W.2d 542 (Tex. App.—Fort Worth 1991, writ denied).
For an unliquidated claim, the plaintiff’s petition need state only that the damages sought are within the jurisdictional limits of the court. Tex. R. Civ. P. 47(b). Omitting the amount in controversy from the petition does not necessarily deprive the court of jurisdiction, unless lack of jurisdiction is clear from the pleadings. The plaintiff may prevail if the jurisdictional amount in controversy is proved at trial; failure to plead damages is a defect in pleading subject to special exceptions and amendment. Peek v. Equipment Service Co., 779 S.W.2d 802, 804–05 (Tex. 1989).
Special rules apply in the case of multiple claims against one defendant or foreclosure of a lien; see sections 15.2:3 and 15.2:7 below.
Only the amount due and unpaid at the time suit is instituted is included in computing the amount in controversy. See Metropolitan Life Insurance Co. v. Evans, 96 S.W.2d 152, 153 (Tex. Civ. App.—Beaumont 1936, no writ). The amount due and unpaid is the balance after applying all credits, not the amount of the original debt. See Salter v. Nelson, 341 S.W.2d 567, 568 (Tex. Civ. App.—Fort Worth 1960, no writ). Any expected reduction in the claimed amount because of an intended offset from another transaction is not included. Manly v. Citizens National Bank, 110 S.W.2d 993, 994 (Tex. Civ. App.—Eastland 1937, no writ).
When a plaintiff makes separate, independent, but joinable claims against multiple parties, each claim is judged on its own merit. Borrego v. del Palacio, 445 S.W.2d 620, 622 (Tex. Civ. App.—El Paso 1969, no writ). When one plaintiff makes multiple claims against one defendant, the claims are aggregated for purposes of determining the amount in controversy for jurisdictional purposes. Tex. Gov’t Code § 24.009 (district courts); Box v. Associates Investment Co., 389 S.W.2d 687, 689 (Tex. Civ. App.—Dallas 1965, no writ).
The jurisdictional statutes usually exclude interest in determining the amount in controversy. See, e.g., Tex. Gov’t Code § 26.042(a) (county courts). The nature of interest determines whether it is included in the amount in controversy. Interest as an element of damages (for example, interest accruing from the loss of use of money) is included in calculating the amount in controversy. On the other hand, interest eo nomine (interest in addition to the amount of damages), that is, in the name of interest (for example, interest defined by statute or fixed by the parties to a contract) is not included in determining the amount in controversy. Bankers Health & Accident Co. v. Adair, 153 S.W.2d 273, 273–74 (Tex. Civ. App.—San Antonio 1941, no writ). The plaintiff’s attorney should carefully decide whether interest should be included in determining the amount in controversy based on whether the interest is eo nomine or interest as damages. See, e.g., Eanes v. Haynes, 135 S.W.2d 190 (Tex. Civ. App.—Eastland 1939, no writ); Oppenheim v. Hood, 33 S.W.2d 265 (Tex. Civ. App.—Dallas 1930, writ ref’d).
Generally, a demand for attorney’s fees is included in the amount in controversy and is considered in fixing the court’s jurisdiction. Johnson v. Universal Life & Accident Insurance Co., 94 S.W.2d 1145 (Tex. 1936); Long v. Fox, 625 S.W.2d 376, 378 (Tex. App.—San Antonio 1981, writ ref’d n.r.e.). However, in statutory county courts, attorney’s fees are excluded from calculation of the amount in controversy. Tex. Gov’t Code § 25.0003(c)(1); see also Whitley v. Morning, 814 S.W.2d 537, 538 (Tex. App.—Tyler 1991, no writ).
Costs of court are not included in computing the amount in controversy. See National Life & Accident Insurance Co. v. Halfin, 99 S.W.2d 997, 998 (Tex. Civ. App.—San Antonio 1936, no writ).
The jurisdictional amount is determined by the value of the property on which foreclosure is sought if the value exceeds the amount of the debt. Southwestern Drug Corp. v. Webster, 246 S.W.2d 241 (Tex. Civ. App.—Amarillo 1951, no writ).
The state’s consent to be sued must be affirmatively established in the plaintiff’s pleadings when a government agency is sued. University of Texas Medical Branch at Galveston v. Mullins, 57 S.W.3d 653, 656 (Tex. App.—Houston [14th Dist.] 2001, no pet.). The state’s consent to suit may be alleged “by reference to a statute or to express legislative permission.” Mullins, 57 S.W.3d at 656 (quoting Texas Department of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)).
A trial court lacks subject-matter jurisdiction over a suit against a governmental unit absent the state’s consent to a suit. Texana Community MHMR Center v. Silvas, 62 S.W.3d 317, 321 (Tex. App.—Corpus Christi 2001, no pet.).
§ 15.2:9Plea to the Jurisdiction
A plea to the jurisdiction is the procedure to contest the trial court’s subject-matter jurisdiction. To determine whether a court has subject-matter jurisdiction over a case challenged by a plea to the jurisdiction, the trial court must look solely to the pleadings. University of Texas Medical Branch at Galveston v. Mullins, 57 S.W.3d 653, 656 (Tex. App.—Houston [14th Dist.] 2001, no pet.). A trial court is required to examine evidence to determine whether it has subject-matter jurisdiction before proceeding with the case. Because a court must not act without determining whether it has subject-matter jurisdiction to do so, the court should hear evidence as necessary to determine the issue before proceeding with the case. However, inquiry into the substance of the claims presented by the plaintiff should not go further than is required to establish jurisdiction. Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
§ 15.3:1Availability of Federal Jurisdiction
Federal jurisdiction may be established when there is diversity of citizenship between the litigants and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). Factors to consider in filing suit in federal court include venue and procedural rules and the status of the dockets. Comprehensive discussion of federal practice is beyond the scope of this manual, but a few important matters are discussed below.
The plaintiff’s initial pleading is called a complaint. Fed. R. Civ. P. 7(a). The ground for federal jurisdiction must affirmatively appear in the complaint. Fed. R. Civ. P. 8(a).
§ 15.3:3Corporation Citizenship
A corporation is deemed a citizen of the state in which it is incorporated and of the state in which its principal place of business is located. See 28 U.S.C. § 1332(c)(1). Diversity jurisdiction, therefore, does not exist if either party is a corporation and the other party’s domicile is in the same state with the corporation’s principal place of business or its place of incorporation.
28 U.S.C. § 1391 discusses venue generally and governs all civil actions brought in U.S. district courts, except as otherwise provided by law. See 28 U.S.C. § 1391(a)(1). Proper venue must be determined without regard to whether the action is local or transitory in nature, except as otherwise provided by law. 28 U.S.C. § 1391(a)(2).
A civil action based on diversity jurisdiction can be brought only in—
1.a judicial district in which any defendant resides, if all defendants reside in the state in which the district is located;
2.a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred or in which a substantial part of the property that is the subject of the action is situated; or
3.a judicial district in which any defendant is subject to personal jurisdiction with respect to the action, if there is no district in which the action may otherwise be brought.
28 U.S.C. § 1391(b).
A natural person, including an alien lawfully admitted for permanent residence in the United States, is deemed to reside in the judicial district in which that person is domiciled. 28 U.S.C. § 1391(c)(1).
An entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question and, if a plaintiff, only in the judicial district in which it maintains its principal place of business.
28 U.S.C. § 1391(c)(2). A defendant that does not reside in the United States may be sued in any judicial district, and the joinder of such a defendant must be disregarded in determining where the action may be brought with respect to other defendants. 28 U.S.C. § 1391(c)(3).
If a corporation is subject to personal jurisdiction in a state with more than one judicial district, the corporation is deemed to reside in any district in that state within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate state. If there is no such district, the corporation is deemed to reside in the district in which it has the most significant contacts. 28 U.S.C. § 1391(d).
[Sections 15.4 through 15.10 are reserved for expansion.]
Venue is the place in which a plaintiff has a legal right to file suit regardless of the defendant’s objections. In Texas, the primary venue statutes are found in chapter 15 of the Civil Practice and Remedies Code; however, there are numerous special venue statutes in various other Texas statutes. A court shall determine the venue of a suit based on the facts existing at the time the cause of action that is the basis of the suit accrued. Tex. Civ. Prac. & Rem. Code § 15.006. When one or more plaintiffs is joined in a suit, each must independently establish proper venue. Tex. Civ. Prac. & Rem. Code § 15.003(a); American Home Products Corp. v. Clark, 38 S.W.3d 92, 94 (Tex. 2000).
Venue facts should be pleaded to support the choice of venue because when properly pleaded, all venue facts are taken as true unless they are specifically denied by the adverse party. Sanes v. Clark, 25 S.W.3d 800, 803 (Tex. App.—Waco 2000, pet. denied) (citing GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 543 (Tex. 1998); Tex. R. Civ. P. 87(3)(a)). If the plaintiff’s venue allegations are specifically denied, the plaintiff must support his pleading by prima facie proof, in the form of an affidavit complying with Tex. R. Civ. P. 87(3), that the cause of action accrued in the county of suit. Tex. R. Civ. P. 87(2)(b). No party, however, may ever be required for venue purposes to support the existence of a cause of action by prima facie proof. Tex. R. Civ. P. 87(2)(b), (3)(a).
§ 15.13Mandatory or Permissive Venue Generally
“Proper venue” means venue as provided in the mandatory venue provisions contained in sections 15.001–.020 or by the permissive venue rules and the general venue rule when the mandatory rules do not apply, or by another statute prescribing mandatory venue. Mandatory venue provisions supersede the general venue rule. Tex. Civ. Prac. & Rem. Code § 15.001(b). If there is no mandatory venue then the permissive venue section may provide an alternative to the general venue rule. See Tex. Civ. Prac. & Rem. Code §§ 15.031–.039.
If the creditor has a choice of where to file suit, his attorney should consider such factors as travel expenses for counsel and witnesses, docket congestion, and how a local judge and jury will respond to the creditor, his counsel, and the nature of the claim asserted.
§ 15.14Plaintiff’s Choice of Venue
Venue may be proper in more than one county under the venue rules. In re Henry, 274 S.W.3d 185, 190 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding [mand. denied]) (op. on reh’g) (citing GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 544 (Tex. 1998)). In general, plain-tiffs are allowed to choose venue first, and the plaintiff's choice of venue cannot be disturbed as long as the suit is initially filed in a county of proper venue. In re Henry, 274 S.W.3d at 190 (citing KW Construction v. Stephens & Sons Concrete Contractors, Inc., 165 S.W.3d 874, 879 (Tex. App.—Texarkana 2005, pet. denied); Gerdes v. Kennamer, 155 S.W.3d 541, 549 (Tex. App.—Corpus Christi 2004, no pet.); Chiriboga v. State Farm Mutual Automotive Insurance Co., 96 S.W.3d 673, 678 (Tex. App.—Austin 2003, no pet.)).
A plaintiff does not lose the right to choose between two counties in which mandatory venue is proper by filing its first suit in a county in which venue was improper if the first suit is nonsuited before a decision on venue. The venue statutes do not say that the plaintiff may choose venue only once; they simply say that if the county chosen is not proper, the case must be transferred if a sufficient motion is filed and ruled on. See GeoChem Tech Corp., 962 S.W.2d at 542 (citing Tex. Civ. Prac. & Rem. Code § 15.063).
If the plaintiff establishes proper venue against one defendant, venue is proper against all other defendants in all claims or actions arising out of the same transaction, occurrence, or series of transactions or occurrences. Tex. Civ. Prac. & Rem. Code § 15.005; American Home Products Corp. v. Clark, 38 S.W.3d 92, 94 (Tex. 2000). In a suit in which two or more defendants are joined, any action or omission by one defendant in relation to venue, including a waiver of venue by one defendant, does not impair or diminish the right of any other defendant to properly challenge venue. Tex. Civ. Prac. & Rem. Code § 15.0641.
If the plaintiff properly joins two or more claims or causes of action arising from the same transaction, occurrence, or series of transactions or occurrences, and one of the claims or causes of action is governed by a mandatory venue provision, the mandatory venue of that claim or cause of action will control. Tex. Civ. Prac. & Rem. Code § 15.004. Rules for multiple plaintiffs and intervening plaintiffs can be found at Tex. Civ. Prac. & Rem. Code § 15.003. These rules are not discussed in this manual.
§ 15.14:3Counterclaims, Cross-Claims, and Third-Party Claims on Venue
Venue of the main action shall establish venue of a counterclaim, cross-claim, or third-party claim properly joined under the Texas Rules of Civil Procedure or any applicable statute. Tex. Civ. Prac. & Rem. Code § 15.062(a). If an original defendant properly joins a third-party defendant, venue shall be proper for a claim arising out of the same transaction, occurrence, or series of transactions or occurrences by the plaintiff against the third-party defendant if the claim arises out of the subject matter of the plaintiff’s claim against the original defendant. Tex. Civ. Prac. & Rem. Code § 15.062(b).
The general venue rule is that suit shall be brought—
1.in the county in which all or a substantial part of the events giving rise to the claim occurred;
2.in the county of the defendant’s residence at the time the cause of action accrued if the defendant is a natural person;
3.in the county of the defendant’s principal office in Texas if the defendant is not a natural person; or
4.if the first three provisions do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.
Tex. Civ. Prac. & Rem. Code § 15.002(a).
“Principal office” means a principal office of the corporation, unincorporated association, or partnership in this state in which the decision makers for the organization within this state con-duct the daily affairs of the organization. The mere presence of an agency or representative does not establish a principal office. Tex. Civ. Prac. & Rem. Code § 15.001(a).
“Residence” requires (1) a fixed place of abode within the possession of the party; (2) occupied or intended to be occupied consistently over a substantial period of time; (3) that is permanent rather than temporary. In re S.D., 980 S.W.2d 758, 760–61 (Tex. App.—San Antonio 1998, pet. denied) (citing Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136, 140 (1951)). In meeting these requirements, Texas law is clear that an element of permanency is necessary before a party can be considered a resident of a particular county. In re S.D., 980 S.W.2d at 761 (citing Tieuel v. Southern Pacific Trans. Co., 654 S.W.2d 771, 774 (Tex. App.—Houston [14th Dist.] 1983, no writ)). For venue purposes, an individual may have more than one residence. GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 543–44 (Tex.1998) (citing Snyder, 241 S.W.2d at 140; Rosales v. H.E. Butt Grocery Co., 905 S.W.2d 745, 748 (Tex. App.—San Antonio 1995, writ denied)).
§ 15.15:2Mandatory Venue Provisions in Civil Practice and Remedies Code Chapter 15
The attorney should always review the numerous mandatory venue provisions found at Tex. Civ. Prac. & Rem. Code §§ 15.011–.020 and review any mandatory venue sections in applicable debt collection statutes to determine whether the nature of the suit or of the parties falls within the general rule or one of the provisions for mandatory venue. Some of the mandatory provisions found in Civil Practice and Remedies Code chapter 15 that may be applicable in debt collection are:
Land: Actions for recovery of real property or an estate or interest in real property, for partition of real property, to remove encumbrances from the title to real property, for recovery of damages to real property, or to quiet title to real property shall be brought in the county in which all or a part of the property is located. Tex. Civ. Prac. & Rem. Code § 15.011.
Landlord-Tenant: Except as provided by another statute prescribing mandatory venue, a suit between a landlord and a tenant arising under a lease shall be brought in the county in which all or a part of the real property is located. In this section, “lease” means any written or oral agreement between a landlord and a tenant that establishes or modifies the terms, conditions, or other provisions relating to the use and occupancy of the real property that is the subject of the agreement. Tex. Civ. Prac. & Rem. Code § 15.0115.
Injunction against Suit: Actions to stay proceedings in a suit shall be brought in the county in which the suit is pending. Tex. Civ. Prac. & Rem. Code § 15.012.
Injunction against Execution of Judgment: Actions to restrain execution of a judgment based on invalidity of the judgment or of the writ shall be brought in the county in which the judgment was rendered. Tex. Civ. Prac. & Rem. Code § 15.013.
Counties: An action against a county shall be brought in that county. Tex. Civ. Prac. & Rem. Code § 15.015.
Certain Political Subdivisions: Except as provided by a law not contained in this chapter, an action against a political subdivision that is located in a county with a population of 100,000 or less shall be brought in the county in which the political subdivision is located. If the political subdivision is located in more than one county and the population of each county is 100,000 or less, the action shall be brought in any county in which the political subdivision is located. In this section, “political subdivision” means a governmental entity in this state, other than a county, that is not a state agency. The term includes a municipality, school or junior college district, hospital district, or any other special purpose district or authority. Tex. Civ. Prac. & Rem. Code § 15.0151.
Major Transaction: An action arising from a major transaction shall be brought in a county if the party against whom the action is brought has agreed in writing that a suit arising from the transaction may be brought in that county. Tex. Civ. Prac. & Rem. Code § 15.020(b). See section 15.15:6 below for information on major transactions.
§ 15.15:3Mandatory Venue Provisions in Other Texas Statutes
An action governed by any other statute prescribing mandatory venue shall be brought in the county required by that statute. Tex. Civ. Prac. & Rem. Code § 15.016. The more commonly encountered venue provisions applicable to suits on debts are set out briefly in the following sections, but the attorney should remember that on occasion one of the venue provisions not discussed here may apply.
Receivership of Corporation: An action to have a receiver appointed for a corporation with property in this state shall be brought in the county in which the principal office of the corporation is located. Tex. Civ. Prac. & Rem. Code § 64.071.
Usury: A suit for the statutory penalties for usury is controlled by section 305.006(a)(1)–(5) of the Texas Finance Code, which states that such an action shall be brought in the county in which—
(1)the transaction was entered into;
(2)the usurious interest was charged or received;
(3)the creditor resides at the time of the cause of action, if the creditor is an individual;
(4)the creditor maintains its principal office, if the creditor is not an individual; or
(5)the obligor resides at the time of the accrual of the cause of action.
Tex. Fin. Code § 305.006(a)(1)–(5).
Arbitration:
(a)Except as otherwise provided by this section, a party must file the initial application:
(1)in the county in which an adverse party resides or has a place of business; or
(2)if an adverse party does not have a residence or place of business in this state, in any county.
(b)If the agreement to arbitrate provides that the hearing before the arbitrators is to be held in a county in this state, a party must file the initial application with the clerk of the court of that county.
(c)If a hearing before the arbitrators has been held, a party must file the initial application with the clerk of the court of the county in which the hearing was held.
(d)Consistent with Section 171.024, if a proceeding is pending in a court relating to arbitration of an issue subject to arbitration under an agreement before the filing of the initial application, a party must file the initial application and any subsequent application relating to the arbitration in that court.
Tex. Civ. Prac. & Rem. Code § 171.096.
Probate/Guardianship: Venue will be governed by Tex. Est. Code ch. 33 or Tex. Civ. Prac. & Rem. Code §§ 15.007, 15.031.
Trusts: Venue will be governed by Tex. Prop. Code § 115.002.
§ 15.15:4Venue in Suit on Consumer Debt
In an action founded on a contractual obligation of the defendant to pay money arising out of or based on a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household, or agricultural use, suit by a creditor on or by reason of the obligation may be brought in either the county in which the defendant signed the contract or the county in which the defendant resides when the action is commenced. A consumer cannot waive this venue right in the contract. Tex. Civ. Prac. & Rem. Code § 15.035(b). In most such cases, filing in another county is a violation of the Texas Deceptive Trade Practices Act, unless the plaintiff did not know or have reason to know that the county in which suit was filed was not a proper county. Tex. Bus. & Com. Code § 17.46(b)(23).
Under the federal Fair Debt Collection Practices Act, an action brought by a debt collector must be brought in either the county in which the consumer signed the contract or the county in which the consumer resides when the action is commenced. 15 U.S.C. § 1692i(a)(2). Failure to file suit in a county of proper venue renders the debt collector liable for damages. 15 U.S.C. § 1692k. See part II. in chapter 2 of this manual.
§ 15.15:5Venue in Breach of Contract (Nonconsumer)
In a breach of contract action, “the county in which all or a substantial part of the events or omissions took place” includes the county in which the contract was formed, was to be per-formed, or was allegedly breached. See Krchnak v. Fulton, 759 S.W.2d 524, 526 (Tex. App.—Amarillo 1988, writ denied); see also Tex. Civ. Prac. & Rem. Code § 15.002(a)(1) (general venue rule). There are generally two locations where venue may be proper in a suit on a written contract to perform an obligation in a particular county: (1) where the contract expressly names the county or a definite place in that county or (2) in the county where the defendant is domiciled. WTFO, Inc. v. Braithwaite, 899 S.W.2d 709, 716 (Tex. App.—Dallas 1995, no writ) (citing Tex. Civ. Prac. & Rem. Code § 15.035(a)). Therefore, a contract (such as a promissory note) may be sued on in the county designated therein for payment, even though the maker of the note is a resident of another county. This exception applies only in a case where the defendant agreed at the time he executed the instrument to perform his obligation in a particular place other than his place of residence. WTFO, Inc., 899 S.W.2d at 716 (citing Hibbler v. Walker, 598 S.W.2d 19, 20 (Tex. Civ. App.—Texarkana 1980, no writ); see also Texas Workers’ Compensation Assigned Risk Pool v. Perry-Packard Co., 643 S.W.2d 202, 203 (Tex. App.—Austin 1982, no writ)). The place of performance for payment of a contract must be named specifically at the time the instrument was executed to avoid the loss of venue under section 15.035(a). The ability to redesignate in writing the place of performance at some time in the future by appellant or any holder of the indebtedness makes the place of payment uncertain. Otherwise, leaving open a contract’s term of place of performance at the time of execution of the contract would allow the holder at some future time to determine venue at its own will and pleasure. WTFO, Inc., 899 S.W.2d at 716 (citing Hibbler, 598 S.W.2d at 20).
Major Transaction: An action arising from a major transaction shall be brought in a county if the party against whom the action is brought has agreed in writing that a suit arising from the transaction may be brought in that county. Tex. Civ. Prac. & Rem. Code § 15.020(b). “Major transaction” means a transaction evidenced by a written agreement under which a person pays or receives, or is obligated to pay or entitled to receive, consideration with an aggregate stated value equal to or greater than $1 million. The term does not include a transaction entered into primarily for personal, family, or household purposes, or to settle a personal injury or wrongful death claim, without regard to the aggregate value. Tex. Civ. Prac. & Rem. Code § 15.020(a). However, an action arising from a major transaction may not be brought in a county if (1) the party bringing the action has agreed in writing that an action arising from the transaction may not be brought in that county, and the action may be brought in another county of this state or in another jurisdiction; or (2) the party bringing the action has agreed in writing that an action arising from the transaction must be brought in another county of this state or in another jurisdiction, and the action may be brought in that other county, under this section or otherwise, or in that other jurisdiction. Tex. Civ. Prac. & Rem. Code § 15.020(c). Furthermore, these venue provisions do not apply to an action if (1) the agreement described by section 15.020 was unconscionable at the time that it was made; (2) the agreement regarding venue is voidable under chapter 272 of the Business and Commerce Code (relating to certain construction contracts); or (3) venue is established under a statute of this state other than this title.
Forum Selection Clauses: Although the terms are often used interchangeably and are often not used with precision, forum and venue are not synonymous. Liu v. Cici Enterprises, LP, 14-05-00827-CV, 2007 WL 43816, at *2 (Tex. App.—Houston [14th Dist.] Jan. 9, 2007, no pet.) (mem. op.). “Forum” generally refers to a sovereign or a state. In re Great Lakes Dredge & Dock Co. L.L.C., 251 S.W.3d 68, 73 (Tex. App.—Corpus Christi 2008, orig. proceeding). Venue refers to the propriety of prosecuting, in a particular form, a suit on a given subject matter with specific parties, over which the forum must, necessarily, have subject-matter jurisdiction. Scott v. Gallagher, 209 S.W.3d 262, 264 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting Gordon v. Jones, 196 S.W.3d 376, 383 (Tex. App.—Houston [1st Dist.] 2006, no pet.). At common law, venue meant the neighborhood, place, or county in which the injury is declared to have been done or in fact declared to have happened. In re Great Lakes Dredge & Dock Co., 251 S.W.3d at 73 (quoting State v. Blankenship, 170 S.W.3d 676, 681 (Tex. App.—Austin 2005, pet. ref’d) (quoting Black’s Law Dictionary 1557 (6th ed. 1991)). In Texas, “venue” refers to the county in which suit is proper within the forum state. In re Great Lakes Dredge & Dock Co., 251 S.W.3d at 73 (citing Accelerated Christian Education, Inc. v. Oracle Corp., 925 S.W.2d 66, 73 (Tex. App.—Dallas 1996, no writ) overruled in part on other grounds by In re Tyco Electronic Power Systems, Inc., No. 05-04-01808-CV, 2005 WL 237232; Estrada v. State, 148 S.W.3d 506, 508 (Tex. App.—El Paso 2004, no pet.)). Thus, a “forum” selection agreement is one that chooses another state or sovereign as the location for trial, whereas a “venue” selection agreement chooses a particular county or court within that state or sovereign. In re Great Lakes Dredge & Dock Co., 251 S.W.3d at 73–74.
The distinction between a forum selection clause and a venue selection clause is critical. Under Texas law, forum selection clauses are enforceable unless shown to be unreasonable and may be enforced through a motion to dismiss. Liu, 2007 WL 43816, at *2 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, (1972); Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 793 (Tex. 2005)). In contrast, venue selection cannot be the subject of private contract unless otherwise provided by statute. Liu, 2007 WL 43816, at *2 (citing Fleming v. Ahumada, 193 S.W.3d 704, 712–13 (Tex. App.—Corpus Christi 2006, no pet.); Bristol-Myers Squibb Co. v. Goldston, 957 S.W.2d 671, 673–74 (Tex. App.—Fort Worth 1997, pet. dism’d by agr.)).
The burden of proof on a party challenging the validity of a forum selection clause is heavy. In re Lyon Financial Services, Inc., 257 S.W.3d 228, 232 (Tex. 2008) (orig. proceeding) (per curiam). Forum selection clauses are presumptively enforceable, and there is a “heavy, but not impossible, burden of proof” to defeat application of the clauses. Lyon, 257 S.W.3d at 231 (quoting In re AIU Insurance Co., 148 S.W.3d 109, 113 (Tex. 2004) (orig. proceeding)). A trial court abuses its discretion in refusing to enforce a forum selection clause unless the party opposing enforcement of the clause can clearly show that (1) enforcement would be unreasonable or unjust, (2) the clause is invalid for reasons of fraud or overreaching, (3) enforcement would contravene a strong public policy of the forum where the suit was brought, or (4) the selected forum would be seriously inconvenient for trial. Lyon, 257 S.W.3d at 232 (citing AIU Insurance, 148 S.W.3d at 112; In re Automated Collection Technologies, Inc., 156 S.W.3d 557, 559 (Tex. 2004) (orig. proceeding) (per curiam)). Mandamus relief is available to enforce forum selection agreements because there is no adequate remedy by appeal when a trial court abuses its discretion by refusing to enforce a valid forum-selection clause that covers the dispute. Lyon, 257 S.W.3d at 231; AIU Insurance, 148 S.W.3d at 115–120.
A transient person may be sued in any county in which he may be found. Tex. Civ. Prac. & Rem. Code § 15.039.
§ 15.17Motion to Transfer Generally
Generally, a plaintiff has the first opportunity to fix venue in a proper county by filing suit in that county. The defendant may object to the plaintiff’s venue choice by filing a motion to transfer venue. In re Pepsico, Inc., 87 S.W.3d 787, 789 (Tex. App.—Texarkana 2002) (citing In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.1999) (orig. proceeding)).
A defendant must challenge improper venue or assert a mandatory venue provision by object-ing to a plaintiff’s venue choice through a motion to transfer venue filed concurrently with or before an answer. See Tex. Civ. Prac. & Rem. Code § 15.063. A motion objecting to improper venue may be in a separate instrument filed concurrently with or before the filing of the movant’s first responsive pleading, or the motion may be combined with other objections and included in the movant’s first responsive pleading. Tex. R. Civ. P. 86(2). The court, on motion filed and served concurrently with or before the filing of the answer, shall transfer an action to another county of proper venue if the county in which the action is pending is not a proper county as provided by this chapter. Tex. Civ. Prac. & Rem. Code § 15.063(1). An objection to improper venue is waived if not made by written motion filed before or concurrently with any other plea, pleading, or motion, except a special appearance motion provided for in rule 120a. Tex. R. Civ. P. 86(1).
However, as identified in the selections below, under certain circumstances, a written consent of the parties to transfer the case to another county may be requested at any time before trial, and a motion to transfer venue because an impartial trial cannot be had in the county where the action is pending may be asserted after an answer is on file. (See sections 15.17:2 and 15.17:3).
A motion to transfer venue must state—
1.that the action should be transferred to the specific county of proper venue and that such a transfer is requested;
2.that the action should be transferred because the county in which it is pending is not proper or because mandatory venue in another county is prescribed by one or more specific provisions, clearly designated; and
3.the legal and factual basis for the transfer.
Tex. R. Civ. P. 86(3). A party who seeks to transfer venue of the action to another specified county under the general rule, the mandatory venue rules, or the permissive venue rule has the burden to prove that venue is maintainable in the county to which transfer is sought. Tex. R. Civ. P. 87(2)(a), (b). Verification of the motion to transfer is not required. Tex. R. Civ. P. 86(3).
Because all properly pleaded venue facts must be taken as true unless specifically denied, the defendant’s motion to transfer should specifically deny the venue facts pleaded in the original petition. In Gonzalez v. Nielson, a motion to transfer venue that specifically denied that the cause of action arose in the county of suit and generally denied that any permissive exception to the general venue statute applied was found insufficient because it did not specifically deny that the contract was payable in the county of suit. 770 S.W.2d 99, 102 (Tex. App.—Corpus Christi 1989, writ denied).
Several older cases have held that a district court does not have the power to change the venue of a suit on its own motion. Such an order, if entered, is void, and the proper method to prevent its enforcement is to enjoin the clerk of the court from execution of the transfer order. See, e.g., Wight v. Moss, 87 S.W.2d 837, 838 (Tex. Civ. App.—Dallas 1935, no writ).
§ 15.17:2Impartial Trial Cannot Be Had
Texas Civil Practice and Remedies Code section 15.063(2) requires the court, on motion filed and served concurrently with or before the filing of the answer, to transfer the action to another county of proper venue if “an impartial trial cannot be had in the county in which the action is pending.” This can be contrasted with the procedure for a motion based on impartial trial, which is found in rules 257–259 of the Texas Rules of Civil Procedure.
§ 15.17:3Written Consent of Parties
Section 15.063(3) of the Civil Practice and Remedies Code and Tex. R. Civ. P. 86(1) permit the parties to file a written consent to transfer venue to another county of proper venue at any time. See also Tex. Civ. Prac. & Rem. Code § 15.002; Farris v. Ray, 895 S.W.2d 351, 352 (Tex. 1995). Transfer is discretionary with the court if the written consent of the parties is filed after the answer has been filed. However, the Civil Practice and Remedies Code uses mandatory language: “The court, on motion filed and served concurrently with or before the filing of the answer, shall transfer an action to another county of proper venue if . . . written consent of the parties . . . is filed at any time.” Tex. Civ. Prac. & Rem. Code § 15.063. In contrast, rule 87(2)(c) provides that the motion “shall be determined in accordance with Rule 255,” and rule 255 states that on written consent of the parties filed with the court, the court may transfer the trial to the court in “any other county having jurisdiction of the subject matter of such suit.”
The words “at any time” used in section 15.063 conflict with the broader provision that requires the filing of the motion to transfer before or concurrently with the answer; however, it is reasonable to assume that the intent of section 15.063 is to give the parties the absolute right to select another county of proper venue before the court becomes involved in the action, whereas once the court is involved, the court should have the discretion to deny a written consent of the parties in the interest of judicial efficiency.
A motion to transfer is required to satisfy the mandatory transfer provision of section 15.063. However, the rules refer to filing a “motion” and to filing a “written consent”; therefore, a formal motion to transfer under the discretionary transfer provision of rule 255 may not be required.
§ 15.17:4Statutory Forum Non Conveniens
Section 15.002(b) of the Civil Practice and Remedies Code provides a forum non conveniens transfer of venue. On the defendant’s motion (filed and served either before or concurrently with the answer), a court of proper venue may transfer an action to any other county of proper venue, if the court finds that—
1.maintenance of the action in the county of suit would work an injustice to the movant considering the movant’s economic and personal hardship;
2.the balance of interests of all the parties predominates in favor of the action being brought in the other county; and
3.the transfer of the action would not work an injustice to any other party.
Tex. Civ. Prac. & Rem. Code § 15.002(b).
A party may expressly waive venue rights by clear, overt acts evidencing an intent to waive or impliedly, by taking some action inconsistent with an intent to pursue the venue motion. Toliver v. Dallas Fort Worth Hospital Council, 198 S.W.3d 444, 446–47 (Tex. App.—Dallas 2006, no pet.) (motion to transfer venue not waived when defendant filed motion before filing any other pleading that invoked court’s jurisdiction; defendant also did not waive motion to transfer venue by filing in federal court) (citing Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 406 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (defendant never obtained hearing on venue motion and moved for new trial after losing at summary judgment without pursuing ruling on venue motion; defendant’s motion for new trial was construed as “affirmative action” by which he submitted to jurisdiction of trial court); Grozier v. L-B Sprinkler & Plumbing Repair, 744 S.W.2d 306, 309–10 (Tex. App.—Fort Worth 1988, writ denied) (filing a motion for new trial when venue motion was pending was “an act seeking to invoke the authority of the court whose authority” defendant challenged). Generally, these actions invoke the judicial power and jurisdiction of the courts. Toliver, 198 S.W.3d at 47 (citing Gentry v. Tucker, 891 S.W.2d 766, 768 (Tex. App.—Texarkana 1995, no writ) (motion will be waived if the defendant who is filing it, without first insisting upon its disposition, tries the case on the merits)); Grozier, 744 S.W.2d at 310; McGrede v. Coursey, 131 S.W.3d 189, 196 (Tex. App.—San Antonio 2004, no pet.) (holding that party invoked the trial court’s jurisdiction and waived any objection to venue by filing an answer to petition alleging conversion of estate assets before he filed motion to transfer venue). However, filing a notice of removal to federal court before filing a motion to transfer in state court does not waive the motion. Toliver, 198 S.W.3d at 47 (citing Antonio v. Marino, 910 S.W.2d 624, 630 (Tex. App.—Houston [14th Dist.] 1995, no writ)). See section 15.17:14 below for amending motions to transfer venue.
Although a trial court may rule on a venue motion without a hearing, the movant has a duty to request a hearing to urge the motion within a reasonable time; failure to do so may result in a waiver. See Grozier, 744 S.W.2d at 311; Whitworth v. Kuhn, 734 S.W.2d 108, 111 (Tex. App.—Austin 1987, no writ) (per curiam) (in dicta, court indicated the trial court could have refused a motion to transfer because the movant waited more than a year after filing his motion to transfer venue before requesting a hearing on that motion); see also Tex. R. Civ. P. 87(1) (“the determination of a motion to transfer venue shall be made promptly by the court . . .”). In Accent Energy Corp. v. Gillman, 824 S.W.2d 274, 276–77 (Tex. App.—Amarillo 1992, writ denied), no waiver resulted in a case in which a motion was filed and a hearing was immediately set but other parties moved for continuance and thereafter continued to file amended pleadings, resulting in a three-year delay on the hearing.
A court is specifically required to make its determination of the motion to transfer promptly and in a reasonable time before trial. Tex. R. Civ. P. 87(1).
§ 15.17:6Filing, Service, and Hearing
A copy of any instrument filed pursuant to rule 86 must be served in accordance with rule 21a. Tex. R. Civ. P. 86(5); see Tex. R. Civ. P. 21a. “Any instrument” includes the motion to transfer venue, any amendments or a response to the motion, a reply to the response, any supporting affidavits, and any attachments, including discovery products. See Tex. R. Civ. P. 86.
The movant has a duty to request a setting on the motion to transfer and provide each party with at least forty-five days’ notice of the hearing. Any response or opposing affidavits must be filed at least thirty days before the hearing, and any reply to the response and additional affidavits must be filed at least seven days before the hearing. Leave of court must be obtained to alter these requirements. Tex. R. Civ. P. 87(1). There are special provisions for motions by parties joined after a venue hearing. See section 15.17:15 below.
§ 15.17:7Basis of Determination
All venue challenges are determined by the court, without a jury. Tex. R. Civ. P. 87(4). The court must determine the motion to transfer venue on the basis of the pleadings, any stipulations made by and between the parties, and properly filed affidavits, attachments, and discovery products. Tex. Civ. Prac. & Rem. Code § 15.064(a); Tex. R. Civ. P. 87(3)(a), (b), 88. Deposition transcripts, responses to requests for admissions, answers to interrogatories, and other discovery products containing information relevant to venue may be considered by the court in making a venue determination if they are attached to or incorporated by reference in an affidavit. Tex. R. Civ. P. 88. Such an affidavit may be made by a party, a witness, or an attorney who has knowledge of the discovery. Tex. R. Civ. P. 88. A similar discovery provision is set forth for motions to transfer that are based on the ground that an impartial trial cannot be had. See Tex. R. Civ. P. 88(c), 257–59.
A response to the defendant’s motion to transfer is not required except that (1) when a venue fact pleaded in the petition is specifically denied by the defendant, the plaintiff must make prima facie proof of that fact and (2) when a venue fact is properly pleaded in the defendant’s motion, the plaintiff must specifically deny it or it will be taken as true. Tex. R. Civ. P. 86(4), 87(3)(a).
Prima facie proof requires an affidavit to be attached to the response. See Tex. R. Civ. P. 87(3)(a). Verification of a response is not required. Tex. R. Civ. P. 86(4). Except on leave of court, any response or opposing affidavits must be filed at least thirty days before the hearing on the motion to transfer. Tex. R. Civ. P. 87(1). See forms 15-1 (Plaintiff’s Response to Motion to Transfer Venue) and 15-2 (Affidavit).
§ 15.17:9Movant’s Reply to Response
The party seeking transfer of venue may reply to any response made to his motion, although he is not required to do so. Tex. R. Civ. P. 87(1). The reply may be accompanied by additional affidavits supporting the motion to transfer. Tex. R. Civ. P. 87(1). Except on leave of court, any reply and any additional affidavits must be filed at least seven days before the hearing on the motion to transfer. Tex. R. Civ. P. 87(1). A reply gives the movant the opportunity to make prima facie proof of venue facts specifically denied in the nonmovant’s response. See Tex. R. Civ. P. 86(4), 87(3)(a).
Discovery shall not be abated or affected by pendency of a motion to transfer. Tex. R. Civ. P. 88.
The plaintiff seeking to maintain venue in the county of suit must adequately plead in the original petition and in his response to the motion to transfer those venue facts that support his choice of venue. See Tex. R. Civ. P. 87(2)(a). In addition, he must supply prima facie proof of venue facts the defendant has specifically denied, and he must specifically deny the venue facts pleaded by the defendant. Any properly pleaded venue facts not specifically denied will be taken as true. Tex. R. Civ. P. 87(3)(a).
The plaintiff may seek to maintain venue under the general venue rule, a mandatory or permissive venue provision, or the law governing venue in multiple claims. Tex. R. Civ. P. 87(2)(a); see Tex. Civ. Prac. & Rem. Code §§ 15.002, 15.011–.020, 15.031–.033, 15.035, 15.038–.039, 15.062.
If the plaintiff adequately pleads and makes prima facie proof that venue is proper in the county of suit, the case will not be transferred unless the adverse party establishes that an impartial trial cannot be had where the action is pending or establishes a ground of venue in a different county by prima facie proof of a mandatory venue exception. Tex. R. Civ. P. 87(3)(c).
Any venue facts pleaded by the defendant seeking transfer must be taken as true unless specifically denied by the plaintiff. Once denied, the movant’s facts must be supported by prima facie proof. Tex. R. Civ. P. 87(3)(a). The defendant must prove through his pleadings, affidavits, and attachments that venue is maintainable in the county to which transfer is sought on the basis of the general venue rule, a mandatory or permissive exception, or the law governing venue in multiple claims. Tex. R. Civ. P. 87(2)(a).
If a motion to transfer is based on the parties’ filed written consent, specific venue facts should be alleged that will establish that the court to which transfer is sought has jurisdiction of the subject matter of the suit. See Tex. R. Civ. P. 87(2)(c), 255.
To make prima facie proof it is necessary to first properly plead the venue facts and then support them by affidavit or affidavits. Affidavits may be accompanied by “duly proved” attachments, or in some cases unsworn declarations. See sections 8.3:2, 8.12:6, 19.17 and 19.19 in this manual for requirements of affidavits and unsworn declarations. Affidavits must be made on personal knowledge, set forth specific facts “as would be admissible in evidence,” and show affirmatively that the affiant is competent to testify. Tex. R. Civ. P. 87(3)(a); see also Cox Engineering, Inc. v. Funston Machine & Supply Co., 749 S.W.2d 508, 512 (Tex. App.—Fort Worth 1988, no writ) (error not preserved if no affidavits filed).
Generally, in determining venue, the trial court may consider only the pleadings and affidavits. The court may consider relevant information in depositions, responses to requests for admission, answers to interrogatories, and other discovery products attached to or incorporated by reference in an affidavit of a party, a witness, or an attorney who has knowledge of such discovery. Tex. R. Civ. P. 88; Cox Engineering, Inc., 749 S.W.2d at 512.
§ 15.17:13Proof of Merits Not Required
The venue statute and the rules distinguish between proof concerning the merits of a case and proof concerning the situs of the accrual of a cause of action. In all venue hearings, no factual proof concerning the merits of the case is required to establish venue. The court must determine venue questions from the pleadings and affidavits. Tex. Civ. Prac. & Rem. Code § 15.064(a). The existence of a cause of action, if pleaded properly, is established as alleged by the pleadings. Tex. R. Civ. P. 87(2)(b)(3)(a). But if the allegations are specifically denied, the plaintiff must make prima facie proof that the cause of action, or a part thereof, accrued in the county of suit. Tex. R. Civ. P. 87(3)(a).
§ 15.17:14Amending the Motion to Transfer
A timely filed motion to transfer venue may be amended to cure defects in the original motion if the amended motion is filed before the trial court rules on the original motion; the properly filed amended motion relates back to and supersedes the original motion to transfer venue. In re Pepsico, Inc., 87 S.W.3d 787, 794 (Tex. App.—Texarkana 2002, orig. proceeding).
§ 15.17:15Subsequently Added Parties
Later Added Defendant: If venue has been sustained as against a motion to transfer or if an action has been transferred to a proper county in response to a motion to transfer, no further motions to transfer shall be considered regardless of whether the movant was a party to the prior proceedings or was added as a party subsequent to the venue proceedings, unless the motion to transfer is based on the grounds that an impartial trial cannot be had under Tex. R. Civ. P. 257–259 (unfair trial for local prejudice) or on the ground of mandatory venue, provided that such claim was not available to the other movant or movants. Tex. R. Civ. P. 87(5).
Intervening Party: An intervening party has the status of a plaintiff and is in no better position than the plaintiff to contest the venue of the action. First Heights Bank, FSB v. Gutierrez, 852 S.W.2d 596, 618 (Tex. App.—Corpus Christi 1993, writ denied) (citing Campbell v. Galbreath, 441 S.W.2d 297 (Tex. Civ. App.—Waco 1969, writ dism’d w.o.j.)).
§ 15.17:16Procedure When Motion to Transfer Venue Sustained
If a motion to transfer venue is sustained, the case is not dismissed but is transferred to the proper court. Tex. R. Civ. P. 89.
If a motion to transfer venue is sustained, the costs incurred before the time the suit is filed in the transferee court are taxed against the plaintiff. Tex. R. Civ. P. 89. The clerk of the transferee court must mail notification to the plaintiff or his attorney that transfer is completed and that the filing fee in the proper court is due and payable within thirty days of the mailing of the notification. If the filing fee is not timely paid, any court of the transferee county to which the case might have been assigned may dismiss the case on its own motion or the motion of a party without prejudice to the refiling of the case. Tex. R. Civ. P. 89.
The plaintiff’s attorney should ask the clerk of the original court to ascertain the costs payable in that court before transfer and indicate on the transferred file that he is the plaintiff’s attorney of record. The attorney should ask the clerk of the transferee court for the cause number of the transferred case and the specific court the case is assigned to, if appropriate.
§ 15.18:1Order Granting Motion to Transfer Venue is Res Judicata
Once a venue determination has been made, that determination is conclusive as to those parties and claims. Because venue is then fixed in any suit involving the same parties and claims, it cannot be overcome by a nonsuit and subsequent refiling in another county. In re Team Rocket, L.P., 256 S.W.3d 257, 260 (Tex. 2008) (orig. proceeding) (citing H.H. Watson Co. v. Cobb Grain Co., 292 S.W. 174, 177 (Tex. Comm’n App. 1927, judgm’t adopted). However, if the lawsuit is nonsuited prior to a determination on the motion to transfer, the plaintiff will not be precluded from choosing a proper county for venue. GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 542–43 (Tex. 1998) (contrasting the current motion to transfer venue procedure with old plea-of-privilege procedure). The venue statutes do not say that the plaintiff may choose venue only once; they simply say that if the county chosen is not proper, the case must be transferred if a sufficient motion is filed and ruled on. GeoChem, 962 S.W.2d at 544 (citing Tex. Civ. Prac. & Rem. Code § 15.063) (emphasis added).
Tex. R. Civ. P. 87 provides that if an action has been transferred to a proper county in response to a motion to transfer, no further motions to transfer shall be considered. In re Chester, 309 S.W.3d 713, 716 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing In re Team Rocket, L.P., 256 S.W.3d 257, 260 (Tex. 2008) (orig. proceeding); Tex. R. Civ. P. 87(5)). Although a trial court’s ruling transferring venue is interlocutory for the parties and not subject to immediate appeal, the order is final for the transferring court as long as it is not altered within the court’s thirty-day plenary jurisdiction. In re Chester, 309 S.W.3d at 716 (citing Team Rocket, 256 S.W.3d at 260; In re Southwestern Bell Telephone Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam)). A court retains plenary jurisdiction to correct its error for thirty days after the order of transfer is signed. In re Chester, 309 S.W.3d at 716 (citing HCA Health Services of Texas, Inc. v. Salinas, 838 S.W.2d 246, 248 (Tex. 1992) (orig. proceeding) (per curiam)). The thirty-day deadline for plenary power after granting a motion to transfer will not be extended by any motions to reconsider. See In re Chester, 309 S.W.3d at 716–718; In re Darling Homes, No. 05-05-00497-CV, 2005 WL 1390378 (Tex. App.—Dallas June 14, 2005, orig. proceeding [mand. denied]) (mem. op.).
Although mandamus is not available to review the propriety of venue in the county of suit in cases outside the ambit of section 15.0642 of the Texas Civil Practice and Remedies Code, it is properly employed to correct improper venue procedure. Tex. Civ. Prac. & Rem. Code Ann. § 15.0642. In re Shell Oil Co., 128 S.W.3d 694, 696 (Tex. App.—Beaumont 2004, orig. proceeding) (trial court refused to transfer suit to previously-determined county of venue) (citing In re Missouri Pacific R.R. Co., 998 S.W.2d 212, 215 n. 18 (Tex. 1999) (it is presumed that there is no adequate remedy for failure to enforce mandatory venue statute; plaintiffs failed to present prima facie evidence that venue was proper in county where suit was brought; burden shifted to defendant to prove venue was proper in its chosen county; and defendant established venue in its chosen county); In re Masonite Corp., 997 S.W.2d 194, 198 (Tex. 1999) (orig. proceeding) (trial court transferred cases to improper counties after plaintiffs conceded venue was improper and defendant offered prima facie proof of proper county); HCA Health Services of Texas, Inc. v. Salinas, 838 S.W.2d 246, 248 (Tex. 1992) (orig. proceeding) (per curiam) (mandamus proper against judge who ordered case to be prosecuted to final judgment in his court after first court mistakenly transferred venue of case then vacated its order); Union Carbide Corp. v. Moye, 798 S.W.2d 792, 793 (Tex. 1990) (orig. proceeding) (denial of continuance to supplement record with affidavits and discovery products pertinent to motion for change of venue was abuse of discretion); Henderson v. O’Neill, 797 S.W.2d 905, 905 (Tex. 1990) (orig. proceeding) (per curiam) (trial court abused its discretion in failing to comply with applicable forty-five-day notice requirement before ruling on motion to transfer); see also In re Chester, 309 S.W.3d 713, 716–17 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (trial court abused discretion when it vacated order to transfer venue after its plenary power to modify or vacate the order had expired under Tex. R. Civ. P. 329b(b)).
In exceptional circumstances—such as when a trial judge makes no attempt to follow rule 87 and acknowledges deviation from required procedure—mandamus will issue to correct improper venue procedure. In re Shell Oil Co., 128 S.W.3d 696 (citing Henderson, 797 S.W.2d at 905; Dorchester Master Ltd. Partnership v. Anthony, 734 S.W.2d 151 (Tex. App.—Houston [1st Dist.] 1987, orig. proceeding); Stephens v. Culver, 1996 WL 404037, 1996 Tex. App. LEXIS 3048 (Tex. App.—Houston [1st Dist.] 1996)). Mandamus was appropriate to enforce the notice requirements in a venue proceeding. See Henderson, 797 S.W.2d at 905. Mandamus was also proper to enforce the prohibition against a second venue determination. See Dorchester Master Ltd. Partnership, 734 S.W.2d at 152.
§ 15.18:4Generally No Interlocutory Appeal
Once the trial court has ruled on proper venue, that decision cannot generally be the subject of an interlocutory appeal. Once a venue determination has been made, that determination is conclusive as to those parties and claims. In re Team Rocket, L.P., 256 S.W.3d 257, 259–60 (Tex. 2008) (orig. proceeding); see Tex. Civ. Prac. & Rem. Code § 15.064(a); Tex. R. Civ. P. 87(6). Because venue is then fixed in any suit involving the same parties and claims, it cannot be overcome by a nonsuit and subsequent refiling in another county. Team Rocket, 256 S.W.3d at 260 (citing H.H. Watson Co. v. Cobb Grain Co., 292 S.W. 174, 177 (Tex. Comm’n App. 1927)).
§ 15.18:5Interlocutory Appeal in Limited Circumstances with Multiple Plaintiffs
However, in a suit in which there is more than one plaintiff, whether the plaintiffs are included by joinder, by intervention, because the lawsuit was begun by more than one plaintiff, there is the potential for an interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 15.003. Each plaintiff must, independently of every other plaintiff, establish proper venue. If a plaintiff cannot independently establish proper venue, that plaintiff's part of the suit, including all of that plaintiff’s claims and causes of action, must be transferred to a county of proper venue or dismissed, as is appropriate, unless that plaintiff, independently of every other plaintiff, establishes that: (1) joinder of that plaintiff or intervention in the suit by that plaintiff is proper under the Texas Rules of Civil Procedure, (2) maintaining venue as to that plaintiff in the county of suit does not unfairly prejudice another party to the suit, (3) there is an essential need to have that plaintiff’s claim tried in the county in which the suit is pending, and (4) the county in which the suit is pending is a fair and convenient venue for that plaintiff and all persons against whom the suit is brought. Tex. Civ. Prac. & Rem. Code § 15.003(a).
An interlocutory appeal may be taken of a trial court’s determination under Tex. Civ. Prac. & Rem. Code § 15.003(a) that (1) a plaintiff did or did not independently establish proper venue or (2) a plaintiff that did not independently establish proper venue did or did not establish the items prescribed by subsections (a)(1)–(4). Tex. Civ. Prac. & Rem. Code § 15.003(b).
An interlocutory appeal permitted by Tex. Civ. Prac. & Rem. Code § 15.003(b) must be taken to the court of appeals district in which the trial court is located under the procedures established for interlocutory appeals. The appeal may be taken by any party that is affected by the trial court’s determination. The court of appeals shall (1) determine whether the trial court’s order is proper based on an independent determination from the record and not under either an abuse of discretion or substantial evidence standard and (2) render judgment not later than the 120th day after the date the appeal is perfected. Tex. Civ. Prac. & Rem. Code § 15.003(c).
An interlocutory appeal under Tex. Civ. Prac. & Rem. Code § 15.003(b) has the effect of staying the commencement of trial in the trial court pending resolution of the appeal. Tex. Civ. Prac. & Rem. Code § 15.003(d).
On appeal from the trial on the merits, if venue was improper it shall in no event be harmless error and shall be reversible error. Wilson v. Texas Parks & Wildlife Department, 886 S.W.2d 259, 261 (Tex. 1994) (citing Tex. Civ. Prac. & Rem. Code § 15.064(b)). In determining whether venue was or was not proper, the appellate court shall consider the entire record, including the trial on the merits. Wilson, 886 S.W.2d at 262; see also Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993). The appellate court is obligated to conduct an independent review of the entire record to determine whether venue was proper in the ultimate county of suit. Ruiz, 868 S.W.2d at 758. However, a court’s ruling or decision to grant or deny a transfer for forum non conveniens is not grounds for appeal or mandamus and is not reversible error. See Tex. Civ. Prac. & Rem. Code § 15.002(b), (c).
§ 15.19Venue in Justice Courts
See the appendix to this manual for venue rules in justice courts. See also Tex. Civ. Prac. & Rem. Code ch. 15, subch. E.
“Venue” refers to the geographic specification of the proper court or courts for the litigation of a civil action that is within the subject-matter jurisdiction of the U.S. district courts in general and does not refer to any grant or restriction of subject-matter jurisdiction providing for a civil action to be adjudicated only by the district court for a particular district or districts. 28 U.S.C. § 1390(a). The venue statutes for federal court litigation are found in 28 U.S.C. §§ 1390–1413. Some of the more relevant sections are discussed herein, but a full review of the issue is not included in this manual. 28 U.S.C. § 1391 discusses venue generally and governs all civil actions brought in U.S. district courts, except as otherwise provided by law. See 28 U.S.C. § 1391(a)(1). Proper venue must be determined without regard to whether the action is local or transitory in nature, except as otherwise provided by law. 28 U.S.C. § 1391(a)(2).
VENUE IN GENERAL.
A civil action may be brought in
(1)a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2)a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3)if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b).
RESIDENCY.
For all venue purposes
(1)a natural person, including an alien lawfully admitted for permanent residence in the United States, shall be deemed to reside in the judicial district in which that person is domiciled;
(2)an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question and, if a plaintiff, only in the judicial district in which it maintains its principal place of business; and
(3)a defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants.
28 U.S.C. § 1391(c).
RESIDENCY OF CORPORATIONS IN STATES WITH MULTI-PLE DISTRICTS.
For purposes of venue under this chapter, in a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.
28 U.S.C. § 1391(d).
CHANGE OF VENUE.
(a)For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.
(b)Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer.
(c)A district court may order any civil action to be tried at any place within the division in which it is pending.
(d)Transfers from a district court of the United States to the District Court of Guam, the District Court for the Northern Mariana Islands, or the District Court of the Virgin Is-lands shall not be permitted under this section. As otherwise used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court.
CURE OR WAIVER OF DEFECTS.
(a)The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.
(b)Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.
(c)As used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court.