in Re R Wayne Johnson, Relator

Opinion

NO. 07-11-00497-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 13, 2012

IN RE R. WAYNE JOHNSON, RELATOR

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Relator R. Wayne Johnson, an indigent prison inmate proceeding pro se, seeks a

writ of mandamus compelling respondent, the Honorable Stuart Messer, judge of the

100th District Court of Collingsworth County, to vacate an order transferring venue of a

suit relator filed there against real party in interest April Riggs. According to relator‟s

petition, venue of his case is mandatory in Potter County, the county of his

confinement.1 The only document relator includes in the mandamus record is an order

1 See Tex. Civ. Prac. & Rem. Code Ann. § 15.019(a) (West 2002) (with exceptions, requiring actions accruing while the plaintiff is housed in a Texas Department of Criminal Justice facility to be brought in the county in which the facility is located). The limited record before us provides no explanation for relator‟s selection of Collingsworth County as the venue for his suit against Riggs in the face of his familiarity with the terms of § 15.019(a). See, e.g., In re Johnson, No. 12-07-0032-CV, 2007 Tex. App. Lexis 673 (Tex.App.--Tyler, January 31, 2007) (orig. proceeding) (addressing similar contention by relator). signed September 22, 2011, transferring venue to Randall County. We will deny

relator‟s petition.

“A party may apply for a writ of mandamus with an appellate court to enforce the

mandatory venue provisions of [Chapter 15].” Tex. Civ. Prac. & Rem. Code Ann §

15.0642 (West 2002); see In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 215-16 (Tex. 1999)

(orig. proceeding) (“We reiterated in early 1995 that „Texas law is quite clear that venue

determinations are not reviewable by mandamus.‟ But a few months later, the

Legislature enacted section 15.0642 authorizing parties to seek mandamus „to enforce

the mandatory venue provisions,‟ along with a timetable for seeking mandamus”)

(quoting Polaris Inv. Mgmt. Corp. v. Abascal, 892 S.W.2d 860, 862 (Tex. 1995) (per

curiam) and § 15.0642).

Entitlement to relief by mandamus on a mandatory venue claim requires the

relator to demonstrate from the mandamus record that the trial court clearly abused its

discretion. In re Continental Airlines, Inc., 988 S.W.2d 733, 735 (Tex. 1998) (orig.

proceeding). “[A]dequacy of an appellate remedy is not a requisite of a mandatory

venue mandamus under section 15.0642.” In re Missouri Pac. R.R. Co., 998 S.W.2d at

215-16. A relator bears the burden of presenting a mandamus record showing

entitlement to relief. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex. 1992) (orig.

proceeding).

Relator‟s mandamus petition contains no description of the subject-matter or

allegations of his suit against Riggs. Nor does the appended one-page order

transferring venue to Randall County tell us anything about the suit. Relator‟s petition

2 thus does not demonstrate even that the mandatory venue of § 15.019(a) applies to his

suit filed in Collingsworth County. See § 15.019(c) (excepting cases under the Family

Code). For that reason alone, the petition does not demonstrate an abuse of discretion

by the trial court, and so does not demonstrate entitlement to mandamus relief.

Relator‟s petition contends the September 22 order is void because mandatory

venue lies in Potter County. We disagree. Assuming, arguendo, the venue transfer to

Randall County was erroneous, a finding we do not make, the transfer order was not

void. “[T]he mere fact that an action by a court . . . is contrary to a statute, constitutional

provision or rule of civil or appellate procedure makes it [not void but] voidable or

erroneous.” In re Masonite Corp., 997 S.W.2d 194, 198 (Tex. 1999) (quoting Mapco,

Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (internal quotation marks omitted)

(venue transfer orders constituted clear abuse of discretion but were not void). Thus on

this ground also, relator fails to demonstrate an abuse of discretion.

For these reasons, we find relator‟s petition does not show he is entitled to

mandamus relief, and so deny the petition.