                                Fourth Court of Appeals
                                        San Antonio, Texas

                                   MEMORANDUM OPINION
                                            No. 04-15-00407-CV

                             IN RE ATLANTIC SOUNDING CO., INC.

                                     Original Mandamus Proceeding 1

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: December 9, 2015

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           On July 6, 2015, relator Atlantic Sounding Co., Inc. filed a petition for writ of mandamus

complaining of the trial court’s order denying its motion to transfer venue in the underlying suit

brought under the Jones Act. See 46 U.S.C.A. § 30104. We conclude the trial court abused its

discretion in denying the motion to transfer venue. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 15.0181(e) (West Supp. 2015). Therefore, we conditionally grant mandamus relief.

                                             BACKGROUND

           While employed by Atlantic in June 2014, Juan Gonzalez allegedly slipped and fell while

working on a vessel in the Southwest Pass of the Mississippi River in inland waters of Louisiana.

Gonzalez filed suit against Atlantic in October 2014 seeking to recover for his personal injuries,



1
  This proceeding arises out of Cause No. DC-14-844, styled Juan Gonzalez v. Atlantic Sounding Co., Inc., pending
in the 229th Judicial District Court, Starr County, Texas, the Honorable Ana Lisa Garza presiding.
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lost wages and related damages. Gonzalez brought his suit under the Jones Act which provides for

a civil action to recover against an employer when a seaman is injured or killed in the course of

employment. See 46 U.S.C.A. § 30104. Gonzalez filed suit in Starr County, alleging he is a resident

of Starr County and that Atlantic “does not maintain a regular place of business” in Texas.

Gonzalez stated in his original petition that venue is proper in Starr County pursuant to the

mandatory venue provisions of the Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM.

CODE ANN. § 15.0181(e).

       Atlantic filed its answer in November 2014, subject to its motion to transfer venue, filed

concurrently. In its motion to transfer venue, Atlantic sought to transfer the case to Harris County

asserting mandatory venue pursuant to subsection 15.0181(e)(1). After a hearing on Atlantic’s

motion to transfer venue, the trial court signed an order denying the motion on May 12, 2015.

Atlantic then filed this petition for writ of mandamus.

                                           ANALYSIS

Availability of Mandamus

       Mandamus is an extraordinary remedy available only to correct a clear abuse of discretion

or the violation of a duty imposed by law when there is no adequate remedy by appeal. Walker v.

Packer, 827 S.W.2d 833, 841 (Tex. 1992) (orig. proceeding). A trial court has no discretion in

determining what the law is or in its application of law to the facts. Id. at 840. A clear failure to

correctly analyze or apply the law will constitute an abuse of discretion correctable by mandamus.

Id. Mandamus is appropriate to review a trial court’s venue determinations under the mandatory

venue provisions of Chapter 15 of the Civil Practice and Remedies Code, without consideration of

the adequacy of an appellate remedy. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642 (West

2002); In re Missouri Pac. R.R. Co., 970 S.W.2d 47, 50 (Tex. App.—Tyler 1998, orig.

proceeding).
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Determining Venue

       Under the rules of civil procedure, a plaintiff has the initial duty to properly plead and

prove that venue is maintainable in the county of suit. See TEX. R. CIV. P. 87. A plaintiff’s venue

facts will be taken as true unless specifically denied by an adverse party. TEX. R. CIV. P. 87(3)(a).

When the defendant specifically denies a venue fact, the plaintiff then has the burden of providing

prima facie proof to support venue in the county of suit. Id. Prima facie proof is made “when the

venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavit,

are filed fully and specifically setting forth the facts supporting such pleading.” Id.

       Venue in a suit brought under the Jones Act is determined by the mandatory provisions

contained in section 15.0181 of the Civil Practice and Remedies Code. See TEX. CIV. PRAC. &

REM. CODE ANN. § 15.0181(b) (West Supp. 2015). When all or a substantial part of the events

giving rise to the suit occurred in inland waters outside of Texas, subsection (e) applies. TEX. CIV.

PRAC. & REM. CODE ANN. § 15.0181(e). Under subsection (e), venue is mandatory in the county

of the defendant’s principal office in Texas, if the office is located in a coastal county; in Harris

County; in Galveston County; or, “if the defendant does not have a principal office in this state

located in a coastal county, in the county where the plaintiff resided at the time the cause of action

accrued.” Id.

Application to the Facts

       There is no dispute that Gonzalez’s accident occurred while he was working for Atlantic

on a vessel navigating in inland waters outside the state of Texas. In his original petition, Gonzalez

asserted venue is proper in Starr County under section 15.0181(e). He alleged himself to be a

resident of Starr County and asserted Atlantic “does not maintain a regular place of business” in

Texas. Gonzalez thus asserted mandatory venue under subsection (e)(4), which is applicable when

the events giving rise to suit occurred in inland waters outside the state, and the defendant has no
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principal office located in a coastal county in Texas. TEX. CIV. PRAC. & REM. CODE ANN.

§ 15.0181(e)(4) (West Supp. 2015).

       In its motion to transfer venue, Atlantic specifically denied both of Gonzalez’s alleged

venue facts. Atlantic alleged the events giving rise to the suit occurred in inland waters outside of

Texas, its principal place of business in Texas is located in Harris County, and Harris County is a

“coastal county” as defined by the mandatory venue provision. See TEX. CIV. PRAC. & REM. CODE

ANN. § 15.0181(a)(1) (West Supp. 2015). Atlantic sought transfer to Harris County, the location

of its principal office in Texas, pursuant to the mandatory provision in subsection (e)(1), which

requires venue in the county of defendant’s principal office in Texas when the events giving rise

to suit occur in inland waters outside of Texas. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 15.0181(e)(1) West Supp. 2015).

       After conducting discovery on the issue of venue, Gonzalez responded to Atlantic’s motion

to transfer. In his response, Gonzalez denied that venue was mandatory in Harris County, and

specifically denied Atlantic’s allegations that the “events at issue took place in inland waters

outside of Texas,” and that Atlantic’s principal place of business in Texas is located in Harris

County.

       With respect to Atlantic’s place of business, Gonzalez asserted he was unable to find

evidence of an Atlantic office in Harris County, and that documents produced in discovery

demonstrated Atlantic’s principal office is in New Jersey. Gonzalez argued venue is proper in his

county of residence under subsection 15.0181(e)(4) because Atlantic does not have a principal

office in a coastal county in Texas. In addition, Gonzalez asserted for the first time that venue

could alternatively be established in Starr County under subsection 15.0181(c). See TEX. CIV.

PRAC. & REM. CODE ANN. § 15.0181(c)(1)-(3) (West Supp. 2015) (suit under Jones Act shall be



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brought in county of defendant’s principal office in this state, in county where events occurred, or

in county of plaintiff’s residence).

       Gonzalez contends venue could properly be determined under subsection (c) because, in

addition to his claims for injuries sustained while on Atlantic’s vessel, he also alleged claims based

on Atlantic’s failure to properly manage his medical treatment after the accident. Gonzalez

contends the acts and omissions which form the basis for the claims related to his post-accident

medical treatment occurred out of Atlantic’s New Jersey office and did not occur in inland waters

outside of Texas. Thus, Gonzalez contends, subsection (c) applies, which allows a Jones Act suit

in the county of plaintiff’s residence in situations other than those occurring in inland waters inside

or outside of Texas. Compare TEX. CIV. PRAC. & REM. CODE ANN. § 15.0181(c) (requiring venue

as indicated “except as provided by this section”); with TEX. CIV. PRAC. & REM. CODE ANN.

§ 15.0181(d) (West Supp. 2015) (applicable when events giving rise to suit occur in inland waters

of Texas) and § 15.0181(e) (applicable when events giving rise to suit occur in inland waters

outside of Texas).

       As prima facie evidence in support of his venue allegations, Gonzalez attached documents

to his response to the motion to transfer venue. Gonzalez’s exhibits included medical records,

Secretary of State documents, payroll and human resources records from Atlantic, and

correspondence from Atlantic to Gonzalez in Starr County after the accident. Gonzalez argued his

exhibits establish his residence in Starr County and Atlantic’s office in New Jersey.

       In its reply, Atlantic objected that Gonzalez had failed to provide prima facie proof of

venue facts specifically denied by Atlantic. Atlantic also attached an affidavit from its risk

management director, Thomas Langan, in support of its own venue allegations. Langan’s affidavit

includes the following testimony: Gonzalez was injured while on a vessel in territorial waters of

Louisiana; Atlantic has maintained a regular place of business in Houston, Texas within Harris
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County for many years; the Houston office is its only permanent office in Texas, comprised of 28

permanent employees including “decision makers for Atlantic Sounding” who conduct daily

affairs related to the company’s projects in the area.

         A “principal office” is defined as an office in this state “in which the decision makers for

the organization within this state conduct the daily affairs of the organization.” TEX. CIV. PRAC. &

REM. CODE ANN. § 15.001(a) (West 2002). Langan’s affidavit provides prima facie evidence that

Gonzalez’s accident occurred in inland waters outside of Texas and Atlantic maintains a principal

office in Harris County, a Texas coastal county. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 15.0181(a)(1) (defining “coastal county” as one in a coastal area as defined in the Natural

Resources Code, or with a U.S. Customs port “through which waterborne freight is transported.”).

Because all or a substantial part of the events giving rise to Gonzalez’s claims occurred in inland

waters outside of Texas, venue for Gonzalez’s suit is properly determined by subsection

15.0181(e). 2 Under this mandatory provision, venue is only permitted in the county of plaintiff’s

residence when the defendant does not have a principal office in Texas located in a coastal county.

TEX. CIV. PRAC. & REM. CODE ANN. § 15.0181(e)(4). When the defendant does have a principal

office in a coastal county in Texas, venue must be in the county of the defendant’s principal office,

Harris County or Galveston County. TEX. CIV. PRAC. & REM. CODE ANN. § 15.0181(e)(1)-(3)

(West Supp. 2015).

         Gonzalez failed to provide adequate prima facie proof in support of his allegation that

venue is maintainable in Starr County. The documents Gonzalez submitted in response to



2
  The Jones Act provides for a civil suit by a seaman against his employer for injuries sustained in the course of his
employment. Accordingly, Gonzalez’s argument that venue may be determined under subsection (c) based on his
claims related to Atlantic’s handling of his medical treatment, rather than under subsection (e) based on his claims
related to the accident resulting in his injury, is unavailing. The events giving rise to Gonzalez’s Jones Act claims are,
necessarily, the acts or omissions which resulted in his personal injury while acting in the course of employment for
Atlantic. See 46 U.S.C.A. § 30104.

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Atlantic’s specific denial of his venue facts do not constitute competent venue evidence as they

were not properly authenticated by attachment to or incorporation by reference in proper affidavits.

See TEX. R. CIV. P. 87(3)(a); see also TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(a) (West 2002)

(trial court shall determine venue questions based on pleadings and affidavits). In addition, even

had Gonzalez’s documents been properly authenticated, they are not probative of Gonzalez’s

allegation that Atlantic lacks a principal office in a coastal county in Texas. As Atlantic correctly

points out, evidence that Atlantic has an office in New Jersey does not establish that Atlantic does

not also maintain a principal place of business in Harris County, Texas. See Missouri Pac. R.R.

Co., 970 S.W.2d at 220 (a company may have more than one principal office).

       Atlantic did provide prima facie proof sufficient to support its allegation that venue is

mandatory in Harris County pursuant to Civil Practice and Remedies Code subsection

15.0181(e)(1). Accordingly, the trial court abused its discretion in denying Atlantic’s motion to

transfer venue.

                                         CONCLUSION

       Based on the foregoing analysis, we conclude the trial court abused its discretion in failing

to grant Atlantic Sounding’s motion to transfer venue. See Missouri Pac. R.R. Co., 970 S.W.2d at

55. Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial court

to vacate its May 12, 2015 order denying the motion to transfer venue and to enter an order

transferring venue to Harris County. See id. The writ will issue only if we are notified of the trial

court’s failure to comply.


                                                  Marialyn Barnard, Justice




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