Wichita County v. Hart

• Decision Date: 12 October 1994
• Docket Number: No. 3-93-358-CV,3-93-358-CV
• Citation: 892 S.W.2d 912
• Parties: WICHITA COUNTY, Texas, Appellant, v. Allen HART and Ernie Williams, Appellees.
• Court: Texas Court of Appeals

Page 912

892 S.W.2d 912

WICHITA COUNTY, Texas, Appellant, v. Allen HART and Ernie Williams, Appellees.

No. 3-93-358-CV.

Court of Appeals of Texas,

Austin.

Oct. 12, 1994.

Rehearing Overruled Nov. 16, 1994.

Ann Clarke Snell, Bickerstaff, Heath & Smiley, Austin, for appellant.

R. John Cullar, Mills, Millar, Matkin & Cullar, Waco, John A. Crane, Zunker, Butler, Estes & Crane, L.L.P., Austin, for appellees.

Before POWERS, KIDD and B.A. SMITH, JJ.

KIDD, Justice.

Allen Hart and Ernie Williams ("appellees") filed suit against Wichita County ("the County") for wrongful termination pursuant to Tex. Gov't Code Ann. §§ 554.001-.009 (West 1994) (hereinafter "the Whistleblower Act"). ¹ The County filed a motion to transfer venue, which the trial court denied. After a jury trial in which the appellees prevailed, the County appeals. We will affirm.

BACKGROUND

The appellees were employed as law enforcement officers in the Wichita County Sheriff's Department. In February 1989, appellee Hart became aware of some questionable activities occurring in the department. Hart consulted with appellee Williams about the legality of a proposed gun sale and a deed of property that a local law firm had transferred to the sheriff, and the two subsequently began investigating these transactions.

Hart eventually sought the advice of Mike Cross, an investigator with the District Attorney's Office, about the legality of these On May 1, 1989, Cross confronted Sheriff Callahan about the transfer of the deed. During that meeting it was revealed that the purpose of the deed transaction was to provide collateral so that the law firm could make bail bonds for its criminal defense practice. Sheriff Callahan demanded to know the identities of the complainants. Hart was terminated later that day; Williams was terminated two days later on May 3, 1989.

activities. Cross launched an investigation in order to determine whether the sheriff's department was violating any laws. During this same period, Williams reported his belief that criminal activities were occurring in the department to FBI Special Agent Lee Hale.

The appellees sued the County under the Whistleblower Act, contending that their positions as deputy sheriffs were terminated because they reported a superior's violation of the law. Appellees filed suit in Travis County pursuant to the special venue provision contained in the Whistleblower Act. Tex. Gov't Code Ann. § 554.007 (West 1994). The County filed a motion to transfer venue to Wichita County, contending that the mandatory venue provision of section 15.015 of the Texas Civil Practice and Remedies Code entitled the County to defend the suit in Wichita County. The trial court denied the County's motion to transfer venue.

The appellees prevailed at trial, obtaining a substantial jury verdict for their termination. The County appeals, raising ten points of error, ² including a challenge to the trial court's denial of its motion to transfer venue. Because the County's venue challenge is a threshold issue, we address it first.

DISCUSSION

Venue

In its first point of error, the County contends that the trial court erred in denying its motion to transfer venue. If the trial court did err, we must reverse the judgment and remand the cause for a new trial. See Tex.Civ.Prac. & Rem.Code Ann. § 15.064(b) (West 1986).

Section 15.015 of the Civil Practice and Remedies Code mandates, "An action against a county shall be brought in that county." Tex.Civ.Prac. & Rem.Code Ann. § 15.015 (West 1986) (hereinafter "the county provision"). The special venue provision in the Whistleblower Act, section 554.007 of the Government Code, provides, "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 Ann. § 554.007 (West 1994).

As a general rule, the plaintiff chooses venue. Wilson v. Texas Parks & Wildlife Dep't, 886 S.W.2d 259, 259-61 (1994). The defendant is entitled to have a motion to transfer venue granted in only two instances: (1) the plaintiff's choice of venue is not proper, meaning that no venue provision permits the case to be tried in the court where the plaintiff filed suit; or (2) a mandatory venue provision requires ³ that the case be brought in another court. ⁴ See Tex.R.Civ.P. 86(3). A defendant is not entitled to have venue transferred from one permissive venue to another permissive venue, and indeed, it is reversible error for a trial court to grant such a transfer. Wilson, 886 S.W.2d at 260-61. In the instant cause, appellees filed suit in Travis County, clearly a proper venue under the whistleblower special venue provision. The County contends, however, that the district court erred by not transferring the cause to Wichita County pursuant to the mandatory county provision.

The county provision has long been a part of the law of our state and has long been regarded as a mandatory venue provision:

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. It was originally enacted May 13, 1846,--two days before the passage of the general venue statute, with its 11 exceptions to the rule there promulgated....

Montague County v. Meadows, 31 S.W. 694, 694 (Tex.Civ.App.--Fort Worth 1895, writ ref'd) (citations omitted). Since its adoption, courts have consistently held that the county provision is a mandatory venue provision. One court explained that "counties are so closely identified with the sovereign power of the state that they may be sued only upon the terms and conditions prescribed by the statute." Dial v. Crosby County, 96 S.W.2d 534, 536 (Tex.Civ.App.--Amarillo 1936, no writ); see also City of Tahoka v. Jackson, 276 S.W. 662, 663 (Tex. Comm'n App. 1925, opinion adopted); Randall County v. Todd, 542 S.W.2d 236, 237 (Tex.Civ.App.--Amarillo 1976, no writ); Hodges v. Coke County, 197 S.W.2d 886 (Tex.Civ.App.--Amarillo 1946, no writ).

The legislature reaffirmed the holdings of these courts with its revision of the venue statute in 1983, placing the county provision in a subchapter of the Civil Practice and Remedies Code entitled "Mandatory Venue." ⁵ Thus, the district court was required to grant the County's motion to transfer venue to Wichita County unless the whistleblower provision is either jurisdictional or mandatory.

Is the Whistleblower Venue Provision Jurisdictional?

If a venue provision is jurisdictional, and suit is not filed in a proper court, the court in which the suit is improperly filed lacks the power even to transfer the cause to a court where venue is proper; the court must simply dismiss the cause. Gambill v. Town of Ponder, 494 S.W.2d 808, 810 (Tex.1973); Federal Underwriters Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (1943). Furthermore, the parties may not waive a jurisdictional venue provision. The language of some venue provisions unambiguously indicates that the legislature intended the provisions to be jurisdictional in nature. ⁶ If it is unclear from the provision's wording whether the legislature intended the provision to be jurisdictional, the question must be resolved by statutory construction. Brown v. Owens, 674 S.W.2d 748, 750 (Tex.1984).

In Brown v. Owens, the Texas Supreme Court held that the venue provision in the Texas Tort Claims Act was not jurisdictional. In doing so, the supreme court stated that a court must consider the entire Act, including the caption of the venue provision, the wording of the venue provision, and the Act as a whole. Id.

The whistleblower special venue provision states 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 Ann. § 554.007 (West 1994). The section-specific portion of the legislative bill analysis does not state the purpose of the venue provision. However, the caption of the section in which the venue provision appeared in the original Act read: "REMEDY; BURDEN OF PROOF; VENUE." ⁷

Appellees, however, contend that a Texas Supreme Court decision and a decision from this Court indicate that the whistleblower provision is jurisdictional. Appellees rely upon Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926) and Carter v. Dean, 660 S.W.2d 866 (Tex.App.--Austin 1983, no writ). In Mingus v. Wadley, the supreme court held that the two venue provisions in the Workmen's Compensation Act were jurisdictional. Mingus, 285 S.W. at 1087-88 (construing Workmen's Compensation Law, ⁸ 35th Leg., R.S., ch. 103, §§ 5, 5a, 1917 Tex.Gen.Laws 269, 283-84, since repealed). The supreme court recognized that a suit under the Workers' Compensation Act "of necessity involves the fact of the accident, the issue of the injury, and the wages of the claimant; all of which may be established with less expense, trouble, and delay in the county where the injury occurred than in any other county." Id. at 1087. The supreme court also noted that construing the provision as jurisdictional was consistent with the general rule "that where a statute creates a right and provides a remedy for its enforcement, the remedy is exclusive, and where it confers jurisdiction upon a particular court, that jurisdiction is exclusive." Id. at 1088. In Carter v. Dean, this Court followed Mingus, holding that section 11.67 of the Texas Alcoholic Beverage Code was jurisdictional because it "creates a right of judicial review and specifies the court wherein such review shall be conducted by a suit against the Commission." Carter, 660 S.W.2d at 868.

In determining whether the whistleblower provision is jurisdictional, it is helpful to compare the Whistleblower Act with other statutory causes of action that contain special venue provisions. The Workers' Compensation Act considered in Mingus...