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Priorities

Choosing venue in the face of conflicting mandatory venue provisions.

Written by Tracy C. Temple


Defining venue is relatively simple: venue refers to “the geographic location within the forum where the case may be tried.”1 Though simple to define, Texas law contains myriad venue statutes that govern where parties must file their claims. Many of these venue provisions are found in Chapter 15 of the Texas Civil Practice and Remedies Code, but other statutes also contain venue provisions.2 The Texas Supreme Court recently described conflicting mandatory venue provisions as “a recurrent and perplexing procedural issue.”3

The venue analysis begins with the principle that “[v]enue may be proper under general, mandatory, or permissive venue rules.”4 Under mandatory venue rules, there may be multiple counties of proper venue.5 The plaintiff establishes the first choice on venue by filing the lawsuit.6 If the plaintiff’s choice is proper, that choice should be honored unless a mandatory venue statute requires venue elsewhere.7 If both a permissive and a mandatory venue provision apply to claims brought in a suit, the permissive statute must yield to the mandatory provision.8

If two competing mandatory venue provisions apply, courts look for any statutory language or rules indicating a legislative intent to place priority on one provision over the other.9 For example, in In re Fox River, the court faced the mandatory venue provision found in Section 15.020 of the Texas Civil Practice and Remedies Code applicable to venue-selection agreements in major transactions and the mandatory venue provision found in Section 65.023(a) applicable to injunction suits.10 The court rejected an argument that Section 15.020 acts as a “super mandatory” venue provision that would control beyond Title 2 of the Texas Civil Practice and Remedies Code, because it was contrary to the statute’s text.11 The text of Section 15.020 expressly provides that the “section does not apply to an action if: … venue is established under a statute of the state other than this title.”12 The court clarified language from its decision in In re Fisher and emphasized that “section 15.020 means what it says and indicates that the Legislature intended for it to control over other venue provisions within Title 2.”13 The court ultimately held that Section 15.020 controlled, but only because it found Section 65.023(a), a venue provision from outside of Title 2, inapplicable to the case.14 The court in In re Fox River noted that venue is a “creature of legislative grace” and that review of venue rulings focuses on whether the venue ruling is “faithful to the venue statute.”15

Courts will typically apply a mandatory venue provision from outside of Chapter 15 of the Texas Civil Practice and Remedies Code over a mandatory provision arising under Chapter 15 because of the legislative mandate found in Section 15.016. That provision states: “[a]n action governed by any other statute prescribing mandatory venue shall be brought in the county required by that statute.”16 An exception to this rule exists for suits brought against a county. Under Section 15.015 of the Texas Civil Practice and Remedies Code, a suit against a county must be brought in that county, notwithstanding Section 15.016.17 Absent statutory language or other rule indicating one provision should apply over the other, the plaintiff’s choice of venue will likely be honored.18

Keep in mind that venue can be a very case-specific question. A few representative examples of courts applying these principles to address conflicting mandatory venue provisions include:

  • In re Fisher, 433 S.W.3d at 533-34 (concluding that Section 15.020 of Texas Civil Practices and Remedies Code for major transactions applied over Section 15.017 of the Texas Civil Practice and Remedies Code for defamation claims because of language in Section 15.020 stating it applies “[n]otwithstanding any other provision of this title.”).

  • In re J.P. Morgan Chase Bank, N.A., 373 S.W.3d 615, 617-18 (Tex. App.—San Antonio 2012, orig. proceeding) (holding Section 115.002 of the Property Code applied over Section 15.011 of the Texas Civil Practice and Remedies Code because it originated outside of Chapter 15).

  • In re Sosa, 370 S.W.3d at 81, 82 (basing decision on statutory construction, rather than plaintiff’s choice of venue, in a case involving two provisions originating outside of Chapter 15 and concluding that more-specific and later-enacted statute of mandatory venue for arbitration agreements found in Section 171.096(b) prevailed over mandatory venue for injunction suits found in Section 65.023(a)).

Another related issue involves whether a mandatory venue provision should apply based on the nature of the claims asserted, rather than solely on the way the claims are pleaded. Plaintiffs generally “are free to tailor their pleadings to eschew those claims which would mandate one forum instead of another forum for litigation of those well-pleaded claims.”19 Nevertheless, parties may argue that a mandatory venue provision should still apply.20 Parties have successfully used this argument under the mandatory venue provision found in Section 15.011 for interests in real property.21 “It is the ultimate nature or purpose of the suit that determines whether a particular case falls under the mandatory venue statute, and not how the cause of action is described by the parties.”22

In sum, when facing more than one mandatory venue provision, courts will look for any legislative guidance or rules on which provision should apply. Because venue is a matter of legislative grace, the inquiry on appeal will focus on whether the venue ruling held true to the language of the venue statute. Absent any applicable statutory language or rule indicating priority between competing mandatory venue provisions, the plaintiff’s choice should establish proper venue.TBJ

 

Notes
1. In re Hannah, 431 S.W.3d 801, 806 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding) (per curiam) (internal quotations omitted).
2. See generally Michol O’Connor, O’Connor’s Texas Rules Civil Trials Ch. 2-H, 4 (2020) (listing mandatory venue provisions found in Chapter 15 and a number of mandatory venue provisions found elsewhere).
3. In re Fox River Real Est. Holdings, Inc., 596 S.W.3d 759, 761 (Tex. 2020) (orig. proceeding).
4. Perryman v. Spartan Tex. Six Cap. Partners, Ltd., 546 S.W.3d 110, 130 (Tex. 2018).
5. Id.
6. Id.
7. Id.; see also Tex. Civ. Prac. & Rem. Code § 15.001(a), (b) (defining proper venue as the venue required by mandatory provisions or, if no mandatory provisions apply, the venue provided by permissive venue provision).
8. Perryman, 546 S.W.3d at 130.
9. See Perryman, 546 S.W.3d at 132-33 (looking to statutory language and rules of civil procedure for intent of Legislature); see also In re Fisher, 433 S.W.3d 523, 533-34 (Tex. 2014) (orig. proceeding); In re Sosa, 370 S.W.3d 79, 81 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding) (holding that if two mandatory provisions apply, both from outside of Chapter 15, then the court should resolve conflict by statutory construction rather than plaintiff’s choice).
10. 596 S.W.3d at 762.
11. Id. at 764.
12. Tex. Civ. Prac. & Rem. Code § 15.020 (d)(3).
13. 596 S.W.3d at 764 (emphasis added).
14. Id. at 768.
15. Id. at 763.
16. Tex. Civ. Prac. & Rem. Code § 15.016; In re San Jacinto Cty., 416 S.W.3d 639, 641 (Tex. App.—Houston [14th Dist.] 2013, orig. proceeding).
17. See In re Fort Bend Cty., 278 S.W.3d 842, 844-45 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding).
18. See Perryman, 546 S.W.3d at 133 (“Similarly, holding here that the third-party-venue provision controls over other mandatory venue provisions gives effect to both provisions while honoring the general rule that the plaintiff makes the first choice of appropriate venue.”).
19. Prosperity Energy Corp. v. Terfam Family Ltd., No. 13-15-00184-CV, No. 13-15-00234-CV, 2015 WL 3946553 at *7 (Tex. App.—Corpus Christi-Edinburg, orig. proceeding) (mand. denied) (mem. op.).
20. See id. at *6.
21. See, e.g., In re Applied Chem. Magnesias Corp., 206 S.W.3d 114, 119 (Tex. 2006) (dispute involved indirect means of quieting title to the mineral estate in the Marble Canyon land.”); Renwar Oil Corp. v. Lancaster, 276 S.W.2d 774, 776 (Tex. 1955).
22. In re Harding, 563 S.W.3d 366, 371 (Tex. App.—Texarkansa, orig. proceeding).



Tracy TempleTRACY C. TEMPLE
is an attorney with Pierce & O’Neill. She is certified in civil appellate law by the Texas Board of Legal Specialization, has experience in a variety of civil appeals, and previously served as an attorney at the 14th Court of Appeals in Houston. Temple provides appellate and motions briefing and counsel, oral argument preparation, and advice on legal issues.

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