(dissenting).
Since this is the last decision in which I will participate as a member of this Court, it is with regret that I dissent from the majority opinion because of my inability to agree with the legal conclusions and the result reached therein.
In Leonard v. Maxwell, Tex.Civ.App., 356 S.W.2d 335, now pending before the Supreme Court of Texas on writ of error, my dissenting opinion was based, among other grounds, upon my conclusion that the .controverting plea filed under Rule 86, Texas Rules of Civil Procedure, was fatally defective because it did not specifically refer to and adopt the allegations of plaintiff’s petition, thereby alleging sufficient venue facts upon which the alleged cause of action was sought to be maintained in the county where the suit was filed.
In my opinion the controverting affidavit in the instant case is even more fatally defective. Here the only reference to the ’ allegations of the petition is a statement:
“As is shown on the face of plaintiff’s original petition, this suit is a civil penalty suit brought under the provisions of the oil and gas conservations laws of this State, and particularly pursuant to provisions contained in Art. 6036, V.C.S. * * * ”.
The affidavit was made by two Assistant Attorneys General1 representing the plaintiff State of Texas, who aver that “they are attorneys for plaintiff in the above entitled and numbered cause, and that the allegations, denials and facts set out in the foregoing controverting affidavit are true and correct.”
To meet the requirements of Rule 86, T.R.C.P., it is necessary for the controverting plea to unmistakably allege that the party who swore to such plea made the petition a part thereof and thereby swore to the essential facts embodied in. the entire petition. A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 622. Since the controverting .affidavit constitutes the sole pleadings of the plaintiff on the venue issue, it must allege all of the facts necessary to be proved to, sustain venue in the court where, the suit is filed. A. H. Belo Corp. v. Blanton, supra.
It is also the rule that where the controverting affidavit does not contain any 'language which might be construed to state a cause of action but merely refer to an exception to exclusive venue by pointing out a subdivision of Art. 1995, V.C.S. or does not refer to and adopt the allegations of the petition as a part of the affidavit, it is insufficient to sustain venue in -the county in which the suit is filed as against the right of a defendant to. have the cause transferred to the county of his residence under a properly filed plea of privilege. A. H. Belo Corp. v. Blanton, supra; Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347, 351; Eastland v. Whitman, Tex.Civ.App., 318 S.W.2d 447, N.W.H.; Crim v. Logan, Tex.Civ.App., 277 S.W.2d 298, N.W.H.
Here, the controverting affidavit does not even refer to an exception to exclusive venue by pointing out an applicable subdivision of Art. 1995, V.C.S., nor does it refer to and adopt the allegations of the State’s petition. Even if the phrase “as is shown on the face of plaintiff’s original petition” might be construed as a-reference to the allegations contained therein, never*326theless 'the jurat does not state that the allegations contained in such petition are true and-correct as was the case in Leonard v. Maxwell, supra.
Appellants properly objected to the sufficiency of the- controverting affidavit by filing their motion to strike under Rule 90, T.R.C.P., which was overruled by the Trial Couft. But appellee relied upon proof of venue by the introduction of the original petition in evidence at the hearing on the plea of privilege. Appellants properly objected to the introduction of the petition, .which objections were overruled by the Trial Court. In my opinion, this was error. Where the controverting affidavit fails to make the petition a part thereof by adoption or reference, it must be tested by its own allegations imaided by the petition. Jefferies v. Dunklin, 131 Tex. 289, 155 S.W.2d 391, 393; Henderson Grain Co. v. Russ, supra.
After .the defects in the controverting affidavit, had been specifically called to the attention of the Trial Court by appellants in their motion to strike, the State did not attempt to amend its controverting affidavit by filing a new pleading under Rule 64 or by trial amendment as provided in Rule 66, T.R.C.P., but elected to stand upon the controverting affidavit as originally filed, presumably relying upon the assumption -that since the Trial Court had overruled the motion to strike, the controverting plea met all of the requirements of Rule 86. In Nolte v. Saenz, Tex.Civ.App., 153 S.W.2d 281, N.W.H., the San Antonio Court of Civil Appeals held that where special exceptions , to the controverting plea were overruled by the Trial Court, the opposing party had no right to presume that such pleadings complied with all of the legal requisites.
The majority opinion stresses the opinions in Perfecto Gas Co. v. State, 228 S.W.2d 918, N.W.H.; Oil and Gas Products of Oil in Certain Pits in Gregg County v. State, 118 S.W.2d 618, N.W.H., by the Austin Court of Civil Appeals, and Heard v. State, 149 S.W.2d 237, N.W.H., by the Beaumont Court of Civil Appeals. In the Perfecto case the controverting affidavit adopted the plaintiff’s petition by reference. In the Oil and Products of Oil case the controverting affidavit of the State adopted its original petition by copying it verbatim in the affidavit. In the Heard case the records of the Beaumont Court of Civil Appeals reveal that the State filed controverting affidavits to the pleas of privilege filed by all defendants, which controverting affidavits referred to and adopted the allegations of the State’s petition.
Since the controverting plea was defective as a matter of law and the Trial Court having erred in permitting the introduction of the State’s petition as evidence of facts sufficient to sustain venue in Travis County, Texas, it became the duty of the Trial Court to sustain the plea of privilege and transfer the cause to the residence of the respective defendants. Fair v. Mayfield Feed & Grain Co., Tex.Civ.App., 203 S.W.2d 801, 804, N.W.H.; Eastland v. Whitman, supra.
In Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688, where, although the controverting affidavit was defective, the defendant failed to point out the defects under the provisions of Rule 90, T.R.C.P., the Supreme Court reversed and remanded the cause to the Trial Court for trial of the issues on the merits under properly drawn pleadings of both parties. In the instant case, the defects in the controverting affidavit were properly called to the attention of the Trial Court by appellants’ motion to strike, but the State elected to stand on its controverting affidavit without amendment. The factual circumstances in the instant case are dissimilar to those in Buchanan v. Jean.
I would reverse and remand the cause to the Trial Court with instruction to sustain appellants’ pleas of privilege and transfer this cause to any of the District Courts of Gregg County, Texas, the residence of each of the appellants.