IN RE: EAST TEXAS MEDICAL CENTER ATHENS and East Texas Medical Center Regional Healthcare System

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Court of Appeals of Texas,Tyler.

IN RE: EAST TEXAS MEDICAL CENTER ATHENS and East Texas Medical Center Regional Healthcare System, Relator.

No. 12-04-00328-CV.

Decided: February 18, 2005

Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J. John W. McChristian Jr., James M. Stewart, Dick Davis, Sharon E. Callaway and Jacqueline M. Stroh, for East Texas Medical Center Athens. James N. Parsons, III, pro se. Joel M. Fineberg, R. Dean Gresham, and Rick Thompson, for Sonja Bass.


Relators East Texas Medical Center Athens and East Texas Medical Center Regional Healthcare System (collectively “ETMC”) seek a writ of mandamus directing the Honorable James N. Parsons III, Judge of the 3rd Judicial District Court, Henderson County, Texas, to vacate his order denying ETMC's motion to transfer venue.   We deny the petition.


The underlying proceeding is a negligence action filed by real party in interest Sonja Bass, individually and as next friend of David Wayne Cornelius, an incapacitated individual.   In its mandamus petition, ETMC alleges that fifteen, eight, seven, five, and two days prior to the commencement of trial, “numerous highly prejudicial publications” occurred in the local media to which the potential jury pool was exposed.   Because of these publications, ETMC sought a transfer of venue alleging it could not receive an impartial trial in Henderson County.   See Tex.R. Civ. P. 257(c).  The trial court denied ETMC's motion, and this original proceeding followed.   ETMC also filed a motion for immediate temporary relief.

Prerequisites to Mandamus

 A writ of mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy by appeal.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding).  The limited availability of mandamus is necessary to preserve “orderly trial proceedings” and to prevent the “constant interruption of the trial process by appellate courts.”  Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.1994).   The relator has the burden of showing an abuse of discretion as well as the inadequacy of appeal as a remedy.  Id.

Abuse of Discretion

Any party in a civil cause may move for a change of venue on the ground that an impartial trial cannot be had in the county where the action is pending.   Tex.R. Civ. P. 257(c).  The motion to transfer venue must be supported by the movant's affidavit and the affidavit of at least three credible persons, residents of the county in which the suit is pending.  Tex.R. Civ. P. 257.   A trial court can deny the motion to transfer if the movant does not comply with Rule 257.   See Acker v. Denton Pub. Co., 937 S.W.2d 111, 118 (Tex.App.-Fort Worth 1996, no writ) (movant did not file required number of affidavits);  Carrasco v. Goatcher, 623 S.W.2d 769, 771 (Tex.App.-El Paso 1981, no writ) (movant did not file any affidavits from county residents).   If the motion is challenged as permitted by Texas Rule of Civil Procedure 258, the judge must try the issue.  Tex.R. Civ. P. 258;  City of Abilene v. Downs, 367 S.W.2d 153, 155 (Tex.1963).   If the motion is not challenged in the manner provided by Rule 258, transfer is mandatory.  Tex.R. Civ. P. 258;  Downs, 367 S.W.2d at 155-56.

The Record

ETMC filed its motion to transfer venue (the “motion”) the day before trial.   The motion was supported, in part, by affidavits from seventeen individuals.   Each of these affiants opined that a specific news article published in the Athens Daily Review was so prejudicial against ETMC that it could not obtain a fair and impartial trial in Henderson County.   However, none of the affidavits included the affiant's county of residence.   See Tex.R. Civ. P. 257.

At a pretrial hearing on the afternoon before trial, the trial court heard arguments on the motion and then took it under advisement.   At the conclusion of the hearing, the following discussion occurred between counsel for the parties and the trial court:

[BASS]:  Your Honor, there's one or two housekeeping matters.   One has to do with the motion to transfer venue that I know they filed.   I appreciate that the Court has taken it under advisement.   We just want to make sure that we haven't waived because we have a procedure on substantive objections to their evidence, and we want to make sure at some point before there's a ruling on it that we get to [make] our evidentiary objections as a part of the record.

[ETMC]:  We can do it now or we can wait till the Court takes it up or considers it further.

THE COURT:  Well, when you say you want to make evidentiary objections, you're saying that-do you have something you filed that you want to present?

[BASS]:  Not yet, Your Honor.   I'll tell you specifically what we're dealing with.   For example, Rule 257 permits them-and Rule 258 permits them to file affidavits from three residents of the county.   None of their affidavits disclose where these people live.   They could live in Venezuela.

THE COURT:  Okay. Well, why don't we do it this way:  I'll allow [you to] file anything you want to by tomorrow morning since I've got it under advisement.

[BASS]:  Can you close their record now so we don't have to get more stuff in the morning to respond to?

THE COURT:  Well, they can always ask for leave to do so.

[ETMC]:  I think to the extent that we need to show that any of these folks who read the Athens Daily Review are residents of Henderson County-

THE COURT:  You-all file your stuff in the morning.   I'll address it in the morning.

The record reflects that at 8:19 a.m. the following morning, ETMC filed a new affidavit from each of the seventeen affiants.   Each affidavit included the affiant's county of residence.   Following jury selection, the trial court, without any further mention of the motion by the trial court or the parties, signed an order denying the motion.

Prerequisite to presentation of complaint

 Texas Rule of Appellate Procedure 33.1 provides that as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.  Tex.R.App. P. 33.1(a)(1)(A).   This rule is to ensure that the trial court has the opportunity to rule on matters for which parties later seek review in the appellate court.  Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex.App.-Houston [14th Dist.] 2000, pet. denied).   Moreover, where a trial court has a legal duty to perform a nondiscretionary act, mandamus relief is not available unless the record shows the relator made a demand for performance that the trial court refused.   See O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex.1992).   As one court has recognized in the mandamus context, “it would be hard to conclude, without circumstances that were highly unusual or that made a trial court's ruling void, that a trial court could abuse its discretion in making a ruling for a reason that was never presented to the court.”  In re Bank of America, No. 01-02-00867-CV, 2003 WL 22310800, at *2 (Tex.App.-Houston [1st Dist.] 2003, orig. proceeding).

It is undisputed that ETMC filed the new affidavits before the trial court signed the order denying its motion.   ETMC urges that the trial court had a duty to grant the motion once the new affidavits were filed.   Thus, its argument continues, the trial court denied the motion in violation of a clear legal duty, which must be corrected by mandamus.   The record does not reflect that ETMC reurged its motion after filing the new affidavits or made the trial court aware of the filing.1  However, ETMC asserted at oral argument in this proceeding and again in its post-submission brief that no such action was necessary.

Presentment Requirement

 ETMC first points out that rules 257 and 258 do not include a presentment requirement.   Absent a presentment requirement in the controlling procedural rules, ETMC contends, the new affidavits were properly before the trial court once they were filed.   In support of its argument, ETMC cites Cecil v. Smith, 804 S.W.2d 509, 510 (Tex.1991).   In Cecil, the supreme court concluded, based upon the express language of the predecessor to appellate rule 33.1 (Texas Rule of Appellate Procedure 52(d)), that motions for new trial need not be “presented” to the trial court to preserve a complaint for appellate review.   This exception can now be found in appellate rule 33.1(b) and applies only to motions for new trial and motions to modify judgment.  Tex.R.App. P. 33.1(b).  The opinion in Cecil contains no language suggesting that its holding can be extended beyond the motions to which appellate rule 33.1(b) applies.   Therefore, Cecil is inapposite.

Knowledge of Trial Court

ETMC next argues that “[s]ince the only issue raised and the only thing [ETMC] inquired about was the absence of a residency statement in the affidavits, it was pretty much a given that ETMC would be filing amended affidavits.   Moreover, the trial court specifically rejected an attempt to close the evidence to prevent any such amended affidavits.”   Additionally, ETMC states that the affidavits were filed “after the trial court expressly gave permission to do so while he held the motion to transfer under advisement.”   Therefore, ETMC maintains that the trial court was charged with knowledge that the filing had in fact occurred, which, in turn, fulfilled any requirement that ETMC call the new affidavits to the trial court's attention.

 Merely filing a document with the district clerk does not impute the clerk's knowledge of the filing to the trial court.   See, e.g., In re Hearn, 137 S.W.3d 681, 685 (Tex.App.-San Antonio 2004, orig. proceeding);  In re Chavez, 62 S.W.3d 225, 229 (Tex.App.-Amarillo 2001, orig. proceeding).   Therefore, the filing of a document with the court clerk does not in and of itself bring the matter to the attention of the court.   See In re Davidson, 153 S.W.3d 490, (Tex.App.-Amarillo 2004, orig. proceeding).   The new affidavits were not in existence at the time the trial court gave ETMC permission to “file [their] stuff in the morning.”   Thus, ETMC had the burden to secure new affidavits from at least three of the affiants and file them the next morning.   Although ETMC argues that their filing the new affidavits was “a given,” the likelihood of the filing is not relevant here.   If an actual filing is insufficient to bring a filed document to the court's attention, it logically follows that knowledge of a potential, (or even a likely,) filing is also insufficient.   Therefore, the trial court was not charged with notice of the actual filing.   ETMC's argument is without merit.


To show its entitlement to mandamus relief, ETMC was required to demonstrate that (1) the trial court had a legal duty to act, (2) ETMC requested performance, and (3) the trial court refused to perform.   Based upon our review of the record, we conclude that ETMC did not establish a request for performance based upon the new affidavits.   Despite its arguments to the contrary, we cannot agree that ETMC was excused from this requirement.   Because it did not make the necessary request, ETMC has been unable to establish the trial court's refusal to act on such a request.   Therefore, ETMC has not shown any abuse of discretion by the trial court.   Because ETMC has not shown the trial court abused its discretion, we need not address the adequacy of appeal as a remedy.   Accordingly, the writ of mandamus is denied.   ETMC's motion for immediate temporary relief is overruled as moot.


1.   At oral argument, one of the attorneys representing ETMC stated that he had shown the new affidavits to the trial judge after they were filed.   However, his conversation with the judge does not appear in the record.   Consequently, we may not consider this information.   See In re Cortez, 143 S.W.3d 265, 268 n. 6 (Tex.App.-San Antonio 2004, orig. proceeding) (appellate court may consider material outside the record only to the extent necessary to determine its jurisdiction).


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