stating that the court’s refusal of the application for writ of error manifests its approval of the decision of the appellate court
How later courts described this case
- stating that the court’s refusal of the application for writ of error manifests its approval of the decision of the appellate court
- construing Tex. Civ. Prac. & Rem. Code Ann. § 71.031, the “borrowing statute” for limitations
- discussing only the doctrine of forum non conveniens in a suit with similar facts
- tracing common-law history of doctrine
Written by the judges who cited it.
The opinion
HIGHTOWER, Justice,
concurring.
Because my dissenting brethren are so enthusiastic in their praise of the doctrine of forum non conveniens, I must add a few lines of concurrence with the majority opinion. Although I would like to join the chorus singing the praises of the doctrine of forum non conveniens, I am unable to do so because the Texas legislature statutorily abolished the doctrine of forum non conveniens when it enacted the predecessors of section 71.031. TEX.CIV.PRAC. & REM.CODE ANN. § 71.031 (Vernon 1986).
The evolution of the common law has been accomplished by good judgment and common sense filling in the pages left blank by legislative bodies. Great legal minds have masterfully developed concepts that have contributed to the strength of our civilization. Although the common law doctrine of forum non conveniens has been defined in recent history, the idea is a useful tool of judicial administration in those jurisdictions that have chosen to adopt it. As the dissenting opinions point out, Texas is in a distinct minority of jurisdictions that have taken a different track.
The fact that this court has waited so long to write on the doctrine is not important. Although several opportunities have been presented, the court based its decisions on other issues. In the case at hand, the doctrine is squarely before the court. The issue for this court, however, is not whether the doctrine is a good, fair, and desirable one for the people of Texas; the issue is whether the doctrine is available because of legislative actions that have been taken.
The argument is made that section 71.-031 is in fact permissive, not mandatory. In the court of appeals, the petitioners argued “that the use of the words ‘may be enforced ’ indicates that the legislature recognized the trial court’s discretionary power to dismiss.” 751 S.W.2d at 210 (emphasis in original). I believe that this is an incorrect interpretation of “may be enforced.” In enacting section 71.031, the legislature stated that under certain circumstances, “[a]n action for damages for the death or personal injury ... may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country....” In other words, subject to certain limitations, causes of action for death or personal injuries are enforceable in Texas. Since the legislature has opened the courts to certain plaintiffs in certain cases by statutory en *680 actment, this court should not interfere by attempting to “rewrite” the statute.
The Texas legislature may not have intended to make Texas “the world’s forum of final resort.” However, the wording of section 71.031 is clear and we must respect what the legislature has done. If the legislature did not intend to statutorily preclude the adoption of the doctrine of forum non conveniens, however it may have been defined in 1913 when it enacted the predecessors of section 71.031, I encourage the legislature to amend section 71.031 to clarify its intent. Otherwise, the legislature’s failure to act will evidence its adoption of our interpretation that the enactment of the predecessors of section 71.031 statutorily abolished the doctrine of forum non conve-niens. See Allen Sales and Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975).
The legislature has the privilege of changing its mind. Certainly it has done so many times since 1913. In writing the constitution, the founding fathers wisely provided for regular sessions of the legislature. What one legislature enacts another may later repeal. The court must respect the enactment when it is within the powers granted to the legislature by the constitution.