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Rule 86. Plea of Privilege (Mar1941)

TEXT

A plea of privilege to be sued in the county of one's residence shall be in writing and sworn to, and shall state that the party claiming such privilege was not, at the institution of such suit, nor at the time of the service of process therein, nor at the time of filing such plea, a resident of the county in which suit was instituted, and shall state the county of his residence, and the postoffice address of himself or his attorney and that "no exception to exclusive venue in the county of one's residence provided by law exists in said cause"; and such plea of privilege when filed shall be prima facie proof of the defendant's right to change of venue; provided that such plea shall not constitute a denial under oath of any allegations of plaintiff's petition required to be denied under oath by Rule 93 unless specifically alleged in such plea. If the plaintiff desires to controvert the plea of privilege, he shall within ten days after appearance day file a controverting plea under oath, setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending.

Amended by order of March 31, 1941, eff. Sept. 31, 1941: The word "or" changed to read "of" between "service" and "process."

ADVISORY OPINIONS

(No. 48) Question: Is a plea of privilege wherein the defendant fails to "state ... the post office address of himself or his attorney" as required by Rules 86 and527, sufficient to require a controverting affidavit, in view of the provisions of Rule 87 providing that "such … hearing shall not be had until a copy of such controverting plea ... shall have been mailed by registered mail to the defendant o r his attorney at the post office address stated in such plea of privilege at least 10 days before the date set for the hearing"?

Answer: In our opinion the question should be answered in the affirmative, provided the plea of privilege states the county of the defendant's residence and has all the other requisites prescribed by Rule 86 and merely fails to state the post office address of the defendant or his attorney.

The provision of the rule which requires the plea of privilege to state the post office address of the defendant or his attorney does not relate to the sufficiency of the plea as to venue, but was merely inserted in order to facilitate the delivery to the defendant of the controverting affidavit. Therefore the failure to give such post office address might tend to excuse the plaintiff's failure to mail his controverting affidavit to the defendant, but it would not constitute such a fatal defect in the plea of privilege as to eliminate the necessity of the plaintiff's filing a controverting affidavit.

5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 20 (1945).

(No. 50) Question: Does the plaintiff show good cause in not filing his controverting affidavit within the ten days period (Rules 86 and 87) by proving that defendant failed to furnish him with a copy of the plea of privilege (Rules 72 and 73)? The question is stated in another form: After filing suit can the plaintiff disregard it until he is furnished with a copy of the plea of privilege?

Answer: Rule 72 providing for delivery or mailing to the adverse party or, his attorney of record of any pleading, plea, or motion "which is not by law or by these rules required to be served upon the adverse party" is a wholesome rule and ought to be, and we think will be, readily complied with by the attorneys because of its mutual advantage to them. Nevertheless, the Committee thinks that the Rule is directory and failure to deliver to the plaintiff a copy of the plea of privilege does not dispense with the necessity of the plaintiff's filing a controverting plea; but it may constitute grounds for an extension of the time within which plaintiff should file the controverting plea. Although attorneys have a duty to keep in touch with the developments in their cases, the extent to which they should inspect the records is naturally affected to some extent by Rule 72 requiring the delivery to them by their adversaries of copies of all pleadings, pleas or motions filed in the case.

Under Rule 5, which permits the enlargement of the time within which a specified act is required or allowed to be done, and the liberal construction required by Rule 1 to be given to all the rules in order to adjudicate "the rights of litigants under established principles of substantive law," a wide discretion is vested in the courts in dealing with questions of the character raised in your inquiry. We are of opinion that the courts have the power, upon consideration of all the facts and circumstances, and in the interest of justice, to permit a controverting affidavit to be filed after the expiration of ten days from appearance day upon compliance by the plaintiff with the provisions of Rule 5. When requests for enlargement are applied for under this Rule each case, must necessarily be determined by the court upon its own facts in accordance with the right of the case.

Ordinarily, where the plaintiff and his attorney have no notice or knowledge of the fact that a plea of privilege has been filed, and the defendant has failed to deliver a copy thereof as required by Rule 72, we would be inclined to feel that this would constitute good cause under Rule 5 for granting of an extension of time for the filing of a controverting plea. This would not render nugatory and void that part of Rule 86 quoted in correspondent's letter, as the filing of a controverting plea would still be a prerequisite to the overruling of a proper plea of privilege. It would merely have a bearing upon the time within which the controverting plea could be filed.

5 Tex. B.J. 426 (1942) reprinted in 8 Tex. B.J. 24 (1945).

(No. 104) Question: Rule 86 of our civil practice provides for filing plea of privilege to be sued in the county of one's residence. What should be the contents of a plea where one is sued for land that is not situated in the county where the suit is brought, e.g. trespass to try title?

Answer: The jurisdiction of the courts and the venue of actions therein were not extended or limited by the adoption of the rules (Rule 816).

Subdivision 14 of the general venue statute (Article 1995) provides that suits for the recovery of lands or damages thereto “must be brought in the county in which the land, or a part thereof, may lie." While this requirement appears to be mandatory, it is settled that this subdivision prescribes the venue in such actions, that it does not relate to jurisdiction and may therefore be waived. South Texas Dev. Co. v. Williams, 130 Tex. 217, 107 S.W.2d 378 (1937).

If a suit in trespass to try title is not commenced in the county where the land or some part thereof lies, the defendant who prefers to try the case in the county where the land lies rather than in the county where the suit is brought may seasonably claim the right to have the case transferred to the county where the land lies. In such event the plea of privilege, sworn to and filed in due time, should allege that it appears from plaintiff's petition, if that be the case, or that, as a matter of fact, the suit is not brought in the county where the land or some part thereof lies as required by subdivision 14 of Article 1995 and that the cause should be transferred to that county. In this sense the statute is mandatory and the cause must be transferred. Rule 93 (a); Shell Petroleum Corp. v. Grays, 122 Tex. 491, 62 S.W.2d 113 (1933); South Texas Dev. Co. v. Williams, 130 Tex. 217, 107 S.W.2d 378 (1937). If, however, the defendant does not file a plea of privilege to be sued in the county where the land lies, answer should be filed within the time required by the rules in the county where the suit is brought and the trial should be there proceeded within due course.

The Supreme Court has held that a plea of privilege under Article 2007, which is substantially the same as Rule 86, is sufficient to cover all cases of personal privilege and all cases of mere venue as provided by the various provisions of Articles 1995 and 2390 relating to venue. Jeffries v. Dunklin, 131 Tex. 289, 115 S.W.2d 391 (1938).

Therefore, if the defendant resides out of the county in which the suit is pending so as to authorize the affidavit of nonresidence, the plea of privilege can follow the exact form outlined by Rule 86, and it will be sufficient to cover subdivision 14 of the Venue Statute without any express allegation concerning the location of the land. But, as hereinabove stated, an alternative form is authorized under the decisions, and the plea can omit allegations as to the defendant's residence and embody in lieu thereof the allegations as to the location of the land and the nature of the suit as above set out. Either form is sufficient under the rule as construed by the decisions.

7 Tex. B.J. 14 (1944) reprinted in 8 Tex. B.J. 38 (1945).