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Rule 816. Jurisdiction and Venue Unaffected

TEXT

These rules shall not be construed to extend or limit the jurisdiction of the courts of the State of Texas nor the venue of actions therein.

Source: Federal Rule 82, with minor textual change.

Oct. 29, 1940, eff. Sept. 1, 1941.

ADVISORY OPINIONS

(No. 43) Question: Are Articles 4662 and 2008 repealed? If so does an appeal lie in temporary injunctions and pleas of privilege?

Answer: It is the opinion of the subcommittee that those portions of Articles 4662 and 2008 which authorize appeals in the specified situations were not repealed by the adoption of the new rules. Accordingly, an appeal will lie from an order granting or refusing a temporary injunction or from an order sustaining or overruling a plea of privilege.

This conclusion is based upon the fact that said portions of the articles are jurisdictional and not procedural. It will be noted that Rule 816 expressly provides that the new rules shall not be construed so as to extend or limit the jurisdiction of any courts. Furthermore the enumeration of repealed statutes indicates that the aforesaid articles were not repealed in their entirety; and in the note following Rule 384 it will be seen that those portions of Articles 2008 and 4662 which authorize appeals are carried for context so as to indicate that said portions of the articles were not repealed; and in the note following Rule 87 it is expressly stipulated that the portion of Article 2008 authorizing appeals is not repealed.

5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 20 (1945).

(No. 97) Question: Do justice courts have jurisdiction of bills of discovery under Rule 737?

Answer: The inquiry raises a question of constitutional jurisdiction of justice courts which is not within the province of the subcommittee to consider, since its duties are confined to the interpretation of the rules of practice and procedure in civil actions. We may call attention to the fact, however, that the jurisdiction of the courts and the substantive rights of litigants were not affected by the adoption of the rules. Rule 816, and Section 2 of the Enabling Act, House Bill 108, Forty-sixth Legislature.

6 Tex. B.J. 276 (1943) reprinted in 8 Tex. B.J. 35 (1945).

(No. 104) Question: Rule 86 of our civil practice provides for filing plea of privilege to be sued in the county of one's residence. What should be the contents of a plea where one is sued for land that is not situated in the county where the suit is brought, e.g. trespass to try title?

Answer: The jurisdiction of the courts and the venue of actions therein were not extended or limited by the adoption of the rules (Rule 816).

Subdivision 14 of the general venue statute (Article 1995) provides that suits for the recovery of lands or damages thereto “must be brought in the county in which the land, or a part thereof, may lie." While this requirement appears to be mandatory, it is settled that this subdivision prescribes the venue in such actions, that it does not relate to jurisdiction and may therefore be waived. South Texas Dev. Co. v. Williams, 130 Tex. 217, 107 S.W.2d 378 (1937).

If a suit in trespass to try title is not commenced in the county where the land or some part thereof lies, the defendant who prefers to try the case in the county where the land lies rather than in the county where the suit is brought may seasonably claim the right to have the case transferred to the county where the land lies. In such event the plea of privilege, sworn to and filed in due time, should allege that it appears from plaintiff's petition, if that be the case, or that, as a matter of fact, the suit is not brought in the county where the land or some part thereof lies as required by subdivision 14 of Article 1995 and that the cause should be transferred to that county. In this sense the statute is mandatory and the cause must be transferred. Rule 93 (a); Shell Petroleum Corp. v. Grays, 122 Tex. 491, 62 S.W.2d 113 (1933); South Texas Dev. Co. v. Williams, 130 Tex. 217, 107 S.W.2d 378 (1937). If, however, the defendant does not file a plea of privilege to be sued in the county where the land lies, answer should be filed within the time required by the rules in the county where the suit is brought and the trial should be there proceeded within due course.

The Supreme Court has held that a plea of privilege under Article 2007, which is substantially the same as Rule 86, is sufficient to cover all cases of personal privilege and all cases of mere venue as provided by the various provisions of Articles 1995 and 2390 relating to venue. Jeffries v. Dunklin, 131 Tex. 289, 115 S.W.2d 391 (1938).

Therefore, if the defendant resides out of the county in which the suit is pending so as to authorize the affidavit of nonresidence, the plea of privilege can follow the exact form outlined by Rule 86, and it will be sufficient to cover subdivision 14 of the Venue Statute without any express allegation concerning the location of the land. But, as hereinabove stated, an alternative form is authorized under the decisions, and the plea can omit allegations as to the defendant's residence and embody in lieu thereof the allegations as to the location of the land and the nature of the suit as above set out. Either form is sufficient under the rule as construed by the decisions.

7 Tex. B.J. 14 (1944) reprinted in 8 Tex. B.J. 38 (1945).

(No. 128) Question: Do the provisions of Rules 330 and 331 apply to district courts having successive and continuous terms and civil jurisdiction, even though they also have criminal jurisdiction?

Answer: We think the answer should be in the affirmative.

The enabling act (H. B. 108, 46th Leg.) conferred upon the Supreme Court "full rule-making power in the practice and procedure in civil actions." Rule 2 defined the scope of the rules to embrace and govern the procedure in the justice, county, district and appellate courts of the State of Texas "in all actions of a civil nature" with certain exceptions not now material. The rules did not purport to deal with questions of either jurisdiction or venue (Rule 816). The fact that the particular court in which the civil action was pending had both civil and criminal jurisdiction could not affect or impair the application of the rules to the civil action.

At the time the rules were formulated, there was a distinct trend toward successive and continuous terms of courts, as far as was permissible under the Constitution. That trend still persists. It was hoped at the time that the legislature would provide for successive and continuous terms and it did so in many cases. The rules in their general scope were devised to meet such a development.

Article 2092, which was repealed at the time the rules were adopted, provided certain rules of practice and procedure in civil district courts in counties having two or more district courts with civil jurisdiction only. In formulating Rule 330, it is significant that the word "only,” which appeared in Article 2092, was omitted, because the manifest intention was that the rules should apply to civil actions not only in courts having civil jurisdiction only but also in courts having both civil and criminal jurisdiction.

7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 48 (1945).