Venue: Where’s the Dance

April 11th, 2017 By Eric S. Peabody

Texas is a big, diverse state – with judges and jury pools to match. One of the most important decisions for plaintiffs and defendants alike is determining where the litigation dance will take place, i.e. venue. Because the burden is on defendants to immediately challenge a plaintiff’s choice of venue, defense attorneys need to be particularly vigilant to protect their clients from having to litigate in an inappropriate or inconvenient locale.

While some specifics of venue challenges depend on the facts and jurisdiction (the intermediate courts of appeals have interpreted the venue rules and statutes differently in certain cases), defendants and their counsel should bear the following general principles in mind:

  1. With very few exceptions, defendants are required to challenge a plaintiff’s venue choice based on improper county or convenience in the first written motion or pleading filed with the court.  TRCP 86.  If the defendant fails to do so, the challenge is waived.  TRCP 86(1). But one defendant’s waiver of venue  does not prevent another defendant from challenging venue. CPRC 15.0641.
  2. Without a motion by the defendant, a trial court has no discretion to transfer the venue.  CPRC 15.063.
  3. In contrast to motions based on improper county or convenience, motions to transfer venue based on “local prejudice” or consent may be filed at any time by either party. See TRCP 255-59.
  4. Plaintiff gets the first choice of venue, but defendant gets second pick. If plaintiff has chosen an improper venue, plaintiff does not get a “do-over” by proposing a county of proper venue that differs from defendant’s proper choice. In re Masonite Corp., 997 S.W.2d 194, 198 (Tex. 1999).
  5. The venue rules fall into three basic categories: mandatory, general, and permissive, which are found in Chapter 15 of the Civil Practice and Remedies Code. (Certain other statutes may also contain mandatory venue provisions.) When a mandatory venue provision applies to a particular claim, e.g. in cases such as landlord-tenant disputes, anti-suit injunctions, claims against certain political subdivisions, that provision will generally set the venue for all claims by that plaintiff or against that defendant. See CPRC 15.004; TRCP 87(5).
  6. If no mandatory venue provision applies, venue is proper in any county under the general venue rule or the permissive venue provisions.  CPRC 15.001(b).
  7. If a plaintiff establishes proper venue against one defendant, venue is established as to all defendants for claims arising from the same transaction or occurrence. CPRC 15.005.  Each plaintiff, however, must establish proper venue independently of every other plaintiff. CPRC 15.003.
  8. Venue that is properly established for the main action is established for properly joined cross-claims, counterclaims, and third-party claims that arise from the same transaction, occurrence, or series of transactions and occurrences. CPRC 15.062.

The venue determination is critical for both the litigants and the court.  On appeal, the appellate court reviews the entire record, including the trial, to determine if venue was proper.  CPRC 15.064(b). “This review strikes a balance between the competing interests of the plaintiff and the defendant. It preserves the plaintiff’s right to select and maintain suit in a county of proper venue. And, it protects the defendant from fraud or inaccuracy at the pleading stage.” Wilson v. Texas Parks & Wildlife Dep’t, 886 S.W.2d 259, 262 (Tex. 1994).  If venue was improper “it shall in no event be harmless error and shall be reversible error” – threatening a tremendous waste of judicial and litigant resources.   See CPRC 15.064(b). Because interlocutory appeal and mandamus review of venue issues is generally prohibited, all parties have a stake in ensuring that venue is proper.

Finally, even if plaintiff has chosen a county of proper venue, defense practitioners should not overlook use of the convenience transfer motion under CPRC 15.002(b).  In addition to possibly securing a better venue for the client, a transfer based on this motion is not subject to appeal and cannot constitute reversible error.  CPRC 15.002(c).