Original Proceeding on Petition for Writ of Mandamus
consists of Justices Keyes, Brown, and Lloyd.
MEMORANDUM OPINION ON REHEARING
Oil Company, Inc. seeks mandamus relief concerning the trial
court's May 19, 2017 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
transfer venue. We deny relator's other
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 in the
Houston County petition that Velvin committed fraud by
overcharging AJP for fuel taxes.
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 tax 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 Petition in Harris County,
seeking a deposition 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. Unlike in the Houston County petition, AJP
alleged in its Rule 202 Petition that it did not know whether
Velvin kept any overcharges for its own benefit.
filed an opposition to the petition, a motion to transfer
venue, and a motion to dismiss. Velvin argued 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 the motion
for leave. After a hearing, the trial court granted the Rule
202 Petition but has yet to rule on Velvin's motion to
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 has abused its
discretion if its actions were 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 Possesses Subject-Matter Jurisdiction
Rule 202.1(b) permits parties to petition the court for an
order authorizing a deposition to investigate a potential
claim or suit, they generally may not "obtain by Rule
202 what [they] would be denied in the anticipated
action." In re Wolfe, 341 S.W.3d 932, 933 (Tex.
2011); see In re DePinho, 505 S.W.3d 621, 623 (Tex.
2016). To properly obtain presuit discovery ...