Reverse and Remand and Opinion Filed July 20, 2018




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-01245-CV

                PIONEER NATURAL RESOURCES USA, INC., Appellant
                                    V.
                TEXAS DEPARTMENT OF TRANSPORTATION, Appellee

                      On Appeal from the 162nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-16-11258

                              MEMORANDUM OPINION
                          Before Justices Bridges, Brown, and Schenck
                                   Opinion by Justice Bridges
       Pioneer Natural Resources USA, Inc. appeals the trial court’s order granting the motion to

dismiss for want of jurisdiction filed by Texas Department of Transportation (TxDot) in the

underlying lawsuit. In two issues, Pioneer argues the trial court erred in dismissing its third-party

petition against TxDOT because the applicable mandatory venue provision is not a jurisdictional

requirement, and venue was proper in Dallas County. We reverse the trial court’s order dismissing

Pioneer’s third-party petition and remand for further proceedings.

       On April 1, 2016, a fatal motor vehicle collision occurred in Midland County, Texas,

between a vehicle operated by Edward Pittinger and a Kenworth tractor trailer owned, serviced,

and maintained by Pioneer-related business entities. On September 6, 2016, Pittinger’s survivors

filed a petition in Dallas County asserting wrongful death and survival claims against the Pioneer-
related business entities. In August 2017, Pioneer was joined as an additional party to the lawsuit.

On August 11, 2017, Pioneer filed a third-party petition against TxDOT alleging TxDOT was the

“possessor of the portion of SH 158 where the accident occurred” and asserting TxDOT breached

its duties to ensure the roadway was free from defects and to warn drivers of the dangerous

condition of the roadway. In an amended third-party petition, Pioneer alleged venue was proper

in Dallas County because “Dallas houses statewide planning and maintenance offices” of TxDOT

where negligence occurred.

       In September 2017, TxDOT filed a motion to dismiss Pioneer’s third-party petition for

want of jurisdiction. TxDOT argued that a claimant was entitled to a waiver of sovereign immunity

“only if the claim meets each and every requirement for waiver under the entire” Texas Tort Claims

Act (TTCA). TxDOT cited section 101.102(a) of the civil practice and remedies code, which

concerns where suits that rely on the TTCA for waiver of immunity must be brought. As TxDOT

pointed out, section 101.102(a) provides that “A suit under this chapter shall be brought in state

court in the county in which the cause of action or a part of the cause of action arises.” TxDOT

further cited section 311.034 of the government code, which provides that “Statutory prerequisites

to a suit, including the provision of notice, are jurisdictional requirements in all suits against a

governmental unit.” Therefore, TxDOT argued, the “consequence of a failure to comply” with the

“statutory prerequisites” is dismissal.    In making this argument, TxDOT asserted that the

requirement that a suit under the TTCA be brought in the county where the cause of action arose

is jurisdictional. Moreover, TxDOT argued that connections with Dallas County were irrelevant

because the cause of action asserted was based on an alleged defect of TxDOT’s premises, and

such a cause of action is deemed to have arisen entirely in the county where the alleged defective

condition was located.




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       Pioneer filed a response to TxDOT’s motion to dismiss in which it argued the main action

between plaintiffs and defendants establishes venue, not third-party actions, relying on McIntosh

as Next Friend of McIntosh v. Copeland, 894 S.W.2d 60, 64, (Tex. App.—Austin 1995, writ

denied). Pioneer also relied on section 15.062(a) of the civil practice and remedies code, which

provides that “Venue of the main action shall establish venue of a counterclaim, cross claim, or

third-party claim properly joined under the Texas Rules of Civil Procedure or any applicable

statute.” Section 15.062(b) also provides the following:

       If an original defendant properly joins a third-party defendant, venue shall be proper
       for a claim arising out of the same transaction, occurrence, or series of transactions
       or occurrences by the plaintiff against the third-party defendant if the claim arises
       out of the subject matter of the plaintiff’s claim against the original defendant.

In addition, Pioneer argued that, even if section 101.102 overrode plaintiffs’ choice of venue,

dismissal was not a proper remedy to correct improper venue. Instead, transfer of the case was the

proper remedy.

       TxDOT filed a response in which it argued that the appropriate action for a court to take

upon determining that the court lacks subject matter jurisdiction based on a plea to the jurisdiction

is to dismiss for failure to plead a waiver of immunity under the TTCA. TxDOT argued this “all

or nothing” approach is fundamental to the concept of subject matter jurisdiction and makes the

operation of sovereign immunity and the TTCA different from other areas of law. In addressing

Pioneer’s arguments related to venue issues, TxDOT argued that a challenge to venue is concerned

with whether the suit was brought in the wrong county, while failure to file suit in accordance with

section 101.102(a) deprives a court of subject matter jurisdiction. On October 9, 2017, the trial

court ordered that TxDOT was “dismissed from this action without prejudice.” This appeal

followed.




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       In its first issue, Pioneer argues the trial court erred in dismissing its third-party petition

against TxDOT based on the TTCA’s venue provision, which is not a statutory prerequisite to

filing suit and, therefore, not a jurisdictional requirement.

       In contrast, TxDOT argues, as it did in the court below, that section 101.102(a) provides

that “A suit under this chapter shall be brought in state court in the county in which the cause of

action or a part of the cause of action arises.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.102(a)

(West 2011). TxDOT further cites section 311.034 of the government code, which provides that

“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements

in all suits against a governmental unit.” TEX. GOV’T CODE ANN. § 311.034 (West 2013).

       The term “statutory prerequisite” has three components: (1) a prerequisite must be found

in the relevant statutory language, (2) the prerequisite must be a requirement, and (3) the term

“pre” indicates the requirement must be met before the lawsuit is filed. Prairie View A & M Univ.

v. Chatha, 381 S.W.3d 500, 511 (Tex. 2012). TxDOT argues section 101.102(a)’s requirement

regarding venue is a “statutory prerequisite.” Thus, TxDOT argues, the consequence of a failure

to comply with the “statutory prerequisite” found in section 101.102 is dismissal. We disagree.

       TxDOT concedes in its brief that no court has, since the enactment of section 311.034,

“had occasion . . . to decide whether Section 101.102(a) constitutes a statutory prerequisite to suit.”

In the absence of any authority establishing that section 101.102(a) is a “statutory prerequisite,”

we decline to apply section 311.034’s provisions to make compliance with section 101.102(a) a

jurisdictional requirement. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.102(a) (West 2011);

TEX. GOV’T CODE ANN. § 311.034 (West 2013).

       Moreover, it is the plaintiff who makes the first choice of venue by filing the lawsuit.

Perryman v. Spartan Tex. Six Capital Partners, Ltd., 546 S.W.3d 110, 130 (Tex. 2018). When the

plaintiff files in a “proper” venue, “that choice of venue should be honored absent a mandatory

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venue statute that requires transfer.” Id. (quoting In re Omni Hotels Mgmt. Corp., 159 S.W.3d

627, 629 (Tex. 2005)). Citing section 15.062(a)’s provision that venue of the main action “shall”

establish venue of a counterclaim, cross claim, or third-party claim, the court in Perryman

determined that, by its plain and common meaning, “shall” denotes mandatory action. Id. at 131.

The court held that section 15.062(a) was, therefore, a mandatory venue provision. Id. at 132.

Because section 101.102(a) also contains language that a suit “shall” be brought in state court in

the county in which the cause of action or a part of the cause of action arises, it appears section

101.102(a) is also a mandatory venue provision. See id.

        In Perryman, the court was similarly presented with two competing mandatory venue

provisions. See id. In reconciling the two provisions, the court relied on a previous case in which

the court considered the venue statutes together with the rules of civil procedure to hold that “if

the plaintiff chooses a county of proper venue, . . . no other county can be a proper venue in that

case.” Id. at 133 (quoting Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex.

1994)). Such a reading, the court held, “gives effect to the plaintiff's right to select a proper venue.”

Id. at 133 (quoting Wilson, 886 S.W.2d at 260). In holding that the third-party-venue provision

controlled over other mandatory venue provisions, the court in Perryman reasoned that such a

holding “gives effect to both provisions while honoring the general rule that the plaintiff makes

the first choice of appropriate venue.” Id. at 133.

        Applying the court’s reasoning in Perryman to the facts of this case, we conclude the third-

party-venue provision, section 15.062(a), controls over other mandatory venue provisions. See id.

at 130-33. Thus, we conclude the trial court erred in dismissing Pioneer’s claims under section

101.102(a). Further, because the plaintiff in this case chose Dallas County in which to file suit,

and no party challenges Dallas County as a county of proper venue with respect to plaintiff’s




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claims, we conclude no other county can be a proper venue in this case. See id. We sustain

Pioneer’s first and second issues.

       We reverse the trial court’s order dismissing Pioneer’s third-party petition and remand for

further proceedings consistent with this opinion.




                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE



171245F.P05




                                               –6–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 PIONEER NATURAL RESOURCES                            On Appeal from the 162nd Judicial District
 USA, INC., Appellant                                 Court, Dallas County, Texas
                                                      Trial Court Cause No. DC-16-11258.
 No. 05-17-01245-CV          V.                       Opinion delivered by Justice Bridges.
                                                      Justices Brown and Schenck participating.
 TEXAS DEPARTMENT OF
 TRANSPORTATION, Appellee

       In accordance with this Court’s opinion of this date, the trial court’s order dismissing
Pioneer Natural Resources USA, Inc.’s third-party petition against the Texas Department of
Transportation is REVERSED and this cause is REMANDED to the trial court for further
proceedings consistent with this opinion.

        It is ORDERED that appellant Pioneer Natural Resources USA, Inc. recover its costs of
this appeal from appellee Texas Department of Transportation.


Judgment entered July 20, 2018.




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