Rhodes v. City of Austin

• Citation: 584 S.W.2d 917
• Decision Date: 12 July 1979
• Docket Number: No. 1264,1264
• Parties: Nate RHODES, Appellant, v. CITY OF AUSTIN, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 917

584 S.W.2d 917

Nate RHODES, Appellant, v. CITY OF AUSTIN, Appellee.

No. 1264.

Court of Civil Appeals of Texas, Tyler.

July 12, 1979.

Rehearing Denied Aug. 2, 1979.

Nate Rhodes, pro se.

Jerry L. Harris, City Atty., Ernest A. Simon, Asst. City Atty., Austin, for appellee.

McKAY, Justice.

This is an appeal from a summary judgment rendered in the trial court against appellant. The appellee City sued Nate Rhodes and David P. Bell, both individually and both doing business under the assumed name of Pleasuretime Beverages, for delinquent personal property ad valorem taxes, Rhodes for 1974 and Bell for 1975 and 1976. Rhodes, appellant here, filed a plea to the jurisdiction of the court in which he alleged that the City had filed a previous suit concerning the same subject matter, that Rhodes had filed his plea of privilege thereto, that the plea of privilege therein was granted because the City did not timely file a controverting affidavit, and the City entered a voluntary nonsuit therein to avoid transfer of the cause. Rhodes also filed a plea of privilege in the present case requesting transfer of the cause to Nueces County, and an answer containing several special exceptions and a general denial.

A hearing was had in the District Court on Rhodes' plea of the jurisdiction and plea of privilege, resulting in an order by the court overruling both the plea to the jurisdiction and the plea of privilege. The City then filed its motion for summary judgment, and at the hearing on the motion Rhodes attempted to file an opposing affidavit which the trial court refused to consider. After the hearing the trial court granted the motion for summary judgment, awarding the City $746.93 as delinquent taxes, penalties and interest against Rhodes and $1,406.91 against Bell.

Rhodes alone brings this appeal and predicates it upon five points of error. The first two points complain of error in the trial court's failure to grant appellant's plea of privilege and plea to the jurisdiction. Appellant argues that since the City filed no controverting affidavit in the previous suit and later took a nonsuit prior to any ruling on the plea of privilege in that cause, the right to the change of venue was established and the trial court in this case should have transferred the cause to Nueces County. In this connection appellant argues that Article 7345b-1, ¹ is made a part of the general venue statute by the terms of subdivision 30 of Article 1995. The City does not contest the allegation that it had filed a previous suit concerning the same subject matter in which it failed to file a controverting plea to appellant's plea of privilege and thereafter took a voluntary nonsuit but replies that Article 7345b-1 is a statute that itself controls venue of actions brought thereunder, that it is not one that is controlled by the provisions of Article 1995 and the exceptions thereto, and that therefore a plea of privilege will not lie thereunder.

There is authority that where the plaintiff has filed a previous suit, and the defendant has filed a plea of privilege which is not controverted by the plaintiff, and where thereafter the plaintiff takes a voluntary nonsuit as to that defendant, the issue of venue is settled. The legal result is the establishment of the situs for the trial of the cause of action as that asserted in the plea of privilege, as a matter of admission by the plaintiff. Southwestern Investment Company v. Gibson, 372 S.W.2d 754, 756 (Tex.Civ.App. Fort Worth 1963, no writ); see also Cowan v. State, 356 S.W.2d 170, 172 (Tex.Civ.App. Austin 1962, writ dism'd); Wilson v. Groos National Bank of San Antonio, 535 S.W.2d 374, 376 (Tex.Civ.App. Tyler 1976, no writ). This is true, however, only where the question of venue can be put in issue by a plea of privilege.

In the instant case, the City brought its original suit in Travis County under the provisions of Article 7345b-1, which provides:

"All actions or suits for the collection of delinquent ad valorem taxes on either real or personal property due the State of Texas or any political subdivisions thereof, shall be brought in a court of competent jurisdiction in the County in which such taxes were levied."

There is no dispute that the City's action is one for which venue is provided by Article 7345b-1, nor that Travis County is the county in which the taxes at issue were levied. Appellant relies, in support of his plea of privilege, upon subdivision 30 of Article 1995, which provides:

"Special venue. Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given,"

and upon cases in which the courts have held that special venue statutes are made a part of the general venue statute by the terms of subdivision 30. See, e. g., Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867, 868 (1937), and its progeny.

However, all separate statutes providing for venue are not controlled by the general venue statute. In Traders & General Insurance Co. v. Curby, 103 S.W.2d 398 (Tex.Civ.App. Waco 1937, no writ), Justice Alexander stated at p. 399, "the venue in such (workmen's compensation) cases is controlled by the act itself and not by the provisions of Revised Statutes, art. 1995, and the many exceptions therein provided." See also State v. Harry Cloud Transport, Inc., 505 S.W.2d 798 (Tex.1974); Cowan v. State, supra; Harrington v. State, 363 S.W.2d 321 (Tex.Civ.App. Austin 1962, writ ref'd n. r. e.); Scott v. United States Fidelity & Guaranty Co., 256 S.W.2d 860, 863 (Tex.Civ.App. Amarillo 1953, no writ); Walker v. State, 251 S.W.2d 546-7 (Tex.Civ.App. Eastland 1952, no writ). The question before us for decision, therefore, is whether Article 7345b-1 is a "law authorizing or regulating (a) particular character of action" within the meaning of subdivision 30, Article 1995, so as to permit a plea of privilege to be filed by a nonresident defendant, or is an act by which venue is controlled by the statute itself and not by the provisions of Article 1995 and its exceptions. See Cowan v. State,supra, 356 S.W.2d at 177.

In the case of Gambill v. Town of Ponder, 494 S.W.2d 808 (Tex.1973), our Supreme Court used the discernible intent of the Legislature as the test for determining whether the provisions of a separate venue statute are to control over the general venue statute. See also Cowan v. State, supra. Applying that test to the instant case, we find that the clear legislative intent expressed in Article 7345b-1, is that the particular provisions of said article are to control over the general venue statute, Article 1995. Section 2 of the act, passed as Acts 1943, 48th Legislature, p. 191, Ch. 110, provides:

"The fact that there is now no plain provision of law permitting an action or suit for collection of delinquent ad valorem taxes on personal property to be maintained as against pleas of privilege by non-resident taxpayers in the County in which such taxes have been levied and in which such taxes are payable, and certain Courts of Appeals have held that such suits are governed by the general rule of venue in civil actions and may be removed upon pleas of privilege to Counties other than those in which such taxes are payable, thereby requiring county and/or district officers to travel and transport official records to distant Counties in order to enforce payment of the legal dues, at great hardship, inconvenience and prohibitive expense to the Counties and units involved, thereby affecting the public revenue, creates an imperative public necessity and an emergency requiring the suspension of the Constitutional Rule requiring bills to be read on three several days, said Rule is hereby suspended, and this Act shall take effect and be in force from and after its passage, and it is so enacted."

Another basis upon which it has been held that a special venue statute itself controls venue and is not controlled by the general venue statute is that such a special statute actually determines jurisdiction and not merely venue.

"Statutes . . . authorizing special proceedings for the settlement of rights which exist wholly by virtue of statute rather than by virtue of the constitution or the common law, often fix the county wherein suit must be prosecuted, and such provisions are commonly treated as jurisdictional. Conceptually, however, any statute which lodges in the courts of a single county (named specifically or identified by a description applicable only to it) the exclusive power to try a certain type of case is jurisdictional, even though it be placed by the legislature in juxtaposition to true venue provisions or be referred to in its body as a venue statute." (Footnotes omitted.) 1 McDonald, Texas Civil Practice, sec. 4.02 at p. 411 (1965).

We are of the opinion that Article 7345b-1 is such a statute. Bachus v. Foster, 122 S.W.2d 1058 (Tex.Com.App.1939, opinion adopted); Gambill v. Town of Ponder, supra, 494 S.W.2d at 810; Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364, 367 (Tex.Com.App.1933, opinion adopted); Calvert v. Hall, 514 S.W.2d 778, 781 (Tex.Civ.App. Austin 1974, writ dism'd); Texas Employers' Insurance Ass'n v. Ellis, 543 S.W.2d 397, 399 (Tex.Civ.App. El Paso 1976, no writ); Colvin v. State, 416 S.W.2d 513, 515 (Tex.Civ.App. Dallas 1967, no writ).

Accordingly, this suit being one for the collection of delinquent ad valorem taxes on personal property due a political subdivision of this State in which venue was fixed as a matter of law under Article 7345b-1, no issue of venue can arise under a plea of privilege. "The court can not be under a duty to transfer a cause to a court which has no jurisdiction. In such a situation, a plea of privilege is inappropriate, and the court may strike a plea of privilege on its own motion or on special exception." 1 McDonald, Texas Civil Practice, sec. 4.46.1, pp....