Unreported / Non-Citable
Background
The Estate of Donal R. Schmidt, Sr. sued several entities associated with an assisted-living facility after Schmidt allegedly fell from a second-story window at the facility in Hood County and died while being transported to a hospital. The estate filed the negligence action in Comanche County, alleging that Schmidt had resided there and that contractual undertakings, representations, and decisions occurred there.
The defendants moved to transfer venue to Tarrant County, asserting that Comanche County was improper and that Sagora Senior Living, Inc. maintained its principal place of business and headquarters in Tarrant County. After the estate disputed that venue basis and alternatively proposed Hood County as the location of the events underlying the claim, the defendants submitted an affidavit supporting venue in Tarrant County. The trial court nevertheless transferred the case to Hood County, prompting the defendants to seek mandamus relief.
The Court’s Holding
The Eleventh Court of Appeals conditionally granted mandamus relief. It held that Comanche County was not a proper venue under Texas Civil Practice and Remedies Code Section 15.002 because a substantial part of the events occurred in Hood County and a defendant’s principal office was in Tarrant County. The statute’s residual plaintiff-residence provision did not apply because those other venue grounds were available.
The court further held that, once the estate initially selected an improper county and the defendants established Tarrant County as a proper venue in their transfer motion, the trial court lacked discretion to give the estate a second opportunity to choose Hood County. The error warranted mandamus relief because it impaired the defendants’ procedural right to select a proper venue after the plaintiff’s defective first choice and presented an exceptional circumstance for which appeal after final judgment was inadequate.
The appellate court directed the trial court to vacate its May 12, 2026 order transferring the case to Hood County and to render an order transferring it to Tarrant County. The writ would issue only if the trial court failed to comply by October 2, 2026.
Key Takeaways
- A plaintiff has the first choice of venue, but if that choice is improper, the plaintiff ordinarily does not receive a second choice among proper counties.
- When defendants establish that their requested transferee county is proper, a trial court abuses its discretion by instead adopting the plaintiff’s alternative venue selection.
- Although permissive-venue rulings generally await review after final judgment, mandamus may be available when a ruling improperly gives the plaintiff a second venue choice and impairs the defendants’ procedural rights.
Why It Matters
The decision reinforces the allocation of venue choices under Texas procedure: the plaintiff chooses first, but a defendant that successfully challenges an improper initial venue may identify the proper transferee county. A trial court cannot cure the plaintiff’s mistake by selecting another county proposed by the plaintiff.
The opinion also recognizes this type of second-choice venue error as an exceptional circumstance supporting immediate mandamus review, despite the general rule against interlocutory review of permissive-venue determinations.