# Union Carbide Corp. v. Moye > Texas Supreme Court · November 21, 1990 · 34 Tex. Sup. Ct. J. 111 URL: https://www.frixlaw.com/law-library/cases/9776557 ## Case - **Full name:** UNION CARBIDE CORPORATION Et Al., Relators, v. the Honorable B.D. MOYE, Judge, Respondent - **Court:** Texas Supreme Court - **Decided:** November 21, 1990 - **Citations:** 34 Tex. Sup. Ct. J. 111; 798 S.W.2d 792; 1990 Tex. LEXIS 139; 1990 WL 180695 - **Precedential status:** Published - **Opinion:** Concurrence by Hecht - **Judges:** Spears, Gonzalez, Hecht - **Cited by:** 39 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776557 ## How later opinions describe it (automated extraction) - holding that trial court abused its discretion in denying motion for continuance of party that would be unable to submit evidence at venue hearing ## Opinion text HECHT, Justice, concurring. I join the Court in holding that the trial court clearly abused its discretion by denying relators a fair opportunity to present written evidence — affidavits, depositions and discovery responses — on their motion to transfer venue of the underlying litigation on the ground that an impartial trial cannot be had in Morris County. Thus, I agree that the trial court must vacate its order denying relators’ motion and must afford them a reasonable opportunity to present evidence in support of their motion. On this score the Court is unanimous. Whether the trial court can, should or must hear live testimony in connection with relators’ motion remains unclear. The Court says only: “While it is clear that Texas Rule of Civil Procedure 258 1 requires a trial judge to allow deposition testimony [on a motion made under rule 257], we do not at this time address the question of whether or in what circumstances Rule 258 also requires that a trial judge allow live testimony on [such motion].” Supra at 793 n. 1 (emphasis added). Significantly, the Court expresses no similar reservation regarding the trial court’s power to hear live testimony, as distinguished from its duty to do so. Nor does the Court respond to Justice Gonzalez’ compelling arguments for allowing the trial court to hear live testimony in at least some cases. On these issues, which have been fully briefed and argued and are ripe for decision, the Court sends the participants away in the same uncertainty in which they came to us, leaving them to read between the lines. I agree with Justice Gonzalez that the trial court is authorized and even obliged by rule 258 to hear live testimony when it is necessary to resolve issues that cannot be determined on a written record. A witness’ credibility, for example, may be an important consideration in deciding a motion under rule 257 that is difficult to ascertain from affidavits or transcribed deposition testimony. Other issues, however, may readily be resolved upon written evidence. Again as an example, the strengths and weaknesses of surveys or demographic data, often evidence material to the possibility of an impartial trial in the forum, are sometimes, although not always, of course, apparent from entirely written evidence. I do not agree with Justice Gonzalez, therefore, that live testimony is necessary whenever the availability of an impartial trial in the forum is disputed. I would hold that under 258 a trial court may hear live testimony and must do so if, but only if, the issues cannot fairly be tried on a written record. In my view, proceedings under rule 258 are similar to those under rule 120a as amended this year. Rule 120a permits affidavits and the results of discovery processes to be considered in determining a special appearance. The rule also allows the trial court to consider oral testimony, particularly when it appears from the affidavits filed that the facts cannot fairly be presented otherwise. This procedure offers reasonable flexibility in resolving preliminary issues like personal jurisdiction and the availability of an impartial trial while assuring a full and fair presentation of the facts. Its viability depends, however, upon the wise exercise of discretion by the trial court. This is the procedure the rules prescribed for determining relators’ motion to change venue based upon their claim that they cannot receive an impartial trial in Morris County, and the Court says nothing to the contrary. The trial court as well as the parties apparently considered at one point that live testimony would be appropriate on relators’ motion and prepared for such a hearing. Nothing in the record indicates that the trial court ever reconsidered the appropriateness of hearing live testimony. The trial court’s eventual refusal to hear live testimony appears to have been based upon its view that live testimony was not allowed under rule 258. The Court today *795 does not endorse that construction of rule 258. Accordingly, the trial court should feel free to hear live testimony on relators’ motion if necessary to resolve the issues raised. At the same time the trial court should not feel constrained to hear oral testimony on issues which can be decided on the written evidence offered. It is not our prerogative to specify the issues on which oral testimony should be offered, or to set time limits for the hearing. These matters are committed to the sound discretion of the trial court in conducting a fair trial of the issues raised. I am compelled to add, however, that I see no justification for a hearing on relators’ motion that would take more than a small fraction of the six or eight weeks once planned for it. I therefore concur in the Court’s opinion as far as it goes, and in its judgment. . All references to rules are to the Texas Rules of Civil Procedure. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776557. Public record. Not legal advice.