dissenting.
I respectfully dissent from the majority opinion and would hold Robert E. Aulbaeh amenable to jurisdiction by our courts.
The burden is on Aulbaeh to prove that he is not amenable to process by Texas courts. Smith v. Reynolds, 533 S.W.2d 861, 862 (Tex.Civ.App. — San Antonio 1976, no writ). He must overcome the jurisdictional allegations in the plaintiff’s pleadings either by showing their insufficiency or negating the facts alleged. TM Productions, Inc. v. Blue Mountain Broadcasting Co., 623 S.W.2d 427, 432 (Tex.Civ.App. —Dallas 1981), writ refd n.r.e. per curiam, 639 S.W.2d 450 (Tex.1982).
The words “not amenable to process issued by the courts of this State” can only be interpreted to mean that the special appearance is available solely to establish that the Texas court cannot, under the federal and state constitutions and the appropriate state statutes, validly obtain jurisdiction over the person or the property of the defendant with regard to the cause of action pled. Defective service or defective process, or even an attempt to bring the defendant before the court under the wrong statute does not authorize the use of the special appearance. If the defendant attempts to make a special appearance to raise any of these contentions, then his appearance is a general one and the rule of York v. State applies to him with full force.
TM Productions, Inc. v. Blue Mountain Broadcasting Co., supra, at 430, quoting, Thode, “In Personam Jurisdiction; Article 2031b, The Texas ‘Long Arm’ Jurisdiction Statute; and the Appearance to Challenge Jurisdiction in Texas and Elsewhere,” 42 TEX.L.REV. 279, 312-13 (1964).
Aulbaeh failed to meet this burden. He failed to show he did not perform the alleged acts in Texas. The evidence is undisputed that he did transact business in Texas with Meriwether & Associates. However, he argues that since he performed them while holding the status of agent for Robach, Inc., that he is not liable for damages and thus not amenable to our jurisdiction. The question of Aulbach’s individual liability is one for trial on the merits, not a rule 120a hearing. In a jurisdictional hearing, the question is whether Aulbaeh submitted himself to the jurisdiction of our courts under the requirements stated in O’Brien v. Lanpar Co., 399 S.W.2d 340, 342 (Tex.1966). To determine at a jurisdictional hearing whether Aulbaeh acted only as an agent within the scope of his duties while he was working in Texas is to determine a material issue on the merits. The trial court must look to whether Aulbaeh, in any capacity, transacted business in the State of Texas. In Arterbury v. American Bank & Trust Co., 553 S.W.2d 943, 948 (Tex.Civ.App. — Texarkana 1977, no writ), the court stated that the ultimate issue of liability in tort is not a jurisdictional issue. “The act or omission within the state is a sufficient basis for the exercise of jurisdiction to determine whether or not the act or omission gives rise to liability in tort.” Id. We believe the statement holds true for contractual liability as well as for individual liability of a party.
The majority is stepping ahead of itself by determining liability at a jurisdictional hearing. “[Tjhere must be only a showing of the act on which jurisdiction is predicated, not a prima facie demonstration of the existence of a cause of action.” Id., at 947; Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 490-91 (5th Cir.1974). On affirmatively determining that preliminary point, the court then must proceed to a determination of liability at trial on the merits, at which time Aulbaeh may present his defensive issue of agency.
Aulbaeh failed to prove he is not amenable to process by Texas courts. He admits he performed the acts from which the cause of action arises. To demand that Aulbaeh defend himself in our forum does not offend traditional notions of fair play and substantial justice. I believe Aulbaeh is amenable to process by the Texas courts and would reverse the judgment of the trial court which sustains Aulbach’s objection to the jurisdiction.