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
ON MOTION FOR REHEARING
PHILLIPS, Chief Justice,
dissenting.
During the pendency of the motion for rehearing in this cause, this court made a decision which I believe conflicts squarely with our opinion here. Our amendment of Texas Rule of Appellate Procedure 140, in my view, is based on a statutory interpretation which is incompatible with our construction of Section 71.031 of the Texas Civil Practice and Remedies Code.
*709 Rule 140, effective September 1, 1990, will provide that the Supreme Court may decline to exercise jurisdiction over a direct appeal for several reasons, including instances where “the case is not of such importance to the jurisprudence of the state that a direct appeal should be allowed.” Tex.R.App.P. 140(b) (eff. Sept. 1, 1990). Although this rule and its predecessor rule of civil procedure (Tex.R.Civ.P. 499a) have been in existence since 1943, this court has never before, either by rule or opinion, asserted that its jurisdiction over direct appeals was discretionary. See generally Wicker, Direct Appeals to the Supreme Court, 32 Texas Practice — Civil Trial and Appellate Procedure 97-102 (1985). The statute authorizing such appeals is, like the statute authorizing wrongful death actions, couched in terms of what a party “may” do. Section 22.001(c) of the Texas Government Code (formerly Article 1738a, Tex.Rev.Civ.Stat.), provides:
An appeal may be taken directly to the supreme court from an order of a trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality of a statute of this state. It is the duty of the supreme court to prescribe the necessary rules of procedure to be followed in perfecting the appeal. 1
(Emphasis added).
Our posture is thus that a district judge may not decline to exercise jurisdiction on common law procedural grounds because a plaintiff who “may” bring an action under Section 71.031 of the Texas Civil Practice and Remedies Code has the absolute right to select the forum. On the other hand, this court may decline to exercise jurisdiction in a direct appeal on purely discretionary grounds, even though Section 22.001 of the Texas Government Code provides that an appeal “may be taken” under certain conditions. Is there a principled rationale for this distinction? I can find none. If “may” is mandatory in one instance, it should be mandatory in the other. Is this court entitled to an exemption from statutory mandates because of its importance, its superior wisdom, or its crowded docket? Or does legislative direction mean one thing to this court in March, something else in April, and back again in May, reducing our decisions, in Justice Roberts’ lament, to nothing but “a restricted railroad ticket, good for this day and train only”? Smith v. Allwright, 321 U.S. 649, 669 , 64 S.Ct. 757, 768 , 88 L.Ed. 987, 1000 (1944) (Roberts, J., dissenting).
For this additional reason, I would grant petitioners’ motion for rehearing.
GONZALEZ, COOK and HECHT, JJ„ join in this dissenting opinion.
. This statute is authorized by Article V, section 3-b of the Texas Constitution.