in Re Kirbyville 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

• Court: Court of Appeals of Texas
• Decided: August 8, 2019
• Docket: 09-19-00209-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00209-CV __________________

IN RE KIRBYVILLE 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, Relators __________________________________________________________________

Original Proceeding 60th District Court of Jefferson County, Texas Trial Cause No. B-203,433 __________________________________________________________________

MEMORANDUM OPINION

Kirbyville 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

1 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.

Dennis 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.

Kirbyville 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

2 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 residing there.

In 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

3 Tex. R. Civ. P. 257–259. Reeves did not submit an affidavit in support of their venue

allegations. See Tex. R. Civ. P. 257.

On the 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.

Kirbyville’s 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

4 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. §

101.102.

The 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).

5 The 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.

Furthermore, 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

6 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.

We lift 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 Jasper County, Texas. The writ will issue

only if the trial court fails to comply.

PETITION CONDITIONALLY GRANTED.

PER CURIAM

Submitted on July 12, 2019 Opinion Delivered August 8, 2019

Before Kreger, Horton and Johnson, JJ.