in Re the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-21-00285-CV

IN RE THE STATE OF TEXAS

Original Proceeding

From the 414th District Court
McLennan County, Texas
Trial Court No. 2021-2775-5

MEMORANDUM OPINION

Relator, the State of Texas, filed suit against real parties in interest, Waco and La

Vega Independent School Districts and their respective superintendents, boards of

trustees, and board members, alleging that real parties in interests’ imposition of face-

covering requirements were in violation of Executive Order GA-38 (“GA-38”) issued by

Texas Governor Greg Abbott.1 Real parties in interest filed a plea to the jurisdiction, a

1 Relator also sued Midway and McGregor Independent School Districts and their respective
superintendents, boards of trustees, and board members for imposing face-covering requirements
purportedly in violation of GA-38. However, they are not parties to this proceeding.
verified amended plea in abatement, and other pleadings in the trial court, seeking to

forestall relator’s lawsuit in favor of an existing legal challenge to GA-38 filed by several

school districts in a state district court in Travis County. After a hearing on the motions

filed by real parties in interest, the trial court granted the verified amended plea in

abatement filed by real parties in interest. Specifically, the trial court’s order indicated

that this proceeding is “ABATED pending final resolution of the first-filed case, La Joya

Independent School District, et al. v. Greg Abbott, et al., Cause No. D-1-GN-21-003897, in the

353rd Judicial District Court in Travis County, including any appeals therefrom.”2

In response to the trial court’s order granting real parties in interests’ verified

amended plea in abatement, relator filed a petition for writ of mandamus, requesting that

this Court direct the trial court, to vacate its order. In arguing that the trial court abused

its discretion by granting the verified amended plea in abatement, relator contends that

the case filed in Travis County District Court does not possess dominant jurisdiction over

relator’s suit. Because we conclude that the trial court abused its discretion by granting

the verified amended plea in abatement filed by real parties in interest, we conditionally

grant relator’s mandamus petition.

2In the Travis County suit, several school districts sought injunctive relief and declarations that
Governor Abbott has no authority under the Texas Disaster Act to prevent a school district from adopting
a mask mandate; that the Governor has no authority to suspend statutes that give local school boards the
authority to govern and oversee the management of public schools; and that section 418.016 of the Texas
Disaster Act violates the Texas Constitution.

In re State Page 2
 Background

In response to the COVID-19 pandemic, Governor Abbott issued GA-38 on July

29, 2021, with the stated goal of “protecting the health and safety of Texans, ensuring

uniformity throughout Texas, and achieving the least restrictive means of combatting the

evolving threat to public health by adjusting social-distancing and other mitigation

strategies.” Among other things, paragraph 3(b) of GA-38 provided that: “In areas where

the COVID-19 transmission rate is high, individuals are encouraged to follow the safe

practices they have already mastered . . . but no person may be required by any

jurisdiction to wear or to mandate the wearing of a face covering.” Paragraph 4(a) of GA-

38 also emphasized that “[n]o governmental entity, including a county, city, school

district, and public health authority, and no governmental official may require any

person to wear a face covering or to mandate that another person wear a face covering.”

As stated in paragraph 4(b), GA-38 expressly “supersede[d] any face-covering

requirement imposed by any local governmental entity or official, except as explicitly

provided . . . .” To “further ensure uniformity statewide,” paragraph 5 of GA-38, under

the authority of section 418.016(a) of the Texas Government Code, suspended sections

418.1015(b) and 418.108 of the Texas Government Code “[t]o the extent necessary to

ensure that local governmental entities or officials do not impose any such face-covering

requirement.” See TEX. GOV’T CODE ANN. §§ 418.016(a), 418.1015(b), 418.108.

In re State Page 3
 In its original petition, relator asserted that, on August 26, 2021, Waco ISD

Superintendent Dr. Susan Kincannon mandated masks be worn in all Waco ISD facilities

beginning on August 30, 2021. Relator alleged that Waco ISD Board of Trustees and

board members “participated in this decision or failed to take action to prevent Dr.

Kincannon from implementing the mask mandate.”

The Office of the Attorney General sent Dr. Kincannon a letter warning that the

imposition of a mask mandate exceeded her authority and violated GA-38. Waco ISD

and Dr. Kincannon refused to rescind their mask mandate and indicated that Waco ISD

“will also continue to require masks in all Waco ISD buildings.”

On or about August 24, 2021, La Vega ISD implemented a COVID-19 Mitigation

Plan that indicated “the superintendent will implement a district wide mask mandate”

under certain circumstances. Relator alleged that La Vega ISD implemented a mask

mandate and that “La Vega ISD’s Board of Trustees and Superintendent [Dr. Sharon M.]

Shields participated in this decision or failed to take action to prevent implementation of

this Plan.”

As was done with Waco ISD, the Office of the Attorney General sent Dr. Shields a

letter warning that the imposition of a mask mandate exceeded her authority and violated

GA-38. La Vega ISD and Dr. Shields refused to rescind their mask mandate.

In re State Page 4
 Standard of Review & Applicable Law

“‘Jurisdiction’ refers to the power of a court, under the Constitution and laws, to

determine the merits of an action between parties and to render a judgment.” Gordon v.

Jones, 196 S.W.3d 376, 382 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see CSR Ltd. v.

Link, 925 S.W.2d 591, 594 (Tex. 1996). Subject-matter jurisdiction “exists by operation of

law only, and cannot be conferred upon any court by consent or waiver.” Dubai Petroleum

Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). Whether a trial court has subject-matter

jurisdiction is a question of law that an appellate court reviews de novo. Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). “Jurisdiction and venue are

not synonymous.” Gordon, 196 S.W.3d at 383.

“Venue” pertains solely to where a suit may be brought and differs from whether

a court has “jurisdiction of the property or thing in controversy.” Id. Generally, venue

refers to a particular county, but it may also refer to a particular court. Id. The transfer

of a case from one forum to another “pertains to venue, not jurisdiction.” Gonzalez v.

Reliant Energy, Inc., 159 S.W.3d 615, 622 (Tex. 2005).

“[T]he doctrine of dominant jurisdiction pertains to venue and not to subject-

matter jurisdiction.” Gordon, 196 S.W.3d at 382. “Dominant jurisdiction” applies when

venue is proper is two or more Texas counties or courts. Gonzalez, 159 S.W.3d at 622.

Usually, if two lawsuits concerning the same subject matter are pending in courts of

concurrent jurisdiction, the court in which suit was first filed acquires “dominant

In re State Page 5
jurisdiction,” if venue is proper. Id. (noting that dominant jurisdiction recognizes “the

plaintiff’s privilege to choose the forum” and accepts that choice as correct, provided that

the forum is proper); see Gordon, 196 S.W.3d at 383. “[W]hen cases involving the same

subject matter are brought in different courts, the court with the first-filed cases has

dominant jurisdiction and should proceed, and the other cases should abate.” Perry v.

Del Rio, 66 S.W.3d 239, 252 (Tex. 2001).

“A motion to abate is the proper procedure for asserting a claim of dominant

jurisdiction.” Tovias v. Wildwood Props. P’ship, L.P., 67 S.W.3d 527, 529 (Tex. App.—

Houston [1st Dist.] 2002, no pet.); see Gordon, 196 S.W.3d at 385 (stating that a trial court

“properly disposes of a motion premised on dominant jurisdiction by abating the cause to

permit the court of dominant jurisdiction to proceed” (emphasis in original)); see also

generally Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985) (“Pleas in abatement and pleas to

the jurisdiction have different objectives and different results. Sustaining a plea to the

jurisdiction requires dismissal; sustaining a plea in abatement requires that the claim be

abated until removal of some impediment.”).

The granting of a plea in abatement in a later-filed suit is mandatory when “an

inherent interrelation of the subject matter exists in two pending lawsuits.” In re J.B. Hunt

Transp., Inc., 492 S.W.3d 287, 293-94 (Tex. 2016). It is “not required that the exact issues

and all the parties be included in the first action before the second is filed, provided that

the claim in the first suit may be amended to bring in all necessary and proper parties

In re State Page 6
and issues.” Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1988), overruled in part

on other grounds by In re J.B. Hunt Transp., Inc., 492 S.W.3d at 292-93. “In determining

whether an inherent interrelationship exists, courts should be guided by the rule

governing persons to be joined if feasible and the compulsory counterclaim rule.” Wyatt,

760 S.W.2d at 247; see TEX. R. CIV. P. 39, 97(a). Abatement of a lawsuit due to the pendency

of a prior suit is based on the principles of comity, convenience, and the necessity for an

orderly procedure in the trial of contested issues. Perry, 66 S.W.3d at 252.

“‘[A] relator need only establish a trial court’s abuse of discretion to demonstrate

entitlement to mandamus relief with regard to a plea in abatement in a dominant-

jurisdiction case.’” In re Red Dot Bldg. Sys., 504 S.W.3d 320, 322 (Tex. 2016) (orig.

proceeding) (quoting In re J.B. Hunt Transp., Inc., 492 S.W.3d at 299-300). “[N]o additional

showing is required for mandamus relief.” Id. A trial court has no discretion in

determining what the law is and applying it to the facts and abuses its discretion if it fails

to analyze or apply the law correctly. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379,

382 (Tex. 2005) (orig. proceeding); see Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)

(orig. proceeding).

Analysis

For the first-filed rule to apply, the two suits must be “inherently interrelated.” In

re J.B. Hunt Transp., Inc., 492 S.W.3d at 292. The compulsory-counterclaim rule guides

whether two suits are “inherently interrelated.” Id. A counterclaim is compulsory if: (1)

In re State Page 7
it is a claim within the jurisdiction of the court; (2) not the subject of a pending action; (3)

which at the time of filing the pleading the pleader has against any opposing party; (4) it

arises out of the transaction or occurrence that is the subject matter of the opposing

party’s claim; and (5) it does not require for its adjudication the presence of third parties

over whom the court cannot acquire jurisdiction. See TEX. R. CIV. P. 97(a); In re Tex.

Christian Univ., 571 S.W.3d 384, 389 (Tex. App.—Dallas 2019, orig. proceeding). A

counterclaim is compulsory if, in addition to Rule 97(a)’s other requirements, it was not

the subject of a pending action when the original suit was commenced. In re J.B. Hunt

Transp., Inc., 492 S.W.3d at 293. “The compulsory counterclaim rule is a means for

bringing all logically related claims into a single litigation, through precluding a later

assertion of omitted claims.” White v. Rupard, 788 S.W.2d 175, 178 (Tex. App.—Houston

[14th Dist.] 1990, writ denied). “A counterclaim is logically related to the opposing

party’s claim where separate trials on each of their respective claims would involve a

substantial duplication of effort and time by the parties and courts.” Id. “The logical

relationship test is met when the same facts, which may or may not be disputed, are

significant and logically relevant to both claims.” Moore v. First Fin. Resolution Enters.,

Inc., 277 S.W.3d 510, 516 (Tex. App.—Dallas 2009, no pet.).

We examine whether there is an inherent interrelationship between the subject

matters of the two lawsuits. Wyatt, 760 S.W.2d at 247; see TEX. R. CIV. P. 39 (stating the

rule regarding the joinder of persons needed for “just adjudication”); id. at R. 97(a). If

In re State Page 8
such an inherent interrelationship exists, we then proceed to assess dominant jurisdiction.

In re J.B. Hunt Transp., Inc., 492 S.W.3d at 292. To determine whether there is an inherent

interrelationship, we consider whether: (1) the Travis County lawsuit commenced first;

(2) the Travis County suit is still pending; (3) the Travis County lawsuit does include or

could be amended to include all the parties; and (4) the controversies are the same or the

Travis County suit could be amended to include all of the claims. See Wyatt, 760 S.W.2d

at 247; In re Amoco Fed. Credit Union, 506 S.W.3d 178, 187 (Tex. App.—Tyler 2016, orig.

proceeding); In re King, 478 S.W.3d 930, 933 (Tex. App.—Dallas 2015, orig. proceeding);

In re ExxonMobil Prod. Co., 349 S.W.3d 852, 856 (Tex. App.—San Antonio 2011, orig.

proceeding).

It is undisputed that the Travis County lawsuit commenced first and that is still

pending. See generally Abbott v. La Joya Indep. Sch. Dist., No. 03-21-00428-CV, 2022 Tex.

App. LEXIS 1797 (Tex. App.—Austin Mar. 17, 2022, pet. filed) (mem. op.). Relator

contends that the claims in this proceeding cannot be brought in Travis County because

a mandatory-venue statute—section 65.023(a) of the Texas Civil Practice and Remedies

Code, requires that this suit be filed in McLennan County. See TEX. CIV. PRAC. & REM.

CODE ANN. § 65.023(a); see also Butron v. Cantu, 960 S.W.2d 91, 94 (Tex. App.—Corpus

Christi 1997, no writ) (stating that “[t]his requirement [section 65.023(b) of the Texas Civil

Practice and Remedies Code] that an action to enjoin execution on a judgment must be

In re State Page 9
brought in the court in which the judgment was rendered is jurisdictional, and does not

relate merely to venue”).

The Texas Supreme Court has held that section 65.023(a) “applies only to suits in

which the relief sought is primarily or purely injunctive.” In re Cont’l Airlines, 988 S.W.2d

733, 736 (Tex. 1998). Where the main purpose of suit is for something other than

injunctive relief and the injunctive relief is ancillary, incidental, or adjunctive, section

65.023(a) does not apply. O’Quinn v. Hall, 7 S.W.3d 452, 456 (Tex. App.—Corpus Christi

2002, orig. proceeding). To determine the main purpose of the suit for purposes of

deciding whether the section applies, we examine the pleadings and the relief sought.

See, e.g., In re Cont’l Airlines, 988 S.W.2d at 736; Howell v. Tex. Workers’ Compensation

Comm’n, 143 S.W.3d 416, 432 (Tex. App.—Austin 2004, pet. denied) (stating, “if a review

of the allegations and the prayer demonstrates that issuance of a permanent injunction

would be merely ancillary to a judgment awarding declaratory relief, [section 65.023(a)]

does not apply”); Karagounis v. Bexar County Hosp. Dist., 70 S.W.3d 145, 147 (Tex. App.—

San Antonio 2001, pet. denied) (“The true nature of a lawsuit depends on the facts alleged

in the petition, the rights asserted and the relief sought, and not on the terms used to

describe the cause of action.”).

In its prayer, relator requested, among other things, a temporary restraining order

against real parties in interest “from enforcing Defendants’ Facemask Orders for as long

as GA-38 (or a future executive order containing the same prohibitions) remains in

In re State Page 10
effect”; a declaration “Defendants’ Facemask Orders to be invalid and unlawful”; and

temporary and permanent injunctions to “rescind their Facemask Orders” and “refrain

from issuing any new emergency restrictions that conflict with GA-38.” Based on our

review of relator’s pleadings, we conclude that the injunctive relief requested by relator

is central to its lawsuit, especially given that relator sought a permanent injunction

against real parties in interest. See In re Cont’l Airlines, 988 S.W.2d at 736-37 (concluding

that section 65.023(a) was inapplicable and injunctive relief was ancillary to the prayer

for declaratory relief where the plaintiff did not pray for permanent injunctive relief, the

pleadings would not support a permanent injunction, the controversy could be fully

resolved by declaratory judgment, and “throughout the pleading the only requests for

court action ask the trial court to declare the parties’ rights under the contract”); O’Quinn,

7 S.W.3d at 456; see also In re Ameri-Fab, LLC, No. 05-17-01458-CV, 2018 Tex. App. LEXIS

1061, at *4 (Tex. App.—Dallas Feb. 7, 2018, orig. proceeding) (mem. op.) (“When the

injunctive relief is sought simply to maintain the status quo pending resolution of the

lawsuit, then the injunctive relief is ancillary to the relief sought and section 65.023 does

not apply. When the party does not plead for a permanent injunction, the injunctive relief

is ancillary to the other relief sought.” (citations omitted)); In re FPWP GP LLC, No. 05-16-

01145-CV, 2017 Tex. App. LEXIS 633, at *8 (Tex. App.—Dallas Jan. 25, 2017, orig.

proceeding) (mem. op.) (“[A] request for injunctive relief is the primary or principal relief

sought, and section 65.023 therefore governs venue, when the plaintiff specifically pleads

In re State Page 11
for permanent injunctive relief, when the plaintiff seeks only declaratory and injunctive

relief that are essentially mirror image claims, and/or the claims cannot be resolved solely

as a declaratory judgment.” (citations omitted)).

We now examine the language of section 65.023 of the Texas Civil Practice and

Remedies Code, which provides:

(a) Except as provided by Subsection (b), a writ of injunction against a party
who is a resident of this state shall be tried in a district or county court in the
county in which the party is domiciled. If the writ is granted against more
than one party, it may be tried in the proper court of the county in which
either party is domiciled.

(b) A writ of injunction granted to stay proceedings in a suit or execution
on a judgment must be tried in the court in which the suit is pending
or the judgment was rendered.

TEX. CIV. PRAC. & REM. CODE ANN. § 65.023 (emphasis added). It is undisputed that real

parties in interest are domiciled in McLennan County, not Travis County. Accordingly,

pursuant to section 65.023(a), relator was required to bring its claims for injunctive relief

against real parties in interest in McLennan County; these claims for injunctive relief

could not be brought in Travis County.3 See id.; see Wyatt, 760 S.W.2d at 248 (“As long as

3 Real parties in interest have asserted that the second sentence of section 65.023(a) allows for this
suit for injunctive relief to be filed in either McLennan or Travis County. See TEX. CIV. PRAC. & REM. CODE
ANN. § 65.023(a) (providing that, among other things, “[i]f the writ is granted against more than one party,
it may be tried in the proper court of the county in which either party is domiciled”). We disagree. The
second sentence in section 65.023(a) authorizes venue in different counties only to the extent that a writ of
injunction is granted against more than one party that are domiciled in different counties. See id. In other
words, if real parties in interest were domiciled in different counties, which is not the case here, section
65.023(a) would operate to allow for a writ of injunction in either county in which real parties in interest
are domiciled. See id. The domicile of relator is not relevant to this analysis. See id.

In re State Page 12
the forum is a proper one, it is the plaintiff’s privilege to choose the forum,” and a

defendant is “simply not at liberty to decline to do battle in the forum chosen by the

plaintiff.”). Moreover, Texas Rule of Civil Procedure 39 does not authorize relator, a

defendant in the Travis County suit, to join real parties in interest in the Travis County

suit, and the joinder of real parties in interest in the Travis County suit is not needed to

attain a just adjudication. See TEX. R. CIV. P. 39 (noting that a person to be joined, if

feasible, is a person who “in his absence complete relief cannot be accorded among those

already parties” or who has an interest in the action and disposition in his absence would

“as a practical matter impair or impede his ability to protect that interest or leave any of

the persons already parties subject to a substantial risk” of incurring inconsistent

obligations). Furthermore, although GA-38 is a commonality between this suit and the

Travis County suit, this suit, unlike the Travis County suit, turns on the specific mask

mandates real parties in interest have enacted and whether real parties in interest acted

ultra vires by enacting the specific mask mandates in violation of GA-38. The factual

circumstances in this proceeding involve different questions than a challenge to the

validity of GA-38, which is the basis of the Travis County suit.

Based on the foregoing, we conclude that this suit is not inherently interrelated to

the Travis County suit. See TEX. R. CIV. P. 97(a); see also In re J.B. Hunt Transp., Inc., 492

S.W.3d at 292-93; In re Tex. Christian Univ., 571 S.W.3d at 389. As such, we cannot say that

the Travis County suit has dominant jurisdiction over this suit. See In re J.B. Hunt Transp.,

In re State Page 13
Inc., 492 S.W.3d at 292; Gonzalez, 159 S.W.3d at 622; see also Gordon, 196 S.W.3d at 383. We

therefore hold that the trial court abused its discretion by granting the verified amended

plea in abatement filed by real parties in interest. See In re Red Dot Bldg. Sys., 504 S.W.3d

at 322; In re J.B. Hunt Transp., Inc., 492 S.W.3d at 299-300; see also Perry, 66 S.W.3d at 252

(noting that, in general, a plea in abatement must be granted when an inherent

interrelation of the subject matter exists in the two pending lawsuits). Accordingly, we

sustain relator’s sole issue presented in this mandamus petition.

Conclusion

Based on the foregoing, we conditionally grant mandamus relief and order the

trial court to vacate its order granting real parties in interests’ verified amended plea in

abatement.4 We are confident the trial court will comply, and the writ will issue only if

the trial court fails to do so.

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson,
and Justice Smith
Conditionally granted
Opinion delivered and filed July 20, 2022
[OT06]

4In no way do we intend for our disposition of this matter to be an expression of our opinion on
the merits of relator’s suit or on the validity of GA-38.

In re State Page 14