Opinion issued August 23, 2012.




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                          ————————————
                              NO. 01-12-00503-CV
                            ———————————
                      IN RE MIKE HOOKS, INC. Relator



            Original Proceeding on Petition for Writ of Mandamus



                          MEMORANDUM OPINION

      In this original proceeding, relator Mike Hooks, Inc. seeks mandamus relief

from the trial court’s order denying transfer under the local rules for Galveston

County.1 We conditionally grant the petition for writ of mandamus.




1
      The underlying proceeding is Gilberto Adame & Francisco Ozuna v. Mike Hooks,
      Inc., No. 11-CV-0694, in the 212th District Court, Galveston County, Texas, the
      Honorable Susan Criss presiding.
                                   Background

      Adame and Ozuna are plaintiffs in the underlying action. They allege that

they suffered injuries aboard Hooks’s vessel. They sued Hooks for negligence

under the Jones Act and for unseaworthiness of the vessel and maintenance and

cure benefits under the general maritime law.

      Adame first filed suit in Harris County on September 25, 2009. Four days

later, he nonsuited the Harris County suit and filed suit in the Galveston County

Court at Law Number 2.

      In October 2009, Ozuna sued Hooks in district court in Starr County. Ozuna

and Hooks conducted some written discovery, but, on January 5, 2010, Ozuna

nonsuited the case in Starr County. The next day, Ozuna intervened in Adams’s

case in Galveston County Court at Law Number Two.

      On April 25, 2011, over a year after Ozuna joined the suit, and after

conducting discovery, Adame and Ozuna nonsuited their case. The next day, they

filed suit in Galveston County District Court. It is undisputed that the parties and

the underlying facts in the district court case are the same as those in the County

Court at Law Number Two case.

      On June 30, 2011, Hooks moved the district court to transfer the case to

County Court at Law Number 2 pursuant to a local rule. On August 29, 2011, the

trial court held a hearing on the motion to transfer. Both parties filed supplemental

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briefing in the following weeks. The trial court held a second hearing on October

17, 2011 and informed the parties it would take the motion under advisement.

Hooks set the matter for a third hearing on March 26, 2012. After the hearing, the

trial court did not rule on the motion; instead, it again stated it would take the

matter under advisement.

      Finally, on May 8, 2012, Hooks filed a petition for writ of mandamus in this

court, seeking to compel the trial court to rule on the motion to transfer and

seeking a stay of trial court proceedings pending this court’s decision on the

petition. The next day, the trial court denied the motion. Accordingly, this court

dismissed the previously filed petition for writ of mandamus. Hooks now brings

this original proceeding, contending that the trial court abused its discretion in

denying the motion to transfer.

                               Mandamus Standard

      Mandamus is available to correct a trial court’s abuse of discretion when

there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).

                                     Discussion

A.    Galveston County Local Rules

      The district and statutory county courts of Galveston County are required to

adopt local rules of administration that provide, in part, for “assignment, docketing,

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transfer, and hearing of all cases, subject to jurisdictional limitations of the district

courts and statutory county courts.” TEX. GOV’T CODE ANN. § 74.093(b)(1) (West

Supp. 2011). The district courts and the county courts at law in Galveston County

have separately adopted their own local rules. For purposes of this proceeding, the

rules are identical, except where specifically noted in this opinion.2 Local Rule

3.10 provides for the assignment of cases to a court upon the initial filing. While

the district and county courts at law versions of this rule differ in specifics, both

state that “[o]nce assigned to a Court, a case will remain on the docket of that

Court for all purposes unless transferred as hereinafter provided.” Local Rule 3.10.

      Local Rule 3.11 governs transfer of cases. Subsection D requires that a case

that is non-suited and then re-filed be assigned to the court in which it was first

pending:

      D.     Non Suit. If a case is filed in which there is a substantial
             identity of parties and causes of action as in a non-suited case,
             the later case shall be assigned to the Court where the prior case
             was pending.

Subsections I and J describe who is authorized to effect a transfer, and how:

      I.     Improper Court. If a case is on the docket of a Court by any
             manner other than as prescribed by these rules, the Local
             Administrative County Court at Law Judge [or Local
             Administrative District Judge] shall transfer the case to the

2
      The local rules are called the “Amended Local Rules of the District Courts for
      Galveston County, Texas” and the “Amended Local Rules of the County Courts at
      Law for Galveston County, Texas.” In this opinion, we simply refer to them as the
      “Local Rules” and will differentiate only when necessary.
                                           4
               proper Court.

      J.       Rules related to the transfer and assignment of any civil case
               [are] exercised freely between all courts having concurrent
               jurisdiction in civil matters.

Local Rule 3.11.

B.    Abuse of Discretion

      “A trial court abuses its discretion if ‘it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law’ or if it clearly

fails to correctly analyze or apply the law.” In re Cerberus Cap. Mgmt., L.P., 164

S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (quoting Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)). The Code Construction Act

applies to rules adopted under a code. TEX. GOV’T CODE ANN. § 311.002(4) (West

2005).     The Galveston County Local Rules were adopted pursuant to section

74.093 of the Texas Government Code. See TEX. GOV’T CODE ANN. § 74.093(a).

The Code Construction Act, therefore, applies to the Local Rules. However, the

starting point of any analysis of a rule or statute is the “plain and common

meaning” of the words used. See Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 529

(Tex. 2002).

      To determine whether the trial court analyzed and applied the law correctly,

we begin, then, with the plain and common meaning of the language used in the

Local Rules. See Argonaut Ins. Co., 87 S.W.3d at 529. Local Rule 3.10 provides

                                          5
that cases filed in the county courts at law are, generally, assigned only to county

courts at law and cases filed in the district courts are assigned only to district

courts. But the Local Rules also plainly state that cases, once assigned, are to

remain in the assigned court “unless transferred as hereinafter provided.”

       Local Rule 3.11D, one of the transfer rules, states a nonsuited case with

“substantial identity of parties and causes of action . . . shall be assigned” to the

court in which the prior case was pending. Local Rule 3.11D (emphasis added).

The use of the word “shall” imposes a duty, limiting the court’s discretion in the

matter. See TEX. GOV’T CODE ANN. § 311.016(1), (2) (West 2005) (stating word

“may” “creates discretionary authority or grants permission or a power” while

word “shall” “imposes a duty”); Robinson v. Budget Rent-A-Car Sys., Inc., 51

S.W.3d 425, 430–31 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)

(concluding use of “shall” indicated mandatory action, citing Code Construction

Act). The plain language of Local Rule 3.11D mandates that if a suit with the

same parties and issues is nonsuited and then re-filed, it must be assigned to the

court in which it was pending at the time of the nonsuit.             This much is

straightforward and not disputed by the parties.

      The source of the dispute is determining the effect of Local Rule 3.11J.

Rule 3.11J provides that the Local Rules “related to transfer and assignment of any

civil case [are] exercised freely between all courts having concurrent jurisdiction in

                                          6
civil matters.” Before the trial court, Adame and Ozuna argued that the district

courts and county courts at law are not courts of concurrent jurisdiction and, for

that reason, Local Rule 3.11J had no applicability to this case. This argument is

without merit.

      The Legislature has provided for county courts at law, generally, that:

             [A county court at law] has concurrent jurisdiction with the
      district court in:

            (1) civil cases in which the matter in controversy exceeds $500
      but does not exceed $200,000, excluding interest, statutory or punitive
      damages and penalties, and attorney’s fees and costs, as alleged on the
      face of the petition; and

            (2) appeals of final rulings and decisions of the division of
      workers’ compensation of the Texas Department of Insurance
      regarding workers’ compensation claims, regardless of the amount in
      controversy.

TEX. GOV’T CODE ANN. § 25.0003 (West Supp. 2011). The Legislature has also

specifically expanded the jurisdiction of the county courts at law in Galveston

County:

      In addition to the jurisdiction provided by Section 25.003 . . ., a
      [county court at law] in Galveston County has:

      (1)   the jurisdiction provided by the constitution and by general law
            for district courts . . . .

TEX. GOV’T CODE ANN. § 25.0862(a) (West Supp. 2011); but see id. § 25.0862(b)

(excepting election contests and “felony cases, except as otherwise provided by

law” from county court at law’s jurisdiction).       Because the Legislature has
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expressly stated that the district courts and county courts at law in Galveston

County are courts of concurrent jurisdiction, we reject Adame and Ozuna’s

argument to the contrary.

         Because the district courts and county courts at law are courts of concurrent

jurisdiction, Adame and Ozuna’s next argument also fails. They contend that

“district courts and county courts at law in Galveston County are completely

separate court systems,” and, therefore, the trial court, a district court, had no

authority to transfer this case to County Court at Law Number 2.           As explained

above, the district courts and county courts at law in Galveston County are courts

of concurrent jurisdiction. Rule 3.11J, therefore, expressly refers to both types of

court.    The plain language of Rule 3.11J provides authority to transfer cases

between them when otherwise authorized by the Local Rules. To adopt Adame

and Ozuna’s position, that district courts and county courts at law cannot transfer

cases to one another, would render Local Rule 3.11J meaningless.                Such an

interpretation clearly contravenes the Legislature’s determination that the district

courts and county courts at law in Galveston County are courts of concurrent

jurisdiction.3

         We have concluded that Local Rule 3.11J applies and provides that the rules

3
         The Dallas Court of Appeals rejected a similar argument. See In re Siemens
         Corp., 153 S.W.3d 694, 697–98 (Tex. App.—Dallas 2005, orig. proceeding)
         (holding that no statutory provision prohibited transfer under the Dallas County
         local rules from district court to county court at law).
                                             8
relating to the transfer of cases permit transfer of cases between the district courts

and county courts at law. We have also concluded that the plain language of Local

Rule 3.11D requires a case with substantial identity of parties and causes of action

that was pending in one court, nonsuited, and then re-filed in another court to be

transferred to the court in which the suit was pending at the time of the nonsuit. It

follows, accordingly, that the Local Rules require that this suit—which has

identical parties and causes of action, and which was pending in County Court at

Law Number 2 when it was nonsuited and then re-filed in the 212th District

Court—be transferred to County Court at Law Number 2. Because Rule 3.11D is

mandatory, we conclude that the trial court abused its discretion when it denied

Hooks’s motion to transfer the case.4 See In re Siemens Corp., 153 S.W.3d 694,

697–98 (Tex. App.—Dallas, 2005, orig. proceeding).




4
      In their response, Adame and Ozuna argue that this is essentially a venue case and
      that, as plaintiffs, their choice of venue should be respected. Even assuming that
      principles relating to venue determinations apply in this case, Adame and Ozuna’s
      argument fails. “As long as the forum is a proper one, it is the plaintiff’s privilege
      to choose the forum.” In re Henry, 274 S.W.3d 185, 189–90 (Tex. App.—
      Houston [1st Dist.] 2008, pet. denied) (quoting Wyatt v. Shaw Plumbing Co., 760
      S.W.2d 245, 248 (Tex. 1988)) (emphasis added); KW Constr. v. Stephens & Sons
      Concrete Contractors, Inc., 165 S.W.3d 874, 879 (Tex. App.—Texarkana 2005,
      pet. denied) (“Plaintiffs are accorded the right to choose venue first as long as suit
      is initially filed in a county of proper venue.”) (citing Wilson v. Tex. Parks &
      Wildlife Dep’t, 886 S.W.2d 259, 261 (Tex. 1994)). Here, as explained above, the
      Local Rules provide that when a case is nonsuited and re-filed, the proper court is
      the court in which the suit was previously pending. Adame and Ozuna may not
      unilaterally choose their court in contravention of the Local Rules.
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C.    Adequate Remedy at Law

      Although we have concluded that the trial court abused its discretion in

failing to transfer this case, Hooks is entitled to mandamus relief only if it lacks an

adequate remedy by appeal.       In re Prudential, 148 S.W.3d at 135–36.           “An

appellate remedy is ‘adequate’ when any benefits to mandamus review are

outweighed by the detriments.” Id. at 136. Determining whether a party has an

adequate remedy by appeal requires a “careful balance of jurisprudential

considerations” that “implicate both public and private interests.”          Id.   The

Supreme Court has explained that mandamus review of incidental, interlocutory

rulings unduly interferes with trial court proceedings, forces appellate courts to

spend valuable time with issues that are unimportant both to the ultimate

disposition of the case at hand and to the uniform development of the law, and

adds to the expense and delay of the litigation for the parties. Id. But the Supreme

Court also recognized that mandamus review of significant rulings in exceptional

cases may preserve important substantive and procedural rights, allow appellate

courts to give needed and helpful direction to the law that would otherwise prove

elusive in appeals from final judgments, and spare the parties and the public the

time and expense of re-litigating improperly conducted proceedings. Id.

      In another case addressing the Galveston County Local Rules, the Supreme

Court recognized a “significant benefit from mandamus review” of cases like this

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one. See In re Union Carbide Corp., 273 S.W.3d 152, 157 (Tex. 2008). Rules

relating to the random assignment of cases are necessary to prevent forum-

shopping, and “[p]ractices that subvert random assignment procedures breed

‘disrespect for and [threaten] the integrity of our judicial system.’” Id. (quoting In

re Bennett, 960 S.W.2d 35, 40 (Tex. 1997)). Here, the Local Rules contain random

assignment provisions. However, to prevent a litigant from forum-shopping, the

Local Rules mandate that a case that had been previously pending, then non-suited

and re-filed, be assigned to the same court in which it was previously pending. As

the Supreme Court noted in In re Union Carbide, it is irrelevant whether Adame

and Ozune were, in fact, forum-shopping; it is enough that the non-suit, followed

by re-filing and assignment to a different court, and that court’s denial of the

motion to transfer, circumvented the random assignment provisions of the Local

Rules. See id. The benefits of mandamus review include “the importance of both

appearance and practice in maintaining integrity of random assignment rules.” See

id. The detriment to Adame and Ozuna is negligible.5 Both voluntarily filed

lawsuits in Galveston County in the County Court at Law Number Two, which has


5
      The only detriment identified by Adame and Ozuna is that they are being deprived
      of their choice of venue, which generally belongs to a plaintiff. As explained
      above, this is only the case when a plaintiff chooses proper venue. Here, Adame
      and Ozuna first brought suit in other counties, before settling on Galveston
      County. Having chosen to litigate in Galveston County, Adame and Ozuna must
      abide by the Local Rules of Galveston County, which require they maintain their
      suit in the court to which it was initially assigned.
                                         11
jurisdiction over the suit. The parties’ suit will stay in their chosen venue whether

they remain in the district court or return to County Court at Law Number Two.

See Gordon v. Jones, 196 S.W.3d 376, 383 (Tex. App.—Houston [1st Dist.] 2006,

no pet.) (“Venue may and generally does refer to a particular county.”). Thus, the

significant benefits of mandamus review in this case outweigh the detriment. See

In re Union Carbide Corp., 273 S.W.3d at 157. We therefore conclude that Hooks

does not have an adequate remedy on appeal. See id.; see also In re Prudential,

148 S.W.3d at 136.

                                    Conclusion

      The plain language of the Local Rules requires transfer of this case to the

County Court at Law Number 2 of Galveston County. The trial court abused its

discretion by refusing the transfer. Additionally, there is no adequate remedy by

appeal. Accordingly, we direct the trial court to vacate its order denying the

transfer and to order the case transferred to county Court at Law Number Two of

Galveston County. Our writ of mandamus will issue only if the trial court does not

comply.




                                              Rebeca Huddle
                                              Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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