The Texas motion to transfer venue: file it first, or you have waived it

Texas venue practice has one unforgiving rule and one generous one. The unforgiving rule is that a venue objection dies unless it comes first. The generous one is that once it is filed, the timetable is unusually long — 45 days' notice of the hearing.

Everything else follows from getting the order of filings right.

The waiver

Tex. R. Civ. P. 86(1):

Time to File. An objection to improper venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance motion provided for in Rule 120a. A written consent of the parties to transfer the case to another county may be filed with the clerk of the court at any time. A motion to transfer venue because an impartial trial cannot be had in the county where the action is pending is governed by the provisions of Rule 257.

There is exactly one thing that may precede a venue motion: a special appearance under Rule 120a, contesting personal jurisdiction. Anything else — an answer, a plea, a motion of any kind — waives venue if filed first.

That produces a fixed order of battle in Texas:

1. Special appearance (Rule 120a)
2. Motion to transfer venue (Rule 86)
3. Everything else

Note also the carve-out at the end: transfer because an impartial trial cannot be had is a different motion under Rule 257, not a Rule 86 motion, and it is not subject to this waiver rule.

How to file it

Rule 86(2) gives you a choice of packaging:

How to File. The motion objecting to improper venue may be contained in a separate instrument filed concurrently with or prior to the filing of the movant's first responsive pleading or the motion may be combined with other objections and defenses and included in the movant's first responsive pleading.

Either a standalone instrument filed first or at the same time, or a section inside the first responsive pleading. What you cannot do is file the pleading and follow up with the motion.

What the motion must say

Rule 86(3):

Requisites of Motion. The motion, and any amendments to it, shall state that the action should be transferred to another specified county of proper venue because:

(a) The county where the action is pending is not a proper county; or

(b) Mandatory venue of the action in another county is prescribed by one or more specific statutory provisions which shall be clearly designated or indicated.

The motion shall state the legal and factual basis for the transfer of the action and request transfer of the action … to a specific county of mandatory or proper venue. Verification of the motion is not required. The motion may be accompanied by supporting affidavits as provided in Rule 87.

Two requirements people miss. You must name the specific county you want the case moved to — an objection that the current county is wrong, without naming a right one, does not meet the rule. And if you rely on mandatory venue, the statutory provisions must be clearly designated or indicated.

Verification is not required — neither of the motion nor, under Rule 86(4), of a response.

Responding is optional

Rule 86(4):

Response and Reply. Except as provided in paragraph 3(a) of Rule 87, a response to the motion to transfer is not required. Verification of a response is not required.

But "not required" is not the same as "not advisable" — under Rule 87(2) the party wanting to keep the case where it is carries a burden of proof, and that has to be discharged somehow.

The 45-day timetable

Rule 87(1) is where Texas becomes generous, and it puts the scheduling duty on the movant:

Consideration of Motion. The determination of a motion to transfer venue shall be made promptly by the court and such determination must be made in a reasonable time prior to commencement of the trial on the merits. The movant has the duty to request a setting on the motion to transfer. Except on leave of court each party is entitled to at least 45 days notice of a hearing on the motion to transfer. Except on leave of court, any response or opposing affidavits shall be filed at least 30 days prior to the hearing of the motion to transfer. The movant is not required to file a reply to the response but any reply and any additional affidavits supporting the motion to transfer must, except on leave of court, be filed not later than 7 days prior to the hearing date.

A motion nobody sets is a motion that never gets decided — and the rule puts that on the party who filed it.

Who has to prove what

Rule 87(2)(a) allocates the burden in both directions:

A party who seeks to maintain venue of the action in a particular county in reliance upon Section 15.001 (General Rule), Sections 15.011-15.017 (Mandatory Venue), Sections 15.031-15.040 (Permissive Venue), or Sections 15.061 and 15.062 (Multiple Claims), Civil Practice and Remedies Code, has the burden to make proof … that venue is maintainable in the county of suit. A party who seeks to transfer venue of the action to another specified county … has the burden to make proof … that venue is maintainable in the county to which transfer is sought.

Both sides carry a burden — the plaintiff to justify the county chosen, the defendant to justify the county sought.

Rule 87(2)(b) then does something clever with the merits:

It shall not be necessary for a claimant to prove the merits of a cause of action, but the existence of a cause of action, when pleaded properly, shall be taken as established as alleged by the pleadings. When the defendant specifically denies the venue allegations, the claimant is required, by prima facie proof … to support such pleading that the cause of action taken as established by the pleadings, or a part of such cause of action, accrued in the county of suit.

So the claim is assumed to exist for venue purposes — but a specific denial of the venue allegations shifts a prima facie proof burden onto the claimant as to where the cause of action accrued. A general denial does not do that; the denial has to be specific.

And a defendant can argue accrual in the alternative without conceding liability:

If a defendant seeks transfer to a county where the cause of action or a part thereof accrued, it shall be sufficient for the defendant to plead that if a cause of action exists, then the cause of action or part thereof accrued in the specific county to which transfer is sought, and such allegation shall not constitute an admission that a cause of action in fact exists.

How Texas compares

A short checklist

1. File the venue motion before or with anything else — the only thing that may come first is a Rule 120a special appearance.
2. Decide whether to file it separately or inside your first responsive pleading. Both are allowed; filing after is not.
3. Name the specific county you want the case transferred to.
4. If you rely on mandatory venue, designate the statutes clearly.
5. Do not bother verifying the motion or a response — the rule says neither is required.
6. Request a setting. It is the movant's duty, and nothing happens until you do.
7. Give 45 days' notice of the hearing, and calendar the 30-day response and 7-day reply dates from it.
8. If you are resisting transfer, be ready to prove venue is maintainable where you filed — and watch for a specific denial of your venue allegations, which shifts a prima facie burden to you.
9. If the issue is an impartial trial rather than proper venue, that is Rule 257, not Rule 86.

Where these rules live

• Tex. R. Civ. P. 86 — Motion to Transfer Venue
• Tex. R. Civ. P. 87 — Determination of Motion to Transfer
• Tex. R. Civ. P. 88 — Discovery and Venue
• Tex. R. Civ. P. 89 — Transferred if Motion Is Sustained
• Tex. R. Civ. P. 120a — Special Appearance
• Tex. R. Civ. P. 21a — Methods of Service

This page explains what the rules say. It isn't legal advice, and the venue statutes themselves — Chapter 15 of the Civil Practice and Remedies Code — sit outside this site's Texas corpus, which covers the Rules of Civil Procedure.