Article

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Resolving the Quandary of Conflicting, Mandatory-Venue

Statutes in Texas

James E. Wren* & Cody L. Hill**

I. A Brief Summary of Texas Mandatory Venue ........................90

II. Mandatory-Venue Statutes in Texas ........................................96

A. Mandatory-Venue Statutes Located Within Subchapter

B of Chapter 15 of the Texas Civil Practice and

Remedies Code ..................................................................97

B. Mandatory-Venue Statutes Located Outside

Subchapter B of Chapter 15 of the Texas Civil

Practice and Remedies Code .............................................99

III. Conflicting Mandatory-Venue Statutes in Texas ...................101

*Professor Jim Wren joined the faculty of Baylor Law School in 2006 to teach Practice

Court. While in private practice, he was designated annually as a Texas Super Lawyer in Business

Litigation. He is author of the book Proving Damages to the Jury (James Publishing 2016), and

co-author of Texas Trial Procedure & Evidence (ALM 2015) and Texas Commercial Causes of

Action (ALM 2016). He is board certified in Civil Trial Law and in Personal Injury Trial Law (by

the Texas Board of Legal Specialization), and in Civil Trial Advocacy and Civil Pretrial Practice

(by the National Board of Trial Advocacy). He is the former national president of the National

Board of Trial Advocacy (2009-2011), and was named as a Baylor University Outstanding

Professor in 2012.

**Cody L. Hill graduated from Baylor Law School in August of 2015 with a J.D.

concentrated in business litigation and general civil litigation and currently works for Nix,

Patterson & Roach, L.L.P. in Austin, Texas. While at Baylor, Cody was named the Top Advocate

in the Advanced School of the Trial at the Academy of the Advocate at the University of St.

Andrews in St. Andrews, Fife, Scotland and the Bracewell & Giuliani LLP 3L Baylor Law

Review Student of the Year, received the 2015 Abner V. Mccall Evidence Award and the 2015

Anthony Bruster Intellectual Property and Advocacy Award, and was a Semi-Finalist in both the

White Collar Crime Mock Trial Invitational at Georgetown University Law Center and the South

Texas Mock Trial Challenge at the South Texas College of Law. Cody humbly thanks Professor

Jim Wren for sharing his wisdom, experience and guidance in creating this Article and, most

importantly, for his inspirational teaching and for being a living example of how to be both a man

of integrity and a genuine trial lawyer. Cody also thanks the Baylor Law Review for its hard work

and flexibility in editing and publishing this Article.

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86 BAYLOR LAW REVIEW [Vol. 68:1

A. The Various Rationales Used by Texas Courts to

Decide Between Competing Mandatory-Venue

Statutes ............................................................................101

1. Rationale 1: Venue Should be Determined Based

on the Principal Relief Sought ...................................103

2. Rationale 2: Plaintiff’s Choice Prevails .....................105

3. Rationale 3: Mandatory-Venue Statutes Located

Outside of Chapter 15 Prevail Over Those Located

Within Chapter 15 ......................................................107

4. Rationale 4: The Statute With the Most

“Longstanding” History Controls ..............................109

5. Rationale 5: The More-Specific, Later-Enacted

Statute Controls ..........................................................111

6. Rationale 6: Harmonize Competing Statutes

Through a Process of Elimination..............................114

7. Rationale 7: Prioritize a Pre-Suit Agreement When

Mandated by Statute ..................................................116

B. Scrutinizing the Various Approaches ..............................119

1. Countering Rationale 1 That Venue Should Be

Determined Based on the Principal Relief Sought ....119

2. Countering Rationale 2 That Plaintiff’s Choice

Prevails .......................................................................122

3. Countering Rationale 3 That Mandatory-Venue

Statutes Located Outside of Chapter 15 Prevail

Over Those Located Within Chapter 15 .....................126

4. Countering Rationale 4 That the Statute With the

Most “Longstanding” History Controls .....................131

5. Countering Rationale 5 That the More-Specific,

Later-Enacted Statute Controls ..................................135

6. Countering Rationale 6 That Would Harmonize

Competing Statutes Through a Process of

Elimination .................................................................138

7. Countering Rationale 7 That a Pre-Suit Agreement

is Prioritized by Statute ..............................................141

IV. A Proposed Solution to Resolving Conflicting Mandatory-

Venue Statutes .......................................................................153

V. Conclusion .............................................................................157

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Appendix: Specific Mandatory-Venue Statutes in Texas ................159

A. Chapter 15 of the Texas Civil Practice and Remedies

Code ................................................................................159

1. Tex. Civ. Prac. & Rem. Code Ann. § 15.011 –

Suits Involving Real Property ....................................160

2. Tex. Civ. Prac. & Rem. Code Ann. § 15.0115 –

Landlord-Tenant ........................................................162

3. Tex. Civ. Prac. & Rem. Code Ann. § 15.012 –

Injunction Against Suit ..............................................163

4. Tex. Civ. Prac. & Rem. Code Ann. § 15.013 –

Injunction Against Execution of Judgment................164

5. Tex. Civ. Prac. & Rem. Code Ann. § 15.014 –

Head of State Department ..........................................165

6. Tex. Civ. Prac. & Rem. Code Ann. § 15.015 –

Counties .....................................................................166

7. Tex. Civ. Prac. & Rem. Code Ann. § 15.0151 –

Certain Political Subdivisions ....................................167

8. Tex. Civ. Prac. & Rem. Code Ann. § 15.017 –

Libel, Slander, Privacy Invasion ................................167

9. Tex. Civ. Prac. & Rem. Code Ann. § 15.018 –

FELA..........................................................................168

10. Tex. Civ. Prac. & Rem. Code Ann. § 15.0181 –

Jones Act ....................................................................169

11. Tex. Civ. Prac. & Rem. Code Ann. § 15.019 –

Inmate Litigation ........................................................170

12. Tex. Civ. Prac. & Rem. Code Ann. § 15.020 –

Major Transactions: Specification of Venue by

Agreement ..................................................................171

a. Defining a “Major Transaction” ..........................171

b. To Whom Does the “Major Transactions”

Statute Apply? ......................................................172

c. When Does an Action “Aris[e] From a Major

Transaction?” .......................................................175

d. Limitations in the Major Transaction Statute ......176

B. Statutes Outside Subchapter B of Chapter 15 of the

Texas Civil Practice and Remedies Code .......................177

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88 BAYLOR LAW REVIEW [Vol. 68:1

1. Tex. Civ. Prac. & Rem. Code Ann. § 65.023 –

Injunctions..................................................................178

2. Tex. Civ. Prac. & Rem. Code Ann. § 101.102(a) –

Texas Tort Claims Act ...............................................180

3. Tex. Civ. Prac. & Rem. Code Ann. § 171.096 –

Arbitration Application ..............................................182

4. Texas Family Code Ann. – Suits Affecting Parent-

Child Relationship .....................................................183

5. Tex. Trust Code Ann. § 115.002 – Suits By or

Against a Trustee of a Trust .......................................184

6. Tex. Prop. Code Ann. § 21.013 – Eminent Domain ..185

7. Tex. Nat. Res. Code Ann. § 11.078 – Public Lands ..186

8. Tex. Labor Code Ann. § 410.252 & Tex. Gov.

Code § 2001.176– Judicial Review of Workers’

Compensation Decisions ............................................186

“Any trial lawyer knows the importance of venue.”

While a Texas, state-court plaintiff may permissibly assert venue in one

of multiple counties under general, permissive, or mandatory venue rules,

it is well established that mandatory-venue statutes always trump

permissive ones.

Theoretically, a practitioner might assume that selecting

William D. Underwood, Reconsidering Derivative-Venue in Cases Involving Multiple

Parties and Multiple Claims, 56 B

AYLOR L. REV. 579, 581 (2004). Underwood quotes the

remarks of Louis Muldrow, Leon Jaworski Professor of Practice and Procedure at Baylor

University School of Law and accomplished Texas trial lawyer:

Testifying before the Texas Senate Economic Development Committee in connection

with proposed venue reform legislation in 1995, Professor Louis Muldrow observed

that “[e]very trial lawyer in this chamber, I think, would agree that venue or the county

in which the case is to be tried, is without question one of the most significant factors,

perhaps the most significant factor, in the outcome of the case.”

Id. at 581 n.1 (quoting 1 S

COTT A. SHERMAN, TEXAS TORT REFORM: THE LEGISLATIVE

HISTORY—VENUE, AT II-1 (1995)).

Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex. 1994).

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.001(b) (West 2002) (providing that venue is

only proper in a particular county under a permissive venue statute, including the general venue

rule, if a mandatory-venue statute does not apply); see also Langdeau v. Burke Inv. Co., 358

S.W.2d 553, 556 (Tex. 1962) (a “permissive [venue] statute applicable to actions of a particular

kind must always yield to a mandatory [venue] provision”); In re Cty. of Galveston, 211 S.W.3d

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venue based on a mandatory-venue statute would provide certainty of venue

for the suit. The reality may be very different. What happens when, after the

plaintiff pleads venue under one mandatory-venue statute, the defendant

asserts that a separate mandatory-venue statute, or some sort of pre-suit

agreement, requires venue of the suit to be in a different county? This

Article addresses this question for Texas trial lawyers and courts.

The quandary of resolving competing mandatory-venue statutes has

perplexed Texas courts. Different Texas courts have utilized different

approaches to reach different results when two separate mandatory-venue

statutes mandate venue in two different Texas counties. As a result, the

resolution of mandatory venue in Texas civil litigation presents

practitioners with uncertainty and an opportunity for advocacy. This Article

identifies the various rationales employed by Texas courts to determine the

priority between competing mandatory-venue statutes. This Article exists to

educate practitioners on the different approaches to resolving competing

mandatory-venue statutes in Texas, and to arm them with the resources and

authority to establish venue in (or transfer venue to) the desired county of

mandatory venue.

Part I sets the backdrop for the issue by providing a brief overview of

the Texas venue scheme as it relates to mandatory venue.

Part II discusses

the benefits of invoking a mandatory-venue statute, and then lists several

specific mandatory-venue statutes in Texas, located both within and outside

of Chapter 15 of the Texas Civil Practice and Remedies Code.

The

Appendix to this Article corresponds to Part II and provides further analysis

of Texas courts’ interpretations of these various mandatory-venue statutes,

in order to provide Texas practitioners with the resources necessary to

support application of the mandatory-venue statute favorable to their case.

Part III presents seven different approaches that various Texas courts have

used or considered in attempting to resolve the quandary of two competing

879, 881 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding) (“mandatory venue provisions

control over permissive venue provisions”); Chiriboga v. State Farm Mut. Auto. Ins. Co., 96

S.W.3d 673, 677 (Tex. App.—Austin 2003, no pet.) (“Mandatory provisions trump permissive

ones.”); K.J Eastwood Invs., Inc. v. Enlow, 923 S.W.2d 255, 258 (Tex. App.—Fort Worth 1996,

no writ) (holding that trial court had “no discretion to deny the motion to transfer venue” when the

movant made a prima facie showing that the action fell under a mandatory-venue statute).

See infra Part I.

See infra Part II.

See infra Appendix (“Specific Mandatory-Venue Statutes in Texas”).

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mandatory-venue statutes.

Because the quandary will not be resolved until

either the Supreme Court of Texas or the Texas Legislature definitively

addresses the issue, Part IV presents the proposal of these authors for a

synthesized rule to eliminate the quandary of competing mandatory-venue

statutes in Texas.

I. A BRIEF SUMMARY OF TEXAS MANDATORY VENUE

“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 Texas, “venue” refers to the county in which suit is proper

within the forum state.

The Texas venue scheme is unique from federal

venue and somewhat more complex.

In 1995, the Texas Legislature

codified venue statutes by enacting Chapter 15 of the Texas Civil Practice

See infra Part III.

See infra Part IV.

State v. Blankenship, 170 S.W.3d 676, 681 (Tex. App.—Austin 2005, pet. ref’d) (citing

LACK’S LAW DICTIONARY (6th ed. 1991)).

In re Great Lakes Dredge & Dock Co., 251 S.W.3d 68, 73 (Tex. App.—Corpus Christi

2008, no pet.). From the outset, it is important to recognize the difference between the terms

“forum,” “jurisdiction,” and “venue.” “‘Forum’ generally refers to a sovereign or a state.” Ramsay

v. Tex. Trading Co., 254 S.W.3d 620, 627 (Tex. App.—Texarkana 2008, pet. denied) (citing Scott

v. Gallagher, 209 S.W.3d 262, 264 (Tex. App.—Houston [1st Dist.] 2006, no pet.)).

“‘Jurisdiction’ deals with the power of a court to determine an action involving a particular subject

matter as between the parties and to render a certain judgment.” Brightwell v. Barlow, Gardner,

Tucker & Garesk, 619 S.W.2d 249, 254 (Tex. Civ. App.—Fort Worth 1981, no writ). “Venue

‘refers to the propriety of prosecuting, in a particular forum, a suit on a given subject matter with

specific parties, over which the forum must, necessarily, have subject-matter jurisdiction.’” Scott,

209 S.W.3d at 264 (citing Gordon v. Jones, 196 S.W.3d 376, 383 (Tex.App.—Houston [1st Dist.]

2006, no pet. h.). “It is axiomatic that ‘venue’ provisions do not confer ‘jurisdiction.’” Compass

Expl., Inc. v. B-E Drilling Co., 60 S.W.3d 273, 277 (Tex. App.—Waco 2001, no pet.); see also

Cantu v. Howard S. Grossman, P.A., 251 S.W.3d 731, 734 (Tex. App.—Houston [14th Dist.]

2008, pet. denied) (“Venue concerns the geographic location within the forum where the case may

be tried.”).

See, e.g., 1 William V. Dorsaneo, III et. al., Texas Civil Procedure: Pretrial Litigation § 5.1

(2012) (“The Texas [venue] scheme is somewhat complex: it includes both general rules and

exceptions, provisions that are mandatory and others that are permissive.”); see also Bristol-Myers

Squibb Co. v. Goldston, 957 S.W.2d 671, 674 (Tex. App.—Fort Worth 1997, pet. denied)

(explaining that venue “is a matter of public concern, and the venue statutes are structured in

accord with many public policy principles” (citing Bonner v. Hearne, 12 S.W. 38, 39 (1889))).

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and Remedies Code, which sets forth the basic venue framework in Texas.

Rules 86, 87, and 88 of the Texas Rules of Civil Procedure set forth the

procedural mechanisms, standards, and burdens of proof that govern venue

disputes.

The venue of a suit filed in Texas “may be proper in many counties

under general, mandatory, or permissive venue rules.”

Because Texas

values a plaintiff’s right to choose where to assert her rights and pursue her

claims, the “plaintiff is given the first choice [of venue] in the filing of the

lawsuit.”

So long as suit is initially filed in a county of proper venue, the

plaintiff’s venue choice cannot be disturbed unless an exception applies.

These exceptions to the general venue rule are statutes whereby the Texas

Legislature has provided that venue is either “permissible” or “mandatory”

for specific types of actions in particular counties.

Section 15.001 of the Texas Civil Practice and Remedies Code provides

that “proper venue” means the county of venue required by a mandatory-

venue statute or if no mandatory-venue statute applies, then the county

provided under the general venue rule or under the permissive venue

statutes.

Section 15.002 provides the general venue rule that will apply so

long as a mandatory-venue statute does not require venue of the suit to be in

another county.

The general venue rule is a permissive venue rule, like the

express permissive exceptions listed in other permissive venue statutes,

because these provisions identify where a suit “may” properly be

See Act of May 18, 1995, 74

Leg., R.S., ch 138 § 1, 1995 Tex. Gen. Laws 978, 978

(currently codified at T

EX. CIV. PRAC. & REM. CODE ANN. ch. 15).

See TEX. R. CIV. P. 86–88.

Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex. 1994).

Id. at 260.

See Chiriboga v. State Farm Mut. Auto Ins. Co., 96 S.W.3d 673, 677 (Tex. App.—Austin

2003, no pet.).

See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.011–.020 (West 2002 & Supp. 2015)

(Subchapter B entitled “Mandatory Venue”); T

EX. CIV. PRAC. & REM. CODE ANN. §§ 15.031 –

15.039 (Subchapter C entitled “Permissive Venue”); see also 2 R

OY W. MCDONALD & ELAINE A.

GRAFTON CARLSON, TEXAS CIVIL PRACTICE § 6:9 (2d. ed. 2003) (“The exceptions to the venue

general rule are numerous and distinctive. Some exceptions apply due to the nature of the cause of

action alleged, others rely upon the status of the defending party, such as a corporation or a

political subdivision.”).

TEX. CIV. PRAC. & REM. CODE ANN. § 15.001(b) (providing that the general venue rule or

a permissive venue statute will only apply when venue is not required in a particular county by a

mandatory venue provision).

Id. § 15.002(a).

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92 BAYLOR LAW REVIEW [Vol. 68:1

maintained.

When both a mandatory and a permissive venue statute apply

to a suit, the permissive statute must yield to the mandatory statute,

meaning venue is only proper in the county provided by the mandatory-

venue statute.

Pursuant to Sections 15.004 and 15.005, mandatory venue as to a claim

against one defendant allows the plaintiff to establish derivative venue as to

all related claims and defendants in the case.

These derivative-venue

statutes mean that when a lawsuit contains multiple claims against a

defendant for a single act or set of related acts and one of those causes of

action would make venue proper in a county, all of the claims and causes of

action may be properly litigated in that county.

If one of these claims or

causes of action is subject to a mandatory-venue statute, all of the related

claims and causes of action must be litigated in the county provided by the

mandatory-venue statute.

To properly establish venue, the plaintiff must satisfy an initial pleading

burden by pleading facts which establish that venue is proper in the chosen

county under a venue statute.

Venue facts are determined at the time the

See 2 MCDONALD & CARLSON, supra note 17 § 6:21 (2d. ed. 2003); see also TEX. CIV.

PRAC. & REM. CODE ANN. § 15.002; TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.031 – 15.039

(Subchapter C entitled “Permissive Venue”).

See, e.g., Randall Cty. v. Todd, 542 S.W.2d 236, 237–38 (Tex. Civ. App.—Amarillo 1976,

no writ) (“It is recognized that the permissive provisions must yield to the mandatory provisions

of the venue statute.”).

See TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.004, 15.005; see also In re Reynolds, 369

S.W.3d 638, 656 (Tex. App.—Tyler 2012, orig. proceeding) (“Section 15.005 is a derivative

venue statute”); Underwood, supra note 1, at 582 (“Derivative-venue simply means venue over a

particular claim or party that is derived from venue over some other claim or party in the same

lawsuit—venue that would not exist independent of the other claim or party.”).

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.005; see also, e.g., Santos v. Holzman, No.

13-02-662-CV, 2005 WL 167309 at *3 (Tex. App.—Corpus Christi, Jan. 27, 2005, pet. denied)

(mem. op., not designated for publication) (“When there are multiple defendants involved, the

plaintiff must first establish proper venue against at least one defendant; venue is then proper as to

all defendants in all claims arising out of the same transaction, occurrence, or series of

transactions or occurrences.”).

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.004 (“In a suit in which a 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 the

mandatory venue provisions of Subchapter B, the suit shall be brought in the county required by

the mandatory venue provision.”).

See TEX. R. CIV. P. 87(2)(a) (“A party who seeks to maintain venue of the action in a

particular county in reliance upon [the general, permissive, or mandatory-venue statutes] has the

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cause of action accrues.

A trial court must treat all venue facts properly

pled by the plaintiff as true unless an adverse party specifically denies

them.

A cause of action, when properly pled by the plaintiff, must simply

be accepted by the court as true for venue purposes.

Because a plaintiff

can establish proper venue by carrying this initial pleading burden,

defendant has a pleading burden to specifically deny any venue facts pled

by the plaintiff (other than a properly pleaded cause of action), if the

defendant intends to challenge the accuracy of those facts in a motion to

transfer venue.

Although the plaintiff is entitled to the first choice of venue, a defendant

may challenge the plaintiff’s venue selection, and a court must transfer an

action to another county of proper venue if the county in which the action is

pending is not a county of proper venue.

If the plaintiff’s venue choice is

burden to make proof, as provided in paragraph 3 of this rule, that venue is maintainable in the

county of suit.”); T

EX. R. CIV. P. 87(3)(a) (“All venue facts, when properly pleaded, shall be taken

as true unless specifically denied by the adverse party.”).

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.006 (providing that “[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.”).

Union Carbide Corp. v. Loftin, 256 S.W.3d 869, 873 (Tex. App.—Beaumont 2008, pet.

dism’d); see T

EX. R. CIV. P. 87(3)(a).

See TEX. R. CIV. P. 87(2)(b) (“It shall not be necessary for a claimant to prove the merits of

a cause of action, but the existence of a cause of action, when pleaded properly, shall be taken as

established as alleged by the pleadings.”); Newton v. Newton, 895 S.W.2d 503, 505–06 (Tex.

App.—Fort Worth 1995, no writ).

See TEX. R. CIV. P. 87(3)(a).

See id.; see also Union Carbide, 256 S.W.3d at 873 (“All of the appellants who timely filed

motions to transfer venue specifically denied [venue facts pled by the plaintiffs]; therefore, the

burden shifted to the plaintiffs to present prima facie proof of these venue facts.”).

See In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding) (internal

citations and quotations omitted); see also T

EX. CIV. PRAC. & REM. CODE ANN. § 15.063(1)

(“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: (1) the county in which the action is

pending is not a proper county as provided by this chapter;”); T

EX. R. CIV. P. 86–87. It should be

noted that there is a second category of venue challenge, seeking to transfer venue from a proper

county of venue pursuant to T

EX. CIV. PRAC. & REM. CODE ANN. § 15.063(2)–(3) (providing that

a court “shall” also “transfer an action to another county of proper venue if: . . . (2) an impartial

trial cannot be had in the county in which the action is pending; or (3) written consent of the

parties to transfer to any other county is filed at any time.”). See also T

EX. CIV. PRAC. & REM.

CODE ANN. § 15.002(b) (regarding motions to transfer venue from a county of proper venue for

convenience of the parties); T

EX. R. CIV. P. 255, 257.

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not properly challenged through a motion to transfer venue, venue is fixed

in the county chosen by the plaintiff.

In the “great majority” of venue battles, the dispute revolves around

whether the plaintiff filed suit in a county of proper venue.

If the plaintiff

files suit in a county where venue is not proper under the Texas venue

statutes, the plaintiff waives the right to choose venue in the current suit,

and the defendant may have the suit transferred to a proper venue.

When a

defendant seeks to transfer venue from an allegedly improper county of

venue, the motion to transfer must state that the action should be transferred

to another specified county of proper venue because either: (a) the county

where the action is pending is not a proper county; (b) mandatory venue of

the action in another county is prescribed by one or more specific

mandatory-venue statutes; or (c) the party seeking the transfer cannot

receive a fair trial in the chosen county.

When a defendant timely objects and properly challenges the plaintiff’s

choice of venue, the burden of proof shifts to the plaintiff to present prima

facie proof that venue is proper where the plaintiff filed suit.

To do so, the

plaintiff must specifically deny any factual allegations supporting the

defendant’s motion and offer prima facie evidence to support the plaintiff’s

pled venue facts. “Prima facie proof is made when the venue facts are

properly pleaded and an affidavit, and any duly proved attachment to the

affidavit, are filed fully and specifically setting forth the facts supporting

such pleading.”

This “prima facie proof [of a venue fact] is not subject to

rebuttal, cross-examination, impeachment, or disproof.”

If the plaintiff

Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex. 1994).

See, e.g., 2 MCDONALD & CARLSON, supra note 17 § 6:36 (“The statutes and rules relating

to venue fall into two groups, differing in content and procedural incidents. The great majority of

venue questions turns on the propriety of venue in a particular county under the general venue

statute or under some other special venue statute.”).

See Wilson, 886 S.W.2d at 260 (internal citations omitted).

TEX. R. CIV. P. 87(3).

See TEX. R. CIV. P. 87(2)(a) (“A party who seeks to maintain venue of the action in a

particular county in reliance upon [the venue statutes] has the burden to make proof, as provided

in paragraph 3 of this rule, that venue is maintainable in the county of suit.”); see also GeoChem

Tech Corp. v. Verseckes, 962 S.W.2d 541, 543 (Tex. 1998).

TEX. R. CIV. P. 87(3)(a) (“Affidavits shall be made on personal knowledge, shall set forth

specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify.”).

Shamoun & Norman, LLP v. Yarto Int’l Grp., LP, 398 S.W.3d 272, 287 (Tex. App.—

Corpus Christi 2012, pet. dism’d) (citing Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993)).

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meets this burden, the trial court must maintain the lawsuit in the county

where it was filed.

When a defendant makes a prima facie showing that venue is mandatory

in a county under a mandatory-venue statute, the court must transfer the

action from a county of only permissive venue to the county of mandatory

venue (since the latter is the county of proper venue pursuant to Section

15.001),

and it is reversible error to deny such a transfer when the motion

is based on a mandatory statute.

As a general rule, neither interlocutory appeal nor mandamus review is

available for venue determinations, but the Texas Legislature has carved out

an exception to this general rule, providing an immediate right to seek a

writ of mandamus “to enforce the mandatory venue provisions.”

Regardless of when the trial court’s ruling on a motion to transfer venue is

considered by an appellate court, the Texas Legislature “has declared that

improper venue cannot be harmless error.”

The Texas Supreme Court has

established a “clear abuse of discretion” standard for mandamus reviews of

See Wilson, 886 S.W.2d at 261 (“[I]f the plaintiff chooses a county of proper venue, and

this is supported by proof as required by Rule 87, no other county can be a proper venue in that

case. . . . This rule gives effect to the plaintiff’s right to select a proper venue.”); see also K.J.

Eastwood Invs., Inc. v. Enlow, 923 S.W.2d 255, 256 (Tex. App.—Fort Worth 1996, orig.

proceeding) (“If a plaintiff initially files in a county of ‘proper venue,’ the case cannot be

transferred to another county where venue would also be proper.”).

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.001(b) (West 2002) (defining “proper

venue” as a county of mandatory venue if a mandatory-venue statute applies).

See TEX. R. CIV. P. 87(3)(c); see also Wichita Cty. v. Hart, 917 S.W.2d 779, 781 (Tex.

1996) (“If the plaintiff’s chosen venue rests on a permissive venue statute and the defendant files a

meritorious motion to transfer based on a mandatory venue provision, the trial court must grant

the motion.”) (internal citation omitted).

TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642 (“A party may apply for a writ of

mandamus with an appellate court to enforce the mandatory venue provisions of this chapter. An

application for the writ of mandamus must be filed before the later of: (1) the 90th day before the

date the trial starts; or (2) the 10th day after the date the party receives notice of the trial setting.”);

see also In re Lopez, 372 S.W.3d 174, 176–77 (Tex. 2012) (holding that mandamus relief is

available to correct a trial court’s erroneous ruling on a mandatory venue contest, and it is not

necessary that the petitioner demonstrate that the petitioner has no adequate remedy by appeal); In

re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex. 1999) (holding that “adequacy of an appellate

remedy is not a requisite of a mandatory venue mandamus [review] under Section 15.0642.”). The

Texas Legislature has also provided for interlocutory appeal of a trial court’s venue determination

in a suit involving multiple plaintiffs. See

TEX. CIV. PRAC. & REM. CODE ANN. § 15.003.

Ford Motor Co. v. Miles, 967 S.W.2d 377, 382 (Tex. 1998) (citing TEX. CIV. PRAC. &

REM. CODE ANN. § 15.064(b)).

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96 BAYLOR LAW REVIEW [Vol. 68:1

mandatory venue decisions.

A trial court has no discretion to refuse to

enforce a properly pled and proven mandatory-venue statute.

An appellate court should not review the evidence for factual

sufficiency.

If there is any probative evidence to support the plaintiff’s

chosen venue as a county of proper venue, the granting of a motion to

transfer is reversible error.

The question then arises: When some probative evidence supports the

existence of mandatory venue in the county of suit, is it possible for the

defendant to nevertheless raise a competing mandatory-venue statute and

thereby establish that the plaintiff’s choice of mandatory venue does not

constitute proper venue? That is the question addressed by the remainder of

this Article, starting with an overview of key mandatory-venue statutes.

II. MANDATORY-VENUE STATUTES IN TEXAS

Simply put, mandatory-venue statutes reign as the kings of venue in

Texas. The Texas venue scheme is set forth in Chapter 15 of the Texas

See In re Mo. Pac., 998 S.W.2d at 215, n.8 (Tex. 1999) (citing Walker v. Packer, 827

S.W.2d 833, 839-40 (Tex. 1992)).

See K.J. Eastwood Invs., Inc. v. Enlow, 923 S.W.2d 255, 258 (Tex. App.—Fort Worth

1996, no writ) (holding that trial court had “no discretion to deny the motion to transfer venue”

when the movant made a prima facie showing that the action fell under a mandatory-venue

statute); see also In re Lovell-Osburn, 448 S.W.3d 616, 620 (Tex. App.—Houston [14th Dist.]

2014, orig. proceeding) (“Texas courts have long held that . . . a trial court has a ministerial duty

to transfer venue when the statutory terms [of a mandatory-venue statute] are satisfied.”). Note

that when a plaintiff establishes venue under the general venue rule, as opposed to a mandatory-

venue statute, a court may still transfer the action from a county of proper venue to another county

of proper venue for the convenience of the parties. See T

EX. CIV. PRAC. & REM. CODE ANN.

§ 15.002(b).

See Bonham State Bank v. Beadle, 907 S.W.2d 465, 471 (Tex. 1995) (citing Ruiz v.

Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993)).

Moveforfree.com, Inc. v. David Hetrick, Inc., 288 S.W.3d 539, 541–42 (Tex. App.—

Houston [14

Dist.] 2009, no pet.). If the county chosen by the plaintiff is a county of proper

venue, then a county to which a suit is transferred “cannot be a county of proper venue as a matter

of law.” Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 261–62 (Tex. 1994); see also

Ford, 967 S.W.2d at 380. Although some appellate courts have stated that the trial court’s venue

determination must be upheld if there is any probative evidence in the record that venue was

proper in the county where judgment was rendered. Ruiz, 868 S.W.2d at 758. The court in Ruiz

was addressing a case in which the trial court had denied the motion to transfer and retained venue

in the county of original filing. See, e.g., Jaska v. Tex. Dep’t of Protective & Regulatory Servs.,

106 S.W.3d 907, 909–10 (Tex. App.—Dallas 2003, no pet.).

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Civil Practice and Remedies Code.

Subchapter B of Chapter 15 contains a

non-exclusive collection of mandatory-venue statutes.

In addition, the

Texas Legislature has enacted numerous mandatory-venue statutes outside

of Subchapter B for certain types of actions.

A. Mandatory-Venue Statutes Located Within Subchapter B of

Chapter 15 of the Texas Civil Practice and Remedies Code

Table 1 below identifies each of the mandatory-venue statutes located

within Chapter 15 of the Texas Civil Practice and Remedies Code.

Analyses of the language of each statute and of the arguments in Texas

courts that have supported the application of each statute are set forth in the

Sections of the Appendix indicated in the third column of Table 1 below.

TABLE 1

Mandatory-Venue Statutes Located Within Subchapter B of Chapter

Mandatory-Venue Statute

Type of Action to

Which Statute

Applies

Corresponding

Analysis in the

Appendix

RAC

ODE

ANN. § 15.011

Real Property A.1

TEX. CIV. PRAC. & REM. CODE

ANN. § 15.0115

Landlord-Tenant

Relationships

A.2

RAC

CODE ANN. § 15.012

Anti-Suit

Injunctions

A.3

TEX. CIV. PRAC. & REM. CODE

ANN. § 15.013

Injunctions

Against Execution

of Judgment

A.4

See TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.011–15.020 (“Subchapter B. Mandatory

Venue”).

See id., with an overview provided in infra Part II.A. For analyses of the authority

interpreting these statutes, see Appendix infra at Sections A.1 through A.12.

For a list of several often-cited mandatory-venue statutes existing outside of Chapter 15 of

the Texas Civil Practice and Remedies Code, see infra Part II.B. For analyses of the authority

interpreting these statutes, see Appendix infra at B.1–B.8.

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98 BAYLOR LAW REVIEW [Vol. 68:1

TEX. CIV. PRAC. & REM. CODE

ANN. § 15.014

Mandamus

Against Head of

State Department

A.5

RAC

ODE

ANN. § 15.015

Actions Against

Counties

A.6

TEX. CIV. PRAC. & REM. CODE

ANN. § 15.0151

Actions Against

Political

Subdivisions

A.7

RAC

ODE

ANN. § 15.017

Libel, Slander,

Privacy

A.8

TEX. CIV. PRAC. & REM. CODE

ANN. § 15.018

Federal

Employers’

Liability Act

(FELA)

A.9

RAC

ODE

ANN. § 15.0181

Jones Act

A.10

TEX. CIV. PRAC. & REM. CODE

ANN. § 15.019

Inmate Litigation A.11

RAC

ODE

ANN. § 15.020

Major

Transactions

A.12

The mandatory-venue statutes regarding real property

and major

transactions

have been the subject of significant recent developments in

Texas case law.

Accordingly, Texas practitioners will particularly benefit

45 U.S.C. §§ 51–60 (2012).

46 U.S.C. § 30104 (2012).

TEX. CIV. PRAC. & REM. CODE ANN. § 15.011.

TEX. CIV. PRAC. & REM. CODE ANN. § 15.020.

See, e.g., In re Fisher, 433 S.W.3d 523, 529–31(Tex. 2014) (orig. proceeding) (corrected

op. on reh’g) (addressing “when an action ‘arises from’ a major transaction under Section 15.020”

as a matter of first impression); In re Applied Chem. Magnesias Corp., 206 S.W.3d 114, 118–19

(Tex. 2006) (orig. proceeding) (holding that a declaratory judgment suit to determine the rights of

the parties to a contract to acquire surface and mineral leases was an action involving an interest in

real property thus making it subject to the mandatory venue provision in Section 15.011);

Shamoun & Norman, LLP v. Yarto Int’l Grp., LP, 398 S.W.3d 272, 294–96 (Tex. App.—Corpus

Christi 2012, pet. dism’d) (analyzing several novel arguments in the context of the application of

the mandatory venue provisions of Section 15.020 and delineating the distinctions between

subSections (b) and (c) of Section 15.020 in detail); In re City Nat’l Bank, 257 S.W.3d 452, 454

(Tex. App.—Tyler 2008, orig. proceeding [mand. denied]) (holding that a lien created by a deed

of trust is an encumbrance on the title to real property, and therefore, a suit to regarding

foreclosure on the deed of trust lien, pledged as security to a promissory note, was “tantamount to

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2016] CONFLICTING MANDATORY-VENUE STATUTES 99

from a review of the Sections in the Appendix that analyze these

mandatory-venue statutes.

B. Mandatory-Venue Statutes Located Outside Subchapter B of

Chapter 15 of the Texas Civil Practice and Remedies Code

A number of statutes located outside of Subchapter B of Chapter 15 of

the Texas Civil Practice and Remedies Code contain mandatory venue

provisions.

As a general rule, when a statute directs that suit “shall be

brought” in a specified county or other location, then the statute qualifies as

a mandatory-venue statute because Texas courts have repeatedly held that

venue provisions containing the word “shall” are mandatory in nature.

Table 2 below identifies a number of the more commonly cited

mandatory-venue statutes that are located outside of Subchapter B of

Chapter 15 of the Texas Civil Practice and Remedies Code. Analyses of the

language of each statute and of the arguments in Texas courts that have

supported the application of each statute are set forth in the Sections of the

Appendix indicated in the third column of Table 2 below.

a suit to remove an encumbrance from the title [to] real property,” which made venue mandatory

in the county where the land was located).

See infra Appendix at A.1 (real property) and A.12 (major transactions).

See infra Table 2 for examples of such mandatory-venue statutes.

See, e.g., Bachus v. Foster, 122 S.W.2d 1058, 1060 (Tex. 1939) (holding that the

Legislature’s use of the term “shall” in a venue-related statute is mandatory in character and

“leaves no room to doubt that the legislature meanS to lay the venue of [a suit governed by the

statute] exclusively in the county” provided by the statute); see also Wichita Cty. v. Hart, 917

S.W.2d 779, 781 (Tex. 1996) (“When considering venue, we have noted that the Legislature’s use

of the word ‘shall’ in a statute generally indicates the mandatory character of the provision.”).

Similarly, Texas courts interpret the ordinary meaning of the word “must” to be of mandatory

effect. See, e.g., Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (The word “must”

is “mandatory, creating a duty or obligation.”); In re Hartford Underwriters Ins. Co., 168 S.W.3d

293, 295 (Tex. App.—Eastland 2005, orig. proceeding) (holding that a statute providing that “the

petition must be filed in Travis County district court” was a mandatory venue provision requiring

that the action be filed in Travis County).

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100 BAYLOR LAW REVIEW [Vol. 68:1

TABLE 2

Mandatory-Venue Statutes Located Outside Subchapter B of

Chapter 15

Mandatory-Venue Statute

Type of Action to

Which Statute

Applies

Corresponding

Analysis in the

Appendix

TEX. CIV. PRAC. & REM.

CODE ANN. § 65.023

Injunctions B.1

RAC

CODE ANN. § 101.102

Texas Tort Claims

Act

B.2

TEX. CIV. PRAC. & REM.

CODE ANN. § 171.096

Application for

Enforcement of

Arbitration

Agreements

B.3

TEX. FAM. CODE

ANN. §§ 103.001, 155.201

Suits Affecting

Parent-Child

Relationships

B.4

TEX. TRUST CODE

ANN. § 115.002

Suits By or Against a

Trustee of a Trust

B.5

TEX. PROP. CODE

ANN. § 21.013

Eminent Domain

(Condemnation

Proceedings)

B.6

TEX. NAT. RES. CODE

ANN. § 11.078

Public Lands B.7

TEX. LABOR CODE

ANN. § 410.252 and

EX. GOV. CODE

ANN. § 2001.176

Judicial Review of

Decisions by the

Texas Workers’

Compensation

Commission Appeals

Panel

B.8

Table 2 does not, and is not intended to, represent all of the mandatory-

venue statutes available under Texas law. Texas practitioners who are

See TEX. PROP. CODE ANN. § 111.001 (West 2014) (“This subtitle may be cited as the

Texas Trust Code.”).

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considering bringing suit under a Texas statute should review associated

statutes for venue-related provisions.

III. CONFLICTING MANDATORY-VENUE STATUTES IN TEXAS

When a plaintiff files suit in a county of proper venue under a

mandatory-venue statute, “no other county can be a proper venue in that

case.”

Conversely, when a defendant moves to transfer venue under a

mandatory-venue statute, “it is reversible error to deny a transfer.”

But

what happens when both parties bring a mandatory venue “king” to the

venue battle? Does the plaintiff’s mandatory venue choice prevail, or is it

possible for the defendant to overcome the plaintiff’s choice with a “more

mandatory” venue statute?

This question of prioritizing mandatory-venue statutes has led various

Texas courts to reach different answers under different theories of analysis.

This Section first provides an overview of the potentially conflicting

approaches, then scrutinizes each approach in more depth.

A. The Various Rationales Used by Texas Courts to Decide Between

Competing Mandatory-Venue Statutes

Under current Texas law, Texas practitioners can find supporting

authority for at least seven different rationales in Texas appellate opinions

to resolve conflicts between competing mandatory-venue statutes: (1) venue

should be determined based on the nature of the principal right asserted and

the relief sought;

(2) the plaintiff’s choice of venue controls;

(3) a

mandatory-venue statute located outside of Subchapter B of Chapter 15 of

the Texas Civil Practice and Remedies Code controls over a mandatory-

See Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 261 (Tex. 1994) (holding that

“[when] a plaintiff files suit in a county of proper venue, it is reversible error to transfer venue []

even if the county of transfer would have been proper if originally chosen by the plaintiff.”).

Chiriboga v. State Farm Mut. Auto Ins. Co., 96 S.W.3d 673, 677 (Tex. App.—Austin 2003,

no pet.) (citing Wichita Cty. v. Hart, 917 S.W.2d 779, 781 (Tex. 1996)).

E.g., Brown v. Gulf Television Co., 306 S.W.2d 706, 708–09 (Tex. 1957) (holding that

“[w]here the venue depends on the nature of the suit, such venue is ordinarily determined by the

nature of the principal right asserted and the relief sought for the breach thereof.” (internal

citations and quotations omitted)); see also infra Parts III.A.1 and III.B.1.

E.g., Marshall v. Mahaffey, 974 S.W.2d 942, 947 (Tex. App.—Beaumont 1988, pet.

denied) (holding that “where there is a conflict between two mandatory venue provisions, ‘[t]he

general scheme of the venue statute is that plaintiffs may choose between two proper venues.’”

(citing Wilson, 886 S.W.2d at 259–61)); see also infra Parts III.A.2 and III.B.2.

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102 BAYLOR LAW REVIEW [Vol. 68:1

venue statute located within that subchapter;

(4) the mandatory-venue

statute with the most “longstanding” history in Texas law controls;

(5)

under rules of statutory construction, the “more-specific” and “later-

enacted” statute controls;

(6) the two competing statutes should be

harmonized if possible through a process of elimination that yields one

county of proper venue as the common denominator amongst the statutes;

and (7) the county of venue specified in a pre-suit agreement between the

parties controls.

Texas practitioners who understand these arguments and

their supporting authority will have the flexibility to advocate for the

See, e.g., In re Wheeler, 441 S.W.3d 430, 434 (Tex. App.—Waco 2014, orig. proceeding)

(holding that “[S]ection 15.016 of the Texas Civil Practice and Remedies code requires that the

mandatory-venue provisions in Section 115.002 of the Texas Property Code prevail over [the

mandatory venue provision in] Section 15.011 of the Texas Civil Practice and Remedies Code[]”

because “[S]ection 115.002 of the Texas Property Code originates from outside of [C]hapter 15 of

the Texas Civil Practice and Remedies Code[.]” (citing T

EX. CIV. PRAC. & REM. CODE ANN.

§ 15.016)); see also infra Parts III.A.3 and III.B.3.

See, e.g., In re Fort Bend Cty., 278 S.W.3d 842, 844–45 (Tex. App.—Houston [14th Dist.]

2009, orig. proceeding) (holding that because “[t]he venue rule that a county must be sued in that

county [Section 15.015 of the Texas Civil Practice and Remedies Code,] is longstanding and finds

its origin in the first Texas Legislature[,]” the mandatory venue provision in Section 15.015

controlled over the mandatory venue provision in Section 101.102(a) of the Texas Civil Practice

and Remedies Code); see also infra Parts III.A.4 and III.B.4.

In re Sosa, 370 S.W.3d 79, 82 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding)

(holding that “we find the more-specific, later-enacted statute of mandatory venue in Section

171.096(b) [of the Texas Civil Practice and Remedies Code] controls over the prior-enacted

statute of mandatory venue in Section 65.023(a) [of the Texas Civil Practice and Remedies

Code].” (citing T

EX. GOV’T CODE ANN. § 311.026(b) (West 2013))); see also infra Parts III.A.5

and III.B.5.

See In re Fort Bend, 278 S.W.3d at 848 (Guzman, J., concurring) (concluding “that this

case presents no conflict between Sections 15.015 and 101.102(a) [of the Texas Civil Practice and

Remedies Code], because transferring venue to Fort Bend County fulfills the mandatory

requirements of both statutes” based on a process of elimination of all of the “possible venues”

that would not fulfill the requirements of both mandatory-venue statutes); see also infra Parts

III.A.6 and III.B.6.

See In re Fisher, 433 S.W.3d 523, 533–34 (Tex. 2014) (orig. proceeding) (holding that

where parties entered pre-suit agreement selecting venue for claims arising out of or relating to a

major transaction, the mandatory venue provisions in Section 15.020 of the Texas Civil Practice

and Remedies Code controlled over Section 15.017 of the Texas Civil Practice and Remedies

Code because “the language of Section 15.020 applies to an action arising from a major

transaction notwithstanding any other provision of this title[,] . . . indicat[ing] that the Legislature

intended for [Section 15.020] to control over other mandatory venue provisions.”) (internal

quotations and citations omitted)); see also infra Parts III.A.7 and III.B.7.

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rationale most beneficial to a particular case. Each of these separate

approaches is addressed in turn.

1. Rationale 1: Venue Should be Determined Based on the

Principal Relief Sought

In 1957, the Texas Supreme Court stated that “[w]here the venue

depends on the nature of the suit, such venue is ordinarily determined by

the nature of the principal right asserted and the relief sought for the breach

thereof.”

In Brown v. Gulf Television Co., the plaintiff, an airport owner,

filed suit against a television company, seeking an injunction that would

compel the television company to remove a television antenna from the

airport’s runway path.

Alternatively, the plaintiff prayed for recovery of

damages.

Under the statutory predecessor to Section 15.011 of the Texas

Civil Practice and Remedies Code regarding real property,

venue for the

suit was mandatory in Brazoria County, the location of the plaintiff’s

allegedly damaged land.

Under the statutory predecessor to Section

65.023 of the Texas Civil Practice and Remedies Code regarding suits for

injunctive relief,

venue for the suit was mandatory in a different county,

the county of the defendant’s residence.

The question before the Court

was which of the two mandatory-venue statutes controlled.

The Court first found that both statutes provided for mandatory venue.

Rather than finding that the two mandatory-venue statutes were in conflict,

however, the Court stated that the statutes “need not be and have not been

construed as conflicting.”

The Court reasoned that:

Brown v. Gulf Television Co., 306 S.W.2d 706, 708–09 (Tex. 1957).

Id. at 706–07; see also id. at 710 (Smith, J., dissenting).

See id. at 707.

See TEX. REV. CIV. STAT. ANN. art. 1995 § 14 (West 1952), repealed by Act of May 17,

1985, 69th Leg., R.S., ch. 959, § 9, 1985 T

EX. GEN. LAWS 3242, 3322 (codified at TEX. CIV.

PRAC. & REM. CODE ANN. § 15.011 (West 2002)).

Brown, 306 S.W.2d at 708; see also id. at 710, 712 (Smith, J. dissenting).

See TEX. REV. CIV. STAT. ANN. art. 4656 (West 1952), repealed by Act of May 17, 1985,

69th Leg., R.S., ch. 959, § 9, 1985 T

EX. GEN. LAWS 3242, 3322 (current version at TEX. CIV.

PRAC. & REM. CODE ANN. § 65.023).

See Brown, 306 S.W.2d at 708–09.

See id.

Id. at 708 (“The directions in both Article 1995, Section 14 and Article 4656 are stated in

mandatory terms.”).

Id.

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104 BAYLOR LAW REVIEW [Vol. 68:1

Whenever it can properly be said from the pleadings that

the issuance of an injunction is merely ancillary to a

judgment awarding a recovery of lands or quieting the title

thereto, Article 1995, § 14 has application. On the other

hand where the petition discloses that the issuance of a

perpetual injunction is the primary and principal relief

sought, the special venue provisions of Article 4656

control. Where the venue depends on the nature of the suit,

such venue is ordinarily determined by the nature of the

principal right asserted and the relief sought for the breach

thereof.

Because the Court found that the true nature of the plaintiff’s suit was to

primarily seek injunctive relief, the Court held that the mandatory-venue

statute regarding suits for injunctive relief controlled over the mandatory-

venue statute regarding suits involving real property.

Texas commentators have recognized this “primary relief sought”

approach as one approach that Texas courts have used to resolve conflicting

mandatory-venue statutes.

Lower Texas courts, though, have not

uniformly used this approach to resolve such conflicts.

The apparent

Id. (internal citations omitted).

See id. at 709.

See, e.g., 2 MCDONALD & CARLSON, supra note 17 § 6:8 (“Ultimately, the court should

resolve the conflict by applying the mandatory exception that most nearly corresponds to the

principal relief sought. The principal relief sought is determined by the allegations in the

plaintiff’s petition.” (citing Brown, 306 S.W.2d at 709; Gonzalez v. Texaco, Inc., 645 S.W.2d 324,

327 (Tex. App.—Corpus Christi 1982, no writ); Trice v. State, 712 S.W.2d 842, 845 (Tex. App.—

Waco 1986, writ ref’d n.r.e.))); see also William V. Dorsaneo III, et al., Texas Civil Procedure:

Pretrial Litigation § 290 (2013–14 ed.) (“If more than one mandatory provision applies so that an

apparent conflict between two provisions occurs, the Texas Supreme Court has reasoned that the

conflict should be reconciled and venue determined based on the ‘principal relief sought.’ This tie-

breaker is easy to articulate but difficult to apply.” (citing Brown, 306 S.W.2d at 709; Gonzalez,

645 S.W.2d at 324)).

See Dorsaneo supra note 81 (“Other cases suggest that apparent conflicts between

mandatory exceptions contained in Chapter 15 [of the Texas Civil Practice and Remedies Code]

and mandatory exceptions contained in other statutes should be resolved in favor of the other

statutes.” (citing In re Adan Volpe Props., Ltd., 306 S.W.3d 369, 375 (Tex. App.—Corpus Christi

2010, orig. proceeding); In re Sosa, 370 S.W.3d 79, 81 (Tex. App.—Houston [14th Dist.] 2012,

orig. proceeding); In re Tex. Windstorm Ins. Ass’n, 121 S.W.3d 821, 824–25 (Tex. App.—

Beaumont 2003, orig. proceeding) (mand. granted); Marshall v. Mahaffey, 974 S.W.2d 942, 947

(Tex. App.—Beaumont 1998, pet. denied))).

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limitations of this “primary relief sought” approach are discussed in Part

III.B.1.

2. Rationale 2: Plaintiff’s Choice Prevails

In a 1998 opinion, the Beaumont Court of Appeals resolved a conflict

between the mandatory venue provisions in Sections 15.011 and 15.017 of

the Texas Civil Practice and Remedies Code.

In Marshall v. Mahaffey, the

plaintiffs filed suit in Montgomery County, asserting mandatory venue for

their slander action pursuant to Section 15.017. The defendant moved to

transfer venue to Harris County under the mandatory venue provision in

Section 15.011 of the Texas Civil Practice and Remedies Code.

The trial

court denied the defendant’s motion to transfer.

Following judgment for

the plaintiffs, the defendant argued on appeal that the trial court erred in

denying the motion to transfer venue.

The court of appeals found that the evidence supported the application

of the mandatory venue provision in Section 15.011,

which would

mandate venue in Harris County, where the defendant had sought to

transfer venue.

However, because evidence in the record also supported

the plaintiff’s cause of action for slander, the court found the plaintiffs

properly established mandatory venue in Montgomery County under

Section 15.017.

Because the parties established that venue was proper in

two different counties under two separate mandatory-venue statutes, the

court had to resolve the conflict between the two statutes.

In resolving the conflict, the court acknowledged, “[i]f the plaintiff’s

chosen venue rests on a permissive venue statute and the defendant files a

meritorious motion to transfer based on a mandatory venue provision, the

trial court must grant the motion.”

On the other hand, “where there is a

See infra Part III.B.1 discussing how lower courts have applied the Court’s approach in

Brown.

See Marshall, 974 S.W.2d at 946–47, 950.

Id. at 945.

Id.

Id. at 944.

TEX. CIV. PRAC. & REM. CODE ANN. § 15.011 (West 2002).

Marshall, 974 S.W.2d at 947.

Id. at 950.

See id. at 946–50.

Id. at 947 (quoting Wichita Cty. v. Hart, 917 S.W.2d 779, 781 (Tex. 1996)) (internal

quotations omitted).

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106 BAYLOR LAW REVIEW [Vol. 68:1

conflict between two mandatory venue provisions, the general scheme of

the venue statute is that plaintiffs may choose between two proper

venues.”

Using this approach to resolve the conflict between the two

statutes, the court ultimately found that “[t]he conflict between two

mandatory venue provisions allowed the [plaintiffs] to choose between the

two proper venues—and they elected Montgomery County. Accordingly,

venue was proper in Montgomery County.”

The Corpus Christi Court of Appeals and a different panel of justices

sitting on the Beaumont Court of Appeals have cited to Marshall for the

proposition that “the general scheme of the venue statutes typically permits

the plaintiff to choose between two conflicting mandatory venue

provisions”

unless there is a separate basis for granting priority of one

mandatory-venue statute over another (such as by determining that

mandatory-venue statutes located outside of Subchapter B of Chapter 15

controlled over the mandatory-venue statute located within that

subchapter),

as discussed in the next subSection. The Texarkana Court of

Appeals has stated that the “normal rule followed” when there is a conflict

between two mandatory venue provisions “is that the plaintiff’s choice

prevails” (but ultimately supported its holding by applying a different

Id. (quoting Wichita Cty. v. Hart, 892 S.W.2d 912, 920 (Tex. App.—Austin 1994), rev’d on

other grounds, 917 S.W.2d 779 (Tex. 1996)). The court stated that the Supreme Court disagreed

with the Austin Court of Appeals’s conclusion in Wichita County “that both venue provisions in

question were mandatory and found one to be permissive—thus the mandatory provision trumped

the permissive provision.” Marshall, 974 S.W.2d at 947, n.4 (citing Wichita Cty. v. Hart, 917

S.W.2d 779, 781–82 (Tex. 1996)).

Id. at 950.

In re Adan Volpe Props., Ltd., 306 S.W.3d 369, 375 (Tex. App.—Corpus Christi 2010,

orig. proceeding) (citing Marshall, 974 S.W.2d at 947); see also In re Dole Food Co., 256 S.W.3d

851, 856 (Tex. App.—Beaumont 2008, orig. proceeding) (citing Marshall, 974 S.W.2d at 947).

See In re Adan, 306 S.W.3d at 375 (holding that Section 65.023, providing for mandatory

venue in injunction suits and located outside of Subchapter B, prevailed over Section 15.017

based on Section 15.016 of the Texas Civil Practice and Remedies Code); see also In re Dole

Food, 256 S.W.3d at 856 (same).

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approach as well).

The “plaintiff’s choice prevails” rule has additionally

found support from some Texas commentators.

Most recently, in articulating the venue policy in Texas, the Texas

Supreme Court acknowledged that “[v]enue may be proper in multiple

counties under mandatory venue rules, and the plaintiff is generally

afforded the right to choose venue when suit is filed[.]”

There, however,

the Court ultimately determined that the defendant’s assertion of mandatory

venue in the case prevailed over the plaintiff’s choice of mandatory venue

due to the specific language of another mandatory-venue statute.

100

Arguments for and against defaulting to “the plaintiff’s choice” for

mandatory venue are analyzed in more depth in Part III.B.2.

101

3. Rationale 3: Mandatory-Venue Statutes Located Outside of

Chapter 15 Prevail Over Those Located Within Chapter 15

When a mandatory-venue statute located outside of Chapter 15 of the

Texas Civil Practice and Remedies Code conflicts with a mandatory-venue

statute located within Chapter 15, most (but not all) Texas courts addressing

this conflict have held that the statute located outside of Chapter 15 should

prevail.

102

Texas courts have based this approach on Section 15.016 of the

Glover v. Columbia Fort Bend Hosp., No. 06-01-00101-CV, 2002 WL 1430783, at *4

(Tex. App.—Texarkana July 3, 2002, no pet.) (not designated for publication) (citing Marshall,

974 S.W.2d at 947 as the “normal rule followed” but finding that Section 15.015 regarding suits

against counties prevailed over Section 15.017 regarding defamation actions because Section

15.015 provided “the exclusive venue for suits against counties be in that county”).

See 1 Kim J. Askew & Adele Hedges, Texas Practice Guide: Civil Pretrial § 6:39 (2015)

(“Venue may be proper in multiple counties under mandatory venue rules. In such cases, the

plaintiff is generally afforded the right to choose venue when suit is filed.” (citing In re Fisher,

433 S.W.3d 523, 533 (Tex. 2014) (corrected op. on reh’g); Wilson v. Tex. Parks & Wildlife

Dep’t, 886 S.W.2d 259, 260 (Tex. 1994))).

See In re Fisher, 433 S.W.3d at 533–34.

100

See id. (citing Wilson, 886 S.W.2d at 260) (finding that Section 15.020 of the Texas Civil

Practice and Remedies Code controlled over Section 15.017 of that code only because of the

language in Section 15.020(c) that Section 15.020(c) “applies to an action arising from a major

transaction ‘[n]otwithstanding any other provision of this title.’” (quoting T

EX. CIV. PRAC. &

REM. CODE ANN. § 15.020(c) (West 2002))).

101

See infra Part III.B.2 discussing the circumstances in which courts have and have not

resolved conflicting mandatory venue provisions by simply giving priority to the plaintiff’s

choice.

102

See, e.g., In re Wheeler, 441 S.W.3d 430, 434 (Tex. App.—Waco 2014, orig. proceeding)

(holding that Section 115.002 of the Texas Property Code prevailed over Section 15.011 of the

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108 BAYLOR LAW REVIEW [Vol. 68:1

Texas Civil Practice and Remedies Code, which provides that “[a]n action

governed by any other statute prescribing mandatory venue shall be brought

in the county required by that statute.”

103

Many Texas courts that have

endorsed this approach have also cited to a statement by the Texas Supreme

Court in a per curiam opinion, where the Court stated in dicta that “Section

15.016 provides that if an action is governed by a separate mandatory venue

provision, then the action shall be brought in the county required by the

separate venue provision.”

104

This interpretation has similarly found support

amongst commentators.

105

Despite the considerable support for this interpretation, an alternative

argument exists, simply interpreting Section 15.016 as placing mandatory-

venue statutes outside of Subchapter B on equal parity with those statutes

residing within Subchapter B. This alternative argument is discussed in Part

III.B.3.

106

Texas Civil Practice and Remedies Code); see also In re J.P. Morgan Chase Bank, N.A., 373

S.W.3d 615, 618 (Tex. App.—San Antonio 2012, orig. proceeding) (holding that Section 115.002

of the Texas Property Code prevailed over Section 15.011); In re Adan, 306 S.W.3d at 375

(holding that Section 65.023 of the Texas Civil Practice and Remedies Code, providing for

mandatory venue in injunction suits and located outside of Chapter 15, prevailed over Section

15.017); In re Dole Food, 256 S.W.3d at 856 (holding that Section 65.023 prevailed over Section

15.017).

103

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.016; see also, e.g., In re Hannah, 431

S.W.3d 801, 807 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding) (per curiam) (stating

that “[a]s relator relies on a mandatory venue provision within Chapter 15 of the Texas Civil

Practice and Remedies Code in support of venue in Harris County, we begin our analysis with the

Texas Estates Code because, in the event any mandatory jurisdiction or venue provision in the

Estates Code applies to the underlying suit, such provision would control.” (citing T

EX. CIV.

PRAC. & REM. CODE ANN. § 15.016)); In re Sosa, 370 S.W.3d 79, 81 (Tex. App.—Houston [14th

Dist.] 2012, orig. proceeding) (“If a suit is governed by a mandatory venue provision outside of

Chapter 15, that suit must be brought in the county required by that mandatory venue provision.”

(citing T

EX. CIV. PRAC. & REM. CODE ANN. § 15.016)).

104

In re Tex. Dep’t of Transp., 218 S.W.3d 74, 76 (Tex. 2007) (orig. proceeding) (per

curiam); see also In re Wheeler, 441 S.W.3d at 434 (quoting In re Tex. Dep’t of Transp., 218

S.W.3d at 76); In re J.P. Morgan Chase Bank, 373 S.W.3d at 613; In re Adan, 306 S.W.3d at 375

(citing In re Tex. Dep’t of Transp., 218 S.W.3d at 76); In re Dole Food, 256 S.W.3d at 856

(quoting In re Tex. Dep’t of Transp., 218 S.W.3d at 76).

105

See, e.g., 72 Tex. Jur. 3d Venue § 40 (2013) (“If there is a conflict between a mandatory

venue provision from within the mandatory venue statutes of Chapter 15 of the Texas Civil

Practice and Remedies Code and one from outside these venue statutes, courts apply the provision

stating that an action governed by any other statute prescribing mandatory venue must be brought

in the county required by that statute.” (citing T

EX. CIV. PRAC. & REM. CODE ANN. § 15.016)).

106

See infra Part III.B.3 discussing a reasonable alternative interpretation.

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4. Rationale 4: The Statute With the Most “Longstanding”

History Controls

Section 15.015 of the Texas Civil Practice and Remedies Code provides

that “[a]n action against a county shall be brought in that county.”

107

When

this mandatory-venue statute from within Chapter 15 of the Texas Civil

Practice and Remedies Code conflicted with another mandatory-venue

statute from outside of Chapter 15, the Court of Appeals for the Fourteenth

District of Texas in Houston held that the mandatory venue provision in

Section 15.015 will always prevail.

108

In In re Fort Bend County, a man driving on the wrong side of the

Westpark Tollway in Harris County collided head-on with the plaintiffs,

who were driving the right way on the toll road, causing the plaintiffs’ child

to suffer fatal injuries.

109

The plaintiffs, on behalf of their deceased child,

brought a premises-defect claim in Harris County under the Texas Tort

Claims Act against Fort Bend County, the Fort Bend County Toll Road

Authority, Harris County, the Harris County Toll Road Authority, and the

Texas Department of Transportation (TXDOT).

110

Though the defendant

driver entered the toll road within Fort Bend County, he traveled more than

eight miles on the toll road before the accident occurred in Harris

County.

111

The plaintiffs asserted mandatory venue in Harris County under

Section 101.102(a) of the Texas Civil Practice and Remedies Code, which

requires that a suit under the Texas Tort Claims Act “be brought in state

court in the county in which the cause of action or a part of the cause of

action arises.”

112

Predictably, Fort Bend County moved to transfer the claims to Fort

Bend County under the mandatory venue provision in Section 15.015.

113

107

TEX. CIV. PRAC. & REM. CODE ANN. § 15.015.

108

In re Fort Bend Cty., 278 S.W.3d 842, 843–45 (Tex. App.—Houston [14th Dist.] 2009,

orig. proceeding) (holding that the mandatory venue provision in Section 15.015 controlled over

the mandatory venue provision in Section 101.102 of the Texas Civil Practice and Remedies

Code); see also In re San Jacinto Cty., 416 S.W.3d 639, 642 (Tex. App.—Houston [14th Dist.]

2013, orig. proceeding) (per curiam) (holding that “when a county is sued, venue is mandatory in

that county irrespective of any other venue statutes, whether mandatory or permissive”).

109

In re Fort Bend, 278 S.W.3d at 843.

110

Id.

111

Id.

112

Id. at 846 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.102(a)).

113

Id. at 843 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.015, which requires an action

against a county “to be brought in that county”).

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110 BAYLOR LAW REVIEW [Vol. 68:1

The trial court denied Fort Bend County’s motion to transfer because the

court found that Section 101.102(a), a mandatory-venue statute located

outside of Chapter 15, controlled over Section 15.015, which is located

within Chapter 15.

114

Fort Bend County petitioned the court of appeals for a

writ of mandamus to order transfer of the action to Fort Bend County,

arguing that “there is no exception to Section 15.015, and that [Section

15.015] takes precedence over any other conflicting mandatory venue

provision.”

115

The court of appeals issued the writ, finding that based on the

“longstanding” history of Section 15.015 and its predecessors requiring a

suit against a county to be filed in that county, Section 15.016 was not an

exception to Section 15.015, and therefore, the mandatory venue provision

in Section 15.015 controlled over Section 101.102.

116

The In re Fort Bend County opinion appears to have elevated the

mandatory-venue statute in Section 15.015 for suits against a county to the

status of a “super-mandatory” venue statute, to which no exceptions apply,

and which arguably would always trump any other mandatory-venue statute

based solely on the “longstanding” history of Section 15.015.

117

Four years later, the court confirmed in a subsequent opinion that this

broad reading of the In re Fort Bend County holding was the court’s

114

See id.

115

Id. at 844.

116

See id. at 844–45 (citing Montague Cty. v. Meadows, 31 S.W. 694, 694 (Tex. Civ. App.

1895—Fort Worth, writ ref’d) (“The first legislature of the state made it the law in Texas that all

suits against a county shall be instituted in some court of competent jurisdiction within such

county.”); City of Tahoka v. Jackson, 276 S.W. 662, 663 (Tex. 1925) (holding that the

predecessor to Section 15.015 “expressly exempts counties, which are public corporations created

by law, from all other exceptions enumerated in the article”); Hodges v. Coke Cty., 197 S.W.2d

886, 887 (Tex. Civ. App.—Amarillo 1946, no writ) (observing that “it was the intention of the

Legislature to expressly exclude counties from the terms of the exceptions in the venue statutes

and to fix venue in suits against a county exclusively under the provisions of [the predecessor

statute to Section 15.015]”); Glover v. Columbia Fort Bend Hosp., No. 06-01-00101-CV, 2002

WL 1430783, at *4 (Tex. App.—Texarkana July 3, 2002, no pet.) (not designated for publication)

(observing that, “in construing Section 15.015 and its statutory predecessors, appellate courts have

uniformly held that, in enacting this venue provision, the Legislature intended that counties be

exempt from exceptions to general venue rules and the exclusive venue for such suits against

counties be in that county”)).

117

See In re Fort Bend, 278 S.W.3d at 844–45 (“Texas courts have interpreted Section 15.015

as having no exception.”).

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intention,

118

holding that “when a county is sued, venue is mandatory in that

county irrespective of any other venue statutes, whether mandatory or

permissive.”

119

A Texas practitioner could argue for a trial court to use this

“longstanding” history approach to enforce other mandatory-venue statutes

that, like Section 15.015, can be traced back to the first Texas

Legislature.

120

The only other court that has directly resolved a conflict

between Section 15.015 and another mandatory-venue statute by using this

“longstanding” history approach is the Texarkana Court of Appeals in an

unpublished opinion in 2002.

121

An analysis of these opinions is provided

with the discussion of this rule in Part III.B.4.

122

5. Rationale 5: The More-Specific, Later-Enacted Statute

Controls

The Court of Appeals for the Fourteenth District in Houston does not

always accord priority to the most longstanding mandatory-venue statute.

The Fourteenth Court has also resolved a conflict between two mandatory-

venue statutes by holding that the “more-specific, later-enacted statute of

mandatory venue” controls over “the prior-enacted statute of mandatory

118

See In re San Jacinto Cty., 416 S.W.3d 639, 641–42 (Tex. App.—Houston [14th Dist.]

2013, orig. proceeding) (stating that in In re Fort Bend County, “[t]his court concluded that there

is no exception to Section 15.015” (citing In re Fort Bend, 278 S.W.3d at 844)).

119

In re San Jacinto, 416 S.W.3d at 642.

120

See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 65.023 (West 2008) (providing for

mandatory venue for suits seeking injunctive relief); see also In re City of Dallas, 977 S.W.2d

798, 803 (Tex. App.—Fort Worth 1998, orig. proceeding) (“The important right provided to a

defendant under [Section 65.023] to defend a suit for permanent injunction in the county of the

defendant’s domicile originated with our first state legislature in 1846, and it has been preserved

since that time by all successive legislatures.” (citing Act approved May 13, 1846, 1st Leg. § 152,

1846 Tex. Gen. Laws 363, 406, reprinted in 2 H.P.N. G

AMMEL, THE LAWS OF TEXAS 1838–1846,

at 1669, 1812 (Austin, Gammel Book Co. 1898); T

EX REV. CIV. STAT. art. 2996 (West 1895);

EX. REV. CIV. STAT. ANN. art. 4656 (West 1952), repealed by Act of May 17, 1985, 69th Leg.,

R.S., ch. 959, § 9, 1985 T

EX. GEN. LAWS 3242, 3322 (current version at TEX. CIV. PRAC. & REM.

CODE ANN. § 65.023))).

121

See Glover, 2002 WL 1430783, at *4 (stating that although “[t]he normal rule followed

[when there is a conflict between two mandatory venue provisions] is that the plaintiff’s choice

prevails[] . . . in construing Section 15.015 and its statutory predecessors, appellate courts have

uniformly held that, in enacting this venue provision, the Legislature intended that counties be

exempt from exceptions to general venue rules and the exclusive venue for suits against counties

be in that county.”).

122

See infra Part III.B.4.

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112 BAYLOR LAW REVIEW [Vol. 68:1

venue[.]”

123

In reaching this holding, the court explicitly disagreed with the

“plaintiff’s choice prevails” approach to resolving conflicting mandatory-

venue statutes, an approach that both the Beaumont and Corpus Christi

Courts of Appeals have endorsed.

124

In In re Sosa, both parties claimed that venue was governed by a

mandatory venue provision that originated from outside of Chapter 15 of

the Texas Civil Practice and Remedies Code.

125

The plaintiffs argued that

Section 171.096(b) of the Texas Civil Practice and Remedies Code (relating

to written arbitration agreements)

126

mandated that venue was proper in

Harris County, where the plaintiffs had filed suit.

127

The defendants argued

that Section 65.023(a) of the Texas Civil Practice and Remedies Code

(relating to venue for injunctive relief)

128

mandated that venue was proper

in Fort Bend County, where the defendants had moved to transfer venue.

129

After the trial court granted the defendants’ motion to transfer venue to Fort

Bend County, the plaintiffs sought a writ of mandamus from the court of

appeals that would order the trial court to vacate the transfer order.

130

Granting the plaintiffs’ petition for the writ, the court of appeals stated

that “[t]he question presented, where does venue lie if two mandatory venue

123

In re Sosa, 370 S.W.3d 79, 82 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding)

(holding that because Section 171.096(b) of the Texas Civil Practice and Remedies Code was a

“more-specific” and “later-enacted” mandatory-venue statute than Section 65.023(a) of that code,

the Texas Legislature intended for 171.096(b) to control over Section 65.023(a) when the two

statutes were in conflict).

124

See id. at 81 (“The Beaumont and Corpus Christi courts of appeals have concluded that if

two mandatory venue statutes conflict, then the plaintiff may lay venue under either statute. We

disagree.” (citing Marshall v. Mahaffey, 974 S.W.2d 942, 947 (Tex. App.—Beaumont 1998, pet.

denied); In re Adan Volpe Props., Ltd., 306 S.W.3d 369, 375 (Tex. App.—Corpus Christi 2010,

orig. proceeding); In re Dole Food Co., 256 S.W.3d 851, 856 (Tex. App.—Beaumont 2008, orig.

proceeding))).

125

In re Sosa, 370 S.W.3d at 81.

126

See TEX. CIV. PRAC. & REM. CODE ANN. § 171.096(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.” (emphasis added)).

127

See In re Sosa, 370 S.W.3d at 81.

128

See TEX. CIV. PRAC. & REM. CODE ANN. § 65.023(a) (“Except as provided by SubSection

(b), a writ of injunction against a party who is a resident of this state shall be tried in a district or

county court in the county in which the party is domiciled. If the writ is granted against more than

one party, it may be tried in the proper court of the county in which either party is domiciled.”

(emphasis added)).

129

See In re Sosa, 370 S.W.3d at 81.

130

Id. at 80.

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statutes conflict and neither originates from Chapter 15 [of the Texas Civil

Practice and Remedies Code], is one of first impression for this court.”

131

The court noted that this question had “also not been addressed by either the

Supreme Court of Texas or our sister Houston court of appeals.”

132

The court rejected the “plaintiff’s choice prevails” approach endorsed

by other courts of appeals, on the basis that “[v]enue is a matter of statute”

and no statute expressly states that “if there is a conflict between two

statutes as to the mandatory venue, the plaintiff has a right to choose the

county in which the Legislature mandated venue.”

133

Then, looking to the

Texas Government Code

134

for guidance, the court stated:

If there is an actual or apparent conflict between two

statutes as to whether mandatory venue of the case under

review is in Harris County or Fort Bend County, Texas law

requires us to resolve this conflict by statutory construction,

rather than allowing the plaintiff to resolve this conflict by

choice.

135

Drawing on this reasoning, the court looked to the legislative history of

the two mandatory-venue statutes at issue.

136

The court found that the Texas

Legislature enacted Section 65.023(a) in 1985 to provide for venue in the

county of the defendant’s domicile when injunctive relief is sought against

a Texas resident.

137

In contrast, the court found that the Texas Legislature

enacted Section 171.096 in 1997 to provide that a written arbitration

agreement specifying the location of arbitration establishes the mandatory

venue for enforcement of the arbitration agreement.

138

Based on the

131

Id. at 81 (emphasis added).

132

Id.

133

Id.

134

See TEX. GOV’T CODE ANN. § 311.026 (West 2015) (entitled “Special or Local Provision

Prevails Over General and providing that: “(a) If a general provision conflicts with a special or

local provision, the provisions shall be construed, if possible, so that effect is given to both. (b) If

the conflict between the general provision and the special or local provision is irreconcilable, the

special or local provision prevails as an exception to the general provision, unless the general

provision is the later enactment and the manifest intent is that the general provision prevail.”).

135

See In re Sosa, 370 S.W.3d at 81–82.

136

See id. at 82.

137

See id. (citing Act of May 27, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws

3242, 3294) (codified at T

EX. CIV. PRAC. & REM. CODE ANN. § 65.023 (West 2015)).

138

See id. (citing Act of May 8, 1997, 75th Leg., R.S., ch. 195, § 5.01, 1997 Tex. Gen. Laws

327, 336) (codified at T

EX. CIV. PRAC. & REM. CODE ANN. § 171.096).

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114 BAYLOR LAW REVIEW [Vol. 68:1

legislative history of these statutes, the court found that the “Legislature,

cognizant of the general mandatory venue rule as to injunctive relief, has

expressly provided that this general rule does not apply under the facts of

the case under review[,]” where the agreement to arbitrate specified

“Houston, Texas” as the location for arbitration.

139

As such, the court held

that because Section 171.096(b) was a “more-specific” and “later-enacted”

mandatory-venue statute than Section 65.023(a), the Texas Legislature

intended for Section 171.096(b) to control when the two statutes

conflicted.

140

Texas practitioners can argue that under In re Sosa, a court faced with

two conflicting mandatory-venue statutes should use a “statutory

construction” approach that looks to the legislative history of the statutes to

imply that the Texas Legislature intended for the later-enacted mandatory-

venue statute to control over the earlier-enacted statute.

141

This rationale is

discussed in more depth in Part III.B.5.

142

6. Rationale 6: Harmonize Competing Statutes Through a

Process of Elimination

While concurring in the judgment in In re Fort Bend County (mandating

venue for suit against a county in that county, as discussed in the fifth

rationale

143

above), current Texas Supreme Court Justice Eva M. Guzman

reached the conclusion that venue for the plaintiffs’ claims was mandatory

in Fort Bend County “for different reasons.”

144

Justice Guzman characterized Section 101.102(a) of the Texas Civil

Practice and Remedies Code as containing “both mandatory and permissive

aspects.”

145

Justice Guzman reasoned that Section 101.102(a) “is mandatory

in that it defines the [limited] set of possible venues, but it is permissive in

that it does not differentiate among the members of that set, but leaves that

139

See id.

140

See id.

141

See id.

142

See infra Part III.B.5.

143

See supra Part III.A.5

144

See In re Fort Bend Cty., 278 S.W.3d 842, 845 (Tex. App.—Houston [14th Dist.] 2009,

orig. proceeding) (Guzman, J., concurring).

145

See id. at 848 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.102(a) (West 2015)).

Section 101.102(a) provides that “[a] suit under [the Texas Tort Claims Act] shall be brought in

state court in the county in which the cause of action or a part of the cause of action arises.” T

EX.

CIV. PRAC. & REM. CODE ANN.§ 101.102(a).

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selection to the plaintiff.”

146

Viewed in this light, because parts of the

plaintiffs’ cause of action arose in both Harris County and Fort Bend

County, Justice Guzman found that “[t]he mandatory aspect of Section

101.102(a) is satisfied if the suit is prosecuted in Harris County or Fort

Bend County, but as between these alternatives, venue is permissive under

Section 101.102(a) because neither alternative is mandated by the

statute.”

147

Then, when Section 15.015 is added into the equation, the list of

potential mandatory venues is narrowed even further because the “set of

possible venues that would fulfill the requirements of Section 15.015

consists of a single member: venue of a plaintiff’s claims against a county is

mandatory in that county.”

148

Through a process of elimination, Justice

Guzman concluded that if Section 101.102(a) effectively eliminated all

counties other than Harris and Fort Bend, then Section 15.015 further

eliminated all counties other than Fort Bend, and therefore, Fort Bend

County was the only county of “proper venue” under the venue statutes.

149

As such, Justice Guzman concluded that there actually was no conflict

between Sections 15.015 and 101.102(a) because transferring venue to Fort

Bend County would harmonize and fulfill the mandatory requirements of

both statutes.

150

In a footnote, Justice Guzman identified two other reasons that her

opinion differed from the majority opinion, where Justice Guzman stated

that the “majority’s summary of the legislative history of Section 15.015’s

predecessor . . . is both unnecessary and unhelpful” and that “the majority’s

conclusion in dicta that Section 15.016 is not an exception to Section

15.015” was “unnecessary to resolve any issue properly before this

court[.]”

151

While the majority of the court did not apply this process of elimination

approach to resolving conflicting mandatory-venue statutes, Texas

practitioners could potentially rely on Justice Guzman’s concurring opinion

to advocate for a Texas court to use this approach in resolving conflicting

mandatory-venue statutes. Practically, Justice Guzman’s approach would

satisfy what courts have recognized as the goal of statutory construction: to

146

In re Fort Bend, 278 S.W.3d at 848 (Guzman, J., concurring).

147

Id.

148

Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.015).

149

Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.001(b) (defining “proper venue”)).

150

Id.

151

Id. at 848 n.3 (Guzman, J., concurring).

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116 BAYLOR LAW REVIEW [Vol. 68:1

give effect to both statutes apparently in conflict.

152

Several mandatory-

venue statutes in Texas include the “permissive aspects” that Justice

Guzman discussed in the context of Section 101.102(a).

153

As such, a

defendant might advocate for application of this process of elimination

approach when venue would be proper in a different county (other than the

county in which suit was filed) under a separate mandatory-venue statute,

but the plaintiff chose to file suit in a county pursuant to a mandatory-venue

statute that had a “permissive aspect” (allowing venue to be asserted in one

of numerous counties including the county mandated by the separate venue

statute).

7. Rationale 7: Prioritize a Pre-Suit Agreement When Mandated

by Statute

Because of the ever-increasing use of various pre-suit agreements in

commerce today, Texas practitioners are likely to encounter scenarios

where a pre-suit venue-selection agreement purports to control the question

of venue.

154

Historically, the general rule applicable when a venue-selection

agreement conflicts with a mandatory-venue statute has been

straightforward: “Texas law prohibits parties from contracting away

mandatory venue.”

155

However, the Texas Legislature has altered this

general rule by enactment of statutes applicable in specific circumstances,

such as Section 15.020 of the Texas Civil Practice and Remedies Code

152

See In re Sosa, 370 S.W.3d 79, 81 (Tex. App.—Houston [14th Dist.] 2012, orig.

proceeding) (“If a suit is governed by two mandatory venue provisions that appear to conflict,

under both common law and statute, we should strive, if possible, to give effect to both statutes.”

(citing T

EX. GOV. CODE ANN. § 311.026(a) (West 2005))).

153

See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 15.017 (providing that a suit for

defamation “shall be brought and can only be maintained in the county in which the plaintiff

resided at the time of the accrual of the cause of action, or in the county in which the defendant

resided at the time of filing suit, or in the county of the residence of defendants, or any of them, or

the domicile of any corporate defendant, at the election of the plaintiff.”).

154

See, e.g., In re Tex. Ass’n of Sch. Bds., Inc., 169 S.W.3d 653, 655–56, 660 (Tex. 2005)

(orig. proceeding) (holding that a venue-selection clause in the parties’ agreement, which provided

that “[t]his agreement shall be governed and construed in accordance with the laws of the State of

Texas, and venue shall lie in Travis County, Texas, unless otherwise mandated by law[,]” was

unenforceable).

155

In re Great Lakes Dredge & Dock Co., 251 S.W.3d 68, 79 (Tex. App.—Corpus Christi

2008, orig. proceeding).

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allowing pre-suit selection of venue in “major transactions.”

156

As a result,

the general rule is now more aptly stated as follows: “venue-selection

clauses are generally unenforceable in Texas unless the contract evinces a

‘major transaction’ as defined in the venue rules,”

157

or the venue-selection

clause is expressly made enforceable by another statute.

158

The “major transaction” statute is found within Subchapter B of Chapter

15 of the Texas Civil Practice and Remedies Code, the mandatory venue

subchapter.

159

The statute generally provides that parties may select where

venue will lie for actions arising from a “major transaction.”

160

The

language of the statute determines whether a contract that includes a venue-

selection clause evinces a major transaction, so Texas practitioners should

familiarize themselves with the language of Section 15.020 and Texas

courts’ interpretations of the statute.

161

The Texas Supreme Court has recently acknowledged the elevated

status of a pre-suit venue agreement meeting the “major transaction”

specifications of Section 15.020. In In re Fisher, the court resolved a

conflict between the mandatory venue provisions in Sections 15.020

162

and

15.017

163

of the Texas Civil Practice and Remedies Code.

164

The plaintiff

156

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020 (titled “Major Transactions:

Specification of Venue by Agreement”); see also infra Appendix at A.12 (thoroughly analyzing

Section 15.020).

157

Hiles v. Arnie & Co., 402 S.W.3d 820, 828 (Tex. App.—Houston [14th Dist.] 2013, pet.

denied) (citing T

EX. CIV. PRAC. & REM. CODE ANN. § 15.020; In re Tex. Ass’n of Sch. Bds., 169

S.W.3d at 660; Yarber v. Iglehart, 264 S.W.2d 474, 476 (Tex. Civ. App.—Dallas 1953, no writ));

see also In re Grp. 1 Realty, Inc., 441 S.W.3d 469, 472 (Tex. App.—El Paso 2014, orig.

proceeding) (“Although the fixing of venue by contract is generally invalid, Section 15.020

creates a limited exception in cases involving ‘major transactions.’” (citing In re Great Lakes, 251

S.W.3d at 76)); Shamoun & Norman, LLP v. Yarto Int’l Grp., LP, 398 S.W.3d 272, 293 (Tex.

App.—Corpus Christi 2012, pet. dism’d) (“In general, the fixing of venue by contract is invalid.”).

158

See, e.g. In re Sosa, 370 S.W.3d 79, 82 (Tex. App.—Houston [14th Dist.] 2012, orig.

proceeding) (holding pursuant to Section 171.096(b) of the Texas Civil Practice and Remedies

Code that a pre-suit arbitration agreement specifying the county of venue for an arbitration

hearing took priority as a “more-specific” and “later-enacted” mandatory-venue statute than

Section 65.023(a) of that code); see supra Rationale 4 in Part III.A.4.

159

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020.

160

See id.

161

See infra Appendix at A.12 for a thorough discussion of Section 15.020 of the Texas Civil

Practice and Remedies Code.

162

TEX. CIV. PRAC. & REM. CODE ANN. § 15.020 (titled “Major Transactions: Specification

of Venue by Agreement”).

163

Id. § 15.017 (titled “Libel, Slander, or Invasion of Privacy”).

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118 BAYLOR LAW REVIEW [Vol. 68:1

argued that he had properly established mandatory venue in Wise County,

the county where the plaintiff resided at the time his cause of action

accrued, under Section 15.017.

165

The defendants moved to transfer venue

to Tarrant County under the mandatory venue provisions in Section 15.020

based on the venue-selection clause contained in an agreement that the

parties signed prior to any litigation.

166

After the trial court denied the

defendants’ motion to transfer and the court of appeals denied mandamus

relief, the defendants sought mandamus relief from the Texas Supreme

Court.

167

The Court granted the writ, finding that the trial court abused its

discretion by failing to enforce the venue selection clauses in the parties’

acquisition documents, despite the plaintiff’s reliance on the mandatory-

venue statute in Section 15.017.

168

After thoroughly analyzing the

parameters of the “major transaction” mandatory-venue statute,

169

the Court

concluded the “major transaction” statute applied to the action.

170

resolve the conflict between the mandatory venue provisions in Sections

15.017 and 15.020, the court stated that “in this case, the language of

164

See In re Fisher, 433 S.W.3d 523, 533–34 (Tex. 2014) (orig. proceeding).

165

See id. at 533 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.017).

166

See id. at 525, 529. There were three primary agreements regarding the transaction at issue

in Fisher: (1) a Stock Purchase Agreement; (2) an agreement for the purchase of the goodwill of

the plaintiff’s corporation (the Goodwill Agreement); and (3) a Promissory Note. Id. at 525. Each

contained a clause naming Tarrant County as the venue for state court actions. Id. The Court

placed the most emphasis on the Goodwill Agreement, which included the following provision:

Jurisdiction; Service of Process. Any proceeding arising out of or relating to this

Agreement may be brought in the courts of the State of Texas, Tarrant County, or if it

has or can acquire jurisdiction, in the United States District Court for the Northern

District of Texas, and each of the parties irrevocably submits to the non-exclusive

jurisdiction of each such court in any such proceeding, waives any objection it may

now or hereafter have to venue or to convenience of forum, agrees that all claims in

respect of the proceeding may be heard and determined in any such court and agrees not

to bring any proceeding arising out of or relating to this Agreement in any other court.

Id. at 525–26.

167

Id. at 525, 527.

168

See id. at 525, 533–34.

169

See id. at 528–533; see also infra Appendix at A.12(c) (discussing the court’s

interpretation of Section 15.020).

170

See In re Fisher, 433 S.W.3d. at 528–533; see also id. at 533 (“We have already concluded

that Section 15.020 applies, mandating that [the plaintiff’s] actions must be brought in Tarrant

County.”) .

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Section 15.020 applies to an action arising from a major transaction

‘[n]otwithstanding any other provision of this title.’”

171

The Court held this

language indicated that the Texas “Legislature intended for it to control

over other mandatory venue provisions.”

172

The limitations of this argument are discussed below in Part III.B.7.

173

B. Scrutinizing the Various Approaches

As demonstrated, Texas courts have differed considerably in their

approaches to resolving a conflict between competing mandatory-venue

statutes. Part III.A is designed to assist Texas practitioners in identifying

these different approaches and understanding how to advocate for a trial

court to utilize the respective approach that will most benefit a client. Part

III.B, conversely, scrutinizes each of these various approaches, to equip

Texas practitioners in advocating against a trial court’s utilization of a

particular approach.

1. Countering Rationale 1 That Venue Should Be Determined

Based on the Principal Relief Sought

To oppose a trial court’s application of the “principal relief sought”

approach, practitioners can argue that the Texas Supreme Court’s holding in

Brown v. Gulf Television Company is limited.

174

As discussed in Part III.A.1 above, Brown involved the mandatory-

venue statute regarding suits seeking injunctive relief.

175

The Brown Court

stated, “Where the venue depends on the nature of the suit, such venue is

ordinarily determined by the nature of the principal right asserted and the

relief sought for the breach thereof.”

176

Accordingly, for the injunctive-

relief, mandatory-venue statute to apply at all, the plaintiff’s petition had to

“disclose that the issuance of a perpetual injunction [was] the primary and

171

Id. at 533–34 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(c) (West 2015)).

172

Id. at 534 (citing Molinet v. Kimbrell, 356 S.W.3d 407, 413–14 (Tex. 2011) (holding that

the phrase “notwithstanding any other law” indicates a legislative intent that the provision prevail

over conflicting law)).

173

See infra Part III.B.7 evaluating this approach to resolving a conflict between mandatory-

venue statutes.

174

See 306 S.W.2d 706, 708 (Tex. 1957).

175

Id.

176

See id. (internal citations and quotations omitted).

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120 BAYLOR LAW REVIEW [Vol. 68:1

principal relief sought.”

177

If the issuance of an injunction were merely

ancillary to the plaintiff’s suit, then the injunction venue statute would not

even apply.

178

On this basis, the Texas Supreme Court found that the two

mandatory-venue statutes at issue were not actually in conflict.

179

Practitioners can argue that Texas courts have not applied the “primary

relief sought” approach to resolve conflicts between two mandatory-venue

statutes; instead, courts have consistently applied the “primary relief

sought” approach to resolve the predicate question of whether the

mandatory-venue statute for suits seeking injunctive relief

180

actually

applies to the suit at all.

181

As one court of appeals explained, “where the

main purpose of suit is for something other than injunctive relief and the

injunction is ‘ancillary, incidental, or adjunctive,’ Section 65.023(a) [the

mandatory-venue statute for suits seeking injunctive relief] does not

apply.”

182

Therefore, Texas practitioners have support for the argument that

the “primary relief sought” approach should be limited to evaluating the

predicate question of whether the mandatory-venue statute for suits

177

Id.

178

See id. (“Whenever it can properly be said from the pleadings that the issuance of an

injunction is merely ancillary to a judgment awarding a recovery of lands or quieting title thereto,

[the mandatory venue provision regarding suits involving land] has application. . . . On the other

hand where the petition discloses that the issuance of a perpetual injunction is the primary and

principal relief sought, the special venue provisions [of the mandatory-venue statute regarding

suits seeking injunctive relief] control.”) (internal citations omitted).

179

See id. (finding that the two mandatory-venue statutes at issue “need not be and have not

been construed as conflicting”).

180

See TEX. CIV. PRAC. & REM. CODE ANN. § 65.023 (West 2002).

181

See, e.g., In re Cont’l Airlines, Inc., 988 S.W.2d 733, 736–37 (Tex. 1998) (orig.

proceeding) (trial court does not abuse its discretion in refusing to apply mandatory venue

provision in Section 65.023 of the Texas Civil Practice and Remedies Code when plaintiffs seek

primary relief by declaratory judgment); Ex parte Coffee, 328 S.W.2d 283, 287 (Tex. 1959) (orig.

proceeding) (“It is settled that [former Revised Civil Statute] Art. 4656 only applies to and

governs the issuance and return of writs and trial in cases in which the relief sought is purely or

primarily injunctive.”); In re Hardwick, 426 S.W.3d 151, 162–63 (Tex. App.—Houston [1st Dist.]

2012, orig. proceeding) (finding that because the suit qualified as a suit to recover real property

interests and did not purely or primarily seek injunctive relief, the mandatory venue provisions in

Section 15.011 of the Texas Civil Practice and Remedies Code controlled over Section 65.023); In

re Adan Volpe Props., Ltd., 306 S.W.3d 369, 374–75 (Tex. App.—Corpus Christi 2010, orig.

proceeding); In re Dole Food Co., 256 S.W.3d 851, 854 (Tex. App.—Beaumont 2008, orig.

proceeding); In re City of Dallas, 977 S.W.2d 798, 806 (Tex. App.—Fort Worth 1998, orig.

proceeding).

182

In re Adan, 306 S.W.3d at 375.

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involving injunctive relief even applies at all, and the statute should not

apply to the question of how to resolve a conflict between two mandatory-

venue statutes.

183

In sum, this rationale can be characterized as an effort to

avoid a conflict between mandatory-venue statutes (by potentially

eliminating from the case the applicability of the statute establishing

mandatory venue for injunctive relief), rather than as a basis to choose

between conflicting mandatory-venue statutes.

184

Discussion of the “primary relief sought” in the context of mandatory

venue has almost always arisen in cases in which one of the mandatory-

venue statutes in question was arguably applicable because of a claim for

injunctive relief.

185

On rare occasions, a court has applied a “primary relief

sought” rationale to determine whether a different mandatory-venue statute

(other than for injunctive relief) is applicable,

186

or to decide between

competing mandatory-venue statutes when neither statute related to a claim

for injunctive relief,

187

but the rarity of these applications actually serves to

reinforce the notion that the “primary relief sought” rationale is generally

limited to determining whether Section 65.023(a) [the mandatory-venue

183

See, e.g., In re City of Dallas, 977 S.W.2d at 803–06 (holding that because the City of Fort

Worth’s pleadings plainly showed that the City of Fort Worth was seeking a declaratory judgment

that the City of Dallas and Dallas Love Field Airport remained restricted by a previously entered

agreement and the issuance of a permanent injunction would only be necessary if a party

contravened the trial court’s decision regarding the declaratory judgment, the primary relief

sought in the City of Fort Worth’s suit was a declaratory judgment and Section 65.023 did not

apply (citing Renwar Oil Corp. v. Lancaster, 276 S.W.2d 774, 775 (Tex. 1955))); see also In re

Adan, 306 S.W.3d at 375, 377 (stating that although the mandatory-venue statute for suits seeking

injunctive relief, found in Section 65.023, would normally prevail over the mandatory-venue

statute in Section 15.017 for defamation suits based on application of Section 15.016, in this case

Section 65.023 had no application and there was no conflict to resolve because the relief sought

was not “purely or primarily injunctive”).

184

See Brown, 306 S.W.2d at 708 (finding that the two mandatory-venue statutes at issue

“need not be and have not been construed as conflicting”).

185

See In re City of Dallas, 977 S.W.2d at 803; In re Adan, 306 S.W.3d at 375; In re Cont’l

Airlines, 988 S.W.2d at 736.

186

See Stiba v. Bowers, 756 S.W.2d 835, 840 (Tex. App.—Corpus Christi 1988, no writ) (the

“primary relief sought” was declaratory in nature because the suit primarily sought the

construction of a will, and therefore, the mandatory venue rule for suits affecting land did not

apply); Scarth v. First Bank & Tr. Co., 711 S.W.2d 140, 141, 143 (Tex. App.—Amarillo 1986, no

writ) (suit to fix or foreclose a lien was not “primarily” to recover land or damages thereto, and

therefore, the statutory predecessor to Section 15.011 did not apply to compel mandatory venue).

187

See In re Brown, No. 01-98-00819-CV, 1998 WL 880893, at *7 (Tex. App.—Houston [1st

Dist.] Dec. 16, 1998, no pet.) (not designated for publication) (evaluating the “primary relief

sought” to decide which of two mandatory-venue statutes to apply).

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122 BAYLOR LAW REVIEW [Vol. 68:1

statute for suits seeking injunctive relief] even raises a mandatory-venue

conflict.

When a court does find, however, that the primary relief sought is

injunctive, and therefore that the mandatory-venue statute for injunctions

applies and poses a conflict with another mandatory-venue statute, many

Texas courts have then resolved the conflict between the two statutes in

favor of Section 65.023 by applying Section 15.016 of the Texas Civil

Practice and Remedies Code (to give priority to mandatory-venue statutes

outside of Chapter 15), rather than simply resolving the issue by deciding

which of the plaintiff’s claims is the “primary” claim.

188

This method of

resolving the conflict raises two considerations.

First, the realization that Texas courts have resorted to a basis for

resolving the conflict other than by simply relying on a determination of the

“primary relief” suggests a judicial recognition that deciding the “primary

relief” constitutes a poor tie-breaker. This realization is supported by

common sense. It is often extremely difficult and speculative for a court to

decide from a plaintiff’s initial pleadings which claim (amidst multiple

claims and causes of action) constitutes the primary claim for relief.

Second, since Texas courts have routinely limited the “primary relief

sought” approach to the predicate question of whether Section 65.023

applies, Texas practitioners seeking to oppose a finding of mandatory venue

under Section 65.023 must also prepare to argue against the application of

Section 15.016 as well. That topic is discussed below in Part III.B.3.

2. Countering Rationale 2 That Plaintiff’s Choice Prevails

Clearly the “plaintiff’s choice prevails” approach does not work in all

instances. The Texas Supreme Court has recently provided an example of a

mandatory-venue statute asserted by the defendants prevailing over the

plaintiff’s assertion of a competing mandatory-venue statute.

189

The Court

acknowledged, “Venue may be proper in multiple counties under

188

See, e.g., In re Dole Food Co., 256 S.W.3d 851, 855–56 (Tex. App.—Beaumont 2008,

orig. proceeding) (holding that where injunctive relief was “not merely ancillary but comprise[d]

the primary relief sought[,]” application of Section 15.016 required that “the separate mandatory

venue provision for injunction suits prevails over the venue provision found in Section 15.017”);

see also supra Part III.A.3 and infra Part III.B.3.

189

See In re Fisher, 433 S.W.3d 523, 533–34 (Tex. 2014) (orig. proceeding) (finding that the

language of Section 15.020(c) indicated “that the Legislature intended for it to control over other

mandatory venue provisions.” (citing T

EX. CIV. PRAC. & REM. CODE ANN. § 15.020(c) (West

2002)).

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mandatory venue rules, and the plaintiff is generally afforded the right to

choose venue when suit is filed.”

190

Nevertheless, despite this stated general

rule, the Court determined that the defendants’ assertion of venue pursuant

to Texas Civil Practice and Remedies Code § 15.020 prevailed over the

plaintiff’s assertion of Section 15.017.

191

The question then arises: Under

what circumstances is the plaintiff’s assertion of mandatory venue

controlling simply based on the rationale that the “plaintiff’s choice

prevails”?

For a practitioner seeking to oppose application of the “plaintiff’s choice

prevails” approach, the best argument will often depend upon

demonstrating an express legislative intent for the defendant’s choice of

venue statute to prevail over the plaintiff’s chosen statute. For example, in

the recent Fisher opinion,

192

the Texas Supreme Court relied upon the

phrase “[n]otwithstanding any other provision of this title” in Texas Civil

Practice and Remedies Code § 15.020 to prioritize that statute over the

plaintiff’s mandatory-venue choice.

193

In many cases, this argument of

legislative intent will depend on where the two conflicting, mandatory-

venue statutes are located, based upon language found in Texas Civil

Practice and Remedies Code § 15.016.

In Marshall v. Mahaffey, the Beaumont Court of Appeals faced a

conflict between Sections 15.011 and 15.017 of the Texas Civil Practice

and Remedies Code.

194

Both of these statutes are located within Subchapter

B of Chapter 15 of the Texas Civil Practice and Remedies Code.

195

The

court found that “where there is a conflict between two mandatory venue

provisions, the general scheme of the venue statute is that the plaintiffs may

choose between two proper venues.”

196

Nevertheless, the Court of Appeals

for the Fourteenth District in Houston has rejected the “plaintiff’s choice

prevails” approach to resolving conflicting mandatory-venue statutes in at

least three separate opinions.

197

Upon closer reading of these opinions, it is

190

Id. at 533.

191

Id.

192

Id. at 534.

193

See id. at 533-34.

194

974 S.W.2d 942, 946–47 (Tex. App.—Beaumont 1998, pet. denied).

195

See TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.011, 15.017 (West 2002).

196

Marshall, 974 S.W.2d at 947 (internal citations and quotations omitted).

197

See In re San Jacinto Cty., 416 S.W.3d 639, 642 (Tex. App.—Houston [14th Dist.] 2013,

orig. proceeding); In re Sosa, 370 S.W.3d 79, 81 (Tex. App.—Houston [14th Dist.] 2012, orig.

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124 BAYLOR LAW REVIEW [Vol. 68:1

apparent that the location of the conflicting, mandatory-venue statutes

carried significant weight in the analyses.

198

When one of the mandatory-venue statutes at issue originates from

outside of Chapter 15 and the other statute at issue originates from within

Chapter 15, various courts of appeals have accepted the argument that

Section 15.016 mandates application of the statute originating from outside

of Chapter 15 over the plaintiff’s choice.

199

Based on the language of

Section 15.016 (“An action governed by any other statute prescribing

mandatory venue shall be brought in the county required by that statute[]”),

if the plaintiff chose to file suit in the county specified by a statute within

Chapter 15, the opponent can argue that the plaintiff’s choice should yield

to the county specified by a mandatory-venue statute located outside of

Chapter 15, based on courts’ interpretation of Section 15.016.

200

What if the mandatory statutes asserted by the plaintiff and the

defendant both originate outside of Chapter 15? The In re Sosa Court faced

proceeding); In re Fort Bend Cty., 278 S.W.3d 842, 844–45 (Tex. App.—Houston [14th Dist.]

2009, orig. proceeding).

198

See, e.g., In re Sosa, 370 S.W.3d at 81 (“In this case, both parties claim venue is governed

by a mandatory venue provision that originates from outside Chapter 15. The question presented,

where does venue lie if two mandatory venue statutes conflict and neither originates from Chapter

15, is one of first impression for this court. It has also not been addressed by either the Supreme

Court of Texas or our sister Houston court of appeals.”).

199

See, e.g., In re Hannah, 431 S.W.3d 801, 807 (Tex. App.—Houston [14th Dist.] 2014,

orig. proceeding) (per curiam) (stating that “[a]s relator relies on a mandatory venue provision

within Chapter 15 of the Texas Civil Practice and Remedies Code in support of venue in Harris

County, we begin our analysis with the Texas Estates Code because, in the event any mandatory

jurisdiction or venue provision in the Estates Code applies to the underlying suit, such provision

would control.” (internal citations omitted)); In re Wheeler, 441 S.W.3d 430, 434 (Tex. App.—

Waco 2014, orig. proceeding) (holding that Section 115.002 of the Texas Property Code prevailed

over Section 15.011 of the Texas Civil Practice and Remedies Code); In re J.P. Morgan Chase

Bank, N.A., 373 S.W.3d 610, 613–14 (Tex. App.—San Antonio 2012, orig. proceeding) (holding

that Section 115.002 of the Texas Property Code prevailed over Section 15.011); In re Adan

Volpe Props., Ltd., 306 S.W.3d 369, 375 (Tex. App.—Corpus Christi 2010, orig. proceeding)

(holding that § 65.023 of the Texas Civil Practice and Remedies Code, providing for mandatory

venue in injunction suits and located outside of Chapter 15, prevailed over Section 15.017); In re

Dole Food Co., 256 S.W.3d 851, 856 (Tex. App.—Beaumont 2008, orig. proceeding) (holding

that Section 65.023 prevailed over Section 15.017); see also In re Sosa, 370 S.W.3d at 81 (stating

in dicta “If a suit is governed by a mandatory venue provision outside of Chapter 15, that suit must

be brought in the county required by that mandatory venue provision.” (citing T

EX. CIV. PRAC. &

REM. CODE ANN. § 15.016)).

200

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.016; see also supra note 199 and cases cited

therein.

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this dilemma.

201

Rather than simply allowing the plaintiff’s choice to

prevail because Section 15.016 provided no basis for deciding between the

statutes, the court decided to resolve the priority of the two conflicting

statutes through further statutory construction and a review of the

legislative history of the two statutes.

202

When both conflicting mandatory-venue statutes at issue originate from

within Chapter 15, the practitioner seeking to oppose the application of the

“plaintiff’s choice prevails” approach could attempt to persuade the court to

draw upon the In re Sosa Court’s reasoning for rejecting that approach.

203

In the In re Sosa opinion, the court explicitly stated, “The Beaumont and

Corpus Christi courts of appeals have concluded that if two mandatory

venue statutes conflict, then the plaintiff may lay venue under either statute.

We disagree.”

204

In circumstances where statutory construction could be

utilized to prioritize one venue statute over another, the court stated its

reasoning for disagreeing with the “plaintiff choice prevails” approach as

follows:

Venue is a matter of statute. There is no venue statute

providing that, if there is a conflict between two statutes as

to the mandatory venue, the plaintiff has a right to choose

the county in which the Legislature mandated venue. If

there is an actual or apparent conflict between two statutes

as to whether mandatory venue of the case under review is

in Harris County or Fort Bend County, Texas law requires

us to resolve this conflict by statutory construction, rather

than allowing the plaintiff to resolve this conflict by

choice.

205

201

In re Sosa, 370 S.W.3d at 81 (referring to Sections 171.096(b) and 65.023(a) of the Texas

Civil Practice and Remedies Code).

202

See id.

203

See id.

204

Id. (citing Marshall v. Mahaffey, 974 S.W.2d 942, 947 (Tex. App.—Beaumont 1998, pet.

denied); In re Adan, 306 S.W.3d at 375; In re Dole Food, 256 S.W.3d at 856)).

205

Id. at 81. In a footnote, the court stated that:

Of course, the plaintiff may choose between two or more counties if there are several

counties of permissive venue and no county of mandatory venue. Likewise, a single

mandatory venue statute may mandate venue in one of several counties, and in that

case, the Legislature has also decided that the plaintiff may choose from the indicated

counties.

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126 BAYLOR LAW REVIEW [Vol. 68:1

On occasion, courts have relied upon a longstanding and accepted

prioritization of a mandatory-venue statute rather than upon express

legislative language as a justification for overriding the plaintiff’s choice.

206

If the plaintiff chose to rely upon a mandatory-venue statute that conflicted

with Section 15.015 of the Texas Civil Practice and Remedies Code, which

provides for mandatory venue in suits against counties, the practitioner

could oppose application of the “plaintiff’s choice prevails” approach by

attempting to persuade the court that “there is no exception to Section

15.015.”

207

3. Countering Rationale 3 That Mandatory-Venue Statutes

Located Outside of Chapter 15 Prevail Over Those Located

Within Chapter 15

As indicated, many courts have interpreted Section 15.016 of the Texas

Civil Practice and Remedies Code to require that a mandatory-venue statute

located outside of Chapter 15 of that code should control over a mandatory-

venue statute located within Chapter 15.

208

Because a number of courts

have used this approach, a practitioner seeking to oppose this approach to

resolving a conflict between two such mandatory-venue statutes appears to

face an uphill battle. However, the battle is not necessarily insurmountable

because there appears to be an alternative, reasonable construction of the

text in Section 15.016.

209

In statutory interpretation, it is well-settled that when there is more than

one reasonable interpretation of a statute, there is an ambiguity.

210

Section

15.016 provides that “[a]n action governed by any other statute prescribing

mandatory venue shall be brought in the county required by that statute.”

211

Courts have read the language of this statute to require that mandatory

venue provisions outside of Chapter 15 of the Texas Civil Practice and

Id. at 81 n.1.

206

See In re San Jacinto Cty., 416 S.W.3d 639, 642 (Tex. App.—Houston [14th Dist.] 2013,

orig. proceeding) (citing In re Fort Bend Cty., 278 S.W.3d 842, 844 (Tex. App.—Houston [14th

Dist.] 2009, orig. proceeding)).

207

Id. at 641–642; see also supra Part III.A.4.

208

See supra note 199 and cases cited therein.

209

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.016 (West 2002).

210

See, e.g., Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 446 (Tex. 2009) (Hecht,

J., concurring) (“But when language is subject to more than one reasonable interpretation, it is

ambiguous. That is the plain meaning of ambiguous.”).

211

TEX. CIV. PRAC. & REM. CODE ANN. § 15.016.

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Remedies Code should prevail over mandatory venue provisions located

within Chapter 15.

212

However, the language in Section 15.016 does not

include any comparative words.

213

The statute does not explicitly provide,

for example, that in the event of a conflict between two mandatory-venue

statutes, a mandatory-venue statute originating from outside Chapter 15

should control over a mandatory-venue statute originating from within

Chapter 15.

214

Rather, the plain language of the statute simply states,

“venue shall be brought in the county required by that statute.”

215

It is certainly possible that by enacting Section 15.016, the Texas

Legislature merely intended to state that venue statutes originating from

outside of Chapter 15

216

should be treated in the same manner as those

within Chapter 15 and also receive mandatory treatment according to their

use of language such as “shall” or “must.”

217

The Texas Supreme Court has

recognized that “[w]hen considering venue, we have noted that the

Legislature’s use of the word ‘shall’ in a statute generally indicates the

mandatory character of the provision.”

218

One reasonable interpretation of

212

See, e.g., In re Wheeler, 441 S.W.3d 430, 434 (Tex. App.—Waco 2014, orig. proceeding)

(“Section 115.002 of the Texas Property Code is a mandatory-venue provision. As such, Section

15.016 of the Texas Civil Practice and Remedies Code requires that the mandatory-venue

provisions in Section 115.002 of the Texas Property Code prevail over Section 15.011 of the

Texas Civil Practice and Remedies Code.” (internal citations omitted)); see also In re Adan Volpe

Props., Ltd., 306 S.W.3d 369, 375 (Tex. App.—Corpus Christi 2010, orig. proceeding) (holding

that because “[S]ection 15.016 of the civil practice and remedies code provides that [a]n action

governed by any other statute prescribing mandatory venue shall be brought in the county required

by that statute.”).

213

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.016.

214

See id.

215

Id.

216

See id. §§ 15.011–15.020 (Subchapter B of Chapter 15, titled “Mandatory Venue”).

217

See, e.g., Bachus v. Foster, 122 S.W.2d 1058, 1060 (Tex. 1939) (holding that the

Legislature’s use of the term “shall” in a venue-related statute is mandatory in character and

“leaves no room to doubt that the legislature meanS to lay the venue of [a suit governed by the

statute] exclusively in the county” provided by the statute); see also Helena Chem. Co. v. Wilkins,

47 S.W.3d 486, 493 (Tex. 2001) (The word “must” is “mandatory, creating a duty or obligation.”);

Wichita Cty. v. Hart, 917 S.W.2d 779, 781 (Tex. 1996) (“When considering venue, we have noted

that the Legislature’s use of the word ‘shall’ in a statute generally indicates the mandatory

character of the provision.”); In re Hartford Underwriters Ins. Co., 168 S.W.3d 293, 295 (Tex.

App.—Eastland 2005, orig. proceeding) (holding that a statute providing that “the petition must be

filed in a Travis County district court” was a mandatory venue provision requiring that the action

be filed in Travis County).

218

Hart, 917 S.W.2d at 781.

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the plain language of Section 15.016 could be that the Texas Legislature

simply intended to codify this principle, confirming that venue statutes

located outside of Chapter 15 should also be treated as mandatory when

indicated by use of the appropriate language.

219

The Texas Supreme Court arguably endorsed this limited reading of

Section 15.016 in a case that involved the interpretation of only one

mandatory-venue statute that originated from outside of Chapter 15.

220

In In

re Transcontinental Realty Investors, Inc., the question before the Court

involved the interpretation of the word “resides” in the mandatory venue

provision for condemnation proceedings.

221

Importantly, the Court was not

deciding whether one mandatory-venue statute should control over another

because only one mandatory-venue statute, Section 21.013 of the Texas

Property Code, was at issue.

222

Nonetheless, to support the Court’s assertion

that “Section 21.013 is a mandatory venue statute, so it is enforceable by

mandamus[,]” the Court cited to Section 15.016 of the Texas Civil Practice

and Remedies Code.

223

The Court’s citation to Section 15.016 for this

assertion can be interpreted to indicate that the Texas Supreme Court read

the plain language of Section 15.016 to represent the statutory confirmation

that venue statutes located outside of Chapter 15, like Section 21.013 of the

Texas Property Code, can appropriately be treated as mandatory.

224

A number of courts of appeals have based their holdings (that Section

15.016 requires a mandatory-venue statute originating from outside of

Chapter 15 to control over a mandatory-venue statute originating from

within Chapter 15) on another statement by the Texas Supreme Court in a

2007 per curiam opinion.

225

In In re Texas Department of Transportation,

219

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.016 (West 2002). This limited reading of

Section 15.016 is consistent with the apparent purpose of the Texas Civil Practice and Remedies

Code, which contains a similar provision for permissive venue statutes, stating that ”[a]n action

governed by any other statute prescribing permissive venue may be brought in the county allowed

by that statute.” Id. § 15.038. Section 15.038 does not appear to be intended to elevate permissive

venue statutes outside of Chapter 15 above those within Chapter 15, but rather to simply place

them on the same permissive level.

220

See In re Transcon. Realty Inv’rs, Inc., 271 S.W.3d 270, 271 (Tex. 2008) (per curiam).

221

See id. (citing TEX. PROP. CODE ANN. § 21.103(a) (West 2002)).

222

See id.

223

See id. (citing TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.016, 15.0642).

224

See id.

225

See, e.g., In re Wheeler, 441 S.W.3d 430, 434 (Tex. App.—Waco 2014, orig. proceeding)

(“[I]f an action is governed by a separate mandatory venue provision, then the action shall be

brought in the county required by the separate venue provision.” (quoting In re Tex. Dep’t of

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the Court stated that “Section 15.016 provides that if an action is governed

by a separate mandatory venue provision, then the action shall be brought in

the county required by the separate venue provision.”

226

However, a closer

look at this opinion indicates that the Court may not have intended for this

statement to receive such broad application extending beyond the narrow

holding of the Court.

227

In In re Texas Department of Transportation, like in In re

Transcontinental Realty Investors, Inc.,

228

the Texas Supreme Court did not

address a conflict between two mandatory-venue statutes.

229

At the trial

court level, the plaintiffs had established venue in Travis County under the

theory that the mandatory venue provision in Section 101.102(a) required

venue in Travis County.

230

The defendants had moved to transfer venue to

Gillispie County on two grounds: (1) that Section 101.102(a) actually

required mandatory venue in Gillispie County; and (2) that the mandatory

venue provision in Section 15.015 also required venue in Gillispie

County.

231

After the trial court denied the defendants’ motion, the

defendants sought a writ of mandamus from the Texas Supreme Court that

would order the trial court to transfer the case to Gillispie County.

232

In its

opinion, the Court only addressed whether Section 101.102(a) applied in the

case.

233

The Court made the limitations of its holding clear in a footnote,

stating that “[b]ecause our decision is based on . . . Section 101.102(a), we

Transp., 218 S.W.3d 74, 76 (Tex. 2007) (orig. proceeding)); In re J.P. Morgan Chase Bank, N.A.,

373 S.W.3d 610, 613 (Tex. App.—San Antonio 2012, orig. proceeding) (same); In re Adan Volpe

Props., Ltd., 306 S.W.3d 369, 375 (Tex. App.—Corpus Christi 2010, orig. proceeding) (holding

that because “[a]n action governed by any other statute prescribing mandatory venue shall be

brought in the county required by that statute[,] . . . the separate mandatory venue provision for

injunction suits prevails over the venue provision regarding libel, slander, and defamation found in

Section 15.017.” (citing T

EX. CIV. PRAC. & REM. CODE ANN. § 15.016; In re Tex. Dep’t of

Transp., 218 S.W.3d at 76)).

226

See In re Tex. Dep’t of Transp., 218 S.W.3d at 76.

227

See id. at 75–78; see also Appendix at 21–23 (discussing the mandatory venue provision in

Section 101.102(a) of the Texas Civil Practice and Remedies Code).

228

In re Transcon., 271 S.W.3d at 271.

229

See In re Tex. Dep’t of Transp., 218 S.W.3d at 75, 76, 78 (holding that because the

plaintiffs did not properly plead and prove facts to support application of the mandatory venue

provision in Section 101.102(a) of the Texas Civil Practice and Remedies Code, Section

101.102(a) had no application in the case).

230

See id. at 75–76.

231

See id. at 76.

232

See id. at 75.

233

See id. at 76.

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130 BAYLOR LAW REVIEW [Vol. 68:1

do not address the effect of Section 15.015.”

234

The Court only cited to

Section 15.016 of the Texas Civil Practice and Remedies Code to support

its assertion that Section 101.102(a), in fact, should be treated as a

mandatory venue provision.

235

As such, Texas practitioners can certainly

argue that in In re Texas Department of Transportation, the Texas Supreme

Court, again, read the plain language of Section 15.016 to represent the

statutory confirmation that venue statutes with mandatory terms located

outside of Chapter 15 of the Texas Civil Practice and Remedies Code—i.e.,

Section 101.102(a)—should appropriately be treated as mandatory-venue

statutes.

236

As discussed in Part III.A.4, the Court of Appeals for the Fourteenth

District in Houston has specifically held that there is no exception to

Section 15.015 of the Texas Civil Practice and Remedies Code,

237

even

when the competing statute originates from outside of Chapter 15.

238

This

interpretation clearly contradicts the idea that Section 15.016 legislatively

prioritizes mandatory-venue statutes outside of Chapter 15 over those

located within Chapter 15.

234

See id. n.1 (emphasis added); see also In re Fort Bend Cty., 278 S.W.3d 842, 844 n.1 (Tex.

App.—Houston [14th Dist.] 2009, orig. proceeding) (“The Texas Supreme Court has not

addressed the relationship between Sections 15.015 and 101.102(a). In In re Texas Department of

Transportation, the court held that venue in Gillespie County, where accident occurred, was

proper under a premises-defect theory in a suit brought pursuant to the Tort Claims Act against the

Texas Department of Transportation and Gillespie County. Because the court based its decision on

Section 101.102(a), it did not consider the effect of Section 15.015. Although venue would have

been proper in Gillespie County under either Section 101.102(a) or Section 15.015, the

Department could not avail itself of Section 15.015 because it is not a county.” (internal citations

omitted)).

235

See In re Tex. Dep’t of Transp., 218 S.W.3d at 76 (“Section 15.016 provides that if an

action is governed by a separate mandatory venue provision, then the action shall be brought in

the county required by the separate venue provision. Section 101.102(a) is such a mandatory

provision.”).

236

See id.; see also In re Transcon. Realty Inv’rs, Inc., 271 S.W.3d 270, 271 (Tex. 2008) (per

curiam).

237

See In re San Jacinto Cty., 416 S.W.3d 639, 641–42 (Tex. App.—Houston [14th Dist.]

2013, orig. proceeding) (per curiam) (holding that “when a county is sued, venue is mandatory in

that county irrespective of any other venue statutes, whether mandatory or permissive”).

238

See In re Fort Bend, 278 S.W.3d at 844–45 (“Against this backdrop of Section 15.015’s

history, we conclude that Section 15.016 is not an exception to Section 15.015.”).

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4. Countering Rationale 4 That the Statute With the Most

“Longstanding” History Controls

In In re Fort Bend County, the court resolved the conflict between

Sections 15.015 and 101.102(a) of the Texas Civil Practice and Remedies

Code by looking to the legislative history of Section 15.015.

239

Against the

backdrop of Section 15.015’s “longstanding” history and “its origin in the

first Texas Legislature[,]” the court found that Section 15.015 controlled

over Section 101.102(a).

240

Subsequently, the same court confirmed this

“longstanding” history approach by finding that “when a county is sued,

venue is mandatory in that county irrespective of any other venue statutes,

whether mandatory or permissive.”

241

When a practitioner seeks to elevate a mandatory-venue statute located

outside of Chapter 15 of the Texas Civil Practice and Remedies Code over

Section 15.015 of that code and, therefore, to oppose the application of this

“longstanding” history approach, the practitioner can argue that Section

15.016 demands this result.

242

Numerous courts of appeals have read

Section 15.016 to require that a mandatory-venue statute originating from

outside of Chapter 15 of the Texas Civil Practice and Remedies Code

should prevail over a conflicting, mandatory-venue statute that originates

from within Chapter 15.

243

The court in In re Fort Bend County held that “[S]ection 15.016 is not

an exception to Section 15.015.”

244

The court based this holding on a

finding that “Texas courts have interpreted Section 15.015 as having no

exception.”

245

However, practitioners can point out that none of the cases

239

See id. at 844.

240

Id. at 844–45.

241

See In re San Jacinto Cty., 416 S.W.3d at 641–42 (holding that because “[S]ection 15.016

is not an exception to Section 15.015[,]” venue was mandatory in the county provided for in

Section 15.015 irrespective of whether Sections of the former Texas Probate Code called for

mandatory venue in the probate court of a different county).

242

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.016 (West 2002) (“An action governed by

any other statute prescribing mandatory venue shall be brought in the county required by that

statute.”).

243

See supra note 102 and cases cited therein (cases that have applied Texas Civil Practice

and Remedies Code Section 15.016 to hold that a mandatory-venue statute outside of Chapter 15

takes priority over a statute located within Ch. 15).

244

278 S.W.3d at 845.

245

Id. at 844–45 (citing Montague Cty. v. Meadows, 31 S.W. 694, 694 (Fort Worth 1895, writ

ref’d); City of Tahoka v. Jackson, 276 S.W. 662, 663 (Tex. 1925); Hodges v. Coke Cty., 197

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132 BAYLOR LAW REVIEW [Vol. 68:1

relied upon by the In re Fort Bend County Court for this point made any

reference to Section 15.016.

246

Of the four cases that the court cited, three

were issued prior to the Texas Legislature’s enactment of Section 15.016:

247

one was decided in 1895;

248

another in 1925;

249

and the third in 1946.

250

The fourth case that the court relied upon, Glover v. Columbia Fort Bend

Hospital,

251

though decided in 2002, was a pro se action, in which the

plaintiff never raised Section 15.016 to support his venue claim.

252

Further,

that court expressly stated that the court “may not consider points of error

or issues on appeal which are not included in the brief.”

253

Although the

court in In re Fort Bend County asserted that “Texas courts have interpreted

Section 15.015 as having no exception[,]”

254

no Texas court had actually

interpreted Section 15.015 in light of the Texas Legislature’s enactment of

Section 15.016.

255

The In re Fort Bend County Court also stated in a footnote that “[t]he

Texas Supreme Court has not addressed the relationship between Sections

15.015 and 101.102(a) [of the Texas Civil Practice and Remedies

Code].”

256

Yet, if a trial court were to accept other courts’ interpretation of

Section 15.016,

257

then the Texas Legislature arguably has addressed this

S.W.2d 886, 888 (Tex. Civ. App.—Amarillo 1946, no writ); Glover v. Columbia Fort Bend Hosp.,

No. 06-01-00101-CV, 2002 WL 1430783, at *4 (Tex. App.—Texarkana July 3, 2002, no pet.)

(not designated for publication)).

246

See id.; see also Meadows, 31 S.W. at 694; Jackson, 276 S.W. at 663; Hodges, 197 S.W.2d

at 888; Glover, 2002 WL 1430783, at *4.

247

The Texas Legislature enacted Section 15.016 in 1985. See Act effective Sept. 1, 1985,

69th Leg., ch. 959, § 1, 1985 Tex. Gen. Laws 3293–94 (codified at T

EX. CIV. PRAC. & REM.

CODE ANN. § 15.016).

248

See Meadows, 31 S.W. at 694.

249

See Jackson, 276 S.W. at 662.

250

See Hodges, 197 S.W.2d at 886.

251

2002 WL 1430783, at *4.

252

See generally id.

253

See id. at *5.

254

278 S.W.3d 842, 844 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding) (internal

citations omitted).

255

See City of Tahoka v. Jackson, 276 S.W. 662, 663 (Tex. 1925); Montague Cty. v.

Meadows, 31 S.W. 694, 694 (Fort Worth 1895, writ ref’d); Hodges, 197 S.W.2d at 888; Glover,

2002 WL 1430783, at *4.

256

278 S.W.3d at 844 n.1 (citing to In re Tex. Dep’t of Transp., 218 S.W. 3d 74, 76 n.1, 79

(Tex. 2007) (orig. proceeding) (per curiam)).

257

See, e.g., In re Wheeler, 441 S.W.3d 430, 434 (Tex. App.—Waco, 2014, orig. proceeding)

(“As such, Section 15.016 of the Texas Civil Practice and Remedies Code requires that the

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relationship by enacting Section 15.016.

258

The In re Fort Bend County

Court never addressed any ambiguity in Section 15.016.

259

Practitioners can

argue that beyond the “longstanding” history of Section 15.015, the In re

Fort Bend County Court offered no other reason for disregarding the “well-

settled” principle of statutory construction that “when the Legislature has

spoken on a subject, its determination is binding upon the courts unless the

Legislature has exceeded its constitutional authority.”

260

Counsel can argue

for application of the basic rule of statutory construction that courts should

enforce the plain meaning of an unambiguous statute,

261

which other Texas

courts have found to mean that Section 15.016 requires a mandatory-venue

statute located outside of Chapter 15 to control over a statute located within

Chapter 15, notwithstanding the statute’s history.

262

To further support this argument, practitioners can point out that the

same court that decided In re Fort Bend County has actually endorsed other

courts’ interpretation of Section 15.016.

263

In fact, the author of the

majority opinion in In re Fort Bend County, current Texas Supreme Court

Justice Jeffrey V. Brown, subsequently authored the majority opinion in In

mandatory-venue provisions in Section 115.002 of the Texas Property Code prevail over Section

15.011 of the Texas Civil Practice and Remedies Code.” (citing T

EX. CIV. PRAC. & REM. CODE

NN. § 15.016 (West 2002))).

258

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.016 (“An action governed by any other

statute prescribing mandatory venue shall be brought in the county required by that statute.”)

259

See 278 S.W.3d at 844–45; see also TEX. CIV. PRAC. & REM. CODE ANN. § 15.016 (“An

action governed by any other statute prescribing mandatory venue shall be brought in the county

required by that statute.”).

260

See Polaris Inv. Mgmt. Corp. v. Abascal, 892 S.W.2d 860, 862 (Tex. 1995) (orig.

proceeding) (citing Pub. Util. Comm’n of Tex. v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988)).

261

See, e.g., Klein v. Hernandez, 315 S.W.3d 1, 9 (Tex. 2010) (Willett, J., concurring)

(“Faced with unequivocal language, the judge’s inquiry is at an end.” (quoting Alex Sheshunoff

Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 652 n.4 (Tex. 2006)); Entergy Gulf States, Inc. v.

Summers, 282 S.W.3d 433, 437 (Tex. 2009) (“Where text is clear, text is determinative of

[legislative] intent.”); In re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007) (“If a statute is clear

and unambiguous, we apply its words according to their common meaning without resort to rules

of construction or extrinsic aids.”); Cail v. Serv. Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983)

(“If the disputed statute is clear and unambiguous extrinsic aids and rules of statutory construction

are inappropriate . . . .”).

262

See supra note 102 and cases cited therein.

263

See In re Hannah, 431 S.W.3d 801, 806–07 (Tex. App.—Houston [14th Dist.] 2014, orig.

proceeding) (“However, [i]f a suit is governed by a mandatory venue provision outside of Chapter

15, that suit must be brought in the county required by that mandatory venue provision.” (citing In

re Sosa, 370 S.W.3d 79, 81 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding)).

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134 BAYLOR LAW REVIEW [Vol. 68:1

re Sosa,

264

where the Fourteenth District Court of Appeals’s reasoning

appears to expressly contradict the “longstanding” history approach utilized

in the In re Fort Bend County opinion.

265

In In re Sosa, the court implied

that the Texas Legislature enacted a later mandatory-venue statute while

“cognizant” of the earlier enacted mandatory-venue statute.

266

The Texas

Supreme Court has offered support for this assertion by stating that “a

statute is presumed to have been enacted by the legislature with complete

knowledge of the existing law and with reference to it.”

267

Citing the In re

Sosa holding, practitioners can argue that, contrary to the holding in In re

Fort Bend County, the Texas Legislature enacted Section 15.016 while

“cognizant” of the earlier enacted mandatory-venue statute in Section

15.015 applying to suits against counties.

268

As such, practitioners can

argue that the Texas Legislature intended for a mandatory-venue statute

originating from outside Chapter 15 to control over a mandatory-venue

statute located within Chapter 15, including Section 15.015, by

subsequently enacting Section 15.016.

269

In addition, based on the “[n]otwithstanding any provision of this title”

language in Section 15.020(c), counsel can argue that where a county

entered some sort of venue-selection agreement that met the “major

transaction” requirements in Section 15.020, Section 15.020(c) would

govern venue “[n]otwithstanding” Section 15.015’s longstanding history.

270

264

370 S.W.3d at 79.

265

See id. at 82 (“Accordingly, we find the more-specific, later-enacted statute of mandatory

venue in Section 171.096(b) controls over the prior-enacted statute of mandatory venue in Section

65.023(a).” (citing T

EX. GOV’T CODE ANN. § 311.026(b) (West 2015))).

266

Id. (“Thus the Legislature, cognizant of the general mandatory venue rule as to injunctive

relief, has expressly provided that this general rule does not apply under the facts of the case under

review.”).

267

Wichita Cty. v. Hart, 917 S.W.2d 779, 782 (Tex. 1996) (citing Acker v. Tex. Water

Comm’n, 790 S.W.2d 299, 301 (Tex. 1990)).

268

See In re Sosa, 370 S.W.3d at 81–82.

269

See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 15.016 (West 2002).

270

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(c); see also In re Fisher, 433 S.W.3d

523, 533–34 (Tex. 2014) (orig. proceeding).

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5. Countering Rationale 5 That the More-Specific, Later-Enacted

Statute Controls

In In re Sosa, the court resolved a conflict between Sections 65.023 and

171.096 of the Texas Civil Practice and Remedies Code.

271

The court

ultimately found that the more-specific, later-enacted statute of mandatory

venue in Section 171.096(b) controls over the prior-enacted statute of

mandatory venue in Section 65.023(a).

272

A practitioner seeking to oppose

the application of this “more-specific, later-enacted statute controls”

approach can point to the inconsistencies in the same court’s opinions in In

re Fort Bend County

273

and In re Sosa.

274

In In re Fort Bend County, the Court of Appeals for the Fourteenth

District in Houston held that Section 15.015 would control over Section

101.102(a) based upon the “longstanding” legislative history of Section

15.015.

275

The court rested this conclusion on the fact that the first Texas

Legislature enacted the statutory predecessor to Section 15.015 on May 11,

1846, two days before the first Legislature enacted the general venue statute

and its eleven exceptions.

276

On the basis of this “longstanding” history, the

court found that when the Legislature enacted Section 15.016 in 1985, the

Legislature did not intend for Section 15.016 to apply to Section 15.015

despite the express language of Section 15.016.

277

Yet, in In re Sosa, the

same court held that Section 171.096(b), enacted in 1997,

278

controlled over

Section 65.023(a), enacted in its current form in 1985,

279

because the

271

In re Sosa, 370 S.W.3d at 82.

272

See id.

273

In re Fort Bend Cty., 278 S.W.3d 842, 844–45 (Tex. App.—Houston [14th Dist.] 2009,

orig. proceeding).

274

In re Sosa, 370 S.W.3d at 82.

275

See In re Fort Bend, 278 S.W.3d at 844–45.

276

See id. (“The venue rule that a county must be sued in that county is longstanding and

finds its origin in the first Texas Legislature.”) (internal citations omitted).

277

See id.; see also Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws

3242, 3248 (codified at T

EX. CIV. PRAC. & REM. CODE ANN. § 15.016) (West 2002)).

278

See Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 5.01, 1997 Tex. Gen. Laws 327, 336

(codified at T

EX. CIV. PRAC. & REM. CODE ANN. § 171.096).

279

See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3294

(codified at T

EX. CIV. PRAC. & REM. CODE ANN. § 65.023).

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136 BAYLOR LAW REVIEW [Vol. 68:1

Legislature was “cognizant” of the earlier-enacted Section 65.023(a) when

the Legislature later enacted Section 171.096(b).

280

Interestingly, the In re Sosa Court did not point out that, in fact, the

statutory predecessor to Section 65.023(a) dates back to the first Texas

Legislature in 1846, enacted just two days after Section 15.015, “and it has

been preserved since that time by all successive legislatures.”

281

Although

the In re Sosa Court only traced the statutory origin of Section 65.023 to

1985,

282

the Fort Worth Court of Appeals has described the longstanding

history of Section 65.023 as follows: “The important right provided to a

defendant under [Section 65.023] to defend a suit for permanent injunction

in the county of the defendant’s domicile originated with our first state

legislature in 1846, and it has been preserved since that time by all

successive legislatures.”

283

Based on the emphasis placed by the Fourteenth Court of Appeals on

tracing statutory history to the first Texas Legislature in In re Fort Bend

County, it is unclear why the court only traced the statutory history of

Section 65.023 of the Texas Civil Practice and Remedies Code to 1985 in

280

See In re Sosa, 370 S.W.3d 79, 82 (Tex. App.—Houston [14th Dist.] 2012, orig.

proceeding) (“Accordingly, we find the more-specific, later-enacted statute of mandatory venue in

Section 171.096(b) controls over the prior-enacted statute of mandatory venue in Section

65.023(a).” (internal citation omitted)).

281

See In re City of Dallas, 977 S.W.2d 798, 803 (Tex. App.—Fort Worth 1998, orig.

proceeding) (“The important right provided to a defendant under [Section 65.023(a) of the Texas

Civil Practice and Remedies Code] to defend a suit for permanent injunction in the county of the

defendant’s domicile originated with our first state legislature in 1846, and it has been preserved

since that time by all successive legislatures.” (citing Act approved May 13, 1846, 1st Leg. , R.S.,

§ 152, 1846 Tex. Gen. Laws 363, 406, reprinted in 2 H.P.N.

Gammel, The Laws of Texas 1838–

1846, at 1669, 1812 (Austin, Gammel Book Co. 1898); T

EX. CIV. REV. STAT. art. 2996 (West

1895); T

EX. REV. CIV. STAT. ANN. art. 4656 (West 1952), repealed by Act of May 17, 1985, 69th

Leg., R.S., ch. 959, § 9, 1985 Tex. Gen. Laws 3242, 3322 (codified at T

EX. CIV. PRAC. & REM.

CODE ANN. § 65.023))).

282

See In re Sosa, 370 S.W.3d at 82 (“In 1985, the Legislature enacted Section 65.023(a)

providing that for cases in which injunctive relief is sought against a Texas resident, venue shall

be in the county of the defendant’s domicile.” (citing Act of May 17, 1985, 69th Leg., R.S., ch.

959, § 1, 1985 Tex. Gen. Laws 3242, 3294)).

283

See In re City of Dallas, 977 S.W.2d at 803 n.17 (citing Act approved May 13, 1846, 1st

Leg., R.S., § 152, 1846 Tex. Gen. Laws 363, 406, reprinted in 2 H.P.N. Gammel, The Laws of

Texas 1838–1846, at 1669, 1812 (Austin, Gammel Book Co. 1898); T

EX. REV. CIV. STAT. art.

2996 (West 1895); T

EX. REV. CIV. STAT. ANN. art. 4656 (West 1952), repealed by Act of May 17,

1985, 69th Leg., R.S., ch. 959, § 9, 1985 Tex.

Gen. Laws 3242, 3322 (codified at TEX. CIV. PRAC.

& REM. CODE ANN. § 65.023)).

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In re Sosa.

284

Nonetheless, practitioners can argue that had the In re Sosa

Court applied its prior “longstanding” history approach, the outcome in In

re Sosa would have been different.

285

The In re Sosa Court rejected the “plaintiff’s choice prevails” approach

because the court found no statute which expressly states that “if there is a

conflict between two statutes as to the mandatory venue, the plaintiff has a

right to choose the county in which the Legislature mandated venue.”

286

a result, the court stated that:

If there is an actual or apparent conflict between two

statutes as to whether mandatory venue of the case under

review is in Harris County or Fort Bend County, Texas law

requires us to resolve this conflict by statutory construction,

rather than allowing the plaintiff to resolve this conflict by

choice.

287

Professor Ron Beal describes this process of statutory construction as

follows:

[W]hen an apparent conflict exists, it is the duty of the

court to resolve the inconsistencies and effectuate the

dominant legislative intent. The most common method

utilized by the courts is to determine if one statute is more

general and the other more specific, regardless of temporal

sequence, and then hold that the specific statute controls

over the more general one. However, such construction is

only necessary and will be utilized by the courts after they

have first attempted to reconcile the two statutes by

statutory interpretation.

288

284

Compare In re Sosa, 370 S.W.3d at 81–82, with In re Fort Bend Cty., 278 S.W.3d 842,

844–45 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding).

285

Compare In re Fort Bend, 278 S.W.3d at 844–45 (finding that there is no exception to

Section 15.015 based on its “longstanding” history), with In re Sosa, 370 S.W.3d at 82 (holding

that the “more-specific, later-enacted statute of mandatory venue” controlled “over the prior-

enacted statute of mandatory venue”).

286

In re Sosa, 370 S.W.3d at 81.

287

Id.

288

Ron Beal, The Art of Statutory Construction: Texas Style, 64 BAYLOR L. REV. 339, 415

(2012).

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138 BAYLOR LAW REVIEW [Vol. 68:1

Practitioners can argue that the In re Sosa Court failed to first attempt to

reconcile by statutory interpretation the two mandatory-venue statutes in

question (by utilizing its prior “longstanding” history approach) before

deciding to enforce by mandamus the “more-specific, later-enacted

statute.”

289

In sum, if the In re Sosa Court had utilized its prior “longstanding”

history approach, the outcome of the conflicting mandatory-venue statutes

issue in Sosa would have been different.

290

Likewise, if the court in In re

Fort Bend County had acknowledged that the Legislature was “cognizant”

of the earlier-enacted Section 15.015 when the Legislature enacted Section

101.102(a) (and thus utilized the “more-specific, later-enacted statute

controls” approach), then the venue determination in the In re Fort Bend

County case would have been different.

291

With both opinions issuing from

the Fourteenth Court of Appeals, the resulting inconsistencies in approach

leave practitioners stranded in a sea of uncertainty as to which approach a

court will utilize to determine venue.

6. Countering Rationale 6 That Would Harmonize Competing

Statutes Through a Process of Elimination

Concurring in the judgment in In re Fort Bend County, current Texas

Supreme Court Justice Eva M. Guzman proposed an approach to harmonize

separate mandatory-venue statutes by identifying all of the “possible

venues” that would satisfy each mandatory-venue statute, then using a

process of elimination to find the county representing the common

denominator between the two statutes at issue.

292

Practitioners arguing

against the application of this approach can first point out that a majority of

the court did not support Justice Guzman’s approach.

293

To date, it does not

appear that any other Texas court has issued an opinion relying upon Justice

Guzman’s approach.

289

See In re Sosa, 370 S.W.3d at 82.

290

Compare In re Fort Bend, 278 S.W.3d at 844–45 (finding that there is no exception to

Section 15.015 based on its “longstanding” history), with In re Sosa, 370 S.W.3d at 81–82

(holding that the “more-specific, later-enacted statute of mandatory venue” controlled “over the

prior-enacted statute of mandatory venue”).

291

Compare In re Fort Bend, 278 S.W.3d at 844–45, with In re Sosa, 370 S.W.3d at 81–82.

292

See In re Fort Bend, 278 S.W.3d at 848 (Guzman, J., concurring).

293

See id. at 845, 848.

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Justice Guzman’s solution also appears to have limited applicability,

applying only when, first, a plaintiff has chosen to establish venue under a

mandatory-venue statute that “is mandatory in that it defines the set of

possible venues, but it is permissive in that it does not differentiate among

the members of that set, but leaves that selection to the plaintiff.”

294

Secondly, to apply, Justice Guzman’s approach would require that the

defendant filed a motion to transfer venue to another county satisfying both

the mandatory requirements of the statute relied upon by the plaintiff and

the mandatory requirements of another mandatory-venue statute that

contained no “permissive aspect.”

295

Under Justice Guzman’s approach,

these two statutes would actually not be in conflict because transferring

venue to the single county that satisfied both mandatory-venue statutes

would harmonize the two statutes.

296

Practitioners seeking to oppose the application of Justice Guzman’s

proposed solution can first argue that the approach fails to fully harmonize

with the language of Texas Civil Practice and Remedies Code

Section 15.063.

297

According to that statute, a trial court only “shall transfer

an action to another county of proper venue” when “the county in which the

action is pending is not a proper county as provided by” Chapter 15 of the

Texas Civil Practice and Remedies Code.

298

“Proper venue” is defined to

mean “the venue required by the mandatory provisions of Subchapter B [of

Chapter 15] or another statute prescribing mandatory venue[.]”

299

Therefore, if a plaintiff establishes venue in a county under a mandatory-

venue statute, venue is proper in that county.

300

As the In re Sosa Court

explained, “a single mandatory-venue statute may mandate venue in one of

several counties, and in that case, the Legislature has also decided that the

plaintiff may choose from the indicated counties.”

301

294

See id. at 848 (referring to TEX. CIV. PRAC. & REM. CODE ANN. § 101.102(a) (West

2011)).

295

See id. (referring to TEX. CIV. PRAC. & REM. CODE ANN. § 15.015).

296

See id.

297

TEX. CIV. PRAC. & REM. CODE ANN. § 15.063 (describing when a trial court “shall” grant

a motion to transfer venue).

298

See id.

299

See id. § 15.001(b)(1).

300

See id.

301

In re Sosa, 370 S.W.3d 79, 81–82 n.1 (Tex. App.—Houston [14th Dist.] 2012, orig.

proceeding).

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140 BAYLOR LAW REVIEW [Vol. 68:1

When this occurs, the predicate finding necessary to subject a trial court

to a mandatory duty to transfer venue to another county of proper venue is

absent.

302

In other words, when the plaintiff establishes venue in one county

under a mandatory-venue statute, venue in that county is “proper” under the

venue statutes such that a trial court is not statutorily required to transfer

venue to another county that might have also been proper under a separate

mandatory-venue statute.

303

A trial court could arguably have discretion to

grant the motion to transfer because venue would also be “proper” in

another county under a separate mandatory-venue statute

304

(assuming the

court does not agree that “the plaintiff’s choice controls”). Practically

speaking, however, based on the statutory language that a trial court “shall”

only transfer an action to another county of proper venue if the county in

which the action is pending is “not a proper county[,]”

305

a trial court’s

decision to deny a motion to transfer because the plaintiff properly

established venue under a mandatory-venue statute could hardly rise to an

abuse of discretion justifying mandamus.

306

A trial court only abuses its

discretion if the court “reaches a decision so arbitrary and unreasonable as

to amount to a clear and prejudicial error of law, or if it clearly fails to

correctly analyze or apply the law.”

307

Because courts are not legally

required to transfer an action from a county that the plaintiff has established

is a county of proper venue under a mandatory-venue statute,

308

practitioners can argue that a trial court should not apply Justice Guzman’s

proposed “process of elimination” approach because it does not adequately

harmonize all of the venue-related laws.

302

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.063(1) (“The court[] . . . shall transfer an

action to another county of proper venue if: (1) the county in which the action is pending is not a

proper county as provided by this chapter[.]”).

303

See id.; see also id. § 15.001(b)(1).

304

See id. § 15.001(b)(1).

305

See id. § 15.063(1).

306

See, e.g., In re Fort Bend Cty., 278 S.W.3d 842, 843 (Tex. App.—Houston [14th Dist.]

2009, orig. proceeding) (holding that to justify issuing a writ of mandamus to enforce a mandatory

venue provision, “[t]he relator must demonstrate that the trial court abused its discretion, but is not

required to show the lack of an adequate remedy by appeal.” (citing T

EX. CIV. PRAC. & REM.

CODE ANN. § 15.0642; In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 215–16 (Tex. 1999) (orig.

proceeding))).

307

See id. (citing In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.

proceeding) (per curiam)).

308

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.063(1).

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7. Countering Rationale 7 That a Pre-Suit Agreement is

Prioritized by Statute

Texas practitioners seeking to oppose the enforcement of a pre-suit

agreement purporting to control the choice of venue should familiarize

themselves with the policy reasons behind the general rule that “Texas law

prohibits parties from contracting away mandatory venue.”

309

Once these

policy underpinnings are understood, Texas practitioners should thoroughly

analyze Section 15.020 of the Texas Civil Practice and Remedies Code to

understand when a venue-selection clause that is part of a statutorily

defined “major transaction” is enforceable.

310

This Section addresses these

two issues in turn.

In In re Great Lakes Dredge & Dock Co. L.L.C., the Corpus Christi

Court of Appeals held that the Texas Supreme Court’s recent decisions

regarding the enforcement of forum-selection clauses did not “supplant

firmly established Texas law regarding the enforcement of venue-selection

agreements that contravene a mandatory venue statute.”

311

To illustrate this

firmly established Texas law and the distinction between a forum-selection

clause and a venue-selection clause, a closer look at this decision is

necessary. In the case, when the plaintiff, Mr. Ramos, was employed by

Great Lakes Dredge & Dock Company, L.L.C. (Great Lakes), the company

required Mr. Ramos to sign a document titled, “Employee Acceptance of

Forum Selection” (Great Lakes Agreement).

312

This agreement, which Mr.

Ramos undisputedly signed, expressly provided as follows:

As a condition of employment with Great Lakes . . . the

EMPLOYEE and Great Lakes . . . mutually agree that any

claim for personal, emotional, physical, or economic injury

[including death] pursuant to Federal law, general maritime

law, the Jones Act, or the laws of any State, or otherwise

309

In re Great Lakes Dredge & Dock Co., 251 S.W.3d 68, 79 (Tex. App.—Corpus Christi

2008, orig. proceeding).

310

See Hiles v. Arnie & Co., 402 S.W.3d 820, 828 (Tex. App.—Houston [14th Dist.] 2013,

pet. denied) (stating that “venue-selection clauses are generally unenforceable in Texas unless the

contract evinces a ‘major transaction’ as defined in the venue rules.” (citing T

EX. CIV. PRAC. &

REM. CODE ANN. § 15.020(a); In re Tex. Ass’n of Sch. Bds., Inc., 169 S.W.3d 653, 660 (Tex.

2005) (orig. proceeding); Yarber v. Iglehart, 264 S.W.2d 474, 476 (Tex. Civ. App.—Dallas 1953,

no writ))).

311

See In re Great Lakes, 251 S.W.3d at 77.

312

Id. at 69.

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142 BAYLOR LAW REVIEW [Vol. 68:1

arising out of EMPLOYEE’S employment with Great

Lakes . . . shall, if ever made the basis of litigation initiated

by EMPLOYEE be filed, at the option of the EMPLOYEE,

in any one of the following jurisdictions only:

(a) the Circuit Court for the County of DuPage, State of

Illinois; or

(b) The Court designated below in the State of residence of

the EMPLOYEE or in the State in which the accident made

the basis of the lawsuit occurred, as follows:

STATE STATE COURT

. . . .

Florida Clay County

. . . .

Texas District Courts of Harris County, Texas

. . . .

residence of the EMPLOYEE or in the State in which the

accident made the basis of the lawsuit occurred, as follows:

STATE FEDERAL COURT

. . . .

Florida Middle District of Florida, Jacksonville

Division

. . . .

Texas Southern District of Texas, Houston

Division

313

Subsequently, Mr. Ramos allegedly sustained injuries aboard a vessel

that Great Lakes owned and operated, and Mr. Ramos filed suit against

313

Id. at 69–70.

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Great Lakes in Hidalgo County District Court under the Jones Act,

314

alleging that his injuries resulted from maritime negligence and the

unseaworthiness of Great Lakes’s vessel.

315

Great Lakes responded by

filing a Motion to Dismiss or, in the alternative, Motion to Transfer

Venue.

316

Great Lakes argued that the Great Lakes Agreement mandated

suit be filed in either a state district court in Harris County, Texas, or in the

United States District Court for the Southern District of Texas, Houston

Division.

317

Mr. Ramos filed a response, arguing that the mandatory venue provision

for the Jones Act required Mr. Ramos’s suit to be filed in Hidalgo County

and that the Great Lakes Agreement was vague, unjust, and

unreasonable.

318

After a hearing, the Hidalgo County District Court denied

Great Lakes’s motion to dismiss without stating the reasons for the court’s

rulings.

319

Great Lakes then sought a writ of mandamus that would compel

the district court to enforce the venue requirements set forth in the Great

Lakes Agreement.

320

314

46 U.S.C. § 30104 (2012).

315

In re Great Lakes, 251 S.W.3d at 70.

316

Id.

317

Id. Great Lakes also filed a Complaint for Declaratory Judgment in the United States

District Court for the Southern District of Texas, Houston Division, seeking a declaration of its

rights under the Great Lakes Agreement that the federal court had not decided at the time of the

court of appeals’s decision. See id. at 70 n.4 (citing Great Lakes Dredge & Dock Co. v. Ramos,

No. H-07-0630, 2007 WL 2787837, at *1 (S.D. Tex. Sept. 24, 2007)). Additionally, Great Lakes

had previously filed a declaratory judgment action seeking an injunction and a declaration that

seamen-plaintiffs, similar to Mr. Ramos, in pending state-court actions, could not proceed against

Great Lakes anywhere other than in the Harris County District Courts or the Southern District of

Texas pursuant to the same Great Lakes Agreement at issue. See id. (citing Great Lakes Dredge &

Dock Co. v. Larrisquitu, Nos. H-06-3489, H-06-3669, H-06-4040, 2007 WL 2330187, at *7–8,

(S.D. Tex. Aug. 15, 2007)). Though the federal court had held that it had authority to issue a

declaration that the Great Lakes Agreement was enforceable and that the Larrisquitu seamen had

breached the Great Lakes Agreement by filing suit in Hidalgo County in denying the Larrisquitu

seamen’s motion to dismiss the federal court action, the court of appeals held that because the

federal district court had not issued a declaratory judgment in either case and because the federal

district court expressly recognized Texas state courts’ authority to make a determination of these

issues in the state court cases, the court of appeals would proceed to make its own determination

about the enforceability of the Great Lakes Agreement under Texas law. See id.

318

See id. at 71.

319

See id. at 71–72.

320

See id. at 71.

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144 BAYLOR LAW REVIEW [Vol. 68:1

In its petition for mandamus, Great Lakes argued that the trial court

abused its discretion by refusing to enforce a forum-selection agreement

because, under recent Texas Supreme Court precedent, forum-selection

agreements are presumptively enforceable, and Mr. Ramos had not raised a

valid defense to enforcement of the Great Lakes Agreement.

321

Mr. Ramos

responded that the mandatory-venue statute in place at the time suit was

filed, former Section 15.018 of the Texas Civil Practice and Remedies

Code, provided that Mr. Ramos’s Jones Act claim could be brought in

Hidalgo County, where Mr. Ramos resided, and could not be brought in

Harris County.

322

Mr. Ramos further argued that under the Supreme Court

of Texas’s decisions in Leonard v. Paxson

323

and Fidelity Union Life Ins.

Co. v. Evans,

324

a party’s pre-suit agreement to set venue in a particular

county that is contrary to a mandatory-venue statute is void and

unenforceable.

325

Great Lakes countered Mr. Ramos’s argument by

321

See id. at 72 (citing In re AutoNation, Inc., 228 S.W.3d 663, 668 (Tex. 2007) (orig.

proceeding); Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 793 (Tex. 2005)

(“[E]nforcement of a forum-selection clause is mandatory absent a showing that ‘enforcement

would be unreasonable and unjust, or that the clause was invalid due to fraud or overreaching.’”);

In re Automated Collection Techs., Inc., 156 S.W.3d 557, 559–60 (Tex. 2004) (orig. proceeding)

(per curiam); In re AIU Ins. Co., 148 S.W.3d 109, 111–15 (Tex. 2004) (orig. proceeding)).

322

See id. at 72. It is worthy of note that the Texas Legislature amended the former Section

15.018 of the Texas Civil Practice and Remedies Code and codified the current version of the

statute as Section 15.0181 of the Texas Civil Practice and Remedies Code. See T

EX. CIV. PRAC. &

REM. CODE ANN. § 15.0181 (West 2015). The language of Section 15.0181 is set forth, in full, in

the Appendix supra at A.10. While numbered differently in the current statute, the former statute

provided that:

[S]uit[] brought under the . . . Jones Act shall be brought [in one of three designated

counties:] (1) in the county in which all or a substantial part of the events or omissions

giving rise to the claim occurred; (2) in the county where the defendant’s principal

office in this state is located; or (3) in the county where the plaintiff resided at the time

the cause of action accrued.

See In re Great Lakes, 251 S.W.3d at 72 n.5 (emphasis added); see also Act of May 8, 1995, 74th

Leg., R.S., ch. 138, § 2, 1995 Tex. Gen. Laws 978, 980 (codified at former T

EX. CIV. PRAC. &

REM. CODE ANN. § 15.018), amended by Act of May 21, 2007, 80th Leg., R.S., ch. 203, § 2, 2007

Tex. Gen. Laws 288, 289) (codified at T

EX. CIV. PRAC. & REM. CODE ANN. § 15.0181). Because

it was undisputed that Mr. Ramos resided in Hidalgo County, the court held that “the mandatory

venue statute expressly gave Ramos the option to choose venue from the three alternatives.” See

In re Great Lakes, 251 S.W.3d at 72 n.5.

323

654 S.W.2d 440, 441–42 (Tex. 1983) (orig. proceeding).

324

477 S.W.2d 535, 537 (Tex. 1972).

325

See In re Great Lakes, 251 S.W.3d at 72–73.

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asserting that Leonard and Fidelity were decided prior to the Supreme

Court of Texas’s recent trend of enforcing forum-selection agreements and,

therefore, had been supplanted.

326

The Corpus Christi Court of Appeals disagreed with Great Lakes and

denied mandamus relief, holding that the venue requirements in the pre-suit

Great Lakes Agreement contradicted a mandatory-venue statute and, thus,

were void and unenforceable.

327

Specifically, the court held because “Texas

law prohibits parties from contracting away mandatory venue[,] [t]he trial

court properly refused to enforce such an agreement in this case.”

328

The

court relied heavily upon the distinction between a “venue selection

agreement” and a “forum selection agreement” and Texas’s longstanding

refusal to enforce venue selection agreements that contradict mandatory-

venue statutes on public policy grounds.

329

First, the court recognized that although Texas case law has sometimes

muddled the distinction, “forum” and “venue” each have a distinct legal

meaning.

330

“Forum” generally refers to a sovereign or a state.

331

On the

other hand, “[a]t 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.”

332

In Texas, the court noted, “venue” refers to the

county in which suit is proper within the forum state.

333

Therefore, the court

concluded, a “forum”-selection agreement is one that chooses another state

326

Id. at 73.

327

Id. at 73, 79.

328

Id. at 79.

329

See generally id.

330

See id. at 73 (citing Liu v. CiCi Enters., L.P., No. 14-05-00827-CV, 2007 WL 43816, at

*2–3 (Tex. App.—Houston [14th Dist.] Jan. 9, 2007, no pet.) (mem. op., not designated for

publication) (“The distinction between a forum selection clause and a venue selection clause is

critical.”); Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 68 n.1 (Tex. App.—

Dallas 1996, no writ), overruled on other grounds by In re Tyco Elecs. Power Sys., Inc., No. 05-

04-01808-CV, 2005 WL 237232, at *4 n.1 (Tex. App.—Dallas 2005, orig. proceeding) (mem. op.,

not designated for publication) (“‘[V]enue’ has a particular legal meaning in Texas . . . .”)).

331

Id. (citing Scott v. Gallagher, 209 S.W.3d 262, 264 (Tex. App.—Houston [1st Dist.] 2006,

no pet.) (“[V]enue 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.”) (emphasis added) (internal quotation marks omitted).

332

Id. (quoting State v. Blankenship, 170 S.W.3d 676, 681 (Tex. App.—Austin 2005, pet.

ref’d) (internal quotation marks omitted)).

333

Id. (citing Accelerated Christian, 925 S.W.2d at 73; Estrada v. State, 148 S.W.3d 506, 508

(Tex. App.—El Paso 2004, no pet.)).

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146 BAYLOR LAW REVIEW [Vol. 68:1

or sovereign as the location for trial, whereas a “venue”-selection

agreement chooses a particular county or court within that state or

sovereign.

334

Because of the venue requirements in the Great Lakes

Agreement, the court found that the Great Lakes Agreement, though

cleverly labeled as and argued by Great Lakes to be a forum-selection

agreement, was, in actuality a venue-selection agreement.

335

Next, the court proceeded to discuss “nearly a hundred years of Texas

case law”

336

that Texas courts will not enforce venue-selection agreements

that contradict mandatory-venue statutes, as a matter of strong, established

public policy.

337

The court noted that as early as 1919, the Texas Supreme

Court refused to enforce an agreement contravening the Texas statutory

venue scheme because the venue-limiting agreement was void as against

public policy.

338

In that case, the Texas Supreme Court based its holding on

two important premises.

339

First, the Court based its holding on the policy

behind venue statutes, which the Court articulated as follows:

The rules to determine in what courts and counties actions

may be brought are fixed, upon considerations of general

convenience and expediency, by general law; to allow them

to be changed by the agreement of parties would disturb the

symmetry of the law, and interfere with such

convenience.

340

334

Id. at 73–74.

335

Id. at 79.

336

Id. at 79 n.11 (citing In re Calderon, 96 S.W.3d 711, 716–17 (Tex. App.—Tyler 2003,

orig. proceeding); Bristol-Myers Squibb Co. v. Goldston, 957 S.W.2d 671, 674 (Tex. App.—Fort

Worth 1997, pet. denied); Docta, Inc. v. Mediserve, Inc., 607 S.W.2d 301, 302 (Tex. Civ. App.—

Waco 1980, no writ); McGinn v. Fid. Union Life Ins. Co., 474 S.W.2d 320, 320–21 (Tex. Civ.

App.—Texarkana 1971, writ ref’d n.r.e.); Tilley v. Capital Nat’l Bank in Austin, 367 S.W.2d 359,

361–62 (Tex. Civ. App.—Austin 1963, no writ); Bexar Cty. Mut. Ins. Co. v. Ward, 245 S.W.2d

325, 326 (Tex. Civ. App.—Eastland 1952, no writ); Gen. Motors Acceptance Corp. v. Hunsaker,

50 S.W.2d 367, 367–68 (Tex. Civ. App.—Amarillo 1932, writ dism’d); Pfeifer v. E.J. Hermann

Sales Co., 43 S.W.2d 484, 485–86 (Tex. Civ. App.—San Antonio 1931, no writ)).

337

See generally id.

338

See id. at 74 (citing Int’l Travelers’ Ass’n v. Branum, 212 S.W. 630, 631–32 (Tex. 1919)

(holding that a statute giving a plaintiff the right to sue in several counties cannot be overridden by

a contract undertaking to deprive the plaintiff of that right because such an agreement to limit

venue was void as against public policy)).

339

See id. (citing Int’l Travelers’, 212 S.W. at 631–32).

340

Id. (quoting Int’l Travelers’, 212 S.W. at 631 (internal quotation marks omitted)).

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Secondarily, the Texas Supreme Court relied upon what would later

come to be known as the “ouster” doctrine.

341

The Corpus Christi Court of

Appeals noted that both policy reasons were relied upon by the Texas

Supreme Court, in Branum, to refuse to enforce a venue-selection

agreement.

342

The court of appeals pointed out that the Texas Supreme

Court reaffirmed its conclusion in 1939, holding that “venue is fixed by law

and any contract whereby it is agreed to change the law with reference

thereto is void.”

343

The court of appeals then discussed two more recent

cases where the Texas Supreme Court had expanded upon the traditional

justifications for refusing to enforce venue-selection agreements.

344

The court of appeals explained that the Texas Supreme Court’s recent

trend toward enforcement of forum-selection agreements has only been

based on the Court’s rejection of the “ouster” doctrine.

345

The court found

that this trend does not supplant firmly established Texas law refusing to

enforce venue-selection agreements that contravene a mandatory-venue

statute.

346

The court of appeals explained that although the Texas Supreme

341

Id. at 74–75 (citing Int’l Travelers’, 212 S.W. at 631–32). The “ouster” doctrine traces

back to the decision of the Supreme Court of the United States in Ins. Co. v. Morse, 87 U.S. 445,

451 (1874). (The Court held that forum selection clauses were unenforceable because a person

cannot “bind himself in advance by an agreement, which may be specifically enforced, thus to

forfeit his rights at all times and on all occasions, whenever the case may be presented. . . .

agreements in advance to oust the courts of the jurisdiction conferred by law are illegal and void.”

(emphasis added)).

342

In re Great Lakes, 251 S.W.3d at 75 (citing Int’l Travelers’, 212 S.W. at 631–32).

343

Id. (quoting Ziegelmeyer v. Pelphrey, 125 S.W.2d 1038, 1040 (Tex. 1939)).

344

See id. at 75–76 (citing Leonard v. Paxson, 654 S.W.2d 440, 441–42 (Tex. 1983) (orig.

proceeding) (holding that the mandatory venue provisions of the Texas Family Code could not be

“negated by contract” and “[t]o hold otherwise would defeat the legislature’s intent that matters

affecting the parent-child relationship be heard in the county where the child resides, and would

promote forum shopping by contract.”); Fid. Union Life Ins. Co. v. Evans, 477 S.W.2d 535, 537

(Tex. 1972) (holding that a venue-selection agreement that contravened the provisions of a

mandatory-venue statute was invalid and unenforceable and stating that “the fixing of venue by

contract, except in such instances as permitted by [T

EX. REV. CIV. STAT. ANN. art. 1995, § 5,

repealed by Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 9(1), 1985 Tex. Gen. Laws 3242,

3322 (eff. Sept. 1, 1985) (current version at T

EX. CIV. PRAC. & REM. CODE ANN. § 15.035 (West

1985))], is invalid and cannot be the subject of a private contract . . . . [A mandatory-venue

statute] placed venue for an injunction suit in the county in which defendant Evans had his

domicile; we hold that a variance of that statute is not the subject of a private contract.”)

(emphasis added)).

345

See id. at 77.

346

See id. at 77–78.

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148 BAYLOR LAW REVIEW [Vol. 68:1

Court rejected the “ouster” doctrine in In re AIU Insurance Co.,

347

a forum-

selection agreement “will not be enforced if enforcement would contravene

a strong public policy of the forum where the suit was brought[.]”

348

The

court of appeals read this exception to imply that refusing to enforce a

venue-selection agreement that contradicted a mandatory-venue statute

would actually be consistent with the Texas Supreme Court’s recent

pronouncements regarding forum-selection agreements and with the

legislative venue scheme.

349

Moreover, the court of appeals noted that the Texas Supreme Court was

certainly aware of the Court’s own holdings in Branum, Leonard, and

Fidelity at the time the Court decided In re AIU, but the Texas Supreme

Court chose not to expressly overrule those cases, not even referencing the

cases at all.

350

Finally, the court of appeals noted that while the Texas

Supreme Court rejected the “ouster” doctrine, the Court had never rejected,

nor even addressed, “a separate, critical reason for why venue selection

agreements in contravention of mandatory venue statutes should not be

enforced.”

351

The Texas Supreme Court never addressed the Texas

Legislature’s prerogative to set venue or the policy reasons for refusing to

enforce a venue-selection clause in light of those legislative choices, a

prerogative upon which the Texas Supreme Court relied heavily in refusing

to enforce a venue-selection agreement contrary to a mandatory venue

provision in prior decisions.

352

As such, because the court of appeals could

not discern any clear legislative intent that would permit the court to

essentially add an exception to the mandatory-venue statutes in Chapter 15

of the Texas Civil Practice and Remedies Code or the policies expressed in

that chapter, the court declined to create such an exception.

353

The court of

appeals stated it had implicitly recognized as much by refusing to enforce

347

148 S.W.3d 109, 122–23 (Tex. 2004) (orig. proceeding) (rejecting the “ouster” doctrine

and holding that forum-selection agreements are generally enforceable).

348

See In re Great Lakes, 251 S.W.3d at 77 (citing In re AIU, 148 S.W.3d at 112).

349

See id. at 78.

350

See id. (citing In re AIU, 148 S.W.3d at 109–21); see also In re AIU Ins. Co., 148 S.W.3d

at 123 (Phillips, J., dissenting) (whereby Justice Phillips explicitly cited to Branum, Leonard, and

Fidelity and carefully explained that these cases related to venue).

351

In re Great Lakes, 251 S.W.3d at 77–78.

352

Id. at 78.

353

Id. at 79.

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venue-selection agreements that contravened a mandatory venue provision

in prior decisions.

354

Other Texas courts have recognized and endorsed the general rule that

venue-selection agreements contravening a mandatory-venue statute are

unenforceable.

355

This general rule, based on the venue policy in Texas,

stems from the early recognition by Texas courts that the fixing of venue by

contract, except in such instances as specifically permitted by statute, is

invalid.

356

One such exception, where fixing of venue by contract has been

specifically permitted by statute, can be found in Section 15.020 of the

Texas Civil Practice and Remedies Code.

357

This exception has led Texas

courts to find that “venue-selection clauses are generally unenforceable in

Texas unless the contract evinces a ‘major transaction’ as defined in the

venue rules.”

358

Texas practitioners, seeking to oppose the application of this exception

in Section 15.020, will need to be able to argue that Section 15.020 does not

apply to their case. Because the language of the statute will determine

354

Id. (citing Liu v. CiCi Enters., L.P., No. 14-05-00827-CV, 2007 WL 43816, at *2–3 (Tex.

App.—Houston [14th Dist.] Jan. 9, 2007, no pet.) (mem. op., not designated for publication)

(distinguishing between “forum” and “venue” and holding that venue-selection agreements are

unenforceable); Fleming v. Ahumada, 193 S.W.3d 704, 712–13 (Tex. App.—Corpus Christi 2006,

no pet.) (holding that a contractual provision attempting to fix venue in a settlement agreement

was invalid)).

355

See, e.g., In re Grp. 1 Realty, Inc., 441 S.W.3d 469, 472 (Tex. App.—El Paso 2014, orig.

proceeding) (“Although the fixing of venue by contract is generally invalid, Section 15.020

creates a limited exception in cases involving ‘major transactions.’” (citing In re Great Lakes, 251

S.W.3d at 78)); see also In re Lovell-Osburn, 448 S.W.3d 616, 620 (Tex. App.—Houston [14th

Dist.] 2014, orig. proceeding) (“This comports with the general rule in Texas that ‘venue selection

cannot be the subject of private contract unless otherwise provided by statute.’” (quoting Liu,

2007 WL 43816, at *2); Shamoun & Norman, L.L.P. v. Yarto Int’l Grp., L.P., 398 S.W.3d 272,

293 (Tex. App.—Corpus Christi 2012, pet. dism’d) (“In general, the fixing of venue by contract is

invalid.”).

356

See, e.g., Fleming v. Ahumada, 193 S.W.3d 704, 712–13 (Tex. App.—Corpus Christi

2006, no pet.) (holding that a contractual provision attempting to fix venue in a settlement

agreement was invalid because “[i]n general, the fixing of venue by contract, except in such

instances as [specifically permitted by statute], is invalid and cannot be the subject of private

contract.” (alteration in original) (internal quotation marks omitted) (citing Fid. Union Life Ins.

Co. v. Evans, 477 S.W.2d 535, 537 (Tex. 1972))).

357

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(b) (West 2009).

358

See Hiles v. Arnie & Co., 402 S.W.3d 820, 828 (Tex. App.—Houston [14th Dist.] 2013,

pet. denied) (citing T

EX. CIV. PRAC. & REM. CODE ANN. § 15.020(a)); In re Tex. Ass’n of Sch.

Bds., Inc., 169 S.W.3d 653, 660 (Tex. 2005); Yarber v. Iglehart, 264 S.W.2d 474, 476 (Tex. Civ.

App.—Dallas 1953, no writ)).

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150 BAYLOR LAW REVIEW [Vol. 68:1

whether Section 15.020 is applicable, practitioners should review the

discussion of Texas courts’ application and interpretation of Section 15.020

in the Appendix.

359

Three particular limitations of Section 15.020 are

highlighted here due to their importance to a practitioner who seeks to

oppose the application of Section 15.020.

First, Section 15.020 “does not affect venue and jurisdiction in an action

arising from a transaction that is not a major transaction.”

360

Accordingly, if

a practitioner can show that the statutory definition of a “major transaction”

is not satisfied, then Section 15.020 has no application, and therefore, the

venue-selection clause should generally be unenforceable.

361

Secondly, for

a court to transfer venue to the county specified in the parties’ venue-

selection agreement because “the party bringing the action has agreed in

writing that an action arising from the transaction must be brought in

another county[,]” that county must be a county of proper venue under the

venue statutes.

362

Thirdly, Section 15.020, by its own terms, does not apply

to an action if “venue is established under a statute of this state other than

this title.”

363

On this basis, a practitioner can at least argue that, in the event

of a conflict, a mandatory-venue statute that originates from outside the

Texas Civil Practice and Remedies Code would control over Section

15.020.

364

For the purposes of resolving a conflict between Section 15.020 and

another mandatory-venue statute, a practitioner should also understand the

359

See infra Appendix at A.12.

360

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(e).

361

See id.; see also, e.g., Hiles, 402 S.W.3d at 828.

362

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(c)(2); see also Shamoun & Norman,

L.L.P. v. Yarto Int’l Grp., L.P., 398 S.W.3d 272, 295–96 (Tex. App.—Corpus Christi 2012, pet.

dism’d) (finding that although the party bringing the action signed a written agreement that an

action arising from the major transaction “must be brought” in Travis County, Section 15.020 did

not apply to mandate transfer of venue of the action to Travis County because Travis County was

not a county of proper venue under the venue statutes in Chapter 15 of the Texas Civil Practice

and Remedies Code).

363

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(d)(3).

364

See id. Note also the distinction between Section 15.020(d)(3) of the Texas Civil Practice

and Remedies Code and Section 15.016 of the Texas Civil Practice and Remedies Code. Compare

EX. CIV. PRAC. & REM. CODE ANN. § 15.020(d)(3) (“This Section does not apply to an action

if: . . . venue is established under a statute of this state other than this title.”) (emphasis added),

with T

EX. CIV. PRAC. & REM. CODE ANN. § 15.016 (“An action governed by any other statute

prescribing mandatory venue shall be brought in the county required by that statute.”) (emphasis

added).

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limitations in the Texas Supreme Court’s recent opinion in In re Fisher.

365

There, after finding that Section 15.020 applied to the case, the court

resolved the conflict between the mandatory venue provisions in Sections

15.017 and 15.020 of the Texas Civil Practice and Remedies Code by

looking to the language in Section 15.020.

366

The court stated that “in this

case, the language of Section 15.020 applies to an action arising from a

major transaction ‘[n]otwithstanding any other provision of this title’” and

held that this language indicated that the Texas Legislature “intended for it

to control over other mandatory venue provisions.”

367

While the language in the In re Fisher opinion could be read to have

elevated Section 15.020 to “super-mandatory” status, such that Section

15.020 should always receive preferential treatment over other mandatory

venue provisions,

368

practitioners can argue that such a reading is

unwarranted based on the text of Section 15.020.

369

The language that

justified the court’s preferential treatment of Section 15.020 is found in

Section 15.020(c).

370

The court stated that the “[n]otwithstanding any other

provision of this title” language in Section 15.020(c)

371

indicated that “the

Legislature intended for it to control over other mandatory venue

provisions.”

372

The “it” that the court referenced is Section 15.020(c), not

Section 15.020 as a whole.

373

Texas practitioners can argue that the In re

Fisher opinion was not an invitation to apply preferential treatment to

Section 15.020 carte blanche, but rather was simply an acknowledgement

365

433 S.W.3d 523, 533–34 (Tex. 2014) (orig. proceeding).

366

See id.

367

Id. at 533–34 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(c)).

368

See, e.g., 1 Adele Hedges & Kim J. Askew, Texas Practice Guide: Civil Pretrial § 6:36

(2015) (“Section 15.020 overrides other venue provisions and requires the trial court to enforce

the venue agreements.” (citing In re Fisher, 433 S.W.3d at 533–34)).

369

See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(d), (e).

370

See id. § 15.020(c) (providing that “[n]otwithstanding any other provision of this title, 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.” (emphasis added)).

371

See id.

372

See In re Fisher, 433 S.W.3d at 533–34 (emphasis added).

373

See id.

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152 BAYLOR LAW REVIEW [Vol. 68:1

that when an action falls under Section 15.020(c), Section 15.020(c) applies

“[n]otwithstanding any other provision” of the Texas Civil Practice and

Remedies Code.

374

While this argument appears hyper-technical, the distinction could

severely affect a trial court’s decision as to how to resolve a conflict

between Section 15.020 and another mandatory-venue statute. SubSection

has agreed in writing that an action arising from the transaction either: (1)

may not be brought in the county where the party filed suit; or (2) must be

brought in a county different than the county where the party filed suit.

375

Importantly, under subSection (c), the county to where the party relying

upon the venue-selection agreement seeks to transfer venue must be a

county of proper venue.

376

Further, subSection (c) should only receive

preferential treatment over other mandatory venue provisions located within

the Texas Civil Practice and Remedies Code.

377

This is consistent with

subSection (d) of Section 15.020, which states that the “major transaction”

statute does not apply to an action if “venue is established under a statute of

this state other than this title.”

378

Based on the language in Section 15.020, practitioners can certainly

argue that a mandatory-venue statute located outside of the Texas Civil

Practice and Remedies Code would control over Section 15.020, including

subSection (c).

379

This interpretation of the statute would comport with

other Texas courts’ reading of Section 15.016 of the Texas Civil Practice

and Remedies Code.

380

However, if the conflicting mandatory venue

provision was located elsewhere in the Texas Civil Practice and Remedies

374

See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(c).

375

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(c).

376

See id.; see also Shamoun & Norman, L.L.P. v. Yarto Int’l Grp., L.P., 398 S.W.3d 272,

295–96 (Tex. App.—Corpus Christi 2012, pet. dism’d).

377

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(c) (“Notwithstanding any other

provision of this title, an action arising from a major transaction may not be brought in a county

if: . . .” (emphasis added)).

378

See id. § 15.020(d)(3); see also In re Royalco Oil & Gas Corp., 287 S.W.3d 398, 399 n.2

(Tex. App.—Waco 2009, orig. proceeding) (Stating in a footnote that “Section 15.0115 and

Section 15.020 are both mandatory venue provisions. However, Section 15.020(c) provides in

pertinent part that, when applicable, Section 15.020 controls over other venue statutes in title 2 of

the Civil Practice and Remedies Code.” (citing T

EX. CIV. PRAC. & REM. CODE ANN.

§ 15.020(c))).

379

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(c), (d)(3).

380

See id. § 15.016; see also supra note 241 and cases cited therein.

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Code,

381

then the “super-mandatory” language in Section 15.020(c) appears

to require that subSection (c) of Section 15.020 would govern the venue of

the dispute.

382

IV. A PROPOSED SOLUTION TO RESOLVING CONFLICTING

MANDATORY-VENUE STATUTES

As demonstrated, based on the numerous and often inconsistent

approaches that Texas courts have used to resolve apparent conflicts

between mandatory-venue statutes, Texas practitioners are currently in a

quandary regarding how a court will resolve a conflict between two

mandatory-venue statutes. Until the Texas Supreme Court or the Texas

Legislature provides such guidance by expressly addressing the subject,

Texas practitioners will be left with uncertainty and unpredictability.

In Wilson v. Texas Parks and Wildlife Department, the Texas Supreme

Court held that when a plaintiff files suit in a county of proper venue, it is

reversible error to transfer venue to another county even if the county of

new venue would have been proper if originally chosen by the plaintiff.

383

The court based this holding on the importance of a plaintiff’s right to

select venue, stating that:

[I]f the plaintiff chooses a county of proper venue, and this

is supported by proof as required by Rule 87, no other

county can be a proper venue in that case. This rule gives

effect to the plaintiff’s right to select a proper venue. The

[defendant] urges that reversible error exists only if the

county of trial [to which venue was transferred] was one

where permissive or mandatory venue never could have

been sustained. Such a rule would eviscerate the plaintiff’s

right to select venue.

384

381

See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 65.023 (mandatory venue in suits seeking

injunctive relief).

382

See id. § 15.020(c) (“Notwithstanding any other provision of this title, an action arising

from a major transaction may not be brought in a county if: . . .”) (emphasis added); see also id.

§ 15.020(d)(3) (“This Section does not apply if: . . . venue is established under a statute of this

state other than this title.”) (emphasis added).

383

886 S.W.2d 259, 261 (Tex. 1994).

384

Id. (footnote omitted) (emphasis added) (citing Maranatha Temple, Inc. v. Enter. Prods.

Co., 833 S.W.2d 736, 741 (Tex. App.—Houston [1st Dist.] 1992, writ denied).

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154 BAYLOR LAW REVIEW [Vol. 68:1

The Court elaborated on this policy that a plaintiff has a right to select

venue, so long as the plaintiff chooses a county of proper venue, by

endorsing the policy-based language of a court of appeals opinion,

385

stating:

The First Court of Appeals correctly understood the harsh

effect of such a rule: [W]hen the plaintiff files suit in a

permissible county, and the trial court wrongly transfers

venue to another county, even a permissible one, the

plaintiff has lost his right to choose where to bring his suit.

He has neither waived his option by filing in an

impermissible county nor had his suit transferred because

the defendant has properly shown that it should be. Yet, he

has lost the right to bring suit in the permissible county of

his choice. He has lost a right which he neither waived nor

was rightfully divested of. The harmless error rule should

not apply to such a circumstance.

386

While the Texas Supreme Court in Wilson was not deciding whether

one mandatory venue provision controlled over another conflicting

mandatory venue provision, the Court endorsed in no uncertain terms the

policy that a plaintiff has a right to choose where to have claims litigated.

387

So long as the plaintiff chooses a county of proper venue, the policy

underlying the Texas venue scheme supports the determination that the

plaintiff’s choice should not be disturbed.

388

Arguably, the Texas

Legislature has recognized this point by only requiring a court to transfer

an action to another county if the plaintiff filed suit in a county of improper

venue, as defined by the venue statutes.

389

In In re Fisher, the Court actually addressed a conflict between two

competing mandatory-venue statutes.

390

There, the Court explicitly

endorsed the general policy behind the Texas venue framework by citing to

the Wilson opinion for the assertion that “[v]enue may be proper in multiple

385

See Maranatha, 833 S.W.2d at 741.

386

Wilson, 886 S.W.2d at 261 (citing Maranatha, 833 S.W.2d at 741) (third and fourth

emphasis added).

387

See id.

388

See Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 677 (Tex. App.—Austin

2003, no pet.).

389

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.063(1) (West 2008).

390

433 S.W.3d 523, 533–34 (Tex. 2014) (orig. proceeding).

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counties under mandatory venue rules, and the plaintiff is generally

afforded the right to choose venue when suit is filed.”

391

Because the

conflict at issue in In re Fisher was between Section 15.020, the “major

transaction” statute, and Section 15.017 regarding suits for defamation, the

Court held that Section 15.020 prevailed over Section 15.017.

392

The Court

reached this conclusion, however, based on the following reasoning: “But

in this case, the language of Section 15.020 applies to an action arising from

a major transaction ‘[n]otwithstanding any other provision of this title.’

This indicates that the Legislature intended for it to control over other

mandatory venue provisions.”

393

Thus, after approvingly citing the general

venue policy expressed in Wilson, the Court only found that the plaintiff’s

choice of venue would not prevail because of the express terms of the

statute in Section 15.020(c).

394

This view comports with the “general rule in

Texas that ‘venue selection cannot be the subject of private contract unless

otherwise provided by statute.’”

395

This is the rule that the authors of this Article humbly propose Texas

courts should apply in order to resolve the quandary of competing

mandatory venue provisions: When two mandatory-venue statutes provide

that venue is mandatory in two different counties, the plaintiff’s choice

between the two proper counties should prevail unless the Legislature has

expressly stated that one statute should control over the other.

This bright-line rule makes sense. Venue is “a creature of legislative

grace, and because a change of venue was unknown to the common law, the

power to make venue changes is purely statutory.”

396

Currently, there “is no

venue statute providing that, if there is a conflict between two statutes as to

391

Id. at 533 (emphasis added) (citing Wilson, 886 S.W.2d at 260).

392

See id. at 533–34.

393

Id. (citations omitted) (internal quotation marks omitted).

394

See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(c) (“Notwithstanding any

other provision of this title . . .”).

395

See In re Lovell-Osburn, 448 S.W.3d 616, 620 (Tex. App.—Houston [14th Dist.] 2014,

orig. proceeding) (emphasis added) (quoting Liu v. CiCi Enters., L.P., No. 14-05-00827-CV, 2007

WL 43816, at *2 (Tex. App.—Houston [14th Dist.] Jan. 9, 2007, no pet.) (mem. op., not

designated for publication)); see also Fleming v. Ahumada, 193 S.W.3d 704, 712–13 (Tex.

App.—Corpus Christi 2006, no pet.) (holding that a contractual provision attempting to fix venue

in a settlement agreement was invalid because “[i]n general, the fixing of venue by contract,

except in such instances as [specifically permitted by statute], is invalid and cannot be the subject

of private contract.” (alteration in original) (internal quotation marks omitted) (citing Fid. Union

Life Ins. Co. v. Evans, 477 S.W.2d 535, 537 (Tex. 1972))).

396

See Polaris Inv. Mgmt. Corp. v. Abascal, 892 S.W.2d 860, 862 (Tex. 1995).

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156 BAYLOR LAW REVIEW [Vol. 68:1

the mandatory venue, the plaintiff has a right to choose the county in which

the Legislature mandated venue.”

397

Yet, there is a statute that defines

“proper venue” as the “venue required by” a mandatory-venue statute.

398

Further, another venue statute only requires that a trial court “shall” transfer

an action when the action is pending in a county of improper venue.

399

When a plaintiff files suit in a county in accordance with “the mandatory

provisions of Subchapter B [of Chapter 15] or another statute prescribing

mandatory venue,” that county is a county of proper venue under the venue

rules.

400

“The declared purpose of the rules [of civil procedure] in both [the

Texas and Federal] systems is ‘to secure the just, speedy, and inexpensive

determination of every action . . . .’”

401

The bright-line rule proposed in this

Article will accomplish this expressed purpose and make both practical and

economic sense by providing much-needed clarity for Texas practitioners.

This bright-line rule will enable Texas practitioners to be certain that, when

venue is established under a mandatory-venue statute, the parties will not be

forced into spending excessive hours and expenses on unnecessary venue

hearings and appeals of pre-merits decisions in their cases. Finally, this

bright-line rule is consistent with the recognized venue policy in Texas that

a plaintiff is generally afforded the right to choose where to set venue, so

397

See In re Sosa, 370 S.W.3d 79, 81 (Tex. App.—Houston [14th Dist.] 2012, orig.

proceeding).

398

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.001(b).

399

See id. § 15.063(1).

400

See id. § 15.001(b).

401

See William A. Vinson, Federal Rules and Texas Rules of Appellate Procedure—A

Comparison, 20 T

EX. L. REV. 46, 46 (1941). Mr. Vinson, one of the founding partners of the well-

known international law firm Vinson & Elkins LLP, drafted this article only a year after Mr.

Vinson had been appointed by the Texas Supreme Court to serve on the Texas Supreme Court

Advisory Committee on Rules of Procedure, a committee appointed to “prepare a code of civil

procedure for all the Texas civil courts.” See Ann Hornak, VINSON, WILLIAM ASHTON, T

EXAS

STATE HISTORICAL ASSOCIATION (June 15, 2010), http://www.tshaonline.org/handbook/online/

articles/fvi13. The Advisory Committee on Rules of Procedure wholeheartedly endorsed this

principle, citing to the article in the General Commentary added to Rule 1 of the Texas Rules of

Civil Procedure in 1966. See T

EX. R. CIV. P. 1 (Gen. Commentary 1966); see also FED. R. CIV. P.

1 (Stating that the rules of procedure should be construed and administered “to secure the just,

speedy, and inexpensive determination of every action.”).

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long as the plaintiff chooses a county of proper venue,

402

subject to the

power of the Texas Legislature to expressly provide otherwise.

In In re Fisher, the Texas Supreme Court did not look to rules of

statutory construction and determine that the “more-specific, later-enacted

statute of mandatory venue” should control.

403

The Court did not use

statutory interpretation to determine that the statute with the longer-standing

“history” should control.

404

Instead, the Court recognized the venue policy

in Texas, as stated in Wilson v. Texas Parks and Wildlife Department,

405

and only departed from that policy because of the express language of the

mandatory-venue statute at issue.

406

Therefore, to consolidate the various

inconsistent approaches of Texas courts and resolve the quandary of

competing mandatory-venue statutes in Texas, the courts of Texas should

apply the following bright-line rule: When two mandatory-venue statutes

provide that venue is mandatory in two different counties, the plaintiff’s

choice between the two proper counties should prevail unless the

Legislature has expressly stated that one statute should control over the

other.

V. CONCLUSION

Based on the differing and conflicting approaches that Texas courts

have endorsed to decide between competing mandatory-venue statutes,

Texas practitioners currently have the ability to select among multiple

rationales and advocate for a trial court to utilize the rationale most

favorable to their venue position. Texas practitioners should find the tools

and resources to advocate for their position in this Article. The downside to

this opportunity for advocacy is inconsistency, uncertainty, and

unpredictability. A bright-line rule, such as the one proposed in this Article,

is needed from the Texas Supreme Court or the Texas Legislature to

402

See, e.g., Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 677 (Tex. App.—

Austin 2003, no pet.).

403

Compare In re Fisher, 433 S.W.3d 523, 533–34 (Tex. 2014) (orig. proceeding), with In re

Sosa, 370 S.W.3d 79, 81–82 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding).

404

Compare In re Fisher, 433 S.W.3d at 533–34, with In re Fort Bend Cty., 278 S.W.3d 842,

844–45 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding).

405

886 S.W.2d 259, 261 (Tex. 1994) (“Therefore, if the plaintiff chooses a county of proper

venue, and this is supported by proof as required by Rule 87, no other county can be a proper

venue in that case.”).

406

See In re Fisher, 433 S.W.3d at 533–34.

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eradicate the inconsistency, unpredictability, and excessive cost of resolving

conflicts between mandatory venue provisions.

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APPENDIX: SPECIFIC MANDATORY-VENUE STATUTES IN TEXAS

Directing the trial court to a mandatory-venue statute provides

significant advantages to a litigant. For one, a trial court has no discretion to

refuse to enforce a mandatory-venue statute over a general or permissive

venue statute, assuming the proponent of the statute makes the necessary

prima facie showing that the asserted mandatory-venue statute is applicable

to the case.

407

For another, when a plaintiff properly joins two or more

claims or causes of actions, and one of the claims or causes of action is

governed by a mandatory-venue statute, “the suit shall be brought in the

county required by the mandatory venue provision.”

408

Further, a party can

apply for a writ of mandamus to enforce a mandatory venue provision

rather than awaiting appeal after trial.

409

This Appendix is devoted to

providing Texas practitioners with legal background for many of the most

commonly-cited mandatory venue provisions in Texas.

A. Chapter 15 of the Texas Civil Practice and Remedies Code

The Texas venue scheme is set forth in Chapter 15 of the Texas Civil

Practice and Remedies Code. A non-exclusive collection of mandatory-

venue statutes is set forth in Subchapter B, entitled “Mandatory Venue,” of

Chapter 15 of the Texas Civil Practice and Remedies Code.

410

However, the

407

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.001 (West 2002) (the general venue rule

providing that venue is only proper in a particular county under a permissive venue statute,

including the general venue rule, if a mandatory-venue statute does not apply); T

EX. R. CIV. P.

87(2)–(3) (setting forth the requirements for making a prima facie showing); see also In re Lovell-

Osburn, 448 S.W.3d 616, 620 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding) (“Texas

courts have long held that . . . a trial court has a ministerial duty to transfer venue when the

statutory terms [of a mandatory-venue statute] are satisfied.”); K.J. Eastwood Invs., Inc. v. Enlow,

923 S.W.2d 255, 258 (Tex. App.—Fort Worth 1996, no writ) (holding that trial court had “no

discretion to deny the motion to transfer venue” when the movant made a prima facie showing

that the action fell under a mandatory-venue statute).

408

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.004 (titled “Mandatory Venue Provisions

Governs Multiple Claims”).

409

See id. § 15.0642 (“A party may apply for a writ of mandamus with an appellate court to

enforce the mandatory venue provisions of this chapter. An application for the writ of mandamus

must be filed before the later of: (1) the 90th day before the date the trial starts; or (2) the 10th day

after the date the party receives notice of the trial setting.”); see also In re Lopez, 372 S.W.3d 174,

176–77 (Tex. 2012) (holding that mandamus relief is available to correct a trial court’s erroneous

ruling on a mandatory venue contest, and it is not necessary that the petitioner demonstrate that

the petitioner has no adequate remedy by appeal).

410

See TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.011–15.020.

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Texas Legislature has enacted numerous mandatory-venue statutes outside

of Subchapter B as well.

411

This Section addresses the mandatory-venue statutes located within

Subchapter B of Chapter 15

412

in order to assist Texas trial lawyers in

determining when these statutes will apply to their suit.

1. Tex. Civ. Prac. & Rem. Code Ann. § 15.011 – Suits Involving

Real Property

The first mandatory venue provision in Subchapter B

413

addresses

actions for recovery of interests in real property.

414

This mandatory venue

provision provides as follows:

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.

415

Importantly, the Texas Supreme Court has held that when the Texas

Legislature enacted Section 15.011, the Legislature “intended Section

15.011 to be more inclusive [than Section 15.011’s now-repealed

predecessor statute

416

] regarding the types of real property suits subject to

mandatory venue.”

417

Specifically, the Court relied on the Legislature’s

411

See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 65.023 (providing that “a writ of

injunction against a party who is a resident of this state shall be tried in a district or county court

in the county in which the party is domiciled.”); T

EX. PROP. CODE ANN. § 21.013 (West 2014)

(providing that the “venue of a condemnation proceeding is the county in which the owner of the

property being condemned resides if the owner resides in a county in which part of the property is

located. Otherwise, the venue of a condemnation proceeding is any county in which at least part of

the property is located.”).

412

TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.011–15.020.

413

Id.

414

See id. § 15.011.

415

Id.

416

See Act of Dec. 10, 1863, 10th Leg., ch. 17, § 1, 1863 Tex. Gen. Laws 10 (relevant version

available at T

EX. REV. CIV. STAT. ANN. art. 1995, §§ 12–15 (West 1950)).

417

In re Applied Chem. Magnesias Corp., 206 S.W.3d 114, 118–19 (Tex. 2006) (orig.

proceeding) (holding that a declaratory judgment suit to determine the rights of the parties to a

contract to acquire surface and mineral leases was an action involving an interest in real property

thus making it subject to the mandatory venue provision in Section 15.011).

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addition of the term “or interest in real property” to indicate the legislative

intent to expand the scope of the types of actions that are subject to

mandatory venue under Section 15.011.

418

To establish the applicability of Section 15.011:

a party must allege two venue facts, and establish them by

prima facie proof if specifically denied, to show that venue

is mandatory under Section 15.011: (1) that the nature of

the suit fits within those listed in Section 15.011, and (2)

that all or part of the realty at issue is located in the county

of suit.

419

It is the ultimate or dominant purpose of a suit, and not how the causes

of action are described by the parties, which determines whether the nature

of the suit makes it subject to Section 15.011.

420

The nature of the plaintiff’s

claim is determined from the principal right asserted and the relief sought in

the petition.

421

Texas courts have held that a lien created by a deed of trust

is an encumbrance on the title to real property under this mandatory venue

provision

422

and that a suit to cancel a deed of trust procured by fraud is a

suit to remove an encumbrance from title, which affects an interest in land

under this mandatory venue provision.

423

Along these lines, a demand for a

constructive trust on an interest in land is considered tantamount to an

attempt to recover real property and, therefore, is subject to the mandatory

418

See id. at 117–18.

419

See In re City Nat’l Bank, 257 S.W.3d 452, 454–55 (Tex. App.—Tyler 2008, orig.

proceeding [mand. denied]) (internal quotations omitted) (holding that a “lien created by a deed of

trust is an encumbrance on the title to real property,” and therefore, a suit regarding foreclosure on

the deed of trust lien, pledged as security to a promissory note, was “tantamount to a suit to

remove an encumbrance from the title [to] real property,” which made venue mandatory in the

county where the land was located).

420

See In re Applied Chem., 206 S.W.3d at 118–19 (holding that “special distinctions for real

property suits” should not be made simply because the suit is “couched in terms of a declaratory

judgment action” and holding that venue was mandatory in the county of the land at issue because

the plaintiff was “using the declaratory judgment mechanism as an indirect means of quieting title

to the mineral estate” of the land at issue); see also In re City Nat’l Bank, 257 S.W.3d at 454;

Bracewell v. Fair, 638 S.W.2d 612, 615 (Tex. App.—Houston [1st Dist.] 1982, no writ).

421

See In re City Nat’l Bank, 257 S.W.3d at 454–55; see also In re Stroud Oil Props., Inc.,

110 S.W.3d 18, 25 (Tex. App.—Waco 2002, orig. proceeding).

422

See In re City Nat’l Bank, 257 S.W.3d at 455 (citing Pringle v. S. Bankers Life Ins. Co.,

296 S.W.2d 347, 349 (Tex. Civ. App.—Austin 1956, no writ)).

423

See id.

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venue provision in Section 15.011.

424

Moreover, Texas courts have held

that suits for rescission of a contract transferring real property and suits

seeking royalty and overriding royalty interests in minerals are subject to

Section 15.011.

425

In summary, any deed, contract, judgment, or other instrument not void

on its face that purports to convey any interest in or makes any change upon

the land of a true owner, the invalidity of which would require proof, is a

cloud upon legal title and, thus, would satisfy the requirements under this

mandatory venue provision.

426

This mandatory venue provision has broad

applicability because “[o]nce it is demonstrated that the court’s judgment

would have some effect on an interest in land, then the venue of the suit is

properly fixed under the mandatory-venue statute.”

427

2. Tex. Civ. Prac. & Rem. Code Ann. § 15.0115 – Landlord-

Tenant

Section 15.0115, another mandatory venue provision within Chapter 15,

addresses suits involving landlord-tenant relationships, providing that:

(a) 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.

424

See In re Kerr, 293 S.W.3d 353, 358, 360 (Tex. App.—Beaumont 2009, orig. proceeding

[mand. denied]) (holding that a suit for breach of fiduciary duty based on the allegedly fraudulent

acquisition of profits from mineral leases depended on the rightful ownership of real property and,

therefore, satisfied Section 15.011’s mandatory venue requirements because “[w]hen rightful

ownership of real property must be decided as a prerequisite to the relief requested, the mandatory

venue statute governs.”).

425

See, e.g., In re Signorelli Co., 446 S.W.3d 470, 475–76 (Tex. App.—Houston [1st Dist.]

2014, no pet.) (holding that in a suit premised upon allegations of breach of contract and fraud

relating to contracts for two parcels of land, the substance of at least one of the plaintiff’s claims

affected an interest in real property, and thus, venue was mandatory in the county where that real

property was located under Section 15.011); see also Madera Prod. Co. v. Atl. Richfield Co., 107

S.W.3d 652, 659–60 (Tex. App.—Texarkana 2003, pet. denied in part, pet. dism’d in part)

(“Because [the plaintiff] bases its claims to damages on the ownership right to a real property

interest, transfer of this case to Gregg County where the mineral interest was located was proper

[under Section 15.011].”).

426

See In re City Nat’l Bank, 257 S.W.3d at 455 (citing DRG Fin. Corp. v. Wade, 577 S.W.2d

349, 352 (Tex. Civ. App.—Houston [14th Dist.] 1979, no writ)).

427

See id. (citing N. Nat. Gas v. Chisos Joint Venture I, 142 S.W.3d 447, 453 (Tex. App.—El

Paso 2004, no pet.)).

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(b) 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.

428

Despite not defining “landlord” or “tenant” in the statute, Texas courts

have held that the terms are clearly intended to apply in the context of

commercial leases, leases of farm or ranch land, and even leases for a salt

water disposal well.

429

Like Section 15.011, the basis for this mandatory

venue provision is the location of real property. Therefore, to establish the

applicability of this mandatory venue provision, the plaintiff must allege the

necessary “two venue facts (and establish them by prima facie proof if

specifically denied) to show that venue is mandatory under the real property

venue exceptions: (1) that the nature of the suit fits within the requirements

of the exception; and (2) that all or part of the realty at issue is located in

the county of suit.”

430

3. Tex. Civ. Prac. & Rem. Code Ann. § 15.012 – Injunction

Against Suit

Section 15.012 addresses anti-suit injunctions and provides that:

“Actions to stay proceedings in a suit shall be brought in the county in

which the suit is pending.”

431

As explained below, another mandatory

venue provision, located outside of Chapter 15, provides that a writ of

injunction against a Texas resident must be brought in the county in which

the Texas resident is domiciled.

432

Texas courts have interpreted the latter

428

TEX. CIV. PRAC. & REM. CODE ANN. § 15.0115 (West 2002).

429

See, e.g., In re Freestone Underground Storage, Inc., 429 S.W.3d 110, 117–18 (Tex.

App.—Texarkana 2014, orig. proceeding) (“We believe that if restrictive definitions of the terms

‘landlord’ and ‘tenant’ were required for a proper interpretation or application of Chapter 15 of the

Texas Civil Practice and Remedies Code, the Legislature would have provided such restrictive

definitions. . . . The terms ‘landlord’ and ‘tenant’ are commonly used in the context of commercial

leases and leases of farm or ranch land. In fact, the Waco Court of Appeals has used the terms

‘landlord’ and ‘tenant’ to describe a lease for a salt water disposal well.” (citing In re Royalco Oil

& Gas Corp., 287 S.W.3d 398, 399 (Tex. App.—Waco 2009, orig. proceeding))).

430

2 Roy W. MCDONALD & ELAINE A. GRAFTON CARLSON, TEXAS CIVIL PRACTICE § 6:12

(2d ed. 2002).

431

TEX. CIV. PRAC. & REM. CODE ANN. § 15.012.

432

See id. § 65.023.

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mandatory venue provision, Section 65.023, to only apply to suits where the

relief sought was primarily injunctive.

433

Anti-suit injunctions covered by Section 15.012 obviously constitute a

far more narrow category of injunctive relief than that encompassed by

Section 65.023, but in one respect Section 15.012 may be more broadly

applied than Section 65.023. At least one Texas court has interpreted

Section 15.012 to not require a showing that the primary relief sought is

primarily injunctive.

434

The court explained the significance of this

distinction as follows:

We find nothing in the plain language of Section 15.012

limiting this mandatory venue Section to suits that are

primarily injunctive. Accordingly, we determine the scope

of this mandatory venue provision involving anti-suit

injunctions includes [both] primarily injunctive relief suits

and suits in which injunctive relief sought is ancillary to

other relief.

435

Therefore, when the requested injunctive relief qualifies as an anti-suit

injunction, Texas practitioners can support mandatory venue with a lesser

showing under Section 15.012 than under Section 65.023.

4. Tex. Civ. Prac. & Rem. Code Ann. § 15.013 – Injunction

Against Execution of Judgment

Another seldom-used mandatory-venue statute within Chapter 15,

Section 15.013, addresses suits where one party seeks to enjoin the

execution of a judgment and provides that “[a]ctions to restrain execution of

433

See, e.g., In re Cont’l Airlines, Inc., 988 S.W.2d 733, 736–37 (Tex. 1998) (holding that a

suit for declaratory relief was not primarily seeking injunctive relief, so venue was not mandatory

under Section 65.023 and stating that “[t]he mere possibility that a defendant will disobey the final

judgment of a court, causing it to resort to enforce its judgment through injunction, does not

transform the suit into an injunction suit under Section 65.023(a).”); Ex parte Coffee, 328 S.W.2d

283, 287 (Tex. 1959).

434

See O’Quinn v. Hall, 77 S.W.3d 452, 455–56 (Tex. App.—Corpus Christi 2002, no pet.)

(distinguishing In re Cont’l Airlines, Inc., 988 S.W.2d 733 (Tex. 1998) and the Texas Supreme

Court’s interpretation of Section 65.023 by stating that “the defendant in In re Cont’l Airlines did

not assert that Section 15.012 of the venue statute mandated venue. Neither did the Court

acknowledge that Section 15.012 applied only to suits where the relief sought was primarily

injunctive.”).

435

O’Quinn, 77 S.W.3d at 456.

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a judgment based on invalidity of the judgment or of the writ shall be

brought in the county in which the judgment was rendered.”

436

This

mandatory venue provision “was intended to establish mandatory venue

‘only [for] suits attacking the judgment, questioning its validity, or

presenting defenses properly connected with the suit in which it was

rendered, and which should have been adjudicated therein.’”

437

5. Tex. Civ. Prac. & Rem. Code Ann. § 15.014 – Head of State

Department

Section 15.014 provides for venue of suits seeking mandamus against

the State: “[a]n action for mandamus against the head of a department of the

state government shall be brought in Travis County.”

438

This mandatory-

venue statute applies if the relief sought is to compel action pursuant to a

mandatory legal duty, even where the petition does not use the term

“mandamus.”

439

As Roy McDonald and Elaine Carlson point out, this mandatory-venue

statute “was adopted by the Republic of Texas to relieve the commissioner

of the general land office from process from distant counties.”

440

In addition

to the commissioner of the general land office, heads of a department of the

state government would include heads of the Texas Parks and Wildlife

Department, the State Department of Health, and other state administrative

436

TEX. CIV. PRAC. & REM. CODE ANN. § 15.013.

437

See Lopez v. Tex. Workers’ Comp. Ins. Fund, 11 S.W.3d 490, 494 (Tex. App.—Austin

2000, pet. denied) (holding that an action by the Workers’ Compensation Insurance Fund, which

sought a declaration as to whether the Fund was statutorily required to pay benefits to a claimaint

pending the Fund’s appeal of a district court judgment awarding benefits, did not attack the

validity of the district court judgment, but simply affected when the Fund would have to pay, and

thus, venue was not mandatory in the county where the judgment was rendered); see also

Hageman/Fritz, Byrne, Head & Harrison, L.L.P. v. Luth, 150 S.W.3d 617, 629 (Tex. App.—

Austin 2004, no pet.) (holding that venue for settlement creditor’s action seeking declaratory

judgment relating to settlement funds that deputy constables of the court of the first county seized

during creditor’s settlement conference with the judgment debtor, was mandatory in the court of

the second county that issued the writ of execution on prior judgment against creditor, because the

substance of the case was validity of the writ of execution, and the prior judgment was valid on its

face).

438

TEX. CIV. PRAC. & REM. CODE ANN. § 15.014.

439

See 2 MCDONALD & CARLSON, supra note 430 § 6:14 (citing State Bd. of Ins. v. Adams,

316 S.W.2d 773, 779 (Tex. Civ. App.—Houston 1958, writ ref’d n.r.e.).

440

See id. § 6:14 n.4.

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166 BAYLOR LAW REVIEW [Vol. 68:1

agencies.

441

This statute has also been held to apply to the Board of Regents

for a public or state university.

442

6. Tex. Civ. Prac. & Rem. Code Ann. § 15.015 – Counties

Section 15.015, an important mandatory-venue statute, provides that

“[a]n action against a county shall be brought in that county.

443

Some Texas

courts of appeals have applied special significance to Section 15.015.

444

least one Texas court has held that a suit is deemed to be against a county,

even though the county is not named, when the suit is brought against the

county officials in their official capacity and is based upon a claim growing

out of transactions with the county, to which the county officials have no

personal interest.

445

While the fact that other codefendants are residents of

other counties does not alter this mandatory-venue statute requiring the suit

against the county to be brought in that county, it should be noted that when

a county is named as a third-party defendant, this mandatory-venue statute

would not control over the statute relied upon to establish venue of the main

action.

446

441

See 1 Kim J. Askew & Adele Hedges, Texas Practice Guide: Civil Pretrial § 6:26 (2015).

442

See Univ. of Tex. v. Booker, 282 S.W.2d 740, 743 (Tex. Civ. App.—Texarkana 1955, no

writ) (construing the predecessor statute, T

EX. REV. CIV. STAT. ANN. art. 1995, § 20, repealed by

Act of May 17, 1985,, 69th Leg., R.S., ch. 959 § 9(1), 1985

TEX. GEN. LAWS 3242.

443

TEX. CIV. PRAC. & REM. CODE ANN. § 15.015.

444

See In re San Jacinto Cty., 416 S.W.3d 639, 642 (Tex. App.—Houston [14th Dist.] 2013,

no pet.) (holding that in a declaratory judgment action seeking a declaration that mineral interests

owned by a decedent were not included in a Section of real property devised to San Jacinto

County that “when a county is sued, venue is mandatory in that county irrespective of any other

venue statutes, whether mandatory or permissive.”); In re Fort Bend Cty., 278 S.W.3d 842, 844

(Tex. App.—Houston [14th Dist.] 2009, orig. proceeding) (stating that “Texas courts have

interpreted Section 15.015 as having no exception”).

445

See 2 MCDONALD & CARLSON, supra note 430 § 6:13 (citing Cobb v. H.C. Burt & Co.,

241 S.W. 185 (Tex. Civ. App.—Beaumont 1922, no writ)).

446

See 72 Tex. Jur. 3d Venue § 46 (2013) (citing In re Cty. of Galveston, 211 S.W.3d 879,

881–82 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (construing T

EX. CIV. PRAC. & REM.

CODE § 15.062(a), which states that venue of the main action “shall” establish venue of a third-

party claim, controlled over Section 15.015 in a suit where Galveston County was joined as a

third-party defendant)).

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7. Tex. Civ. Prac. & Rem. Code Ann. § 15.0151 – Certain

Political Subdivisions

Section 15.0151 addresses suits against certain political subdivisions,

providing that:

(a) 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.

447

This mandatory-venue statute defines a “political subdivision” as a

governmental entity in Texas, other than a county, which is not a state

agency.

448

A “political subdivision” includes “a municipality, school or

junior college district, hospital district, or any other special purpose district

or authority.”

449

Practitioners should be aware that a suit against an

administrator of a political subdivision in the administrator’s individual

capacity, however, would not qualify as an action against the political

subdivision for venue purposes.

450

8. Tex. Civ. Prac. & Rem. Code Ann. § 15.017 – Libel, Slander,

Privacy Invasion

Section 15.017 provides for mandatory venue in defamation and

invasion of privacy suits, stating that:

A suit for damages for libel, slander, or invasion of privacy

shall be brought and can only be maintained in the county

in which the plaintiff resided at the time of the accrual of

the cause of action, or in the county in which the defendant

447

TEX. CIV. PRAC. & REM. CODE ANN. § 15.0151(a).

448

Id. § 15.0151(b).

449

Id.; see also Sabine Cty. Hosp. Dist. v. Packard, No. 12-11-00272-CV, 2012 WL 1268386,

at *2 (Tex. App.—Tyler April 11, 2012, no pet.) (not designated for publication) (“A hospital

district is a special purpose district.”) .

450

See McIntosh v. Copeland, 894 S.W.2d 60, 63–64 (Tex. App.—Austin 1995, writ denied)

(“We hold that a tort action against a county hospital administrator in his individual capacity is not

an action against the county for venue purposes.”).

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168 BAYLOR LAW REVIEW [Vol. 68:1

resided at the time of filing suit, or in the county of the

residence of defendants, or any of them, or the domicile of

any corporate defendant, at the election of the plaintiff.

451

Before the enactment of the original version of this mandatory-venue

statute in 1919, a plaintiff could establish venue for a libel suit in any

county where a publication had been distributed.

452

To prevent abusive

forum shopping, this mandatory-venue statute limits the counties of proper

venue for the action to the counties set forth in the statute.

453

Texas courts

have long held that this mandatory-venue statute is to be liberally construed

in favor of the plaintiff bringing a defamation suit.

454

Importantly,

practitioners should note that Section 15.017 only applies to suits where

damages are sought.

455

To establish proper venue under this mandatory statute, the plaintiff

often must show that: (1) a cause of action for defamation or invasion of

privacy in fact has accrued; and (2) at the time the cause of action accrued,

the plaintiff resided in the county in which the suit was filed.

456

9. Tex. Civ. Prac. & Rem. Code Ann. § 15.018 – FELA

Section 15.018 provides for mandatory venue in suits brought under the

Federal Employers’ Liability Act (FELA)

457

in Texas state courts.

458

This

mandatory venue provision requires FELA suits to be brought:

451

TEX. CIV. PRAC. & REM. CODE ANN. § 15.017.

452

See 2 MCDONALD & CARLSON, supra note 430 § 6:16.

453

See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 15.017.

454

See 72 Tex. Jur. 3d Venue § 49 (2013) (citing Evans v. Am. Publ’g Co., 13 S.W.2d 358,

361 (Tex. Comm’n App. 1929) (“We therefore conclude that [the predecessor to Section 15.017]

should be liberally construed in favor of the plaintiff in a suit for damages for libel or slander.”).

455

See Johnson v. Davis, 178 S.W.3d 230, 236–37 (Tex. App.—Houston [14th Dist.] 2005,

pet. denied) (holding that Section 15.017 only applies “in a suit for damages[,]” and therefore,

“[b]ecause [the plaintiff] did not seek damages, his reliance on Section 15.017 [was] misplaced.”).

456

See 2 MCDONALD & CARLSON, supra note 430 § 6:16 (citing TEX. R. CIV. P. 87(3);

Moriarty v. Williams, 752 S.W.2d 610, 612 (Tex. App.—El Paso 1988, writ denied); Crook v.

Finch, 347 S.W.2d 335, 336 (Tex. Civ. App.—Waco 1961, no writ); Burkhart v. Bard, 299

S.W.2d 392, 394 (Tex. Civ. App.—Texarkana 1957, no writ); Evans, 13 S.W.2d at 359; Express

Publ’g Co. v. Gonzalez, 326 S.W.2d 544, 545 (Tex. Civ. App.—San Antonio 1959, writ dism’d)).

457

45 U.S.C. §§ 51–60 (2014).

458

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.018.

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(1) in the county in which all or a substantial part of the

events or omissions giving rise to the claim occurred; (2) in

the county where the defendant’s principal office in this

state is located; or (3) in the county where the plaintiff

resided at the time the cause of action accrued.”

459

In an important decision regarding a venue challenge in a FELA action, the

Supreme Court of Texas clarified that to make a prima facie showing as to

where an entity’s principal office is located, the plaintiff must present

“evidence of the corporate structure and the authority of the officers in the

county of suit as compared with the remainder of the state.”

460

10. Tex. Civ. Prac. & Rem. Code Ann. § 15.0181 – Jones Act

Section 15.0181 addresses maritime suits brought under the Jones

Act,

461

providing that venue is mandatory in such suits in one of the

following counties: (1) the county where the defendant’s principal office in

this state is located; (2) the county in which all or a substantial part of the

events or omissions giving rise to the claim occurred; or (3) in the county

where the plaintiff resided at the time the cause of action accrued.

462

The

statute defines a “Coastal county,”

463

“Coastal erosion,”

464

an “Erosion

response project,”

465

a “Gulf Coast state,”

466

and “Inland waters.”

467

More specifically, the statute provides that if all or a substantial part of

the events or omissions giving rise to the claim occurred on the inland

waters of Texas, ashore in Texas, or during the course of an erosion

response project in Texas, the suit must be brought in the county in which

all or a substantial part of the events giving rise to the claim occurred or in

the county where the defendant’s principal office in Texas is located.

468

Further, if all or a substantial part of the events or omissions giving rise to

the claim occurred on inland waters outside this state, ashore in a Gulf

459

Id. § 15.018(b).

460

See In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 220 (Tex. 1999).

461

46 U.S.C. § 30104 (2014).

462

TEX. CIV. PRAC. & REM. CODE ANN. § 15.0181(b), (c).

463

See id. § 15.0181(a)(1).

464

See id. § 15.0181(a)(2).

465

See id. § 15.0181(a)(3).

466

See id. § 15.0181(a)(4).

467

See id. § 15.0181(a)(5).

468

Id. § 15.0181(d).

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Coast state, or during the course of an erosion response project in a Gulf

Coast state, the suit shall be brought:

(1) in the county where the defendant’s principal office in

this state is located if the defendant’s principal office in this

state is located in a coastal county;

(2) in Harris County unless the plaintiff resided in

Galveston County at the time the cause of action accrued;

(3) in Galveston County unless the plaintiff resided in

Harris County at the time the cause of action accrued; or

(4) if the defendant does not have a principal office in this

state located in a coastal county, in the county where the

plaintiff resided at the time the cause of action accrued.

469

11. Tex. Civ. Prac. & Rem. Code Ann. § 15.019 – Inmate

Litigation

Section 15.019 provides for mandatory venue in inmate litigation, but

the statute does not apply to suits brought under the Texas Family Code.

470

Section 15.019 provides that, except for actions against heads of state

departments,

471

“an action that accrued while the plaintiff was housed in a

facility operated by or under contract with the Texas Department of

Criminal Justice shall be brought in the county in which the facility is

located.”

472

In addition, the statute clarifies that “an action brought by two

or more plaintiffs that accrued while the plaintiffs were housed in a facility

operated by or under contract with the Texas Department of Criminal

Justice shall be brought in a county in which a facility that housed one of

the plaintiffs is located.”

473

469

Id. § 15.0181(e).

470

See id. § 15.019(c).

471

See id. § 15.014.

472

Id. § 15.019(a); see also Johnson v. Davis, 178 S.W.3d 230, 237 (Tex. App.—Houston

[14th Dist.] 2005, pet. denied) (holding that the plaintiff “was incarcerated within the Texas

Department of Criminal Justice and was being housed in Walker County when he filed suit[,]” so

“venue was mandatory in Walker County.”).

473

TEX. CIV. PRAC. & REM. CODE ANN. § 15.019(b).

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12. Tex. Civ. Prac. & Rem. Code Ann. § 15.020 – Major

Transactions: Specification of Venue by Agreement

The last mandatory-venue statute within Chapter 15 addresses venue for

“Major Transactions” and is set forth in Section 15.020.

474

Unique from all

the other mandatory-venue statutes in Chapter 15, the mandatory venue

provision in Section 15.020 provides that “[a]n 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.”

475

This mandatory-venue statute is particularly

significant because “venue-selection clauses are generally unenforceable in

Texas unless the contract evinces a ‘major transaction’ as defined in the

venue rules.”

476

a. Defining a “Major Transaction”

Section 15.020 first defines a “major transaction” as “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.”

477

A “major transaction”

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.

478

Texas courts have strictly

construed this definition, holding that proof of the value of a transaction is

not sufficient to trigger the mandatory-venue statute if the written

agreement, itself, fails to expressly identify the aggregate stated value of the

474

See id. § 15.020.

475

Id. § 15.020(b).

476

Hiles v. Arnie & Co., 402 S.W.3d 820, 828 (Tex. App.—Houston [14th Dist.] 2013, pet.

denied) (citing In re Tex. Ass’n of Sch. Bds., 169 S.W.3d 653, 660 (Tex. 2005)); Yarber v.

Iglehart, 264 S.W.2d 474, 476 (Tex. Civ. App.—Dallas 1953, no writ)); see also In re Grp. 1

Realty, Inc., 441 S.W.3d 469, 472 (Tex. App.—El Paso 2014, orig. proceeding) (“Although the

fixing of venue by contract is generally invalid, Section 15.020 creates a limited exception in

cases involving ‘major transactions.’” (citing In re Great Lakes Dredge & Dock Co., 251 S.W.3d

68, 76 (Tex. App.—Corpus Christi 2008, orig. proceeding)); Shamoun & Norman, LLP v. Yarto

Int’l Grp., LP, 398 S.W.3d 272, 293 (Tex. App.—Corpus Christi 2012, pet. dism’d) (“In general,

the fixing of venue by contract is invalid.”).

477

TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(a).

478

Id.

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consideration or transaction.

479

Additionally, parties have litigated what,

under the statute, qualifies as “an aggregate stated value equal to or greater

than $1 million.”

480

Notably, the definition of a “major transaction” in “the statute does not

require that a party to the . . . lawsuit be obligated to pay or entitled to

receive $1 million or more in consideration.”

481

Rather, the “Major

Transactions” mandatory-venue statute “merely requires that ‘a person’ be

obligated to pay or entitled to receive such consideration.”

482

Though the

statute does not define “person,” Texas courts have held that transactions

solely between corporate entities can be subject to Section 15.020.

483

b. To Whom Does the “Major Transactions” Statute Apply?

The operative language providing for mandatory venue under the

“Major Transactions” statute is set forth in subSections (b) and (c).

484

SubSection (b) provides that “[a]n action arising from a major transaction

479

See, e.g., In re Togs Energy, Inc., No. 05-09-01018-CV, 2009 WL 3260910, at *1 (Tex.

App.—Dallas Oct. 13, 2009, orig. proceeding) (mem. op., not designated for publication) (“The

Settlement and Release Agreement does not state the consideration paid for the real estate leases

in question. Real party in interest has submitted an affidavit stating that the value of the property

rights is well over $1 million. This affidavit [is] not relevant to our analysis. Under Section

15.020(a), the parties’ agreement must contain the aggregate stated value of the consideration.

Because the Settlement and Release Agreement does not contain this information, it fails to

qualify as a ‘major’ transaction under Section 15.020.”); In re Newpark Mats & Integrated Servs.,

LLC, No. 09-14-00518-CV, 2015 WL 181782, at *1 (Tex. App.—Beaumont Jan. 15, 2015, orig.

proceeding) (mem. op., not designated for publication) (per curiam) (holding that the trial court

did not abuse its discretion by failing to enforce a mandatory venue agreement when the

agreement did not expressly contain an aggregate stated value).

480

See In re Royalco Oil & Gas Corp., 287 S.W.3d 398, 400–01 (Tex. App.—Waco 2009,

orig. proceeding) (holding that a lease that provided for a fixed term of 99 years and required

monthly rental payments of $20,000 created a tenancy for years and, thus, constituted “a ‘major

transaction’ for purposes of Section 15.020 because [the lease] provides for the payment of

‘consideration with an aggregate stated value’ of more than $1 million.” (citing T

EX. CIV. PRAC.

& REM. CODE ANN. § 15.020(a) (West 2002))); cf. In re Tex. Ass’n of Sch. Bds., 169 S.W.3d at

658–60 (finding that a 1-year insurance contract did not constitute a “major transaction” because

the aggregated stated value of consideration for the 1-year insurance contract with annual

premiums of $41,973 was the amount of the annual premium even though the contract provided

for coverage of more than $17 million).

481

Shamoun, 398 S.W.3d at 294 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(a)).

482

Id.

483

See id. (citing In re Tex. Ass’n of Sch. Bds., 169 S.W.3d at 657–658).

484

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(b), (c).

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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.”

485

SubSection (c), on the other hand, provides as follows:

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.

486

The distinction between subSections (b) and (c) is critical because “the

major transaction statute does not apply to all suits arising out of major

transactions.”

487

Rather, subSections (b) and (c) of the “Major Transaction”

statute restrict the operation of the statute to limited circumstances.

488

their very terms, subSections (b) and (c) apply in different ways to different

parties, depending upon who signed the agreement asserted to establish

mandatory venue.

489

In Shamoun & Norman, LLP v. Yarto International

Group, LP, the Corpus Christi Court of Appeals explained the distinctions

between subSections (b) and (c) in detail.

490

485

Id. § 15.020(b).

486

Id. § 15.020(c).

487

Shamoun, 398 S.W.3d at 295.

488

See id.

489

Compare TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(b) (“[I]f 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.” (emphasis added)), with id. § 15.020(c) (“an action . . . may not be brought in a

county if: the party bringing the action has agreed in writing that an action arising from the

transaction may not be brought in that county . . . .” (emphasis added)).

490

See Shamoun, 398 S.W.3d at 294–96 (discussing the distinctions between subSections (b)

and (c) and explaining why neither subSection was met in the case).

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The court, in Shamoun & Norman, LLP, held that the “the party against

whom the action [was] brought”—the defendant—could not rely upon

subSection (b) to establish mandatory venue because the defendant was not

a signatory or a party to the settlement agreement at issue, regardless of

whether the defendant could be considered a third-party beneficiary to the

agreement.

491

While the court found that subSection (c)(2) was satisfied

because “the party bringing the action”—the plaintiff—had agreed that the

suit “must be brought” in Travis County (though the plaintiff filed suit in

Hidalgo County), subSection (c)(2) would compel the transfer of the

plaintiff’s suit to Travis County “if and only if” the action could have been

brought in Travis County “under this Section or otherwise.”

492

Because

Travis County was not a county of proper venue under the general venue

statute or any other statute, however, the court found that it could not be

said that the plaintiff’s action “may be brought” in Travis County.

493

Therefore, subSection (c)(2) did not apply,

494

and ultimately, the court

found that subSection (c)(1) was inapplicable for the same reason.

495

The distinctions between subSections (b) and (c) of the “Major

Transaction” statute are even more important for Texas practitioners to

recognize because Texas courts have interpreted the “[n]otwithstanding any

other provision of this title” language in Section 15.020(c) to allow the

venue provisions in subSection (c) – but not in subSection (b) – to override

other mandatory-venue statutes in the Texas Civil Practice and Remedies

Code.

496

491

See id. at 295.

492

See id. at 295–96 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(c)(2)).

493

See id. at 296 (citing TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.002(a), 15.020(c)(2)).

494

See id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(c)(2)).

495

See id. at 296–97 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(c)(1)).

496

See In re Fisher, 433 S.W.3d 523, 533–34 (Tex. 2014) (orig. proceeding) (“But in this

case, the language of Section 15.020 applies to an action arising from a major transaction

‘[n]otwithstanding any other provision of this title.’ This indicates that the Legislature intended

for it to control over other mandatory venue provisions.” (internal citations omitted)); see also

Molinet v. Kimbrell, 356 S.W.3d 407, 413–14 (Tex. 2011) (holding that the phrase

“notwithstanding any other law” indicates a legislative intent that the provision prevail over

conflicting law); 1 Kim J. Askew & Adele Hedges, Texas Practice Guide: Civil Pretrial § 6:36

(2015) (“Section 15.020 overrides other venue provisions . . .”).

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c. When Does an Action “Aris[e] From a Major

Transaction?”

The “Major Transaction” statute provides for mandatory venue in

actions “arising from” a major transaction.

497

Yet, the statute does not

define what constitutes an action “arising from” a major transaction.

498

Logically, venue of a suit cannot be fixed by agreement under the statute

when the claimed agreement is executed after the suit was filed.

499

In a

recent opinion,

500

though, the Supreme Court of Texas addressed “when an

action ‘arises from’ a major transaction under Section 15.020” as a matter

of first impression.

501

The Court found that in determining whether claims

arise from a major transaction, courts should use a “common-sense

examination of the substance of the claims” to determine if they “arise”

from the major transaction.

502

Importantly, the Court stated that the “Major Transaction” mandatory

venue clause “does not require that an action arise out of a specific

agreement[,]” but rather applies “to an action ‘arising from a major

transaction’ if the party bringing the action has agreed in writing that the

action will be brought in a certain jurisdiction.”

503

Finally, relying upon

497

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(b), (c).

498

See id.

499

See In re Med. Carbon Research Inst., L.L.C., No. 14-08-00104-CV, 2008 WL 961750, at

*2 (Tex. App.—Houston [14th Dist.] Apr. 9, 2008, orig. proceeding) (mem. op., not designated

for publication) (per curiam) (“It would be erroneous to conclude that venue of a suit was fixed by

agreement under Section 15.020(b) when the claimed agreement was not executed until weeks

after suit was filed.”); see also T

EX. CIV. PRAC. & REM. CODE ANN. § 15.006 (“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.”).

500

In re Fisher, 433 S.W.3d at 529–32 (holding that claims by a limited partner of an

acquired oilfield services company against executives of the acquiring company arose from a

major transaction, the purchase of the company from the limited partner, as required under Section

15.020, because the limited partner was seeking, in substance, to recover $6.5 million owed to him

under a promissory note provided for in a goodwill agreement, which included a clause whereby

the parties irrevocably submitted to the nonexclusive jurisdiction of the courts in Tarrant county

and irrevocably agreed not to bring any proceeding arising out of or relating to the agreement in

any other court, and for actions flowing directly from the acquisition and doing more than just

touching matters included in the goodwill agreement and note).

501

Id. at 529 (“We have not previously addressed when an action ‘arises from’ a major

transaction under Section 15.020, but we have previously addressed similar issues as to forum

selection agreements.”).

502

Id. at 529.

503

Id. at 531 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(a)).

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cases such as Southwestern Bell Telephone Co. v. DeLanney

504

and In re

Weekley Homes, L.P.,

505

the Court held that because the plaintiff’s claims

did more than “touch matters” included in the agreement and the note at

issue in the case, liability for failure to pay on the note had to be determined

by reference to these agreements, and when an injury is to the subject

matter of a contract, the action is ordinarily “on the contract.”

506

Based on

this analysis, the Court held that the plaintiff’s claims, including claims for

breach of fiduciary duty and fraud, actually arose from the major

transaction to which the venue selection agreement pertained, and thus,

venue was mandatory in the county provided by the parties’ agreement.

507

d. Limitations in the Major Transaction Statute

Beyond what has previously been discussed, the “Major Transactions”

statute is further limited by its own terms.

508

Specifically, the statute does

not apply to a transaction that is not a “major transaction” as defined in the

statute.

509

Further, the “Major Transactions” statute does not apply if venue

is established under a statute outside of the Texas Civil Practice and

Remedies Code.

510

The “Major Transactions” statute does not apply to an

action if the agreement regarding venue is voidable under Chapter 272 of

the Texas Business and Commerce Code.

511

Additionally, the “Major

Transactions” statute does not apply to an action if “the agreement

described by this Section was unconscionable at the time that it was

made.”

512

At least one court has observed that the “Major Transactions” statute

“does not delineate fraud itself as a defense to enforcement of the selected

venue,” but only provides for a defense to enforcement based on

504

809 S.W.2d 493, 494 (Tex. 1991).

505

180 S.W.3d 127, 131–32 (Tex. 2005).

506

In re Fisher, 433 S.W.3d at 531 (citing S.W. Bell Tel. Co., 809 S.W.2d at 494).

507

Id. at 529–34.

508

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(d), (e) (West 2002).

509

See id. § 15.020(e) (“This Section does not affect venue and jurisdiction in an action

arising from a transaction that is not a major transaction.”).

510

See id. § 15.020(d)(3).

511

See id. § 15.020(d)(2). Chapter 272 of the Texas Business and Commerce Code is titled

“Law Applicable to Certain Contracts for Construction or Repair of Real Property Improvements”

and applies “only to a contract that is principally for the construction or repair of an improvement

to real property located in [Texas].” T

EX. BUS. & COM. CODE ANN. § 272.001 (West 2015).

512

Id. § 15.020(d)(1).

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unconscionability.

513

In the context of a forum-selection clause, however,

courts allow an opposing party to overcome a presumption of validity if the

opposing party meets a “heavy burden of proof” to show that: (1) the clause

was procured by fraud, undue influence, or overreaching; or (2)

enforcement would be unreasonable and unjust.

514

To enable a court to find

an asserted venue-selection agreement unenforceable under the “Major

Transactions” statute, the party opposing enforcement of the agreement

must present evidence of the unconscionability of the agreement prior to a

venue determination by the court at a motion to transfer venue hearing.

515

B. Statutes Outside Subchapter B of Chapter 15 of the Texas Civil

Practice and Remedies Code

Numerous other statutes, outside of Subchapter B of Chapter 15 of the

Texas Civil Practice and Remedies Code, contain mandatory venue

provisions. Due to the significant control over the forum battle that statutes

outside of Subchapter B arguably provide, practitioners are wise to be fully

informed of all of these available statutes. Some of these statutes are found

within other chapters of the Texas Civil Practice and Remedies Code,

516

while others are contained in substantive statutes in other areas of the law,

including the Texas Family Code

517

and the Texas Property Code.

518

As a

general rule, when considering bringing suit under a Texas statute,

practitioners should scour the statute for venue-related provisions. If a

statute directs that suit “shall be brought” in a specified county or other

location, then the statute qualifies as a mandatory-venue statute because

Texas courts have repeatedly held that venue provisions containing the

word “shall” are mandatory in nature.

519

513

See In re R.R. Repair & Maint., Inc., No. 05-09-01035-CV, 2009 WL 3531636, at *7 (Tex.

App.—Dallas Nov. 2, 2009, orig. proceeding) (mem. op., not designated for publication).

514

See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17 (1972).

515

See In re R.R. Repair, 2009 WL 3531636 at *7 (holding that because the plaintiff did not

present evidence supporting its claims of fraud or unconscionability until it responded to a petition

for writ of mandamus, well-after the hearing on the defendant’s motion to transfer venue, the

evidence could not be considered in making the venue determination).

516

See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. §§ 65.023, 101.102(a), 171.096.

517

See, e.g., TEX. FAM. CODE ANN. §§ 103.001, 155.201(b) (West 2014).

518

See, e.g., TEX. PROP. CODE ANN. §§ 21.013, 115.002 (West 2014).

519

See, e.g., Bachus v. Foster, 122 S.W.2d 1058, 1060 (Tex. 1939) (holding that the

Legislature’s use of the term “shall” in a venue-related statute is mandatory in character and

“leaves no room to doubt that the legislature meanS to lay the venue of [a suit governed by the

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The location or source of a mandatory-venue statute becomes

exceedingly important when considering the priority of potentially

competing mandatory-venue statutes. The purpose of this Section is to

collect and bring to light for the benefit of Texas practitioners some of the

mandatory-venue statutes that are located outside of Subchapter B of

Chapter 15 of the Texas Civil Practice and Remedies Code.

1. Tex. Civ. Prac. & Rem. Code Ann. § 65.023 – Injunctions

Section 65.023 of the Texas Civil Practice and Remedies Code provides

for mandatory venue in suits seeking injunctive relief, stating that:

(a) Except as provided by SubSection (b), a writ of

injunction against a party who is a resident of this state

shall be tried in a district or county court in the county in

which the party is domiciled. If the writ is granted against

more than one party, it may be tried in the proper court of

the county in which either party is domiciled.

(b) A writ of injunction granted to stay proceedings in a

suit or execution on a judgment must be tried in the court in

which the suit is pending or the judgment was rendered.

520

In contrast to Section 15.012,

521

Texas courts have long held that the

mandatory venue provision in Section 65.023 “applies only to suits in

which the relief sought is purely or primarily injunctive.”

522

In essence, this

statute] exclusively in the county” provided by the statute); see also Wichita Cty. v. Hart, 917

S.W.2d 779, 781 (Tex. 1996) (“When considering venue, we have noted that the Legislature’s use

of the word ‘shall’ in a statute generally indicates the mandatory character of the provision.”).

Similarly, Texas courts have long interpreted the ordinary meaning of the word “must” to be of

mandatory effect. See, e.g., Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (The

word “must” is “mandatory, creating a duty or obligation.”); In re Hartford Underwriters Ins. Co.,

168 S.W.3d 293, 295 (Tex. App.—Eastland 2005, orig. proceeding) (holding that a statute

providing that “the petition must be filed in Travis County district court” was a mandatory venue

provision requiring that the action be filed in Travis County).

520

TEX. CIV. PRAC. & REM. CODE ANN. § 65.023.

521

See id. § 15.012.

522

See In re Cont’l Airlines, Inc., 988 S.W.2d 733, 736 (Tex. 1998) (orig. proceeding) (citing

Ex parte Coffee, 328 S.W.2d 283, 287 (Tex. 1959)); cf. O’Quinn v. Hall, 77 S.W.3d 452, 456

(Tex. App.—Corpus Christi 2002, orig. proceeding) (interpreting Section 15.012 of the Texas

Civil Practice and Remedies Code and holding that “[w]e find nothing in the plain language of

Section 15.012 limiting this mandatory venue Section to suits that are primarily injunctive.

Accordingly we determine the scope of this mandatory venue provision involving anti-suit

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means that the mandatory venue provision in Section 65.023 applies “when

the petition discloses the issuance of a perpetual injunction is the primary

and principal relief sought[.]”

523

The Fort Worth Court of Appeals has

explained the longstanding adherence to this mandatory-venue statute by

Texas courts, stating that:

The important right provided to a defendant under [Section

65.023] to defend a suit for permanent injunction in the

county of the defendant’s domicile originated with our first

state legislature in 1846, and it has been preserved since

that time by all successive legislatures.

524

In determining whether a lawsuit constitutes a suit for permanent

injunction for the purpose of determining proper venue, courts only look to

the express relief sought in the allegations and prayer of the plaintiff’s

petition.

525

When the plaintiff’s pleadings request an injunction that is

“merely ancillary” to the primary relief requested, Section 65.023 has no

application.

526

This limiting principle on the applicability of the mandatory

injunctions includes primarily injunctive relief suits and suits in which injunctive relief sought is

ancillary to other relief.”).

523

See In re Dole Food Co., 256 S.W.3d 851, 854 (Tex. App.—Beaumont 2008, orig.

proceeding) (citing Brown v. Gulf Television Co., 306 S.W.2d 706, 708 (Tex. 1957) (analyzing

predecessor statute to Section 65.023)).

524

In re City of Dall., 977 S.W.2d 798, 803, 803 n.17 (Tex. App.—Fort Worth 1998, orig.

proceeding) (citing Act approved May 13, 1846, 1st Leg., R.S. § 152, 1846 Tex. Gen. Laws 363,

406, reprinted in 2 H.P.N. G

AMMEL, THE LAWS OF TEXAS 1838-1846, at 1669, 1812 (Austin,

Gammel Book Co. 1898); T

EX. REV. CIV. STAT. art. 2996 (West 1895); TEX. REV. CIV. STAT.

ANN. art. 4656 (West 1952), repealed by Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 9, 1985

Tex. Gen. Laws 3242, 3322 (codified at T

EX. CIV. PRAC. & REM. CODE ANN. § 65.023)).

525

See In re City of Dall., 977 S.W.2d at 803–06 (holding that because the City of Fort

Worth’s pleadings plainly showed that the City of Fort Worth was seeking a declaratory judgment

that the City of Dallas and Dallas Love Field Airport remained restricted by a previously entered

agreement and the issuance of a permanent injunction would only be necessary if a party

contravened the trial court’s decision regarding the declaratory judgment, the primary relief

sought in the City of Fort Worth’s suit was a declaratory judgment and Section 65.023 of the

Texas Civil Practice and Remedies Code did not apply) (citing Renwar Oil Corp. v. Lancaster,

276 S.W.2d 774, 775 (Tex. 1955)).

526

See In re Hardwick, 426 S.W.3d 151, 158 (Tex. App.—Houston [1st Dist.] 2012, no pet.)

(citing Brown v. Gulf Television Co., 306 S.W.2d 706, 708 (Tex. 1957)); see also In re Adan

Volpe Props., Ltd., 306 S.W.3d 369, 375 (Tex. App.—Corpus Christi 2010, orig. proceeding),

mand. granted, In re Adan Volpe Props., Ltd., No. 04-14-00615-CV, 2014 WL 7437005 (Tex.

App.—San Antonio Dec. 31, 2014, orig. proceeding) (mem. op., not designated for publication)

(stating that “where the main purpose of suit is for something other than injunctive relief and the

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venue provision in Section 65.023 means that the mere possibility of a court

resorting to its injunctive powers to enforce a judgment does not by itself

transform a suit into one for a writ of injunction within the meaning of

Section 65.023.

527

Along these lines, many Texas courts have found that

suits for specific performance of a contract are not suits primarily seeking

injunctive relief, and therefore, Section 65.023 would not require

mandatory venue in the county of the defendant’s domicile.

528

2. Tex. Civ. Prac. & Rem. Code Ann. § 101.102(a) – Texas Tort

Claims Act

Section 101.102(a) of the Texas Civil Practice and Remedies Code

addresses venue for suits brought under the Texas Tort Claims Act,

providing that a suit under the Texas Tort Claims Act “shall be brought in

state court in the county in which the cause of action or a part of the cause

of action arises.”

529

Thus, by its terms, this statute is a mandatory-venue

statute.

530

Where a cause of action or a part of a cause of action arises can

sometimes be a blurry line, especially in negligence suits under the Texas

Tort Claims Act. For example, in interpreting the mandatory venue

provision in Section 101.102(a), the Supreme Court of Texas has

“distinguished between causes of action based on negligent activities and

those based on premise defects.”

531

In In re Texas Department of

Transportation, the plaintiffs’ daughter, while driving her car across a

injunction is ‘ancillary, incidental, or adjunctive,’ Section 65.023(a) does not apply.” (quoting

O’Quinn v. Hall, 77 S.W.3d 452, 456 (Tex. App.—Corpus Christi 2002, orig. proceeding)).

527

See In re Hardwick, 426 S.W.3d at 158 (citing In re Cont’l, 988 S.W.2d at 736–37).

528

See, e.g., Hogg v. Prof’l Pathology Assocs., P.A., 598 S.W.2d 328, 330 (Tex. Civ. App.—

Houston [14th Dist.] 1980, writ dism’d) (finding that in a suit for specific performance of a non-

compete contract, the principal relief sought was through breach of contract and not injunctive);

see also Karagounis v. Bexar Cty. Hosp. Dist., 70 S.W.3d 145, 147 (Tex. App.—San Antonio

2001, pet. denied) (holding that a suit for specific performance of a contract did not primarily seek

injunctive relief).

529

TEX. CIV. PRAC. & REM. CODE ANN. § 101.102(a).

530

See In re Tex. Dep’t of Transp., 218 S.W.3d 74, 76 (Tex. 2007) (per curiam) (“Section

101.102(a) is such a mandatory provision.”); see also In re Fort Bend Cty., 278 S.W.3d 842, 844

(Tex. App.—Houston [14th Dist.] 2009, orig. proceeding) (“The venue provision in Section

101.102(a) of the Tort Claims Act is one such mandatory provision.”).

531

See In re Tex. Dep’t of Transp., 218 S.W.3d at 77–78 (“A negligent activity claim arises

from activity contemporaneous with the occurrence, whereas a premises defect claim is based on

the property itself being unsafe.”).

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bridge over the Pedernales River in Gillespie County, slid off the

roadway.

532

Because there was a gap left in the guardrail on the bridge, the

plaintiffs’ daughter unfortunately slid off the bridge, into the river, and

drowned.

533

The plaintiffs brought a negligence suit, based on different

theories of negligence, against the Texas Department of Transportation

(TxDOT) and Gillespie County, alleging that the defendants failed to use

ordinary care in designing, inspecting, maintaining, and employing others

to inspect and maintain the bridge with the gap in the guardrail.

534

opposed to having to litigate against Gillespie County in the courts of

Gillespie County, the plaintiffs relied upon Section 101.102(a) to establish

venue against TxDOT in Travis County, where TxDOT maintained its

bridge division.

535

The plaintiffs claimed that negligent actions by

TxDOT’s employees and agents in Travis County resulted in the condition

of the premises at the accident site in Gillespie County, making these

actions part of the premise defect cause of action.

536

The Supreme Court of Texas, however, found that because the plaintiffs

did not allege that TxDOT’s activities were “actively ongoing at the time of

the accident” or “contemporaneous activities proximately causing the

accident[,]” the plaintiffs failed to “properly plead” a negligence cause of

action for which Travis County would be proper venue.

537

In sum, the Court

held that while the plaintiffs properly pled premise and special defect

causes of action, neither of those claims arose, “in any part, in Travis

County.”

538

The takeaway for Texas practitioners is that because of the

pleading and proof requirements for establishing venue in Texas,

539

when

relying upon Section 101.102(a), practitioners should put considerable

thought into their venue theory, then explicitly plead those specific facts

that support the theory.

532

See id. at 75.

533

Id.

534

See id. at 75–76.

535

See id. at 76.

536

See id.

537

See id. at 77–78.

538

See id. at 78–79.

539

See TEX. R. CIV. P. 86–88.

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3. Tex. Civ. Prac. & Rem. Code Ann. § 171.096 – Arbitration

Application

Section 171.096 of the Texas Civil Practice and Remedies Code

addresses venue for suits seeking to enforce arbitration agreements and

provides as follows:

(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.

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.

540

Texas courts have held that based on the use of the word “must,”

Section 171.096 is a mandatory-venue statute.

541

Therefore, when an

arbitration agreement is at play, a Texas practitioner should check the

540

TEX. CIV. PRAC. & REM. CODE ANN. § 171.096 (West 2011).

541

See, e.g., In re Lopez, 372 S.W.3d 174, 177 (Tex. 2012) (orig. proceeding) (“Section

171.096(c) is a mandatory venue provision, as it says that a party ‘must’ file the initial application

in the county where the arbitration hearing was held.” (citing Helena Chem. Co. v. Wilkins, 47

S.W.3d 486, 493 (Tex. 2001) (recognizing the word “must” as “mandatory, creating a duty or

obligation”))); see also In re Sosa, 370 S.W.3d 79, 81–82 (Tex. App.—Houston [14th Dist.] 2012,

orig. proceeding) (holding that Section 171.096(b) of the Texas Civil Practice and Remedies Code

provided for mandatory venue).

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applicability of each of the subSections (a) – (d) of Section 171.096 in order

to determine where venue may properly be mandated for their suit.

4. Texas Family Code Ann. – Suits Affecting Parent-Child

Relationship

Within the Texas Family Code, the Texas Legislature has enacted

specific rules regarding proper venue for suits affecting parent-child

relationships (SAPCRs).

542

Specifically, Section 103.001 provides the

general rule that an original SAPCR “shall be filed in the county where the

child resides.”

543

The statute carves out exceptions to this general

mandatory venue rule, applying when another court has continuing

exclusive jurisdiction over the SAPCR under Chapter 155 of the Texas

Family Code

544

or when venue is fixed in a suit for dissolution of a

marriage under Subchapter D of Chapter 6 of the Texas Family Code.

545

Section 155.201(b) of the Texas Family Code provides for a mandatory

transfer of a SAPCR to a county where the child has lived for six months or

more upon a timely, uncontroverted motion.

546

In addition, if venue is

improperly laid for a SAPCR, or if a divorce is pending in another county,

the court where the original SAPCR was filed is required to transfer the

SAPCR to the county where venue is proper.

547

While this selection of

statutes merely scratches the surface of the various procedural requirements

for suits under the Texas Family Code, the important point is that Texas

practitioners should be aware that mandatory-venue statutes are at play in

family law proceedings because “the general rules for establishing venue in

civil cases are not applicable to [SAPCRs].”

548

542

See In re Lovell-Osburn, 448 S.W.3d 616, 619 (Tex. App.—Houston [14th Dist.] 2014,

orig. proceeding) (“The Legislature has adopted venue rules specific to SAPCRs.”).

543

TEX. FAM. CODE ANN. § 103.001(a) (West 2014).

544

See id.

545

See id.

546

See id. § 155.201(b).

547

See id. § 103.002.

548

See In re Nabors, 276 S.W.3d 190, 199 (Tex. App.—Houston [14th Dist.] 2009, orig.

proceeding).

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5. Tex. Trust Code Ann. § 115.002 – Suits By or Against a

Trustee of a Trust

The Texas Trust Code is found in Subchapter B of Title 9 of the Texas

Property Code.

549

Within the Texas Trust Code, the Legislature has

provided for mandatory venue in suits by or against a trustee and all

proceedings concerning trusts.

550

Under the Texas Trust Code, venue for

suits by or against a trustee is mandatory, however the county of mandatory

venue is potentially different depending on the type of trustee that is

administering the trust at issue.

551

Importantly, the Texas Legislature

amended Section 115.001 in 2007 to provide that a district court has

original and exclusive jurisdiction over “all proceedings by or against a

trustee.”

552

Since that amendment, Texas courts of appeals have differed

over whether or not the suit must actually involve an action relating to the

trust or operation of the trust itself or whether the suit must simply be one

that is by or against a trustee for the mandatory venue provision to apply.

553

Specifically, if the suit involves a single, noncorporate trustee, the

action “shall be brought” in either: (1) the county in which the trustee

549

See TEX. PROP. CODE ANN. § 111.001 (West 2014) (“This subtitle may be cited as the

Texas Trust Code.”).

550

See id. §§ 115.001, 115.002; see also In re Wheeler, 441 S.W.3d 430, 434 (Tex. App.—

Waco 2014, orig. proceeding) (“Section 115.002 of the Texas Property Code is a mandatory-

venue provision.” (citing In re J.P. Morgan Chase Bank, N.A., 373 S.W.3d 610, 613 (Tex. App.—

San Antonio 2012, orig. proceeding))).

551

See TEX. PROP. CODE ANN. § 115.002.

552

See Act of May 16, 2007, 80th Leg., R.S., ch. 451, § 11, 2007 Tex. Gen. Laws 801, 804–

05 (codified at T

EX. PROP. CODE ANN. § 115.001(a)).

553

Compare In re J.P. Morgan Chase Bank, N.A., 361 S.W.3d 703, 706–07 (Tex. App.—

Corpus Christi 2012, orig. proceeding) (holding that Section 115.001 of the Texas Property Code

does not encompass tort claims and non-administrative matters against a trustee because “[a]ll of

the actions enumerated in Section 115.001(a) involve actions relating to the trust itself or the

operation thereof, and none involves anything resembling a tort action”) with In re J.P. Morgan

Chase Bank, 373 S.W.3d at 614 (“While [the Corpus Christi Court of Appeals] acknowledges that

in 2007 Section 115.001 was amended by adding subSection (a-1), which provides that the list of

proceedings enumerated in the statute are not ‘exhaustive,’ the court does not acknowledge that

subSection (a) was also amended to include suits by or against a trustee. We find the addition of

that language controlling in this case; therefore, we respectfully disagree with the court’s

conclusion that the suit must ‘concern a trust’ in order for Section 115.001 to apply.”) and In re

Wheeler, 441 S.W.3d at 435–36 (“Thus, like the [San Antonio Court of Appeals], we find the

amended language of subSection (a) to be controlling in this case. As such, we respectfully

disagree with the [Corpus Christi Court of Appeals]’ conclusion that a suit must ‘concern a trust’

for Section 115.001 to apply.”) (citation omitted).

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resides or has resided at any time during the four-year period preceding the

date the action is filed; or (2) the county in which the situs of administration

of the trust is maintained or has been maintained at any time during the

four-year period preceding the date the action is filed.

554

If there are

multiple noncorporate trustees and the trustees maintain a principal office in

Texas, the action “shall be brought” in either: (1) the county in which the

situs of administration of the trust is maintained or has been maintained at

any time during the four-year period preceding the date the action is filed;

or (2) the county in which the trustees maintain the principal office.

555

there are multiple noncorporate trustees and the trustees do not maintain a

principal office in this state, the action “shall be brought” in either: (1) the

county in which the situs of administration of the trust is maintained or has

been maintained at any time during the four-year period preceding the date

the action is filed; or (2) the county in which any trustee resides or has

resided at any time during the four-year period preceding the date the action

is filed.

556

If there are one or more corporate trustees, the action “shall be brought”

in either: (1) the county in which the situs of administration of the trust is

maintained or has been maintained at any time during the four-year period

preceding the date the action is filed; or (2) in the county in which any

corporate trustee maintains its principal office in Texas.

557

For purposes of

the statute, the terms “Corporate trustee”, “Principal office”, and “Situs of

administration” are defined.

558

6. Tex. Prop. Code Ann. § 21.013 – Eminent Domain

Section 21.013 of the Texas Property Code addresses proper venue for

condemnation proceedings in Texas.

559

The Supreme Court of Texas has

declared that Section 21.013 is a mandatory-venue statute.

560

Specifically,

this statute provides that the proper venue of a condemnation proceeding is

554

See TEX. PROP. CODE ANN. § 115.002(b).

555

See id. § 115.002(b-1).

556

See id. § 115.002(b-2).

557

See id. § 115.002(c).

558

See id. § 115.002(f).

559

See id. § 21.013.

560

See In re Transcon. Realty Inv’rs, Inc., 271 S.W.3d 270, 271 (Tex. 2008) (orig.

proceeding) (per curiam) (“Section 21.013 is a mandatory venue statute, so it is enforceable by

mandamus.”).

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186 BAYLOR LAW REVIEW [Vol. 68:1

the county in which the owner of the property being condemned resides if

the owner resides in a county in which part of the property is located.

561

When the owner of the property being condemned does not reside in a

county in which part of the property to be condemned is located, the proper

venue of a condemnation proceeding is any county in which at least part of

the property is located.

562

While the statute does not define the “owner of the property being

condemned,” the Supreme Court of Texas has held that “landowners who

are businesses—just like landowners who are individuals—can insist on

venue where they reside if the condemned property is partly located

there.”

563

Texas courts have, however, limited this definition, finding that a

mortgagee of the property sought to be condemned is not an “owner of the

property being condemned” for venue purposes under this mandatory-venue

statute.

564

7. Tex. Nat. Res. Code Ann. § 11.078 – Public Lands

Section 11.078 of the Texas Natural Resources Code addresses venue

for suits involving state-owned land.

565

The statute provides that suits for

unlawful enclosure of public lands, as well as suits for possession, rent, or

to recover damages on public lands, “shall be brought in the county in

which the land or any part of the land is located.”

566

Texas courts have

found that the language of this statute makes the statute a mandatory-venue

statute.

567

8. Tex. Labor Code Ann. § 410.252 & Tex. Gov. Code §

2001.176– Judicial Review of Workers’ Compensation

Decisions

The Legislature has enacted two separate mandatory venue provisions

that pertain to suits seeking judicial review of decisions by the Texas

561

See TEX. PROP. CODE ANN. § 21.013(a).

562

See id.

563

In re Transcon., 271 S.W.3d at 272.

564

See, e.g., Sands v. City of Dall., 398 S.W.2d 428, 431 (Tex. Civ. App.—Tyler 1965, writ

dism’d) (interpreting predecessor statute T

EX. REV. CIV. STAT. ANN. art. 3264, repealed by Act of

May 26, 1983, 68

Leg., R.S., ch. 576) 1983 TEX. GEN. LAWS 3475, 3499.

565

See TEX. NAT. RES. CODE ANN. § 11.078 (West 2011).

566

See id. (citing TEX. NAT. RES. CODE ANN. §§ 11.076, 11.077).

567

See, e.g., Trice v. State, 712 S.W.2d 842, 846 (Tex. App.—Waco 1986, writ refused n.r.e.).

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Workers’ Compensation Commission (TWCC) appeals panel.

568

These two

statutes are located in the Texas Labor Code

569

and the Texas Government

Code.

570

Understanding when each statute applies is crucial. The distinction

between the two statutes can be synthesized into the following two rules:

(1) When the claimant seeks judicial review of a final decision of the

TWCC appeals panel regarding compensability, eligibility for, or the

amount of income, or for death benefits, venue is mandatory under Section

410.252(b) of the Texas Labor Code;

571

and (2) When the claimant seeks

judicial review of a final decision of the TWCC appeals panel regarding any

other issue, venue is mandatory under Section 2001.176 of the Texas

Government Code in the Travis County district court.

572

Chapter 410 of the Texas Labor Code addresses the adjudication process

in workers’ compensation disputes.

573

Section 410.255(a) provides that

judicial review of final administrative decisions in workers’ compensation

cases not covered by Section 410.301(a) of the Texas Labor Code is to be

conducted in accordance with Section 2001.171 of the Texas Government

Code, a specific provision within the Texas Administrative Procedure

Act.

574

Section 410.301(a) of the Texas Labor Code covers “[j]udicial

review of a final decision of the [TWCC] appeals panel regarding

compensability or eligibility for or the amount of income or death

benefits.”

575

For such a suit, venue is mandatory under Section 410.252 of

the Texas Labor Code venue in either: (1) the county where the employee

resided at the time of the injury or death, if the employee is deceased; or (2)

in the case of an occupational disease, in the county where the employee

resided on the date disability began or any county agreed to by the

568

In re Hartford Underwriters Ins. Co., 168 S.W.3d 293, 295 (Tex. App.—Eastland 2005,

orig. proceeding) (“There are two mandatory venue provisions for petitions to review [TWCC]

appeals panel decisions: Section 2001.176 of the Texas Government Code and Section 410.252 of

the Texas Labor Code.”).

569

See TEX. LAB. CODE ANN. § 410.252 (West 2015).

570

See TEX. GOV’T CODE ANN. § 2001.176 (West 2008).

571

See TEX. LAB. CODE ANN. §§ 410.252(b), 410.255, 410.301.

572

See id. § 410.255 (titled “Judicial Review of Issues Other Than Compensability or Income

or Death Benefits”); see also T

EX. GOV’T CODE ANN. § 2001.176(b)(1) (“[T]he petition must be

filed in a Travis County district court . . . .”).

573

See TEX. LAB. CODE ANN. ch. 410; see also Hernandez v. Tex. Workers’ Comp. Ins. Fund,

946 S.W.2d 904, 905 (Tex. App.—Eastland 1997, no writ).

574

See TEX. LAB. CODE ANN. § 410.255(a).

575

See id. § 410.301(a).

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parties.

576

For any other suit (one not regarding compensability, eligibility

for, or the amount of income, or death benefits), venue is mandatory under

the Texas Administrative Procedures Act in a Travis County district

court.

577

For a more thorough analysis of these statutes, practitioners would

benefit from a review of two opinions from the Eastland Court of Appeals,

styled In re Hartford Underwriters Ins. Co.

578

and Hernandez v. Texas

Workers’ Comp. Ins. Fund.

579

576

See id. § 410.252(b).

577

See id. § 410.255; TEX. GOV’T CODE ANN. § 2001.176(b)(1). Note also that the Texas

Administrative Procedures Act requires a party to first exhaust all administrative remedies

available before the party may be entitled to judicial review. See T

EX. GOV’T CODE ANN. §

2001.171 (“A person who has exhausted all administrative remedies available within a state

agency and who is aggrieved by a final decision in a contested case is entitled to judicial review

under this chapter.”).

578

168 S.W.3d 293, 296 (Tex. App.—Eastland 2005, orig. proceeding) (finding that “[a]

[TWCC] appeals panel decision dealing only with attorney’s fees is not a decision regarding

compensability or eligibility for or the amount of income or death benefits,” and therefore, venue

was mandatory for the petition in Travis County).

579

946 S.W.2d 904, 906 (Tex. App.—Eastland 1997, no writ) (finding that because the

claimant sought review regarding the TWCC appeals panel’s decision about impairment rating

and maximum medical improvement rating, the suit addressed the amount of benefits, and thus,

venue for judicial review was not mandatory in Travis County but in Taylor County, the

claimant’s county of residence).