In Re: AAA Brothers Holdings, LLC and Tri-State Trucking, LLC v. the State of Texas

NO. 12-23-00210-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN RE: §

AAA BROTHERS HOLDINGS, LLC § ORIGINAL PROCEEDING
AND TRI-STATE TRUCKING, LLC,
§
RELATORS

MEMORANDUM OPINION

Relators, AAA Brothers Holdings, LLC (AAA) and Tri-State Trucking, LLC (Tri-State),
filed this original proceeding to challenge Respondent’s denial of their motion to transfer venue. 1
We conditionally grant the writ.

BACKGROUND
This proceeding arises out of a motor vehicle collision that occurred on February 20,
2018, in Mitchell County, Texas. It is alleged that Skyler Anderson rearended a tractor trailer
driven by Oscar Garcia and Skyler’s pickup truck remained disabled in the right lane of traffic.
Garcia moved onto the shoulder. The two men exited their vehicles. It is further alleged that
Maximo Chavira Castillo, driving a tractor trailer, struck the two men, injuring Garcia and
killing Skyler. Another driver, Richard Clayton, attempted to take evasive action but crashed.

1
Respondent is the Honorable Jerald (Dean) Fowler, II, Judge of the 115th District Court in Upshur
County, Texas. Real Parties in Interest include (1) Tiffany Anderson, as representative of the Estate of Skyler
Anderson and as parent and next friend of L.A., W.A., B.A., and J.A., minor children, (2) Frank and Kimberly
Anderson, (3) Ynunen A. Abshagen, as personal representative of the Estate of Oscar Garcia, (4) Ana Karen
Chavira, Miguel Chavira, and Jesus Chavira, as personal representatives and heirs of the estate of Maximo Chavira
Castillo, and (5) Jessica Questa, as parent and next friend of H.M., minor child. Abshagen and Questa filed a joint
mandamus response and Tiffany, Frank, and Kimberly Anderson filed a joint mandamus response. This Court
received no other responses.
On July 9, Clayton sued Skyler’s Estate and Skyler’s wife Tiffany Anderson in Mitchell
County. He alleged that Skyler was driving Tiffany’s pickup truck when he collided with
Garcia’s tractor trailer, Skyler was negligent, and Tiffany was negligent by entrusting her vehicle
to Skyler. His petition states that venue is proper in Mitchell County because the incident
occurred there.
On August 3, Garcia sued Castillo, AAA, and Tri-State for negligence arising out of the
February collision. He filed suit in El Paso County, Texas, alleging that “one or more of the
natural person Defendants” resided there, specifically, Castillo. The record demonstrates that
Castillo died in a subsequent, unrelated accident. Relators designated Skyler’s estate and Tiffany
individually as third-party defendants. Both Relators and Tiffany filed motions to transfer venue
to Mitchell County. On January 11, 2019, the El Paso County trial court signed an agreed order
granting the motions to transfer venue and ordering that the case be transferred to Mitchell
County. Counsel for Relators, Garcia, and Tiffany all agreed and approved the order.
Garcia subsequently filed a notice of nonsuit in both Mitchell County and El Paso County
as to Castillo, AAA, and Tri-State. On August 8, Garcia sued Tiffany, as representative of
Skyler’s estate, for negligence in Upshur County, Texas. Garcia alleged that venue was proper
in Upshur County because the Andersons resided there when the cause of action accrued, and
Skyler’s estate was pending in Upshur County. Tiffany, individually, as representative of
Skylar’s estate, and as parent and next friend of their children, filed an answer and third-party
petition, asserting that the incident was caused by the negligence of AAA, Tri-State, and Castillo.
Skylar’s parents, Frank and Kimberly Anderson, intervened in the lawsuit. The petition alleged
that Castillo was driving a truck owned by Relators at the time of the collision, but because
Castillo was deceased, Tiffany added Castillo’s heirs, Ana Karen Chavira, Miguel Chavira, and
Jesus Chavira, as third-party defendants. Tiffany alleged negligence and gross negligence
against Castillo, AAA, and Tri-State. In October, Garcia filed an amended petition adding
negligence claims against Relators and Castillo’s three heirs. Jessica Questa, as parent and next
friend of her minor child with Skyler, filed a petition in intervention, alleging negligence and
gross negligence claims against Castillo and Relators. Garcia died sometime during the litigation
and on January 21, 2021, his wife Ynunen A. Abshagen, as Garcia’s personal representative,
filed an amended petition.

2
Relators filed motions to transfer, objecting to venue in Upshur County, asserting that
venue was conclusively established and fixed in Mitchell County, and specifically denying the
venue facts alleged by plaintiff, third-party plaintiffs, and intervenors. Respondent denied
Relators’ motions on July 25, 2023. Relators filed this original proceeding on August 18, and
this Court granted their request for a stay of the underlying proceedings pending further order of
this Court.
Relators and Tiffany, Frank, and Kimberly Anderson subsequently informed this Court
that they reached a settlement of the claims between them. 2 All other parties and claims remain.

AVAILABILITY OF MANDAMUS
Mandamus will issue only to correct a clear abuse of discretion for which the relator has
no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36
(Tex. 2004) (orig. proceeding). A trial court has no discretion in determining what the law is or
applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceeding). A trial court abuses its discretion by failing to analyze or apply the law correctly.
Id. As the party seeking relief, the relator bears the burden of demonstrating entitlement
to mandamus relief. Id. at 837.

TIMELINESS OF MANDAMUS PETITION
Abshagen and Questa raise challenges to the timeliness of Relators’ mandamus petition. 3
Section 15.0642
Abshagen and Questa argue that this proceeding is untimely under Section 15.0642 of the
Texas Civil Practice and Remedies Code, which provides as follows:

A party may apply for a writ of mandamus with an appellate court to enforce the mandatory venue
provisions of this chapter. An application for the writ of mandamus must be filed before the later
of:

Because their claims are settled, we will not address the arguments presented in the joint brief filed by the
2

Andersons.
3
Abshagen and Questa also contend that Relators failed to comply with appellate Rule 52.3(k)(1)(A). See
TEX. R. APP. P. 52.3(k)(1)(A) (appendix must contain a certified or sworn copy of any order complained of, or any
other document showing the matter complained of). Relators have since remedied this defect.

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(1) the 90th day before the date the trial starts; or

(2) the 10th day after the date the party receives notice of the trial setting.

TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642 (West 2017). Abshagen and Questa
acknowledge that Relators do not use the word “mandatory” in their petition but contend that
they make an argument for mandatory venue; specifically, that Relators’ reliance on the “one
venue determination rule” and In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig.
proceeding) constitutes a mandatory venue argument. They further argue that “Relator[s] must
rely on an argument for mandatory venue because courts do not generally review permissive
venue by mandamus.” Thus, they maintain that Section 15.0642 applies and renders Relators’
petition untimely.
“Proper venue” means: (1) venue required by the mandatory provisions of Chapter 15,
Subchapter B or another statute prescribing mandatory venue; or (2) if Subdivision (1) does not
apply, the venue provided by Chapter 15, Subchapter A or Subchapter C. Id. § 15.001(b) (West
2017). Subchapter B sets forth several types of lawsuits to which mandatory venue provisions
apply and adds a provision for “other mandatory venue,” meaning “[a]n action governed by any
other statute prescribing mandatory venue shall be brought in the county required by that
statute.” Id. §§ 15.011-.020 (West 2017) (land, landlord-tenant, injunction against suit,
injunction against execution of judgment, head of state department, counties, certain political
subdivisions, other mandatory venue, libel, slander, or invasion of privacy, Federal Employers’
Liability Act, Jones Act, inmate litigation, major transactions: specification of venue by
agreement). The lawsuit at hand involves none of the types of actions described in Subchapter
B’s mandatory venue provisions. Neither Relators nor Real Parties in Interest cite this Court to
any other mandatory venue provision that may apply. This proceeding is simply not
encompassed within the plain language of Subchapter B’s mandatory venue provisions.
Additionally, in Team Rocket the Texas Supreme Court addressed “whether a plaintiff
who was denied his initial venue of choice can nonsuit his case in the transferee county and refile
in a third county.” Team Rocket, L.P., 256 S.W.3d at 258. In concluding that a plaintiff cannot
avoid a venue ruling in such a way, the Supreme Court agreed with Team Rocket’s argument
that “only one venue determination may be made in a proceeding and that Texas Rule of Civil
Procedure 87 specifically prohibits changes in venue after the initial venue ruling,” holding that:

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Reading Section 15.064 of the Texas Civil Practice and Remedies Code and Rule 87 together, we
conclude that once a venue determination has been made, that determination is conclusive as to
those parties and claims. Because venue is then fixed in any suit involving the same parties and
claims, it cannot be overcome by a nonsuit and subsequent refiling in another county.

Id. at 258–60; TEX. CIV. PRAC. & REM. CODE ANN. § 15.064 (West 2017) (governing venue
hearings). The Supreme Court further addressed the adequacy of an appellate remedy under
such circumstances, recognizing that appellate courts do not generally grant mandamus relief for
venue determinations absent extraordinary circumstances. Team Rocket, L.P., 256 S.W.3d at
262-63. In concluding that Team Rocket had no adequate remedy by appeal, the Supreme Court
explained, “We have granted mandamus relief in the context of Rule 87 venue rulings where, as
here, the trial court made no effort to follow the rule.” Id. at 262. Thus, a plain reading of Team
Rocket demonstrates that the “one venue determination” is subject to mandamus review under
extraordinary circumstances. Team Rocket does not foreclose Relators from seeking review of
Respondent’s venue ruling in this case. See id.; see also In re Signature Care Emergency Ctr.,
665 S.W.3d 150, 163-64 (Tex. App.—Corpus Christi 2023, orig. proceeding) (appeal inadequate
remedy for review of one venue determination); see generally In re Metro. Prop. & Casualty
Ins. Co., No. 12-18-00100-CV, 2018 WL 2440461, at *2 (Tex. App.—Tyler May 31, 2018, orig.
proceeding) (mem. op.) (quoting Team Rocket and recognizing that “mandamus review of
permissive venue determinations is appropriate only in ‘extraordinary circumstances’”).
Because Relators are not asserting mandatory venue, their petition is not untimely for purposes
of Section 15.0642.
Delay
Abshagen and Questa further contend that Relators provide no explanation for their delay
in seeking mandamus relief. Specifically, they maintain that Relators waited years to request
rulings on their venue motions and could have sought mandamus relief with respect to
Respondent’s failure to rule on the motions.
Mandamus is an extraordinary remedy and not an absolute right. See Rivercenter
Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993). “Although mandamus is not an equitable
remedy, its issuance is largely controlled by equitable principles.” Id. “One such principle is that
‘equity aids the diligent and not those who slumber on their rights.’” Id. (quoting Callahan v.
Giles, 137 Tex. 571, 576, 155 S.W.2d 793, 795 (1941)). When the record fails to show that the

5
relator acted diligently to protect his rights, relief by mandamus is not available. In re Hotze,
627 S.W.3d 642, 646 (Tex. 2020) (orig. proceeding).
On September 18, 2019, Relators filed a motion to transfer venue. The record contains a
notice of hearing from Relators that set November 26 as the date for hearing on this motion. It
appears this hearing did not occur. Relators filed another motion to transfer and a supplemental
motion on October 30. An amended notice of hearing shows that these motions were set for a
hearing on January 29, 2020. According to Relators, Respondent met with the parties in his
chambers that day and, pursuant to the agreement of counsel, took the motions on submission
without an oral hearing. Nearly two years later, on January 26, 2022, Relators’ counsel sent a
letter to the Upshur County District Clerk and court coordinator requesting a ruling and order on
the three venue motions. On February 10, Relators filed a request for rulings on their motions.
AAA filed a motion for summary judgment, subject to its motion to transfer venue, on March 23.
On January 19, 2023, the parties signed an agreed amended scheduling order, which set a trial
date of October 9, 2023. On February 14, AAA filed an amended traditional summary judgment
motion subject to its motion to transfer venue and a second amended motion on June 21.
Respondent held a motions hearing on July 25, at which Relators’ counsel informed Respondent
that no order had been signed on the motions to transfer venue. Respondent stated that a docket
entry showed that a motion to transfer was denied on February 14, 2022, but acknowledged that
no order had been signed, “nothing has happened until an order is entered,” and “it doesn’t mean
anything until I sign an order.” 4 Relators’ counsel expressed unawareness of the docket entry or
a ruling on the motion. Respondent signed an order denying the motions to transfer venue that
same day.
Relators should have been more diligent in pursuing a ruling on their motions,
particularly in the two years following the in-chambers meeting. However, “a relator who

4
We note that docket entries form no part of the record which may be considered; a docket entry is merely
a memorandum made for the trial court’s and clerk’s convenience. In re DeMattia, No. 05-21-00460-CV, 2021 WL
5480680, at *1 (Tex. App.—Dallas Nov. 23, 2021, orig. proceeding) (mem. op.). “For a docket sheet to constitute
an order of the court, there must be some indication in the record that the trial judge did not intend to enter a formal
order but instead intended to rely on the docket entry as the sole judgment or decree of the court.” Id. “Such
circumstances might be present where the trial court announces its decision in open court while calling the attention
of the parties to the docket entry or formally files the docket entry with the clerk as the trial court’s judgment.” Id.
This Court is unaware of any such circumstances in the present case. Based on the record before us, it appears that
Respondent did not direct the parties to the docket entry until the hearing on July 25, 2023 and, even then,
acknowledged the absence of a written order.

6
unduly or unreasonably delays filing a petition for mandamus relief may waive its right to such
relief unless the delay is justified.” In re Am. Airlines, Inc., 634 S.W.3d 38, 43 (Tex. 2021)
(orig. proceeding) (per curiam) (emphasis added). Thus, “unreasonable delay is calculated with
reference to the mandamus petition’s filing, not the issue that precipitated the request for a writ.”
In re Episcopal School of Dallas, Inc. 556 S.W.3d 347, 360 (Tex. App.—Dallas 2017, orig.
proceeding). Accordingly, we measure the issue of delay between Respondent’s July 25, 2023,
order and the filing of the mandamus petition. See Am. Airlines, Inc., 634 S.W.3d at 43
(considering delay between order compelling deposition and mandamus filing); see also In re
Five Star Global, LLC, No. 05-22-00153-CV, 2022 WL 3354136, at *4 (Tex. App.—Dallas
Aug. 15, 2022, orig. proceeding) (mem. op.) (rejecting unreasonable delay argument, noting that
delay was measured between denial of relator’s reconsideration motion and filing of mandamus
petition); In re Runnels, No. 12-21-00076-CV, 2021 WL 2182315, at *2 (Tex. App.—Tyler
May 28, 2021, orig. proceeding) (per curiam) (mem. op.) (when determining unreasonable delay,
considering time between date of complained-of orders and date of mandamus petition’s filing).
Relators filed their mandamus petition less than a month after Respondent signed the order
denying the venue motions. Thus, we reject Abshagen’s and Questa’s unreasonable delay
argument.

ADEQUATE REMEDY
Rule 87 of the Texas Rules of Civil Procedure provides as follows:

If venue has been sustained as against a motion to transfer, or if an action has been transferred to a
proper county in response to a motion to transfer, then no further motions to transfer shall be
considered regardless of whether the movant was a party to the prior proceedings or was added as
a party subsequent to the venue proceedings, unless the motion to transfer is based on the grounds
that an impartial trial cannot be had under Rules 257-259 or on the ground of mandatory venue,
provided that such claim was not available to the other movant or movants.

TEX. R. CIV. P. 87(5). Once a venue determination is made, that “determination is conclusive as
to those parties and claims.” Team Rocket, L.P., 256 S.W.3d at 260. “Because venue is then
fixed in any suit involving the same parties and claims, it cannot be overcome by a nonsuit and
subsequent refiling in another county.” Id. This rule is commonly referred to as the “one venue
determination.”

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Generally, no interlocutory appeals are permitted from a trial court’s venue
determination. See Fortenberry v. Great Divide Ins. Co., 664 S.W.3d 807, 811 (Tex. 2023);
TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(a); TEX. R. CIV. P. 87(6). Section 15.003(b)
provides an exception to the general rule, allowing interlocutory appeals for venue
determinations in cases involving multiple plaintiffs. UPS Ground Freight, Inc. v. Trotter, 606
S.W.3d 781, 786 (Tex. App.—Tyler 2020, pet. denied); TEX. CIV. PRAC. & REM. CODE ANN. §
15.003(a)-(b) (West 2017). Specifically, Section 15.003 provides that:

An interlocutory appeal may be taken of a trial court’s determination under Subsection (a) that:

(1) a plaintiff did or did not independently establish proper venue; or

(2) a plaintiff that did not independently establish proper venue did or did not establish
the items prescribed by Subsections (a)(1)-(4).

TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(b). One appellate court explained that Section
15.003(b)’s use of the word “may” reflects that, because a venue ruling may be challenged on
direct appeal, Section 15.003(b) is not the “sole means through which a party may challenge the
trial court’s ruling on the motion to transfer venue.” Bayer Crop Science, LP. v. Andy
Timmons, Inc., No. 09-22-00204-CV, 2022 WL 16993420, at *3 (Tex. App.—Beaumont Nov.
17, 2022, no pet.) (mem. op.). 5
The proceeding before us involves more than one “plaintiff,” namely (1) Abshagen, as
Garcia’s personal representative, (2) Questa, as parent and next friend of her child (3) Tiffany
Anderson, individually, as representative of Skyler’s estate and as next friend of her children, as
well as Frank and Kimberly Anderson (as to their claims against Castillo’s heirs). See TEX. CIV.
PRAC. & REM. CODE ANN. § 15.003(a) (“In a suit in which there is more than one plaintiff,
5
The appellate court said the same of Section 15.0642 regarding mandamus and mandatory venue:

Sections 15.003(b) and 15.0642 provide different procedural vehicles for an expedited review of a
venue ruling. Section 15.003(b) neither refers to nor excepts section 15.0642 and section 15.0642
neither refers to nor excepts section 15.003(b). Neither section states that it provides an exclusive
remedy. Since a venue ruling may be challenged on direct appeal following a trial on the merits,
neither statute provides the sole means through which a party may challenge the trial court's ruling
on the motion to transfer venue. We conclude that in a multiple-plaintiff case where the defendant
moves to transfer the case to a county of mandatory venue, both statutes may apply but one is not
exclusive of the other.

Bayer Crop Science, LP. v. Andy Timmons, Inc., No. 09-22-00204-CV, 2022 WL 16993420, at *3 (Tex. App.—
Beaumont Nov. 17, 2022, no pet.) (mem. op.) (internal citations omitted). As previously discussed, mandatory
venue is not at issue here.

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whether the plaintiffs are included by joinder, by intervention, because the lawsuit was begun by
more than one plaintiff, or otherwise, each plaintiff must, independently of every other plaintiff,
establish proper venue”) (emphasis added). Thus, Relators could have filed an interlocutory
appeal to challenge Respondent’s denial of their motions to transfer venue. See id. § 15.003(b);
see also Trotter, 606 S.W.3d at 786 (interlocutory appeal available under Section 15.003 because
case involved multiple plaintiffs). Rather than filing a notice of interlocutory appeal within
twenty days after the trial court signed its order denying the motion to transfer, Relators filed this
petition for writ of mandamus. See TEX. R. APP. P. 26.1(b) (“in an accelerated appeal, the notice
of appeal must be filed within 20 days after the judgment or order is signed[ ]”); see also In re
K.A.F., 160 S.W.3d 923, 927 (Tex. 2005) (in an accelerated appeal, absent a motion for
extension of time, the deadline for filing a notice of appeal is strictly set at twenty days after the
judgment is signed, with no exceptions, and a post-judgment motion or request for findings of
fact and conclusions of law will not extend that deadline).
Nevertheless, the “one venue determination” rule is subject to mandamus review under
extraordinary circumstances. See Team Rocket, L.P., 256 S.W.3d at 262; see also Metro. Prop.
& Casualty Ins. Co., 2018 WL 2440461, at *2. “An appellate remedy is ‘adequate’ when any
benefits to mandamus review are outweighed by the detriments.” Prudential Ins. Co. of Am.,
148 S.W.3d at 136. “The operative word, ‘adequate’, has no comprehensive definition; it is
simply a proxy for the careful balance of jurisprudential considerations that determine when
appellate courts will use original mandamus proceedings to review the actions of lower courts.”
Id. If the benefits outweigh the detriments, an appellate court must consider whether the
appellate remedy is adequate. Id. This determination is not an abstract or formulaic one; it is
practical and prudential. Id. Mandamus review of significant rulings in exceptional cases may
be essential to preserve important substantive and procedural rights from impairment or loss,
allow the appellate courts to give needed and helpful direction to the law that would otherwise
prove elusive in appeals from final judgments, and spare private parties and the public the time
and money utterly wasted enduring eventual reversal of improperly conducted proceedings. Id.
“As a selective procedure, mandamus can correct clear errors in exceptional cases and afford
appropriate guidance to the law without the disruption and burden of interlocutory appeal.”
Id. at 138.

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In Team Rocket, the Texas Supreme Court explained that “venue statutes create a
balance: a plaintiff has the first choice of venue when he files suit, and a defendant is restricted
to one motion to transfer that venue.” Team Rocket, L.P., 256 S.W.3d at 262. There, the Harris
County trial court granted Team Rocket’s motion to transfer venue to Williamson County, but
the plaintiffs defied the Harris County court’s venue ruling by nonsuiting and refiling in Fort
Bend County, which disrupted that balance in their favor and impaired Team Rocket’s
procedural rights. Id. Additionally, Team Rocket involved a legal issue, i.e., the construction of
Texas venue statutes and related rules in the context of voluntary nonsuit, that was likely to
recur. Id. The Supreme Court explained that although appellate courts do not generally grant
mandamus relief “for venue determinations absent extraordinary circumstances, we have granted
mandamus relief when the trial court issued an improper order transferring venue that
‘wrongfully burdened fourteen other courts in fourteen other counties, hundreds of potential
jurors in those counties, and thousands of taxpayer dollars in those counties.’” Id. (quoting In
re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999)). When a trial court improperly applies
the venue statute and issues a ruling that “permits a plaintiff to abuse the legal system by refiling
his case in county after county, which would inevitably result in considerable expense to
taxpayers and defendants, requiring defendants to proceed to trial in the wrong county is not an
adequate remedy.” Id. Thus, “extraordinary relief can be warranted when a trial court subjects
taxpayers, defendants, and all of the state’s district courts to meaningless proceedings and trials.”
Id. The Supreme Court also recognized having granted mandamus relief in the context of Rule
87 venue rulings when the trial court made no effort to follow the rule. Id. But the plaintiffs
defied the Harris County trial court’s venue order by attempting to have another court revisit the
question of venue, which had already been decided. Id. at 262-63. Thus, “[t]o say that the Fort
Bend County trial court, which violated statutory venue procedure and Rule 87(5), committed
reversible error while declining to correct the injustice would compromise the integrity of the
venue statute and result in an irreversible waste of resources.” Id. at 263.
As in Team Rocket, Garcia nonsuited his case against Relators in Mitchell County after
the El Paso court’s venue ruling in favor of Mitchell County. Yet, he proceeded to file suit in
Upshur County. Such action impairs Relators’ procedural rights. See id. at 262; see also
Prudential Ins. Co. of Am., 148 S.W.3d at 136; Signature Care Emergency Ctr., 665 S.W.3d at
164 (pretrial court improperly applied venue statute by allowing multiple venue proceedings in

10
violation of relators’ procedural rights); In re Lowe’s Home Ctrs., LLC, 531 S.W.3d 861, 875
(Tex. App.—Corpus Christi 2017, orig. proceeding) (plaintiffs’ filing of separate suit in another
county impaired Lowe’s procedural rights to defend against only one lawsuit in the venue in
which plaintiffs first chose to file suit). Moreover, this proceeding involves the same type of
legal issue as that in Team Rocket - the construction of Texas venue statutes and related rules in
the context of voluntary nonsuit, that is likely to recur. See Team Rocket, L.P., 256 S.W.3d at
262; see also Prudential Ins. Co. of Am., 148 S.W.3d at 136; Signature Care Emergency Ctr.,
665 S.W.3d at 164 (noting “concept that only one venue determination may generally be made in
a single proceeding and that changes in venue are prohibited after the initial ruling has been
repeatedly litigated in Texas courts”); Lowe’s Home Ctrs., LLC, 531 S.W.3d at 875 (recognizing
that “issue of venue following a nonsuit is likely to recur”). Finally, forcing Relators to proceed
in the incorrect county would result in an irreversible waste of resources. See Team Rocket,
L.P., 256 S.W.3d at 263; see also Prudential Ins. Co. of Am., 148 S.W.3d at 136; Signature
Care Emergency Ctr., 665 S.W.3d at 164–165; Lowe’s Home Ctrs., LLC, 531 S.W.3d at
875–76. For these reasons and based on Team Rocket, we conclude that mandamus review is
appropriate. See Signature Care Emergency Ctr., 665 S.W.3d at 165 (following Team Rocket
and concluding appeal inadequate remedy for review of venue ruling in multiple plaintiff case).

ABUSE OF DISCRETION

Relators maintain that the El Paso court’s venue ruling conclusively fixed venue in
Mitchell County and that a subsequent non-suit and refiling in another county cannot undo that
venue determination. 6 Abshagen and Questa do not respond to this contention.
Under the general venue rule, a lawsuit shall be brought: (1) in the county in which all or
a substantial part of the events or omissions giving rise to the claim occurred; (2) in the county of
defendant’s residence at the time the cause of action accrued if defendant is a natural person; (3)
in the county of the defendant’s principal office in this state, if the defendant is not a natural
person; or (4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff
resided at the time of the accrual of the cause of action. TEX. CIV. PRAC. & REM. CODE ANN. §

6
Relators also sought a transfer of the case from Upshur County for convenience. They do not reassert that
contention in this proceeding.

11
15.002(a) (West 2017). And Section 15.031 states, in pertinent part, that if the suit is against an
executor, administrator, or guardian growing out of a negligent act or omission of the person
whose estate the executor, administrator, or guardian represents, the suit may be brought in the
county in which the negligent act or omission of the person whose estate the executor,
administrator, or guardian represents occurred. Id. § 15.031 (West 2017). In a multi-plaintiff
suit, each plaintiff must, independently of every other plaintiff, establish proper venue. Id. §
15.003(a).
The plaintiff gets the first choice of venue by filing suit. Team Rocket, L.P., 256 S.W.3d
at 259. If the plaintiff establishes proper venue against a defendant, the court also has venue of
all defendants in all claims or actions arising out of the same transaction, occurrence, or series of
transactions or occurrences. TEX. CIV. PRAC. & REM. CODE ANN. § 15.005 (West 2017). A
defendant “may challenge that venue selection, and a court must ‘transfer an action to another
county of proper venue if ... the county in which the action is pending is not a proper county.’”
Team Rocket, L.P., 256 S.W.3d at 259 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 15.063(1)
(West 2017)). But “a final determination fixing venue in a particular county must [] be protected
from relitigation.” Id. at 260. Once a venue determination has been made, that determination is
conclusive as to those parties and claims and cannot be overcome by a nonsuit and subsequent
refiling in another county. Id.; see TEX. R. CIV. P. 87(5) (“If venue has been sustained as against
a motion to transfer, or if an action has been transferred to a proper county in response to a
motion to transfer, then no further motions to transfer shall be considered…); Fincher v. Wright,
141 S.W.3d 255, 264 (Tex. App.—Fort Worth 2004, no pet.) (“While on its face rule 87(5)
appears to apply only to venue determinations by the same trial court in the same case, the same
principle should apply to prohibit a subsequent trial court—in a case involving the same parties
and claims—from making its own venue determination independently of the first court”). A
contrary conclusion would allow forum shopping, which the Texas Supreme Court has
repeatedly prohibited. Team Rocket, L.P., 256 S.W.3d at 260.
Garcia first filed suit in El Paso County against Castillo and Relators under Section
15.002(a)(2), as Castillo, who later died, resided in El Paso. Relators added Tiffany and Skyler’s
estate as third-party defendants. Upon motions to transfer by both Tiffany and Relators, the El
Paso court transferred the case to Mitchell County where Clayton’s lawsuit was already pending.
The record demonstrates that venue is proper in Mitchell County under Section 15.002(a)(1), all

12
or a substantial part of the events or omissions giving rise to the claim occurred there. 7 See TEX.
CIV. PRAC. & REM. CODE ANN. § 15.002(a)(1). All parties agreed to the transfer. Accordingly,
there has been a venue determination fixing venue in Mitchell County. 8
Once this venue determination was made, it became conclusive as to those parties and
claims and venue was permanently fixed in Mitchell County as to the causes of action between
Garcia, Relators, Tiffany, and Skyler’s estate arising out of the 2018 collision. See Team
Rocket, L.P., 256 S.W.3d at 260. This conclusive venue in Mitchell County could not be
overcome by a subsequent nonsuit and refiling in a different county. See id.; see also Lowe’s
Home Ctrs., LLC, 531 S.W.3d at 872; In re Shell Oil Co., 128 S.W.3d 694, 697 (Tex. App.—
Beaumont 2004, orig. proceeding) (“If a trial court circumvents the venue-determination
procedure by permitting a party to file multiple suits and selectively non-suit, then the carefully
crafted venue procedure is unenforceable and ineffectual”). Additionally, “[v]enue of the main
action shall establish venue of a counterclaim, cross claim, or third-party claim properly joined
under the Texas Rules of Civil Procedure or any applicable statute.” TEX. CIV. PRAC. & REM.
CODE ANN. § 15.062(a) (West 2017). Because venue of the main action has been conclusively
established in Mitchell County, that the Upshur County lawsuit may include different parties,
i.e., Garcia’s estate, Questa, and Castillo’s heirs, does not affect the conclusive nature of the
Mitchell County venue determination. See Ryan Marine Servs. v. Hoffman, 668 S.W.3d 171,
186 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (applying Team Rocket and explaining that
addition of a party and a claim against that party in instant suit did not affect conclusive nature of
Harris County court’s venue determination in the first suit); see also Lowe’s Home Ctrs., LLC,

7
At the time, venue was also proper under Section 15.031 because of Relators’ claims against Tiffany, as
executor of Skyler’s estate, growing out of a negligent act or omission of Skyler that occurred in Mitchell County.
See TEX. CIV. PRAC. & REM. CODE ANN. § 15.031 (West 2017).
8
Even when parties enter an agreement regarding transfer of venue, the “trial court is not bound to transfer
the cause unless it is established that the transferee court is a ‘proper venue.’” Shamoun & Norman, LLP v. Yarto
Int’l Group, LP, 398 S.W.3d 272, 289 (Tex. App.—Corpus Christi 2012, pet. dism’d). Accordingly, despite the
parties’ agreement, the El Paso County trial court could not transfer the case absent a determination that venue is
proper in Mitchell County and that court apparently made such a venue determination, having granted the motions to
transfer and ordered the case transferred to Mitchell County. See id. (agreed motion to transfer did not state parties
agreed Travis County was a proper venue; it merely stated that parties agreed to transfer case there; thus, agreed
motion to transfer did not, by itself, compel trial court to transfer case and transfer was required only if proof was
presented establishing proper venue in that county); see also Ryan Marine Servs. v. Hoffman, 668 S.W.3d 171, 187
(Tex. App.—Houston [1st Dist.] 2023, no pet.) (“To the extent that appellees ‘agreed’ that venue for the first suit
was proper in Galveston County, the Harris County trial court could have considered that agreement when making
its venue determination, but it was not bound by any agreement”).

13
531 S.W.3d at 873 (rejecting contention that Team Rocket did not apply where parties for the
Hidalgo County action were different from the Starr County action, noting that substitution of
some parties in Hidalgo County suit did not affect conclusive nature of Starr County court’s
venue determination). Nor does the fact that venue may also be proper in Upshur County change
the result. See Team Rocket, L.P., 256 S.W.3d at 260 (Fort Bend County trial court abused
discretion by refusing to enforce prior venue order issued by Harris County trial court; that
“venue was also proper in Fort Bend County does not change the result”).
Accordingly, for these reasons, we conclude that Respondent abused his discretion by
refusing to enforce the El Paso court’s venue order and to order the case transferred to Mitchell
County.

DISPOSITION
Having determined that Respondent abused his discretion by declining to transfer the
case to Mitchell County, we conditionally grant Relators’ petition for writ of mandamus. We
direct Respondent to vacate his July 25, 2023, order denying Relators’ motions to transfer venue,
and in its stead, to issue an order granting the motion and ordering the case transferred to
Mitchell County. We lift our stay of August 21, 2023.

Opinion October 11, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

14
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
ORDER

OCTOBER 11, 2023

NO. 12-23-00210-CV

AAA BROTHERS HOLDINGS, LLC AND TRI-STATE TRUCKING, LLC,
Relators
V.

HON. JUDGE JERALD (DEAN) FOWLER II,
Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by AAA
Brothers Holdings, LLC and Tri-State Trucking, LLC; who are the relators in appellate cause
number 12-23-00210-CV and defendants in trial court cause number 472-19, pending on the
docket of the 115th Judicial District Court of Upshur County, Texas. Said petition for writ of
mandamus having been filed herein on August 18, 2023, and the same having been duly
considered, because it is the opinion of this Court that the petition for writ of mandamus be, and
the same is, conditionally granted.
And because it is further the opinion of this Court that the trial judge will act promptly
and vacate his July 25, 2023, order denying Relators’ motion to transfer venue, and in its stead,
to issue an order granting the motion and ordering the case transferred to Mitchell County; the
writ will not issue unless the HONORABLE JERALD (DEAN) FOWLER, II fails to comply
with this Court’s order within ten (10) days from the date of this order.

By memorandum opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.