Opinion issue October = 18,=20 2007
Michael=20
Scott appeals from the trial court's order granting Wichita =
County's and=20
Wichita County District Attorney Barry Macha's (collectively =
"Wichita=20
County") motion to dismiss with prejudice.
Scott's=20
sole issue is that, because his suit was against Wichita County, =
venue was=20
mandatory in Wichita County, and, thus, the trial court committed=20
fundamental error by dismissing his suit with a void order. We=20
disagree. It is well=20
recognized that, by filing a lawsuit, the plaintiff is given the =
first=20
choice regarding venue. See In re Masonite =
Corp., 997=20
S.W.2d 194, 197 (Tex. 1999). When suit=20
is filed against a Texas county, venue is mandatory in that =
county. Tex.=20
Civ. Prac. & Rem. Code Ann. =A7 15.015 (Vernon 2002). Here, =
Scott=20
improperly brought suit against Wichita County in Fort Bend =
County.=20
However, because Wichita County never filed a motion to transfer =
venue, it=20
waived mandatory venue. See Scott, 209 S.W.3d at =
264.=20
Therefore, the Fort Bend County trial court had jurisdiction, and =
its=20
motion to dismiss was not void. See id. at=20
264-65. We note=20
that Scott relies on Browning v. Placke. 698 S.W.2d 362 =
(Tex.=20
1985). Scott's reliance is misplaced, however, because=20
Browning held that a judgment is void where the issuing =
court=20
lacked jurisdiction, whereas the trial court here had =
jurisdiction.=20
See id. at 363. Accordingly, because the trial court's order =
granting=20
Wichita County's motion to dismiss is not void, we hold the trial =
court=20
did not commit fundamental error. Scott's sole issue is=20
overruled George C.=20
Hanks, Jr.
Panel=20
consists of Justices Taft, Hanks, and Higley. 1. However, there are limited situations =
where=20
jurisdiction is tied to venue. "Texas courts hold that if a cause =
of=20
action is a statutory cause of action, as opposed to a =
constitutional or=20
common law cause of action, and the statute provides that suit =
must be=20
prosecuted in the courts of a single county, such provisions are=20
jurisdictional." State v. Benavides, 772 S.W.2d 271, 273 =
(Tex.=20
App.--Corpus Christi1989, writ denied).