dissenting.
I respectfully dissent and would uphold the judgment of the trial court maintaining venue in the county of suit.
Subdivision 9 of Article 1995 provides in part “Crime or Trespass. — A suit based upon a crime, offense, or trespass may be brought in the county where such crime, *570offense, or trespass was committed by the defendant ...” It is undisputed in this case that the crime, offense or trespass was committed in the county of suit by the defendant. That uncontroverted evidence appears to me to meet the requirements of Subdivision 9 and puts an end to the case. But the majority says no, the element of a crime or trespass is missing because there is evidence of self-defense. I would not hold that self-defense is an issue on the venue trial.
As noted by Professor McDonald in his treatise, Texas Civil Practice, Volume 1, Venue, Section 4.55, “The issues on a venue hearing ordinarily differ markedly from those upon the trial upon the merits ... upon the venue hearing, the only issue is as to the existence of the essential venue facts required to demonstrate the applicability of a particular venue exception.” As this Court said in Thorn v. Theo H. Blue Drilling, Inc., 472 S.W.2d 535 (Tex.Civ.App.—El Paso 1971, no writ):
The sole issue in the plea of privilege hearing is that of venue; not liability or the merits of the case. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Farmers’ Seed & Gin Company v. Brooks, 125 Tex. 234, 81 S.W.2d 675.
And further in the same opinion:
As stated in McDonald, Texas Civil Practice, Vol. 1, at page 614: “At venue hearing there is no occasion to examine affirmative defenses to the Plaintiff’s claim, except so far as they may be inseparably involved in determining a venue fact. If the controverting affidavit brings the cause within a venue exception, the court will not on the venue hearing consider matters in abatement, the insufficiency of the petition to state an enforceable claim, or affirmative defenses.”
Self-defense is not “inseparably involved in determining a venue fact” in this case. The only venue facts in Subdivision 9 are: 1) that a trespass has been committed, 2) that it was committed in the county of suit, and 3) that the defendant asserting his privilege committed the acts. The majority has held that no trespass has been committed because the Appellant was acting in self-defense. Authority for that position is Foster v. H.E. Butt Grocery Company, 548 S.W.2d 769 (Tex.Civ.App.—San Antonio 1977, ref. n.r.e.). I do not think Foster is applicable. Aside from the fact that is a two judge opinion with a vigorous dissent, it should be noted that the case has never been cited or followed by any other court. It has no application to this case because it is not a Subdivision 9 case. It was decided under Subdivision 4 which involves two or more defendants and one of the venue facts is whether the plaintiff has a bona fide claim against the resident defendant. Said the court “The question before us on this appeal is whether the trial court abused its discretion in finding that Appellant failed to prove his cause of action against Richardson, the resident defendant.” In ruling on that venue fact, the court held that a cause of action had not been established because the evidence established that the defendant was acting in self-defense. Subdivision 9 does not require that the plaintiff establish a cause of action. That is not one of the venue facts to be proved. That a trespass has been committed is a venue fact and it is undisputed that happened in this case. It happened when the Appellant shot the deceased. His reasons for doing it are a different matter. The fact is, he did trespass on the rights of the deceased. He has to admit that in order to reach the plea of justification.
Another reason Foster is inapplicable is that like the majority opinion in this case, it applied the self-defense allowance of the criminal law to a civil case.
In Howsley v. Gilliam, 517 S.W.2d 531 (Tex.1975), the Supreme Court ruled that Article 1222 of the Texas Penal Code provided when homicide is justifiable under a self-defense plea, and when it is applicable in a civil case. The Court said:
It is well established that the mere fact the Legislature adopts a criminal statute *571does not mean this Court must accept it as a standard for civil liability.
And further;
[P]roof that an individual did not violate any penal law would not necessarily preclude civil liability. It follows that simply because one may be statutorily relieved from criminal prosecution does not mean that he will be universally exonerated from civil liability when his conduct falls below the minimum standards applicable to the law.
That case like the one before us is a civil case for wrongful death and it should be controlling herein rejecting the self-defense theory which was not pled.
For the reasons stated I would affirm the judgment of the trial court.