Graue-Haws, Inc. v. Fuller

666 S.W.2d 238, 1984 Tex. App. LEXIS 4872

• Court: Court of Appeals of Texas
• Decided: January 11, 1984
• Docket: 08-83-00340-CV
• Status: Published

Opinions

OPINION

SCHULTE, Justice.

This is an original proceeding for writ of mandamus involving the 1983 amendment to the general venue statute. The trial court held that the amendment controlled the disposition of Relator’s plea of privilege and without hearing evidence and relying on the pleadings and affidavits of record in support of the controverting affidavit, retained venue in Reeves County and overruled the plea of privilege. Relator seeks a writ to vacate the order and transfer the cause to Dallas County. We deny the writ.

Section 3 of amended Article 1995 (1983 Tex.Sess.Law Serv. ch. 385, sec. 3 at 2124-25) provides:

This act takes effect September 1, 1983, and shall not apply to pending appeals on venue questions. For the purpose of appeals on venue questions pending prior to September 1, 1983, the former law is continued in effect.

The pertinent chronology is as follows:

June 3,1983 Suit filed

June 24,1983 Plea of privilege filed

September 1, 1983 Venue amendment effective

October 12,1983 Hearing on plea of privilege

October 31,1983 Plea of privilege overruled

Relator contends that the venue law in effect at the time the law suit was filed applies and absent evidence being presented to support the controverting affidavit, he has a right to have the law suit transferred to Dallas County. Respondent ruled that the amendment effective September 1, 1983, applies and that venue is proper in Reeves County. Plaintiff below relied on the exception set forth in what was Section 23, Article 1995 (Vernon 1974), as its basis for venue in Reeves County. That section permitted venue “in the county in which the cause of action or part thereof arose.” The same wording was carried forward in the amendment in this regard.

Relator argues that the language of the quoted amendment does not make it applicable to venue matters pending on September 1, 1983. We disagree. When a specific exception is stated by the legislature, it makes plain the intent of the legislature that the statute should apply in all cases not excepted. State v. Richards, 157 Tex. 166, 301 S.W.2d 597, 600 (1957); Providence Hospital v. Truly, 611 S.W.2d 127, 133 (Tex.Civ.App. — Waco 1980, writ dism’d). Here, the legislature made one exception to the applicability of the new statute: “shall not apply to pending appeals on venue questions.” To add an additional exception: “shall not apply to venue matters in lawsuits pending when the act took effect” would be repugnant to the statute. Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303, 307 (Tex.1978). The Supreme Court changed Rule 87 effective September 1, 1983, eliminating interlocutory appeals of venue determinations, and provided in amended Rule 87 in pertinent part:

(b) The Hearing. The court shall determine the motion to transfer venue on the basis of the pleadings, any stipulations made by and between the parties and such affidavits and attachments as may be filed by the parties in accordance with the preceding subdivision of this paragraph 3 or of Rule 88.

This was the procedure the trial court followed.

As was stated in Church v. Crites, 370 S.W.2d 419 (Tex.Civ.App. — San Antonio 1963, writ ref’d n.r.e.):

No litigant has a vested interest in procedural rules, and new rules may be promulgated and put into effect taking away prior remedies, provided that they do not leave a litigant without any substantial remedy.

The writ is denied and the ruling on the plea, if raised on appeal, shall be considered when the final judgment reaches this Court, thus affording a substantial remedy.