The case of Williams v. Planters' Mechanics' National Bank of Houston, 44 S.W. 617, is a decision by the Court of Civil Appeals at Galveston in which a writ of error was denied by the Supreme Court of this state. There was called in question the legality of the order of the District Court of Harris County in granting an application for a change of venue, after the hearing, and transferring it to Galveston County instead of Fort Bend County. The court in its order stated that it appeared that the court house at Galveston County was, "for all practical purposes" the nearest court house to that of Harris County. The use of the words "nearest for all practical purposes" may, we think, be equivalent to "most accessible."
In the case of Shaw v. Cade, 54 Tex. Rep. 307, the Supreme Court had before it the construction of the statute. The basis of the suit occurred in Galveston County. A motion to change the venue was granted, and the venue was changed to Harris County. On the call of the case in Harris County, a motion was *Page 541 made and sustained, transferring the case to Chambers County, the Harris County District Court acting upon the theory that the order changing the venue to Harris County conferred no jurisdiction upon that court for the reason that the court house in Chambers County was the nearest to that of Galveston County within the meaning of the statute. It had been developed in Galveston County that the distance between the court house at Galveston County and that in Chambers County, by air-line measurement, was forty-two miles, and by the "usually traveled route" was fifty-six miles; that the Harris County court house was distant from the court house of Galveston County, by air-line measurement, fifty miles, and by the "usually traveled route," the same distance — fifty miles. On appeal the Supreme Court determined that the assumption of the District Court of Harris County that it had no jurisdiction was wrong, and that in refusing to try the case and in removing it to Chambers County upon the ground stated it was in error. The Supreme Court, in ordering the reinstatement of the case in the District court of Harris County, said:
"The opinion of the court is that the nearest court house, in the meaning of the statute, is not necessarily the one nearest by geometrical measurement, but may be the one most convenient of access and nearest by the usually traveled route."
The statutes governing the change of venue in the particular in question are alike in both civil and criminal cases. See Rev. Stat., 1925, art. 2172; C. C. P., 1925, art. 565. Disclaiming any attempt, by quotation or otherwise, to put into words the exact meaning of the term "nearest county" as contained in the statutes in question, we are confirmed in our opinion that the statutes are not so rigid as to require a reversal of the judgment upon the facts pertaining to the question in hand upon the present trial. The precedents are numerous to the point that a mistake of the trial judge in exercising his discretion to change the venue does not affect the jurisdiction of the court to which the transfer is made. Such is the holding of the Supreme Court in the cases cited and of this court in the case of Taylor v. State, 197 S.W. 201, and others. That there is some degree of flexibility, that is to say, that the trial court has some discretion in the matter of deciding the place to which the venue should be changed is obviously the holding of the Supreme Court of this state in the cases cited and of this court in the cases cited in the original opinion. The judicial interpretation of the statutes, in view of the subsequent reenactment *Page 542 of them in the same language, may be regarded as reflecting the legislative adoption or sanction. See Lewis v. State,58 Tex. Crim. 351, quoting Black on Interpretation of Laws, page 369, thus:
"When the Legislature revises the statutes of the State, after a particular statute has been judicially construed, without changing that statute, it is presumed that the Legislature intended that the same construction should continue to be applied to that statute."
The motion is overruled.
Overruled.
OPINION ON APPLICATION TO FILE SECOND MOTION FOR REHEARING.