Court of Appeals of Texas, Ninth District, Beaumont
IN RE KIRBYVILLE CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, THOMAS WALLIS, CHAD GEORGE, JOEY DAVIS, CLINT MITH, DUSTIN RUTHERFORD, STACIE RUTHERFORD, WILLIAM THOMAS BROCKMAN, DEBRA BROCKMAN, AMY BROCKMAN FOUNTAIN, MARCIA MORGAN, AND GEORGIA SAYERS, Relators
Submitted on July 12, 2019
Original Proceeding 60th District Court of Jefferson County,
Texas Trial Cause No. B-203, 433
Kreger, Horton and Johnson, JJ.
Consolidated Independent School District, Thomas Wallis, Chad
George, Joey Davis, Clint Smith, Dustin Rutherford, Stacie
Rutherford, William Thomas Brockman, Debra Brockman, Amy
Brockman Fountain, Marcia Morgan, and Georgia Sayers
(collectively "Kirbyville"), filed a mandamus
petition seeking a writ to compel the trial court to (1)
vacate an order denying a motion to transfer venue, (2)
vacate an order granting a continuance of a plea to the
jurisdiction to allow for discovery, and (3) transfer the
case to Jasper County.
Reeves, a high school principal, took his own life allegedly
following a confrontation with the superintendent regarding
allegations that Reeves had engaged in inappropriate behavior
with a subordinate employee. On February 28, 2019, Tammy
Reeves, Individually and on behalf of the Estate of Dennis
Reeves and as next friend of Dylan Reeves, and Austin Reeves,
Joyce Jones, and Jimmy Jones (collectively
"Reeves"), sued Kirbyville, Bryan Independent
School District, and Region 5 Education Service Center for
the wrongful death of Dennis Reeves. In the petition, Reeves
alleged "jurisdiction and venue is proper in this
Honorable Court as a substantial part of the transactions or
occurrences that give rise to this lawsuit occurred in the
county of suit and/or one or more defendants are resident
citizens of the county of suit." Only Region 5 Education
Center is allegedly located in Jefferson County.
filed a motion to transfer venue to Jasper County alleging
that venue is mandatory in Jasper County because an action
against a political subdivision that is in a county with a
population of 100, 000 or less must be brought in the county
in which the political subdivision is located. See
Tex. Civ. Prac. & Rem. Code Ann. § 15.0151 (West
2017); see also Tex. R. Civ. P. 86(1). Kirbyville
further argued that venue also lies in Jasper County because
all or a substantial part of the events or omissions giving
rise to the claims occurred in Jasper County, not Jefferson
County. See Tex. Civ. Prac. & Rem. Code Ann.
§ 15.002(a)(1) (West 2017). In an affidavit attached to
the motion to transfer, Thomas Wallis averred on his personal
knowledge that Jasper County, Texas, has a population of
fewer than 100, 000 residents. Wallis swore that Reeves's
principal duties were performed in Jasper County and his
death occurred there as well. He listed the specific events
that transpired in Jasper County and named the parties
response to the motion to transfer venue, Reeves recognized
that Kirbyville Consolidated Independent School District fits
with the parameters of the mandatory venue provision of
section 15.0151, but argued that pursuant to section 15.005
of the Texas Civil Practice and Remedies Code, venue as to
all defendants was established by suing Region 5, a Jefferson
County resident, because "[i]n a suit in which the
plaintiff has established proper venue against a defendant,
the court also has venue of all the defendants in all claims
or actions arising out of the same transaction, occurrence,
or series of transactions or occurrences." See
id. §§ 15.005 (West 2017), 15.0151.
Additionally, Reeves alleged a fair and impartial trial could
not be obtained in Jasper County. Reeves cited Rules 257
through 259 to support retaining venue in Jefferson County,
not to transfer venue as provided by those rules. See
generally Tex. R. Civ. P. 257-259. Reeves did not submit
an affidavit in support of their venue allegations.
See Tex. R. Civ. P. 257.
day of the hearing on the motion to transfer venue, Reeves
filed a supplemental response urging for the first time that
venue was proper in Jefferson County under the Texas Tort
Claims Act. See generally Tex. Civ. Prac. & Rem.
Code Ann. § 101.102(a) (West 2019) ("A suit under
this chapter shall be brought in state court in the county in
which the cause of action or a part of the cause of action
arises."). Reeves failed to describe any act or
occurrence that is alleged to have occurred in Jefferson
County. The record does not reflect that the trial court
granted leave for Reeves to file a late response.
See Tex. R. Civ. P. 87.1 ("Except on leave of
court, any response or opposing affidavits shall be filed at
least 30 days prior to the hearing of the motion to
transfer."). The trial court denied Kirbyville's
motion to transfer venue.
motion to transfer venue satisfied the procedural
prerequisites under the Rules of Civil Procedure and the
venue statute. See Tex. R. Civ. P. 86-87. Kirbyville
filed the motion with its original answer. See Tex.
R. Civ. P. 85; 86(1). The motion stated that the case should
be transferred because Jefferson County is not a county of
proper venue and Jasper County is a county of mandatory
venue. Tex.R.Civ.P. 86(3). Wallis provided a supporting
affidavit made on his personal knowledge and identifying
specific facts that were readily controvertible. Tex.R.Civ.P.
87(2)(a), (3). Reeves failed to make proof that venue is
maintainable in Jefferson County by pleading venue facts
establishing Jefferson County as a county of mandatory venue
and supplying a supporting affidavit addressing the venue
facts denied by Kirbyville. Tex.R.Civ.P. 87(2)(a), (3).
Reeves failed to make a prima facie case to support their
allegations of venue under the Tort Claims Act by providing
an affidavit describing an essential act or fact giving rise
to personal injury that took place in Jefferson County.
See Tex. Civ. Prac. & Rem. Code Ann. §
failure of the other defendants to challenge venue did not
impair Kirbyville's right to challenge venue. See
id. § 15.0641 (West 2017). Kirbyville proved that
venue is proper in Jasper County under a mandatory venue
provision. See Tex. R. Civ. P. 87(2); see
also Tex. Civ. Prac. & Rem. Code Ann. §
15.0151. The mandatory venue provision governed all the
claims. See Tex. Civ. Prac. & Rem. Code Ann.
§ 15.004 (West 2017). Because a county of proper venue
is the venue required by a statute providing mandatory venue,
establishing permissive venue as to Region 5 Education Center
did not establish Jefferson County as a county of proper
venue. Id. § 15.001(b) (West 2017).
trial court clearly abused its discretion by denying the
motion to transfer venue to Jasper County. Therefore,
mandamus relief is available to enforce the mandatory venue
statute. See In re Lopez, 372 S.W.3d 174, 176 (Tex.
2012) (orig. proceeding); see also Tex. Civ. Prac.
& Rem. Code Ann. § 15.0642 (West 2017). Because we
find the trial court abused its discretion by denying the
motion to transfer, we do not reach the issue complaining
that the trial court abused its discretion by granting a
continuance of the hearing on the plea to the jurisdiction.
while the trial court ruled on the motion to transfer venue,
the trial court did not rule on the plea to the jurisdiction
of Kirbyville. Instead, by order of the same date, the trial
court continued the hearing on the plea to the jurisdiction
for a period of 90 days to allow discovery. Generally, when a
plea raises jurisdictional issues, "[t]he trial court
must determine at its earliest opportunity whether it has the
constitutional or statutory authority to decide the case
before allowing the litigation to proceed." Tex.
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). A trial court abuses its discretion
when it subjects a governmental unit to pre-trial discovery
and the costs incident to litigation without ruling on a plea
to the jurisdiction. City of Galveston v. Gray, 93
S.W.3d 587, 591- 92 (Tex. App.-Houston [14th Dist.] 2002,
orig. proceeding). The trial court's refusal to rule on
the plea to the jurisdiction deprives the governmental unit
of its substantial right to an accelerated appeal.
Id. at 592. Here, Kirbyville asserts that Plaintiffs
have failed to plead a statutory waiver of immunity. Because
we conclude the trial court abused its discretion by refusing
to transfer the case to a county of mandatory venue, we
direct the trial court to vacate its order of continuance of
the same date in deference to the transferee court to allow
that trial court to consider the plea to the jurisdiction at
its earliest opportunity upon transfer of the case.
our stay order of July 2, 2019, and conditionally grant the
petition for writ of mandamus. We are confident the trial
court will vacate its orders of June 18, 2019, which granted
a continuance and denied the motion to transfer venue, and
promptly transfer venue of this matter to ...