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Rule 89. Transferred If Plea Is Sustained (1943)

TEXT

If a plea of privilege is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the proper court; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff. The clerk shall make up a tran­script of all the orders made in said cause, certifying thereto officially under the seal of the court, and send it with the original papers in the cause to the clerk of the court to which the venue has been changed. Provided, however, if the cause be severable as to parties defendant and shall be ordered transferred as to one or more defendants but not as to all, the clerk, instead of sending the original papers, shall make certified copies of such filed papers as directed by the court and forward the same to the clerk of the court to which the venue has been transferred, as above provided for, the same will be subject to trial at the expiration of ten days after the mailing of notification to the parties or their attorneys by the clerk or any party or his attorney that the papers have been filed in the court to which the cause has been transferred.

Amended by order of June 16, 1943, eff. Dec. 31, 1943.

ADVISORY OPINIONS

Question: Rule 89 provides that upon a court’s sustaining a plea of privilege, the case should be transferred to the proper court, while Article 2019 provided that the case should be transferred to the court having jurisdiction of the person of the defendant, and Article 2020 provided that the venue should be changed to the proper court of the county having jurisdiction of the parties and the cause. Under Rule 89 may a court, upon sustaining a plea of privilege, transfer a case to a court which has jurisdiction and exclusive venue under the law, but which is not situated in a county which is the residence of the defendant?

Answer: Yes – In the opinion of the Committee, the court hearing the plea of privilege may transfer the case to a court having jurisdiction and exclusive venue of the case regardless of whether the defendants reside in such county or not.

If, for instance, a trespass to try title was filed in a county where non of the defendants reside and in which the land was not located and several of the defendants residing in different counties should file pleas of privilege, the court should transfer the case to the District Court of the County where the land was situated, even though none of the defendants resided therein.

8 Tex. B.J. 559 (1945).