Court of Appeals of Texas, Fifth District, Dallas
Original Proceeding from the 296th Judicial District Court
Collin County, Texas Trial Court Cause No. 296-05741-2017
Justices Bridges, Brown, and Boatright
the Court is relator's motion for rehearing. We deny the
motion for rehearing. On our own motion, we withdraw our
opinion of April 19, 2018 and vacate the order of that date.
This is now the opinion of the Court.
original proceeding, relator complains of the trial
court's order granting the real parties in interest's
motion to transfer venue to Dallas County. To be entitled to
mandamus relief, a relator must show both that the trial
court has clearly abused its discretion and that relator has
no adequate appellate remedy. In re Prudential Ins.
Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.
proceeding). Based on the record before us, we conclude
relator is not entitled to the relief requested.
the order complained of is not subject to appellate or
mandamus review because the real parties in interest moved to
transfer venue pursuant to section 15.002(b) of the civil
practice and remedies code, and the trial court granted the
motion to transfer without stating a reason. Section
15.002(c) of the civil practice and remedies code prohibits
appellate or mandamus review of the granting of a motion to
transfer venue brought under section 15.002(b). Tex. Civ.
Prac. & Rem. Code Ann. § 15.002(c) (West 2017).
Where, as here, the motion to transfer sufficiently invoked
subsection (b) in requesting a transfer and the trial court
did not give a reason for granting the transfer request, the
order granting the transfer is statutorily beyond our review.
E.g., Jones v. Pioneer/Eclipse Corp., No.
05-08-00446-CV, 2009 WL 1395932, at *1 (Tex. App.-Dallas May
20, 2009, pet. denied) (mem. op.) (appellate court
statutorily prohibited from reviewing order granting motion
to transfer venue where the motion sufficiently invoked
section 15.002(b)); see also Garza v. Garcia, 137
S.W.3d 36, 39 (Tex. 2004) ("it is irrelevant whether a
transfer for convenience is supported by any record
evidence" because appellate review of such a transfer is
statutorily prohibited); In re Coastal Alamo Invs.,
LLC, No. 04-16-00455-CV, 2016 WL 4444384, at *1 (Tex.
App.-San Antonio Aug. 24, 2016, orig. proceeding) ("A
court's ruling or decision to grant or deny a transfer
venue for the convenience of the parties and witnesses may
not be reviewed by mandamus").
argues that mandamus review is appropriate here because he
seeks to enforce a mandatory venue statute. See In re
Lopez, 372 S.W.3d 174, 176 (Tex. 2012) (mandamus relief
is the proper remedy to enforce a mandatory venue provision
when the trial court has denied a motion to transfer venue);
Tex. Civ. Prac. & Rem. Code Ann. § 15.0642 (West
2017) ("A party may apply for a writ of mandamus with an
appellate court to enforce the mandatory venue provisions of
this chapter."). Relator argues that venue was mandatory
in Collin County under section 15.017 of the civil practice
and remedies code because his claims include a libel claim.
He is not entitled to mandamus relief, however, because he
did not establish prima facie proof that a mandatory venue
statute applies to this case.
plaintiff has the first opportunity to fix venue in a proper
county by filing suit in that county. In re Masonite
Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig.
proceeding); Tex.R.Civ.P. 87(2)(a). In its motion to transfer
venue, a defendant must specifically deny the venue facts in
the plaintiff's petition; if not, they are taken as true.
Tex.R.Civ.P. 87(3)(a). After the defendant has specifically
denied the plaintiff's venue facts, then the plaintiff is
required to make prima facie proof of its venue facts.
Tex.R.Civ.P. 87(3)(a); In re Mo. Pac. R.R. Co., 998
S.W.2d 212, 216 (Tex. 1999). The trial court evaluates venue
based on the pleadings and affidavits. Tex.R.Civ.P. 87(3)(b).
"If the plaintiff fails to establish proper venue, the
trial court must transfer venue to the county specified in
the defendant's motion to transfer, provided that the
defendant has requested transfer to another county of proper
venue." In re Masonite Corp., 997 S.W.2d at
relator avers that mandatory venue is in Collin County under
sections 15.002(3) and 15.017 of the civil practice and
remedies code because "defendant's principal
office" is in Collin County. Tex. Civ. Prac. & Rem.
Code Ann. §§ 15.002(3), 15.017 (West 2017). To
establish mandatory venue, relator had to establish prima
facie proof that the real party in interest's principal
office is in Collin County and that relator asserted a claim
covered by section 15.017. "Principal office" is
defined as "a principal office of a corporation ... in
which the decision makers for the organization within this
state conduct the daily affairs of the organization. The mere
presence of an agency or representative does not establish a
principal office." Tex. Civ. Prac. Rem. Code Ann. §
15.001(a) (West 2017). To establish venue based upon a
principal office, a plaintiff must show: (1) the employees in
the county where the lawsuit was filed are "decision
makers" for the company and (2) the employees in the
county where the lawsuit was filed have "substantially
equal responsibility and authority" relative to other
company officials within the state. In re Mo. Pacific
R.R. Co., 998 S.W.2d at 217, 220. A principal office is
not just any place where company officials make decisions
about the company's business because "such a broad
definition would include agencies and representatives, which
the statute expressly rejects." Union Pac. R.R. Co.
v. Stouffer, 420 S.W.3d 233, 240 (Tex. App.-Dallas 2013,
pet. dism'd) (quoting Mo. Pacific, 998 S.W.2d at
217). "Rather, 'decision makers' who
'conduct the daily affairs' are different kinds of
officials than agents or representatives. And the term
'daily affairs' does not mean relatively common,
low-level management decisions." Id.
the real parties in interest specifically denied
relator's venue facts and submitted evidence in support
of the motion to transfer venue establishing that they did
not reside in Collin County and the corporation does not have
a principal office in Collin County. Further, the real
parties in interest showed that relator's own pleadings
in this case and in prior, related cases established Dallas
County as a situs of proper venue in a suit against real
party in interest SIM-DFW. Relator's rebuttal evidence
did not present prima facie proof that SIM-DFW has a
principal office in Collin County. Relator alleged in an
affidavit that SIM-DFW was operated out of the Collin County
homes of Kristy Autrey and Dorothy Autrey, and that Kristy
kept the corporation's books and records at her Collin
County home. Relator's affidavit testimony did not,
however, establish that Kristy or Dorothy were employees of
SIM-DFW, let alone company decision-makers with
"substantially equal responsibility and authority"
relative to other company officials within the state.
Relator, therefore, did not meet his burden of proof to
establish mandatory venue in Collin County. Because section
15.017 does not apply here, relator is not entitled to
mandamus relief to enforce a mandatory venue provision.
See, e.g., Shamoun & Norman, LLP v. Yarto Int'l
Group, LP, 398 S.W.3d 272, 297 (Tex. App.-Corpus Christi
2012, pet. dism'd) (mandamus relief denied where court
determined venue statute relied on by relator did not apply).
on this record, we conclude relator is not entitled to the
relief requested. Accordingly, we deny relator's petition
for writ of mandamus. See Tex. R. App. P. 52.8(a)
(the court must deny the petition if ...