In Re Fort Bend County , 2009 Tex. App. LEXIS 668 ( 2009 )

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 Oli-vares 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 Oli-vares, 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 Olivares-es 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 refd) (“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 1430788, 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 them 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 plaintiffs 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 Oli-vareses 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.

1 . 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. 218 S.W.3d at 79. Because the court based its decision on section 101.102(a), it did not consider the effect of section 15.015. Id. at 79 n.

1. 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.

2 . One commentator explains that the inclusion of the predecessor to section 15.015 under the venue statutes has no logical relevance to the basic venue rule with which those statutes are introduced. 6 Elaine Grafton Carlson, McDonald & Carlson Texas Civil Practice § 6:13 n. 1 (2d ed.1998). Section 15.015 originated in the Act of May 11, 1846, which related to the incorporation of counties, rather than in that of May 13, 1846, which set forth the basic venue rule and 11 exceptions to that rule. Id.

3 . We further observe that, because part of the cause of action arose Fort Bend County, i.e., Ladson entered the Tollway in Fort Bend County, venue is also appropriate in that county under section 101.102(a). See Tex. Civ. Prac. & Rem. Code Ann. § 101.102(a).