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Rule 89. Transfer if Motion is Sustained (1983)

TEXT

If a motion to transfer venue is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the proper court; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff. The clerk shall make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and send it with the original papers in the cause to the clerk of the court to which the venue has been changed. Provided, however, if the cause be severable as to parties defendant and shall be ordered transferred as to one or more defendants but not as to all, the clerk, instead of sending the original papers, shall make certified copies of such filed papers as directed by the court and forward the same to the clerk of the court to which the venue has been changed. After the cause has been transferred, as above provided for the clerk of the court to which the cause has been transferred shall mail notification to the plaintiff or his attorney that transfer of the cause has been completed, that the filing fee in the proper court is due and payable within thirty days from the mailing of such notification, and that the case may be dismissed if the filing fee is not timely paid; and if such filing fee is timely paid, the cause will be subject to trial at the expiration of thirty days after the mailing of notification to the parties or their attorneys by the clerk that the papers have been filed in the court to which the cause has been transferred; and if the filing fee is not timely paid, any court of the transferee county to which the case might have been assigned, upon its own motion or the motion of a party, may dismiss the cause without prejudice to the refiling of same.

Amended by order of June 15, 1983, eff. Sept. 1, 1983: To conform to S.B. 898, 68th Legislature, 1983.

ADVISORY OPINIONS

Question: Rule 89 provides that upon a court’s sustaining a plea of privilege, the case should be transferred to the proper court, while Article 2019 provided that the case should be transferred to the court having jurisdiction of the person of the defendant, and Article 2020 provided that the venue should be changed to the proper court of the county having jurisdiction of the parties and the cause. Under Rule 89 may a court, upon sustaining a plea of privilege, transfer a case to a court which has jurisdiction and exclusive venue under the law, but which is not situated in a county which is the residence of the defendant?

Answer: Yes – In the opinion of the Committee, the court hearing the plea of privilege may transfer the case to a court having jurisdiction and exclusive venue of the case regardless of whether the defendants reside in such county or not.

If, for instance, a trespass to try title was filed in a county where non of the defendants reside and in which the land was not located and several of the defendants residing in different counties should file pleas of privilege, the court should transfer the case to the District Court of the County where the land was situated, even though none of the defendants resided therein.

8 Tex. B.J. 559 (1945).