Wichita County, Tex. v. Hart

• Citation: 917 S.W.2d 779
• Decision Date: 12 April 1996
• Docket Number: No. 95-0003,95-0003
• Parties: 11 IER Cases 641, 39 Tex. Sup. Ct. J. 270 WICHITA COUNTY, TEXAS, Petitioner, v. Allen HART and Ernie Williams, Respondents.
• Court: Supreme Court of Texas

Page 779

917 S.W.2d 779

11 IER Cases 641, 39 Tex. Sup. Ct. J. 270

WICHITA COUNTY, TEXAS, Petitioner, v. Allen HART and Ernie Williams, Respondents.

No. 95-0003.

Supreme Court of Texas.

Argued Sept. 6, 1995.

Decided Feb. 9, 1996.

Rehearing Overruled April 12, 1996.

Ann Clarke Snell, Valerie P. Kirk, Austin, for Petitioner.

R. John Cullar, Waco, John A. Crane, Austin, for Respondents.

SPECTOR, Justice, delivered the opinion of the Court, in which all Justices join.

In this Texas Whistleblower Act case, we consider whether the Act controls venue in a suit against a county. The court of appeals affirmed the trial court's ruling that the Whistleblower Act's venue provision governed. See 892 S.W.2d 912, 919-20. We reverse the judgment of the court of appeals and remand the case for a new trial. Because of our remand and in the interest of judicial economy, we also consider the proper definition of "good faith" as used in the Whistleblower Act.

I. Background

Allen Hart and Ernie Williams worked as deputies in the Wichita County Sheriff's Department. In February 1989, Hart and Williams told an investigator for the county's district attorney's office and an agent for the Federal Bureau of Investigation that they believed Sheriff Thomas Callahan had broken the law. The investigator spoke with Callahan on May 1, 1989. Callahan fired Hart that day and Williams two days later.

Hart and Williams sued the county, contending that the sheriff fired them in retaliation for reporting a violation of law. They filed their suit in Travis County under the venue provisions of the Texas Whistleblower Act. See TEX.GOV'T CODE § 554.007 (1994). ¹ The county then moved to transfer venue to Wichita County under a mandatory county venue provision. See TEX.CIV.PRAC. & REM.CODE § 15.015. The trial court denied the motion. After a jury trial, the court rendered judgment on the verdict for Hart and Williams, and the court of appeals affirmed.

II. Venue

A defendant raises the question of proper venue by objecting to a plaintiff's venue choice through a motion to transfer venue. See TEX.R.CIV.P. 86; Wilson v. Texas Parks & Wildlife Dep't, 886 S.W.2d 259, 260 (Tex.1994). The fact that mandatory venue lies in another county provides one ground for a motion to transfer venue. See TEX.R.CIV.P. 86(3)(b). 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. See Langdeau v. Burke Inv. Co., 163 Tex. 526, 358 S.W.2d 553, 556 (1962). A trial court's erroneous denial of a motion to transfer venue requires reversal of the judgment and remand for a new trial. See TEX.CIV.PRAC. & REM.CODE § 15.064(b); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex.1993).

Here, the trial court was confronted with two venue provisions. The county argues that a Civil Practice and Remedies Code provision controls. ² Under that code, "[a]n action against a county shall be brought in that county." TEX.CIV.PRAC. & REM.CODE § 15.015 (emphasis added). As the court of appeals noted, our state's courts have long interpreted this provision as mandatory: "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. To this mandatory provision there seems to be no exception." Montague County v. Meadows, 31 S.W. 694, 694 (Tex.Civ.App.--Fort Worth 1895, writ ref'd) (citations omitted), cited in 892 S.W.2d at 917.

While conceding that the county venue provision is mandatory, Hart and Williams rely on the Whistleblower Act's venue provision, which provided at the time they filed suit that "[a] public employee may sue under this chapter in a district court of the county in which the employee resides or in a district court of Travis County." TEX.GOV'T CODE § 554.007 (1994) (emphasis added). They contend that the Whistleblower Act's venue provision is mandatory and trumps the mandatory county venue provision. We disagree.

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. See Bachus v. Foster, 132 Tex. 183, 122 S.W.2d 1058, 1060 (1939). In 1983, two days before it passed the Whistleblower Act, the Legislature reorganized the general venue statute into five categories: "General Rule," "Mandatory Venue," "Permissive Venue," "General Provisions," and "Suits Brought in Justice Court." See Act of June 17, 1983, 68th Leg., R.S., ch. 385, § 1, 1983 Tex.Gen.Laws 2119, 2119-24. It placed the county venue provision in the "Mandatory Venue" subchapter along with six other provisions, each stating where a suit "shall be brought." See id. at 2120 (current versions at TEX.CIV.PRAC. & REM.CODE §§ 15.011-.017). Since the 1983 reorganization, the Legislature has added new sections to the mandatory venue subchapter, each also stating where a suit "shall be brought." See TEX.CIV.PRAC. & REM.CODE §§ 15.0115, 15.018 (Supp.1996). The Legislature also placed ten provisions within the "Permissive Venue" subchapter in 1983, each stating where a suit "may be brought." See Act of June 17, 1983, 68th Leg., R.S., ch. 385, § 1, 1983 Tex.Gen.Laws 2119, 2120-23 (current versions at TEX.CIV.PRAC. & REM.CODE §§ 15.031-.040). ³ And, as noted, the Whistleblower Act's venue provision states where a plaintiff "may sue." See TEX.GOV'T CODE § 554.007 (1994). The Legislature's use of the permissive term "may" in the Whistleblower Act's venue provision, in light of its contemporaneous reorganization of the venue statute, strongly suggests that the Act's venue provision is permissive.

We have long recognized that when the Legislature passes two acts in the same session, we must construe the two acts in harmony with one another. See Cain v. State, 20 Tex. 355, 359 (1857). We have consistently adhered to this rule of statutory construction, noting that a "statute is presumed to have been enacted by the legislature with complete knowledge of the existing law and with reference to it." Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301 (Tex.1990) (citation omitted). This rule "applies with ... force to acts passed at the same session." State v. Dyer, 145 Tex. 586, 200 S.W.2d 813, 817 (1947). Therefore, we conclude that when the Legislature used the term "may" in the Whistleblower Act's venue provision, it consciously chose language consistent with the permissive venue subchapter of the Code.

Hart and Williams urge us to disregard this rule of construction. Adopting the court of appeals' reasoning, they contend that the Whistleblower Act's provision must be considered mandatory given both the object and nature of the Act and the potential consequences of calling the provision permissive. See 892 S.W.2d at 919. The court of appeals first concluded that because the Whistleblower Act allowed the county of the plaintiff's residence to serve as a venue choice and because during the same session the Legislature had rejected the county of the plaintiff's residence as an option in the general venue statute, the Legislature intended the plaintiffs' special venue options under the Whistleblower Act to be mandatory. See id. at 920. Second, the court of appeals concluded that one of the purposes of the Whistleblower Act "is to protect government employees from retaliation after reporting their employers' violations of the law," see id., and thus inferred that the Legislature included Travis County as a mandatory, "safe harbor" venue option.

We disagree with both assumptions. The Legislature, within two days of its passage of the Whistleblower Act, enacted several special venue statutes under the "permissive" heading that allowed plaintiffs to file suit in the county of their residence. See Act of June 17, 1983, 68th Leg., R.S., ch. 385, § 1, 1983 Tex.Gen.Laws 2119, 2120-23 (codified at TEX.CIV.PRAC & REM.CODE §§ 15.032-.034, 15.036-.037, 15.040). Given these permissive provisions, we cannot conclude that the Legislature's decision to allow plaintiffs to file suit in the county of their residence indicated a desire to make the Whistleblower Act's venue provision mandatory. Also, nothing in the legislative history indicates that by including Travis County as a venue option the Legislature intended the Whistleblower Act's venue provision to be mandatory. In deciding that the Travis County venue provision should be construed as a "safe harbor" or "means or area of protection," ⁴ the court of appeals cited no other statutes that contained such a provision, and the plain language of the statute as well as the legislative history reveal nothing describing an intent to create such a "safe harbor."

Hart and Williams alternatively contend that we should adopt the reasoning contained in the concurring opinion in the court of appeals. See 892 S.W.2d at 930-32 (Powers, J., concurring). The concurring opinion argues that the Whistleblower Act's venue provision mandates exclusive jurisdiction in either the county of the plaintiff's residence or Travis County. See id. The concurring opinion relies on decisions of this Court in which we held that when a statute creates a right and provides a remedy for its enforcement, it has provided an exclusive remedy, and when it confers jurisdiction on a particular court, it has conferred exclusive jurisdiction. See id. at 931 (citing Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1087 (1926)).

We agree with the concurring opinion that the Whistleblower Act creates a right and provides a remedy unknown to the common law of Texas. However, we see no indication that the Legislature intended the Whistleblower Act's venue provision to be jurisdictional. As the majority opinion in the court of appeals noted, the language of some laws unambiguously indicates that the Legislature intended them to be jurisdictional in nature. See 892 S.W.2d at 917. If the...