(dissenting).
I dissent, respectfully but vigorously.
One of the most ancient and well established rules of law in this State is that an inhabitant of Texas shall not be sued out of the county of his domicile except in certain specifically enumerated cases.1 This statutory rule of law, including most of its ten initially enumerated exceptions, came almost verbatim from the Spanish rules of civil procedure as found in Las Siete Partidas.2 The law, now embodied in Article 1995,3 vests in the defendant a valuable right which the courts have carefully protected with procedural rules and with strict construction in favor of the right of the defendant who claims the privilege of a trial in his own county. Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969 (1951); Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825 (1950); National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021 (1943); Newlin v. Smith, 136 Tex. 260, 150 S.W.2d 233 (1941); A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939); Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062 (1938).
A corollary rule almost as ancient and as often stated by the courts of this State is that in order for a plaintiff to divest a defendant of this valuable right, the burden is upon the plaintiff to plead and prove the venue facts showing that his cause of action clearly falls within one of the specifically enumerated exceptions. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758 (1956); Newlin v. Smith, supra; A. H. Belo Corporation v. Blanton, supra; Meredith v. McClendon, supra; Thomas v. Meyer, 168 S.W.2d 681 (Tex.Civ.App.1943, no writ). There are numerous Courts of Civil Appeals decisions stating or applying this rule, some of which will be hereafter referred to.4 See also 2 McDonald, Texas Civil Practice, § 6.06. The necessity for plaintiff to both allege and prove that the case comes within an exception is a rule that was established by this Court, as noted in Newlin v. Smith, supra, as follows:
“It clearly appears that the predominant purpose of our venue statutes is to give a person who has been sued the right to defend such suit in the county of his residence, except under well-defined exceptions. This rule has prevailed in this State since the early case of Pool v. Pickett, 8 Tex. 122. This *166Court has also established the rule that, to deprive a defendant of the right of trial in the county of his domicile, the case filed against him must clearly come within one of the exceptions found in the statutes, and the burden rests upon the plaintiff to allege and prove that the case comes within the exception.” ISO S.W.2d at 233-234. (Emphasis supplied)
The writer of the present majority opinion, when speaking for the Court in Lad-ner, supra, stated the rule very clearly in these words:
“It is incumbent upon a plaintiff who seeks to maintain venue under any exception of art. 1995 to plead and prove the facts, usually referred to as the venue facts, which bring the case within that exception. In some instances the courts by judicial construction have required the plaintiff to establish venue facts which are not specified in the statute, but as a general rule the facts which the plaintiff must allege and prove are those stated in the particular exception upon which he relies.” See 293 S.W.2d at 761. (Emphasis supplied)
Following the above general rules enunciated by this Court, the Courts of Civil Appeals have heretofore consistently held that, in determining proper venue, the controverting affidavit must conform to the allegations in plaintiff’s petition, and that venue facts necessary to support an exception under Article 1995 cannot be alleged alone in plaintiff’s controverting affidavit; they must be averred in the petition. Allen v. Hamilton National Bank, 459 S.W. 2d 955 (Tex.Civ.App.1970, no writ); Texas Planting Seed Association v. Hooker, 386 S.W.2d 348 (Tex.Civ.App. 1964, no writ); M. L. Witter Mfg. Corp. v. Kinetrol Co. Inc., 342 S.W.2d 809 (Tex.Civ.App.1961, no writ); Motors Ins. Corp. v. Freeman, 304 S.W.2d 580 (Tex.Civ.App. 1957, no writ) ; Price v. Murrell R. Tripp & Co., 268 S.W.2d 702 (Tex.Civ.App.1954, no writ); Reader’s Wholesale Distributors v. Trahan, 225 S.W.2d 459 (Tex.Civ.App. 1949, no writ); Hargrove v. Koepke, 210 S.W.2d 434 (Tex.Civ.App.1948, no writ); Elliot Finance Company v. Brown, 208 S. W.2d 622 (Tex.Civ.App. 1948, no writ) ; Douglass v. Flintkote Co., 207 S.W.2d 635 (Tex.Civ.App.1947, no writ); Casebolt v. Waldron, 160 S.W.2d 309 (Tex.Civ.App. 1942, no writ); Jones v. Caldwell, 42 S. W.2d 1052 (Tex.Civ.App.1931, no writ); Austin v. Grissom-Robertson Stores, 32 S.W.2d 205 (Tex.Civ.App.1930, writ dism’d); Sayeg v. Federal Mortgage Co., 16 S.W.2d 567 (Tex.Civ.App. 1929, no writ); Gholson v. Thompson, 298 S.W. 318 (Tex.Civ.App. 1927, no writ); Witting v. Towns, 265 S.W. 410 (Tex.Civ.App. 1924, no writ).
It is true that on all but one of the last above cited cases there is no writ history. Obviously, this is due to the fact that the Courts of Civil Appeals have final jurisdiction in venue appeals except in those cases in which the judges may disagree upon a material question of law and those which hold differently from a prior decision of another Court of Civil Appeals, or of the Supreme Court, upon any material question of law. Articles 1728 and 1821. The unanimity of the judges of our Courts of Civil Appeals and the fact that their decisions conform to the general rule often stated on this point by our Court make these decisions worthy of more consideration than is given to them in the majority opinion. Furthermore, the trial court judgments and affirming opinions were written or approved by some of this State’s most distinguished jurists. For instance, the opinion in Thomas v. Meyer, supra, was written by the late Judge James R. Norvell, who subsequently served as a member of this Court; the opinion in Gholson v. Thompson, supra, was written by the late Chief Justice John E. Hickman while a member of the Eastland Court of Civil Appeals; the trial judge affirmed in Price v. Murrell R. Tripp & Co., supra, was Judge Robert W. Hamilton, a former member of this Court; and the writer of the Court of Civil Appeals opinion in Allen v. Hamilton National Bank, supra, was the late Judge Frank M. Wilson, for many *167years a professor and recognized authority on Texas Civil Practice.
Texts which treat on the subject express the rule as stated above. 2 McDonald, Texas Civil Practice, § 6.06, reads:
“If a court has jurisdiction of the subject matter and of the parties, property, or status involved, it may proceed to judgment unless the venue is specifically challenged by a plea of privilege. But the plaintiff, in contesting such a plea, cannot assert the propriety of venue upon the basis of factual allegations which are not anticipated in the petition. This circumstance has been expressed as ‘the well-established rule of law . that in venue cases the specific facts relied upon to retain venue must be pleaded in the petition and that the controverting plea may not be used to supply essential venue facts which are not contained in the petition’. . . . Accordingly, the petition should set forth sufficient factual data to sustain venue in the county as against any defendant who is not a resident thereof.” (Emphasis added.)
In 59 Tex.Jur.2d 648, it is stated:
Ҥ 175. Conformity of plea to allegation of petition.
“As a rule, it is necessary that the allegations of fact set forth in the sworn controverting plea conform to those stated in the petition, for such a plea serves only to join the issue as to venue under the plea of privilege and the petition on file . . .” (Emphasis added.)
The majority opinion recognizes the existence of the rule but retroactively segments and changes it with respect to the instant case. It also indicates that the long-established rule should not be applied in the future in two specified and numerous unspecified types of cases “that have been incorrectly decided on the basis of a rule that every venue fact must be alleged in both the controverting plea and the petition . . .,” but that it will be retained and applied in cases where “the nature of the suit is an important venue fact.” The previous decisions of this Court make no such distinction under this or similar exceptions of Article 1995. They say: “It is incumbent upon a plaintiff who seeks to maintain venue under any exception of art. 1995 to plead and prove the facts, usually referred to as the venue facts, which bring the case within that exception.” Ladner v. Reliance Corp., supra, and cases cited therein. (Emphasis added.)
The bench and the bar have lived quite well under one rule of pleading being applicable to all exceptions under Article 1995. It is inescapable that the majority’s splitting of the rule will lead to uncertainties in a procedural area of the law where few, if any, heretofore existed. There are enough uncertainties in procedural matters without creating more. Fracturing this rule will lead in some instances to unnecessary delays and appeals as the bench and bar attempt to apply it. For instance, it appears to me that the instant case comes under that part of the opinion which would retain and apply the rule of consistent pleadings where “the nature of the suit is an important venue fact.”
The nature of a suit on a written contract to be performed in a county designated in writing is quite different from a suit on open account without any written agreement as to when or where to pay the account, at least as far as venue is concerned. The nature of plaintiff’s suit, by the allegations of its own petition, falls in the latter category. It is nothing more than a suit on an open account. Plaintiff’s petition contains absolutely no allegation of any venue fact that would bring the cause of action under the exception of Subdivision 5 of Article 1995, which reads as follows :
“5. Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon *168or by reason of such obligation may be brought against him, either in stích county or where the defendant has his domicile.”
It was only after defendants filed their pleas of privilege that plaintiff alleged in its controverting affidavits that defendants had entered into a written contract to pay the open account in Waco, Texas. Plaintiff did not amend its petition to conform to this allegation of controlling venue facts.5 Subsection 5 of Article 1995 does not apply to a suit brought upon a verified open account as plead in plaintiff’s petition. Without the important and essential venue facts being subsequently alleged in the controverting plea, the defendants’ pleas of privilege unquestionably would have been sustained.
The majority holds this, like numerous cases which it says were incorrectly decided, is one in which some venue facts may be properly alleged in the controverting plea without being set up in the petition. However, the holding of the majority as to this particular case is that all of the venue facts may be set up for the first and only time in plaintiff’s controverting affidavit.
In so doing, the majority fails to consider the controlling role that the plaintiff’s petition plays in determining the general nature of a plaintiff’s suit and all that transpires after it is filed. See Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, 245 (1942). Evidence is inadmissible at the trial unless reasonably supported by the petition. Likewise, a controverting plea and evidence on the issue of venue must find reasonable support in the plaintiffs petition then on file. True, “the controverting plea constitutes the plaintiff’s special pleadings on the issue of venue,” but it cannot run off and leave the petition, or ignore it, or amend it, or supply essential allegations of venue facts which were omitted from plaintiff’s petition. In Witting v. Towns, supra, cited with apparent approval by the majority, the proper relation between the pleadings contained in the plaintiff’s petition and his controverting plea is clearly described as follows:
“Plaintiff’s right to recovery must depend upon his petition. His controverting plea, under the statute, serves only to join the issue as to venue under the plea of privilege and the petition then filed, and he cannot in such controverting plea be heard to set up a new or different cause of action than that sued upon. The statute prescribes that he must set up the ‘fact or facts’ relied upon to retain venue. Necessarily these facts must be such facts as would be admissible in evidence under his original or amended petition.” (Emphasis added.)
This requirement of consistency between the allegations of plaintiff’s petition and controverting plea, or “duplicate-pleading” as it is referred to by the majority, is no onerous burden, because, as pointed out by the majority, any essential venue facts omitted from the original petition can be alleged in an amended petition that may ordinarily be filed as a matter of right when the controverting plea is filed. See Rule 63; Insurors Indemnity & Ins. Co. v. Brown, 172 S.W.2d 174 (Tex.Civ.App.1943, writ ref.). Consistency between the allegations of the petition and the controverting plea is part of the price which plaintiff must pay for the privilege of attempting to try the case in its own county rather than that of the defendants, just as duplication of proof is required for this purpose as to some of the exceptions under Article 1995. See Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95 (1935); and Ladner v. Reliance Corp., supra, 293 S.W.2d at page 763.
More importantly, the majority fails to give proper consideration to the salutary *169and helpful aspects of the established rule requiring plaintiff to clearly plead in his petition the essential venue facts set forth in the exception of Article 1995 upon which he plans to rely to maintain his suit in a county other than that of the defendant’s domicile. It encourages and usually results in the giving of earlier notice to defendants and their attorneys. When venue facts are properly and truthfully plead, it often causes defendants to forego the filing of a plea of privilege and thus prevents delays and time consuming hearings before judges with already overcrowded dockets.
The majority holds that the plaintiff and his attorney are not required to anticipate the filing of a plea of privilege. They should be, since Article 1995 plainly states that “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:” Heretofore, anticipation has been encouraged as the better practice. See the above quotation from 2 McDonald, Texas Civil Practice, § 6.06. The majority says that no useful purpose is served by the rule, because “in most cases the defendant’s attorney will be able to obtain from his client any information he may require in deciding whether to file a plea of privilege.” That carries the presumption of the client’s knowledge of the law rather far, and it contemplates a burden on the defendant which is entirely contrary to the dominant purpose and spirit of Article 1995 and the multitude of decisions which have held that the burden to plead and prove the exception is on the plaintiff.
I think the bench, the bar and the litigants would be better served by retaining the one rule requiring consistency between petitions and controverting pleas on important venue facts with respect to all exceptions under Article 1995. The rule is so well known to the lawyers and judges of the State that a retroactive change which retains the rule with respect to some general venue exceptions and disapproves it with respect to others, will result in unnecessary confusion and delay in pending cases and untold uncertainties and appeals as lawyers learn about and try to understand and apply the somewhat nebulous aspects of the new rule in future cases.
In any event, if the rule is to be changed, it should be by a prospective change in the Texas Rules of Civil Procedure, which this Court has been authorized by the Legislature to promulgate and change from time to time. It should not be done retroactively by a judicial fiat which has less and slower dissemination than a rule change published in advance of its effective date.
As to those defendants who appealed from the order of the trial court, I would reverse the lower courts and remand the case to the trial court for another hearing on the pleas of privilege.
McGEE, J., joins in this dissent.
. Act Establishing the Jurisdiction and Powers of the District Courts, approved December 22, 1836; Sec. 5, I Laws of the Republic of Texas 198; 1 Gammel’s Laws of Texas, 1258.
.Pool v. Pickett, 8 Tex. 122, 123 (1852) ; McKnight, The Spanish Influence on the Texas Law of Civil Procedure, 38 Tex. L.Rev. 24, 36-40 (1959) ; 1 McDonald, Texas Civil Practice, § 4.03.1; Townes, Texas Pleading, 298-299.
. All Article references are to the Vernon’s Annotated Texas Statutes, and all Rule references are to the Texas Rules of Civil Procedure unless otherwise noted.
. See other cases cited under Article 1995, Notes 14, 32 and 153.
. There was an attempt to amend by inter-lineation of essential venue facts after the original transcript was filed in the Court of Civil Appeals, but this late aetion was ignored by the Court of Civil Appeals and the majority opinion. I do likewise.