Tullos v. Eaton Corp. , 1985 Tex. App. LEXIS 6427 ( 1985 )

ON MOTION FOR REHEARING

BROOKSHIRE, Justice.

For the first time, in his Motion for Rehearing, Appellee, James Herman Gibson, argues that the Court of Appeals lacks jurisdiction to hear the appeal of Appellant, Jimmy Tullos. Gibson argues that we erred in reviewing the trial court’s order granting Gibson’s Plea of Privilege. We hold that points of error not raised in Ap-pellee’s brief may not, thereafter, be advanced in his Motion for Rehearing. Aycockv. Travis County, 255 S.W.2d 910 (Tex.Civ.App. — Austin 1953, writ ref’d). See also STATE BAR OF TEXAS, APPELLATE PROCEDURE IN TEXAS, “Motion for Rehearing”, Sec. 23.10 at 551 (2d ed. 1979).

The hearing on the Plea of Privilege was held on April 27, 1983. Deposition testimony and in-court testimony was presented. Testimony of nine witnesses was presented along with medical records. The hearing was conducted properly prior to the 1983 amendment of TEX.REV. CIV.STAT.ANN. art. 1995 (Vernon Pamph.Supp.1985).

Appellee, Gibson, contends that this court totally lacks jurisdiction, arguing that no interlocutory appeal shall lie from such determination. Clearly, he is referring to one sentence of TEX.REV.CIV.STAT. ANN. art. 1995, sec. 4(d)(1) (Vernon Pamph.Supp.1985). The amended art. 1995 was effective September 1, 1983. Art. 1995, sec. 4(d)(1) should be construed in its entirety. It reads:

“Hearings. (1) In all venue hearings, no factual proof concerning the merits of the case shall be required to establish venue; the court shall determine venue questions from the pleadings and affidavits. No interlocutory appeal shall lie from such determination.”

We hold that it is when the trial court determines the venue questions from the pleadings and affidavits only that no interlocutory appeal shall lie, which is the current practice. The court below did not determine this plea of privilege from the pleadings and affidavits but rather after a full hearing of testimony from nine witnesses.

Gibson’s appellate brief, under Counterpoint No. 3, contains the following statements:

“The Trial Court was correct in not applying V.A.T.S., Article 1995, as amended, to the present case, since the venue law to be applied is the law in effect at the time the hearing was held.

“... [C]ases have specifically held the venue of an action to be controlled by the law in effect at the time the suit is filed.

“... As such, a defendant has a vested right in having his plea of privilege controlled by the law in effect at the time suit is filed against him.

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“... Seemingly it is clear, that at the time the suit was filed and the hearing was held, all parties, and the trial court, were in agreement that the law in effect at that time was controlling. After the amendment went into effect, Plaintiff made no attempt to gain another hearing or to persuade the trial court that the amended law would control. Defendant Gibson has a vested right to have the venue in this matter controlled by the law in effect at the time the hearing was held and argued_” (Emphasis added)

In their briefs, and especially in their oral submissions, both parties took the position that the appeal was properly before us and, therefore, we had jurisdiction to determine the same. After that course of conduct, we believe it unseemly and inappropriate to allege lack of jurisdiction initially in the motion for rehearing.

The occurrence sued on took place July 13, 1978. We observe that six years and eight months have transpired. Under the prior venue statute and practice the parties are still litigating in which county courthouse, or courthouses, the merits of the case should be tried.

We overrule the Motion for Rehearing.