Burton v. Rogers

REAVLEY, Justice

(dissenting).

Under precedent the Supreme Court has no jurisdiction of this case by reason of Subdivision 2 of Art. 1728, V.A.T.S.

First, we have the rule that places venue in Travis County if it is essentially a suit against the State. The holding in Rainbo Baking Co. of San Antonio v. Aiken, 362 S.W.2d 660 (Tex.Civ.App.1962, no writ) was that the suit was against the State; that court did not take a bifurcated approach and leave the question to a trial on the merits. The opinion clearly states:

This is a venue suit. The first question presented is whether this is essentially a suit against the State or merely against named individuals. The other question is whether Travis County or Bexar County is the proper venue.

The primary and ultimate purpose of the suit is to enjoin those persons from interfering with the sale or distribution of “Old Fashion” bread, or from taking any action against Rainbo’s customers who purchase the bread, or from taking possession of the bread produced by Rainbo. From an exhibit in evidence, it appears that these persons, acting under the provisions of Article 1037, Vernon’s Ann. Penal Code, have taken steps to force this product off the market. Rainbo also seeks a declaratory judgment concerning the legality of the defendants’ conduct.

This is an action against the State of Texas. While the petition names individuals; the undisputed evidence produced at the venue hearing showed that John White is in fact the Commissioner of Agriculture of Texas, that Aiken and Barlow are inspectors for that Department, and that their acts were done upon orders and pursuant to instructions from the Commissioner. The State is the real party against which the relief is sought. . . . The injunctive relief was sought “to prevent the action of the only officers who were authorized by law to act for the state in the prosecution of its suit. . . . This was, in fact, a proceeding against the state, . . . ” 362 S.W.2d 660 . (Emphasis supplied)

The Court of Civil Appeals in the present case determined on the basis of the pleadings and evidence that the acts of the defendants exceeded legal powers and did not constitute the exercise of state authority. The difference between the present case and Rainbo is not a decision as to the guiding rule of law but a difference in the evidence and findings. In the past a dissimilarity of the facts would not constitute a conflict to confer jurisdiction. Dockum v. Mercury Ins. Co., 134 Tex. 437 , 135 S.W.2d 700 (1940).

Secondly, Art. 4656, V.A.T.S., places venue of injunction suits in the county in which the party has his domicile; but under the decisions this rule does not apply if *408 the injunction is an ancillary feature of the relief sought. Ex parte Coffee, 160 Tex. 224 , 328 S.W.2d 283 (1959); Southwest Weather Research, Inc. v. Jones, 160 Tex. 104 , 327 S.W.2d 417 (1959); Brown v. Gulf Television Co., 157 Tex. 607 , 306 S.W.2d 706 (1957). The Court of Civil Appeals has held that “the primary, ultimate, and dominant purpose of plaintiff’s suit was to obtain a declaratory judgment” and that the injunctive relief sought was purely ancillary to the declaratory judgment action. Unless that holding is unsound, the only conflict to be found is between this Court’s ruling today and its prior rulings.

Finally, the Court of Civil Appeals has held that the defendants committed in Jefferson County a trespass within the meaning of Subdivision 9 of Art. 1995, V.A.T.S. While that determination is highly questionable, no one suggests that it conflicts with the decision of another court.

Lacking jurisdiction, this Court should set aside its order granting the application for writ of error and dismiss the application.

GREENHILL, C. J., and WALKER, J., join in this dissent.