Chapter 22-1 Presumptions Accorded to Pleaded Venue Facts

• Jurisdiction: United States

22-1 Presumptions Accorded to Pleaded Venue Facts

"A party who seeks to maintain venue of the action in a particular county . . . has the burden to make proof . . . that venue is maintainable in the county of suit."¹ The first layer of venue proof requires that venue facts and the cause of action for which the venue is appropriate (if venue is based upon a specific cause of action) are properly pleaded.

"All venue facts [as distinguished from mere conclusions] when properly pleaded, shall be taken as true unless specifically denied by the adverse party."² This places a premium on carefully delineating the factual basis for venue, specifically pleading the basis for venue in the venue section of the plaintiff's original petition, and specifically pleading all facts needed to support venue in the body of the original petition (such as the facts demonstrating how all or a substantial part of the events or omissions giving rise to the claim occurred in the county of suit).³

Many venue provisions depend upon the existence of a specific cause of action. For example, Texas Civil Practice and Remedies Code Section 15.017 provides for mandatory venue in the plaintiff's county of residence in a suit for libel, slander, or invasion of privacy. Tex. R. Civ. P. 87(2)(b) states that "the existence of a cause of action, when pleaded properly, shall be taken as established as alleged by the pleadings." The key language, however, is "pleaded properly." When the plaintiff's petition does not allege sufficient facts, even though accepted as true, to establish the existence of the cause of action, the cause of action has not been "pleaded properly" and therefore will not support the plaintiff's choice of venue.⁴

The plaintiff is not required to prove the validity of venue by a preponderance of the evidence. Once the plaintiff provides "any probative evidence"⁵ to support the existence of "proper venue,"⁶ the trial court is required to accept the plaintiff's venue choice⁷ (except when a transfer for convenience is appropriate, as discussed in Chapter 22, Section 22-3). Following judgment, the entire trial record is reviewable to confirm that the plaintiff's choice of venue was in fact supported by "any probative evi-dence."⁸

This burden of simply providing "any probative evidence" to support venue provides an advantage to the plaintiff, but only if the plaintiff is careful to detail the probative evidence in the pleadings. To properly plead the venue section in the original...