HOUSE                                                                                  SB 453
RESEARCH                                                                               Duncan
ORGANIZATION bill analysis               5/26/97                              FILED IN
                                                                                     (Gallego)
                                                                       1st COURT OF APPEALS
                                                                           HOUSTON, TEXAS
SUBJECT:        Interlocutory appeals from certain jurisdictional rulings
                                                                       12/3/2015 4:40:55 PM
COMMITTEE:      Civil Practices— favorable, without amendment          CHRISTOPHER A. PRINE
                                                                               Clerk

VOTE:           6 ayes   —   Gray, Bosse, Dutton, Nixon, Roman, Zbranek

                0 nays

                3 absent   —   Hubert, Alvarado, Goodman

SENATE VOTE:    On final passage, April 2   —   31-0

WITNESSES:      For— George Christian, Texas Association of Defense Counsel; Bill Tryon
                Texas Civil Justice League

                Against    —   None

                On   —   Carey Smith, Attorney General’s Office

BACKGROUND      In order for a court to have jurisdiction over a defendant, the court must
                establish personal jurisdiction and subject matter jurisdiction. Personal
                jurisdiction involves a question of residency       whether the defendant’s due
                process rights would be violated by being sued in the court because the
                defendant has no contacts with the jurisdiction. Subject matter jurisdiction
                refers to the court’s ability to hear the case involved based on the type of
                case and the amount in controversy.

                Objections to personal jurisdiction are made by filing a special appearance
                under Rule 120a of the Texas Rules of Civil Procedure. If the defendant can
                prove that the court cannot exercise personal jurisdiction over the defendant,
                the suit cannot proceed. A special appearance motion must be the first
                response to a plaintifrs pleadings, and the ruling on a special appearance
                must be the first thing a court decides in a case.

                Objections to the subject matter jurisdiction are made by filing a plea to the
                jurisdiction. Such a plea can be made at any time during the conduct of the
                suit and may be raised for the first time on appeal. A finding of lack of


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              subject matter jurisdiction is a fundamental issue and dismisses the case
              immediately if the court lacks such jurisdiction.

             If a special appearance motion or plea to the jurisdiction is denied by a
             court, the ruling is not subject to immediate appeal. The issue of the court’s
             denial may be raised on appeal, and if an appellate court finds the trial court
             ruled in error, the case is dismissed. A party denied a special appearance or
             plea to the jurisdiction may request a writ of mandamus from an appellate
             court. The standard for granting a writ of mandamus under Rule 121 of the
             Texas Rules of Appellate Procedure is that the remedy of an appeal would
             not be adequate under the circumstances.

             The Texas Supreme Court had ruled that the remedy available upon appeal
             for denial of a special appearance is adequate, and mandamus, therefore,
             should not apply, Canadian Helicopters Ltd. v. Wittig, $76 $.W.2d 304,
             (Tex. 1994). But recently the court issued a writ of mandamus for the denial
             of a special appearance motion, CR$ Ltd. v. Link, 925 S.W.2d 591 (Tex.
             1996).

DIGEST:      SB 453 would allow an interlocutory appeal of the denial of a special
             appearance motion by a defendant or the denial of a plea to the jurisdiction
             made by a governmental entity under the Texas Tort Claims Act. It would
             also clarify that an interlocutory appeal would have the effect of staying the
             commencement of a trial pending resolution of the appeal.

             SB 453 would take immediate effect if finally passed by a two-thirds record
             vote of the membership of each house.

SUPPORTERS   Determinations of personal jurisdiction and subject matter jurisdiction are at
SAY:         the heart of a court’s ability to hear a case. If the court does not have proper
             jurisdiction over a defendant, the case should not be allowed to proceed.
             Unfortunately, there is currently no procedure for appealing the decision of
             the trial court on these important issues until after a judgment is rendered.
             Until recently, the Texas Supreme Court had held that the remedy of an
             appeal was an adequate remedy to appeal such decisions. However,
             incorrect rulings on such decisions needlessly waste the time of the courts
             and can cost litigants hundreds of thousands of dollars as they defend cases
             which should have been dismissed. SB 453 would establish a procedure for


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            an interlocutory appeal, allowing these decisions to be made definitively
            early on in the case, saving the court’s time and the litigant’s money.
            However, to avoid overloading the appellate courts with having to rule on
            routine motions, the bill would limit subject matter jurisdiction interlocutory
            appeals to cases involving government entities sued under the Tort Claims
            Act.

            The denial of a plea to the jurisdiction is less harmful to the defendant than a
            denial of a special appearance because if a plea to the jurisdiction is granted,
            unless the statute of limitations period has run, the plaintiff can simply re
            file the case in a court of proper jurisdiction. Granting a special appearance,
            on the other hand, means that no court in the state can exercise jurisdiction
            over the defendant. SB 453 would allow a governmental entity’s denial of a
            plea to the jurisdiction to be taken up on an interlocutory appeal because
            such entities would be wasting taxpayer money defending a suit in which
            the court lacked jurisdiction.

            SB 453 would not lengthen the trial process or be an unnecessary delay in
            the commencement of a suit. The determination of jurisdiction is a
            constitutional issue and should be given the full attention it deserves. It is so
            central to the case that it should be dispositively determined before a trial
            proceeds. Interlocutory appeals are usually decided quickly by appellate
            courts. Appeals concerning jurisdictional issues are almost always
            determined on motions or briefs accompanied by affidavits; no testimony is
            usually allowed. While trial may not proceed while an interlocutory appeal
            is pending, there would be no prohibition in the statute against continuing
            discovery.

OPPONENTS   SB 453 would allow defendants who had a questionable claim of personal
SAY:        or subject matter jurisdiction to delay the case while that issue is taken up on
            appeal. While it is true that now interlocutory appeals are handled in a
            timely manner, if even 10 percent of the defendants sued exercised this
            option, it would bring the appellate system to a grinding halt. Because a
            special appearance must be the first motion filed by a defendant, it would
            require the plaintiff to go to court immediately after filing suit to defend that
            plaintiffs right to continue the suit. Such a motion would have to be tried
            before the defendant even submitted an answer to any discovery, and any
            discovery to be done would also be halted pending the determination of the


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         appeal. SB 453 would be used as a tactic by defendants to delay a plaintiffs
         suit and force a plaintiff to run up increased legal expenses. Since the
         defendant in these cases would be governmental entities with resources
         superior to many plaintiffs, the tactic would just give these entities an even
         greater advantage than they already possess.

         The Supreme Court and other courts of appeals are showing increased
         willingness to grant writs of mandamus on a denial of a special appearance
         and plea to the jurisdiction. As the courts are easing such restrictions, now
         is not the time to open up the floodgates and allow all denials of such
         motions to be appealed. The procedure for a writ of mandamus protects
         those whose clearly legitimate claims were denied. Additionally, appeals
         still remain a viable means of addressing such issues.

NOTES:   HB 1425 by Dunnam, which passed the House on May 10 but was not
         reported out of the Senate Jurisprudence Committee, would have removed
         the right to file an interlocutory appeal on determinations made relating to
         the Texas Arbitration Act.




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