Proceeding on Petition for Writ of Mandamus
consists of Justices Keyes, Brown, and Lloyd.
Oil Company, Inc. seeks mandamus relief challenging the trial
court's order granting a Rule 202 Petition and its
failure to rule on Velvin's motion to transfer
venue. We conclude that the trial court abused
its discretion in failing to rule on the motion to transfer
venue before deciding the Rule 202 Petition. Accordingly, we
conditionally grant the petition as it concerns the motion to
distributes diesel fuel, gasoline, and other related products
to retailers across Texas, including AJP. AJP originally sued
Velvin in Houston County alleging fraud, negligence, and
other claims regarding the quality and merchantability of the
diesel fuel sold by Velvin. AJP further alleged that Velvin
committed fraud by overcharging AJP for fuel taxes and
keeping the excess amount for itself.
filed a plea to the jurisdiction in the Houston County suit
on the overcharge claims, asserting that the trial court
lacked subject-matter jurisdiction because AJP failed to
exhaust its administrative remedies. Specifically, Velvin
argued that AJP's overcharge claims fell under the
statutory provisions requiring tax refund claims to be filed
with the state comptroller. See Burgess v. Gallery Model
Homes, Inc., 101 S.W.3d 550, 558 (Tex. App.-Houston [1st
Dist.] 2003, pet. denied) (holding that legislature has
created exclusive means for obtaining refund of improperly
collected taxes and trial court lacks jurisdiction if
plaintiff has not exhausted administrative remedies under
this legislative scheme); Tex. Tax Code § 111.104
(procedure for requesting tax refund from comptroller).
Houston County trial court granted the plea and dismissed
AJP's claims concerning overcharges and its claims for
common-law fraud and negligent misrepresentation. The Houston
County lawsuit remains pending as to AJP's causes of
action regarding the quality and merchantability of the
diesel fuel it purchased from Velvin.
later filed a Verified Rule 202 Deposition Petition in Harris
County, seeking to investigate claims "arising out of
Velvin's sale of diesel fuel and collection of state
diesel fuel taxes." AJP argued that it was entitled to
discovery on whether Velvin was collecting and keeping for
its own benefit amounts represented to be fuel taxes paid to
the refineries, but which included an excess amount that
Velvin kept for itself.
filed an opposition to the petition, a motion to transfer
venue, and a motion to dismiss. Velvin responded that the
issues raised in the Rule 202 petition mirrored those
dismissed in the Houston County case. Velvin also filed a
motion for leave to set the venue motion on the same date as
the hearing on the Rule 202 petition, but the trial court
denied this motion for leave. After a hearing, the trial
court granted the Rule 202 petition. The trial court has not
ruled on Velvin's motion to transfer venue.
entitled to mandamus relief, a petitioner must show both that
the trial court abused its discretion and that there is no
adequate remedy by appeal. In re Prudential Ins.
Co., 148 S.W.3d 124, 135 (Tex. 2004). Generally,
appellate courts will hold that a trial court abuses its
discretion if its actions are either "without reference
to any guiding rules and principles" or "arbitrary
or unreasonable." Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Court Had Subject-Matter Jurisdiction
a person may petition a court for an order authorizing a
deposition to investigate a potential claim or suit,
see Tex. R. Civ. P. 202.1(b), a petitioner generally
may not "obtain by Rule 202 what it would be denied in
the anticipated action." In re DePinho, 505
S.W.3d 621, 623 (Tex. 2016). To properly obtain presuit
discovery under ...