In re Fort Bend County

• Decision Date: 03 February 2009
• Docket Number: No. 14-08-00912-CV.,14-08-00912-CV.
• Citation: 278 S.W.3d 842
• Parties: In re FORT BEND COUNTY, Relator.
• Court: Texas Court of Appeals

278 S.W.3d 842

In re FORT BEND COUNTY, Relator.

No. 14-08-00912-CV.

Court of Appeals of Texas, Houston (14th Dist.).

February 3, 2009.

Randall W. Morse, Richmond, TX, for relator.

Rick Molina, Houston, TX, for real party in interest.

Panel consists of Chief Justice HEDGES and Justices GUZMAN and BROWN.

MAJORITY OPINION

JEFF BROWN, Justice.

In this original proceeding, relator, Fort Bend County ("Fort Bend"), seeks a writ of mandamus ordering the respondent, the Honorable Sharon McCally, presiding judge of the 334th District Court of Harris County, to set aside her order of July 25, 2008, denying its motion to transfer venue of those claims asserted against it to Fort Bend County, and grant the same. We conditionally grant the writ.

Background

In the early morning of January 1, 2007, Pedro Olivares, Jr. was driving westbound on the Westpark Tollway in Harris County. According to several eyewitnesses, Michael Ladson was at the same time driving eastbound—the wrong way—on the west bound lanes of the same thoroughfare. The two vehicles collided head-on, and Olivares suffered personal injuries resulting in his death. On March 28, 2008, real parties in interest, Zuleima Olivares, Individually and as Representative of the Estate of Pedro Olivares, Jr., and Pedro Olivares, sued Fort Bend County, the Fort Bend County Toll Road Authority, Harris County, the Harris County Toll Road Authority, and the Texas Department of Transportation in Harris County under a premises-defect theory pursuant to the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001, et seq. (Vernon 2005 & Supp.2008). The Olivareses allege that although Ladson entered the Westpark Tollway at the easternmost entrance, near Gaston Road, which is located in Fort Bend County, he drove more than eight miles on the tollway before the accident occurred in Harris County.

On May 1, 2008, Fort Bend filed a motion to transfer venue, plea in abatement, plea to the jurisdiction, and original answer. In its venue motion, Fort Bend sought to transfer the claims against it to Fort Bend County in accordance with Chapter 15 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 15.015 (Vernon 2002). On July 25, 2008, the trial court denied Fort Bend's motion to transfer because it found "venue is controlled by TTCA 101.102 and no challenge to venue facts."

Mandamus Jurisdiction & Standard of Review

Section 15.0642 provides for mandamus relief to enforce a mandatory venue provision:

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.

Tex. Civ. Prac. & Rem.Code Ann. § 15.0642. Trial is set for March 2, 2009; therefore, Fort Bend timely filed its petition. The relator must demonstrate that the trial court abused its discretion, but is not required to show the lack of an adequate remedy by appeal. In re Missouri Pac. R.R., 998 S.W.2d 212, 215-16 (Tex. 1999) (orig.proceeding). A trial court abuses its discretion if it 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. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig.proceeding) (per curiam).

Analysis

Fort Bend contends that venue must be brought in Fort Bend County under the mandatory venue provision of Section 15.015 of the Texas Civil Practice and Remedies Code. Section 15.015 of the Texas Civil Practice and Remedies Code— a mandatory venue provision—provides that "[a]n action against a county shall be brought in that county." Tex. Civ. Prac. & Rem.Code Ann. § 15.015.

The Olivareses assert that venue is controlled by section 101.102(a) of the Tort Claims Act, which requires that claims made under the Act be brought in the county in which all or part of the cause of action arose. Tex. Civ. Prac. & Rem.Code Ann. § 101.102(a); In re Tex. Dep't of Transp., 218 S.W.3d 74, 76 (Tex.2007) (orig.proceeding) (per curiam). Under section 15.016 of the general venue statute, "[a]n action governed by any other statute prescribing mandatory venue shall be brought in the county required by that statute." Tex. Civ. Prac. & Rem.Code Ann. § 15.016 (Vernon 2002) (emphasis added). The venue provision in section 101.102(a) of the Tort Claims Act is one such mandatory provision. In re Tex. Dep't of Transp., 218 S.W.3d at 76.¹

Nevertheless, Fort Bend argues that there is no exception to section 15.015, and that it takes precedence over any other conflicting mandatory venue provision. The venue rule that a county must be sued in that county is longstanding and finds its origin in the first Texas Legislature. See Montague County v. Meadows, 31 S.W. 694, 694 (Tex.Civ.App.1895, 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."). The legislature passed this provision on May 11, 1846—two days before it passed the general venue statute and its eleven exceptions. Id.² When the provision for counties was placed in the venue chapter, "it was doubtless concluded that it should be treated as an exception to [the general venue] rule." Id. at 694-95. In other words, "the general venue statute [passed on May 13, 1846] prescribed the venue for all cases except suits against a county, which had already been specially provided for [in the act passed two days earlier]." Id. at 695.

Thus, Texas courts have interpreted section 15.015 as having no exception. See, e.g., City of Tahoka v. Jackson, 115 Tex. 89, 276 S.W. 662, 663 (1925) (holding 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 County, 197 S.W.2d 886, 888 (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]"); Montague County, 31 S.W. at 694 (stating that there appears to be no exception to mandatory provision that suit against county shall be brought in that county); Glover v. Columbia Fort Bend Hosp., No. 06-01-00101-CV, 2002 WL 1430783, at *4 (Tex.App.-Texarkana July 3, 2002, no pet.) (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").

Against this backdrop of section 15.015's history, we conclude that section 15.016 is not an exception to section 15.015. Therefore, the Olivareses are required to prosecute their claims against Fort Bend in Fort Bend County.³ In its order denying Fort Bend's motion to transfer venue, the trial court found that Fort Bend County had not challenged the Olivareses' venue facts. See In re Jennings, 203 S.W.3d 32, 36 (Tex.App.-San Antonio 2006, orig. proceeding) (citing Tex.R. Civ. P. 87(3)(a)) (stating that defendant, in motion to transfer venue, must specifically deny venue facts in plaintiff's petition, or those facts will be taken as true). However, because Fort Bend is entitled to a transfer under the mandatory venue provision of section 15.015, it was not necessary for Fort Bend to challenge the venue facts pleaded by the Olivareses. Accordingly, the trial court abused its discretion by denying Fort Bend's motion to transfer venue of the Olivareses claims against it to Fort Bend County.

Conclusion

We therefore conditionally grant the petition for a writ of mandamus and direct the trial court to vacate its July 25, 2008 order denying Fort Bend's motion to transfer venue to Fort Bend County. We further direct the trial court to grant the motion, to sever just those claims the Olivareses have asserted against Fort Bend, and to transfer those severed claims to Fort Bend County. The writ will issue only if the trial court fails to act in accordance with this opinion.

GUZMAN, J., concurring.

CONCURRING OPINION

EVA M. GUZMAN, Justice.

Although I agree with the majority's conclusion that a mandatory venue provision requires the plaintiffs' claims against relator to be litigated in Fort Bend County, I reach that conclusion for different reasons. I therefore respectfully concur in the judgment.

In their original petition, the plaintiffs allege in pertinent part as follows:

Mr. Ladson entered the Westpark Tollway at the easternmost entrance—near Gaston Road, which is located in Fort Bend County.... All of the defendants had actual knowledge that dangerous conditions existed on the Westpark Tollway lanes, entrances, and exits that allowed for wrong-way vehicles to enter the tollway and subsequently cause serious injury to other tollway users.... The operation of a tollway without proper entrances, exits, warning lights, signs and barricades is an inherently dangerous practice and created an unreasonable risk of harm to the plaintiffs ... Upon information and belief, the defendants formulated a policy to monitor the tollway entrances and exits to prevent wrong-way traffic ... In the early morning hours of January 1, 2007, the premise defects were the signs, signals and warning devices of the Gaston Road area of the tollway and the Westpark Tollway itself. The defective items were confusing and misleading about the proper direction of travel to get on the tollway and the identity of the entrances to get on the tollway. The tollway...