Court of Appeals of Texas, Twelfth District, Tyler
from the 173rd District Court of Henderson County, Texas
(Tr.Ct. No. CV15-0009-173)
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Indemnity Insurance Company seeks mandamus relief from the
trial court's order denying its motion to transfer
venue. We conditionally grant the writ.
2014, Red Dot Buildings and Rigney Construction and
Development, L.L.C. entered into a subcontract related to the
construction of a school in Brooks County, Texas. Red Dot
secured a payment bond from Philadelphia for the project in
accordance with Chapter 2253 of the Texas Government Code.
dispute subsequently arose between Red Dot and Rigney, Red
Dot sued for breach of contract. Rigney moved to transfer
venue to Hidalgo County. The trial court denied the motion.
Red Dot also made a payment bond claim with Philadelphia. In
its first amended petition, Red Dot brought Philadelphia into
the lawsuit under Chapter 2253 of the Texas Government Code.
Philadelphia filed a motion to transfer venue with its
original answer, asserting that the case must be transferred
to Brooks County under section 2253.077 of the government
code. Citing that venue had been determined before
Philadelphia was a party, the trial court denied
Philadelphia's motion to transfer. This original
will issue only to correct a clear abuse of discretion for
which the relator has no adequate remedy by appeal. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.
2004) (orig. proceeding). A trial court has no discretion in
determining what the law is or applying the law to the facts.
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)
(orig. proceeding). A trial court abuses its discretion by
failing to analyze or apply the law correctly. Id.
As the party seeking relief, the relator bears the burden of
demonstrating entitlement to mandamus relief. Id. at
case, Philadelphia seeks the enforcement of section 2253.077
of the Texas Government Code, which is mandatory in nature.
See Poth Corp. v. Marble Falls Indep. Sch. Dist, 673
S.W.2d 648, 651 (Tex. App.-Austin 1984, no writ). A party may
petition for a writ of mandamus with an appellate court to
enforce mandatory venue provisions. See TEX. Civ.
Prac. & Rem. Code Ann. § 15.0642 (West 2017);
see also In re Hannah, 431 S.W.3d 801, 806 (Tex.
App.-Houston [14th Dist] 2014, orig. proceeding) (per
curiam). A party seeking to enforce a mandatory venue
provision is not required to prove the lack of an adequate
appellate remedy, but is required only to show that the trial
court abused its discretion. In re Mo. Pac. R.R.
Co., 998 S.W.2d 212, 216 (Tex. 1999).
only issue, Philadelphia contends that the trial court abused
its discretion when it denied the motion to transfer venue.
Philadelphia argues that the transfer to Brooks County is
mandatory under section 2253.077 of the government
of the Texas Rules of Civil Procedure governs motions to
transfer venue. See Tex. R. Civ. P. 87. It provides
that if venue has been sustained against a motion to
transfer, no further motions shall be considered unless the
new motion is based on a mandatory venue provision. TEX. R.
Civ. P. 87(5). Therefore, the general rule is that only one
venue determination may be made in a single proceeding in the
same trial court. Van Es v. Frazier,230 S.W.3d 770,
775 (Tex. App-Waco 2007, pet. denied); see also Fincher
v. Wright,141 S.W.3d 255, 263-64 (Tex. App-Fort Worth
2004, no pet.); In re Shell Oil Co.,128 S.W.3d 694,
696 (Tex. App.-Beaumont 2004, orig. proceeding); Marathon
Corp. v. Pitzner,55 S.W.3d 114, 137 n.6 (Tex.
App-Corpus Christi 2001), rev'd on other
grounds,106 S.W.3d 724 (Tex. 2003) (per curiam). In