dissenting.
I respectfully dissent to the majority opinion in this case. I would grant the motion for rehearing because the trial court had no in personam jurisdiction over Temperature Systems, Inc. (TSI).
The majority correctly held that TSI had the burden at its special appearance hearing to negate all bases of jurisdiction. The majority also correctly held that a defendant must negate all bases of jurisdiction even if there are no jurisdictional allegations in a plaintiff’s petition. In such a case, proof that a defendant is a nonresi*677dent is sufficient to meet this burden; however, proof on nonresidency is not enough when a plaintiff alleges jurisdictional facts. When a plaintiff alleges jurisdictional facts, a defendant must also negate these jurisdictional facts. Where the majority errs is in the holding that a defendant must negate jurisdictional facts not pleaded but tried by consent at the special appearance hearing.
In TM Productions, Inc. v. Blue Mountain Broadcasting Co., 623 S.W.2d 427 (Tex.Civ.App. — Dallas 1981), writ ref'd n.r.e. per curiam, 639 S.W.2d 450 (Tex.1982), this Court held that the defendant’s burden at the special appearance hearing is only to negate the jurisdictional allegations of the petition. TM Prods., 623 S.W.2d at 432. Consequently, the defendant has no burden to negate other jurisdictional facts that may be raised by the evidence at the hearing. Id.
The majority would argue that this holding in TM Productions was overruled by the Texas Supreme Court in Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199 (Tex.1985). The Texas Supreme Court, however, specifically held that it overruled TM Productions and other cases only to the extent that they held that a nonresident defendant does not make a general appearance by contesting defective jurisdictional allegations, defective service of process, and defects in the citation in a special appearance. Kawasaki Steel Corp., 699 S.W.2d at 203. The court in Kawasaki Steel Corp. held that when a nonresident defendant complains of jurisdictional allegations, service of process, or citation prior to or in a special appearance, the nonresident defendant makes a general appearance and waives his right to assert that the court does not have jurisdiction over him. Id. A nonresident defendant must make these complaints by way of a motion to quash or other means which constitute a general appearance. Id. The Texas Supreme Court left intact the portion of the opinion in TM Productions holding that a nonresident defendant need only negate those jurisdictional facts pleaded and not those tried by consent. See TM Prods. 623 S.W.2d at 432.
Pepper did not plead facts that gave rise to general jurisdiction as a basis for jurisdiction over TSI. Because the holding of TM Productions that a defendant does not have to negate jurisdictional facts not pleaded is still the law, I would hold that TSI had no burden to negate the facts regarding general jurisdiction raised by the evidence at the special appearance hearing. Accordingly, TSI’s proof of nonresidency status was sufficient to negate general jurisdiction as a basis for jurisdiction.
TSI met its burden of negating all bases of jurisdiction. Therefore, the trial court should have sustained TSI’s special appearance.