February 27, 2013 Articles

Limiting Reviewability of Transfer Venues in Texas

Courts have deemed transfer orders untouchable at the slightest intimation of a justice and convenience ground

by Maria-Vittoria G. Carminati and Ammad Waheed

Venue is a major consideration in structuring any lawsuit. A plaintiff's choice of venue under Texas law can, however, be disturbed if a court determines that venue in another county is in the interests of convenience and justice. This article addresses venue transfers based on convenience and justice and a recent trend in Texas decisions to limit the reviewability of such transfers.

Under Texas law, venue is proper in the county where all or a substantial part of the events or omissions giving rise to the claims took place, in the county of the defendant's residence at the time the cause of action accrued, or in the county of the defendant's principal office in Texas if the defendant is a corporation. Tex. Civ. Prac. & Rem. Code § 15.002(a). However, a defendant can nonetheless obtain a venue transfer from a proper county of the plaintiff's choosing when such transfer would be "for the convenience of the parties and witnesses and in the interest of justice." Id. at § 15.002(b). Transferring on the basis of convenience and justice is an extremely powerful tool because it cannot be reviewed: "A court's ruling or decision to grant or deny a transfer [based on convenience and justice] is not grounds for appeal or mandamus and is not reversible error." Id. at §15.002(c). And if a court grants a venue transfer, without specifying whether it was on the basis of justice and convenience, a court of appeals can imply that the transfer was granted on the basis of justice and convenience, thereby making the lower court's decision unreviewable.

A Bulletproof Decision
The current law on transfer for convenience and justice can be summed up by reference to the relevant statute and the Texas Supreme Court's opinion in Garza v. Garcia, 137 S.W.3d 36 (Tex. 2004). Specifically, sections 15.002(b) and 15.003 provide that a court may order the transfer of a case to another county for the convenience of the parties and in the interest of justice and that such an order is not subject to review. Garza v. Garcia, discussed below, firmly upheld the non-reviewability of a section 15.002(b) transfer order.

Section 15.002(b) provides that "[f]or the convenience of the parties and witnesses and in the interest of justice, a court may transfer an action from a county of proper venue . . . to any other county of proper venue." The statute goes on to specify that the transferring court must find the following:

  1. maintaining the suit in the original county would be an injustice in light of the defendant's economic or personal factors;

  2. the balance of interest leans in favor of the other county; and

  3. transfer would not be an injustice to any other party.

Tex. Civ. Prac. & Rem. Code § 15.002(b)(1)–(3).

Finally, the statute's plain language states that "[a] court's ruling or decision to grant or deny a transfer under Subsection (b) is not grounds for appeal or mandamus and is not reversible error." Tex. Civ. Prac. & Rem. Code § 15.002(c).

Although section 15.002 was enacted in its current form in 1995, it was not until 2004 that the Texas Supreme Court reviewed section 15.002(c) in Garza v. Garcia. Specifically, the court addressed whether a general order granting a motion to transfer venue was reviewable where the court had not specified transfer based on convenience and justice but the defendant's motion included convenience and justice language. Garza v. Garcia, 137 S.W.3d at 37. Based on a plain reading of section 15.002(c) and applying the rule that an appellate court will affirm a general order so long as there is any ground to support it, the court held that the order was not subject to review. Id. Indeed, the court indicated that it was quite aware of the implications of a transfer for convenience being precluded from review when it stated, "[h]ypothetically, a trial judge could state there was no evidence for a convenience transfer, but grant it nonetheless, and (except for perhaps reporting it to the Judicial Conduct Commission) there is very little we could do about it." Id at 39.

This broad interpretation of section 15.002(c) warrants some consideration. For example, a judge concerned about reversal of a venue transfer decision could include the talismanic words "convenience and justice" and thereby prevent review of the order. Alternatively, if the parties have argued "convenience and justice" in their briefing, the court could merely refer to section 15.002(b) or say nothing at all and thereby also prevent review of the decision.The reviewing court would have to consider any ground supporting the trial court's determination, and because one of those grounds could be convenience and justice, the court would have to cease reviewing the decision.

This precise issue came up in a later Texas Supreme Court case in which the court, in a per curiam opinion, found it could not review an order that granted the transfer with no reasons but invoked sections 15.001, 15.002, and 15.035. See Trend Offset Printing Servs., Inc. v. Collin Cnty. Cmty. Coll. Dist., 249 S.W.3d 429, 430 (Tex. 2008).

Reading Garza and Trend Offset Printing together confirms a broad application of section 15.002(c). First, in Garza, the court found that a general order granting transfer based on a motion that did argue convenience grounds is unreviewable. Then, in Trend Offset Printing, the Texas Supreme Court nudged the boundaries of non-reviewability by precluding review of a transfer order that recited section 15.002 in connection with a motion that did not raise justice and convenience grounds. For that reason, the Texas Supreme Court has indicated a willingness to interpret broadly the non-reviewability provision of section 15.002(c). Following suit, lower appellate courts have continued the trend of widening the application of section 15.002(c).

For example, in Garza v. Terra Nova Ins. Co., Ltd., the 14th District Court of Appeals in Houston held that there is a general "presumption that a venue order is granted on convenience grounds" and that an order was unreviewable where the "[t]he trial court could have granted the motion based on convenience." No. 14-08-00653-CV, 2010 WL 1992576, at *2 (Tex. App.—Houston [14th Dist.] May 20, 2010) (petition denied) (emphasis added) (citing Garza v. Garcia, 137 S.W.3d at 40). Courts throughout Texas have followed suit by shying away from reviewing transfers that might be based on convenience. See, e.g., Cunningham v. Zurich Am. Ins. Co., 352 S.W.3d 519, 535–36 (Tex. App.—Fort Worth 2011) (petition denied); Davis v. Hendrick Autogard, Inc., 294 S.W.3d 835, 837 (Tex. App.—Dallas 2009) (no petition).

Indeed, there is only one case in which an appellate court reviewed a transfer order seemingly based on convenience. In Wallace v. Dimon, the Fort Worth Court of Appeals was presented with a transfer by the trial court from Tarrant County, Texas, to Tulsa County, Oklahoma. No. 3-05-0197-CV, 2006 WL 744295, at *1 (Tex. App.—Fort Worth, Mar. 23, 2006) (petition denied). The court of appeals pointed out that venue transfer to another state was unprecedented. As a result, the court of appeals reversed the transfer but dismissed without prejudice on forum non conveniens grounds. Id. at *3. The appellees argued the transfer was proper under section 15.002(b). Id. at *2. A review of the language in section 15.002 indicates venue may be transferred from one proper county to another proper county, and nothing specifies that such transfers are limited to the State of Texas. On the one hand, under a plain application of section 15.002(b), the court's decision appears to narrow judicially the scope of the statute. On the other hand, the result of this case can perhaps be limited to its facts because the court of appeals was essentially performing a clean-up task by substituting the correct procedural mechanism to accomplish the same task.

Recent Developments
The holding in Garza v. Garcia is being faithfully applied by the intermediate appellate courts. See, e.g., Davis, 294 S.W.3d at 837 ("The effect of section 15.002 (c) is to preclude any appellate review of an order transferring venue under section 15.002 (b).") (citing Trend Offset Printing, 249 S.W.3d at 430).

For example, the Fort Worth Court of Appeals recently held that an order that does not specifically find the three factors listed in section 15.002(b) is still precluded from review where the order transferred the case "based on convenience of the parties." Cunningham, 352 S.W.3d at 535–36. The Cunningham court found that the questions of whether the court made the required findings and whether there was any evidence to support the transfer were both irrelevant because the court could not review the order. Id. at 536.

Looking Ahead
Texas courts have deemed transfer orders untouchable at the slightest intimation of a justice and convenience ground. As stated, some courts are applying general presumptions that tend to preclude review altogether in the absence of grounds by lower courts. Thus, not only do courts continue to uphold the non-reviewability of transfers for convenience and justice, but they may be expanding the concept of non-reviewability and its applicability in the face of silence or half-spoken findings. What will happen next, if anything, remains to be seen. Regardless of whether this trend will hold or eventually be reversed, practitioners should beware whenever dealing with a motion for venue transfer.

Keywords: litigation, commercial, business, Texas, venue, transfer order, justice, convenience, Garza v. Garcia


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