DENIED; and Opinion Filed April 8, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00396-CV
IN RE JAMES DAVID HORTON, AND ROBBIE LESA HORTON, Relators
Original Proceeding from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-11551
MEMORANDUM OPINION
Before Justices Bridges, Stoddart, and Schenck
Opinion by Justice Stoddart
Relators filed this original proceeding requesting that the Court order the trial court to
vacate its orders dismissing certain claims in the case pursuant to chapter 27 of the Texas Civil
Practice and Remedies Code and ordering venue of the case transferred to Ellis County, Texas.
Ordinarily, to obtain mandamus relief, a relator must show both that the trial court has clearly
abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins.
Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Relator has not met those
requirements.
The Supreme Court has explained the burden imposed upon a plaintiff in supporting the
plaintiff’s choice of venue:
A plaintiff's choice of venue stands unless challenged by proper motion to transfer
venue. Once challenged, the plaintiff has the burden to present prima facie proof
by affidavit or other appropriate evidence that venue is maintainable in the county
of suit. The plaintiff's prima facie proof is not subject to rebuttal, cross-
examination, impeachment, or disproof. However, if the plaintiff fails to
discharge the burden, the right to choose a proper venue passes to the defendant,
who must then prove that venue is proper in the defendant's chosen county.
In re Missouri Pac. R. Co., 998 S.W.2d 212, 216 (Tex. 1999). The mandamus record
demonstrates relators failed to present prima facie proof to the trial court that they resided in
Dallas County at the time the cause of action accrued or at the time they filed suit or that Dallas
County is the residence of any of the defendants. See TEX. CIV. PRAC. & REM. CODE ANN. §
15.017 (West 2002). The mandamus record further demonstrates that real parties in interest did
come forward in the trial court with prima facie proof that mandatory venue lies in Ellis County.
With regard to the trial court’s determination that it could properly rule on the chapter 27
dismissal motions before ruling on the motion to transfer venue, relators have an adequate legal
remedy by appeal.
We DENY the petition.
/Craig Stoddart/
CRAIG STODDART
150396F.P05 JUSTICE
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