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AG Motion To Transfer Venue

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AG Motion To Transfer Venue Powered By Docstoc
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Cause No. SC21C0027605

§ § § v. § § TEXAS COMMISSION ON § ENVIRONMENTAL QUALITY MARK § VICKERY I EXECUTIVE DIRECTOR, § DANIEL W. HARBAUGH, Plaintiff,
TEXAS ATTORNEY GENERAL GREG ABBOTT Defendants.

IN THE SMALL CLAIMS COURT

HARRIS COUNTY, TEXAS

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PRECINCT 2, PLACE 1

TEXAS ,COMMISSION 'ON ENVIRONMENTAL QUALITY, MARK VICKERY IN HIS OFFICIAL CAPACITY AS THE EXECUTIVE DIRECTOR OF THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, AND ATTORNEY GENERAL OF TEXAS' MOTION TO TRANSFER VENUE, PLEA TO THE JURISDICTION, SPECIAL EXCEPTIONS, AND ORIGINAL ANSWER

TO THE HONORABLE JUDGE OF THE COURT: NOW COME the Defendants, the Texas Commission on Environmental Quality
(“TCEQ"), Mark Vickery in his official capacity as the Executive Director of the TCEQ and the Attorney General of Texas, and file this Motion to Transfer Venue, Plea to the Jurisdiction, Special Exceptions, and Original Answer in response to Plaintiff's Original

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Petition, and in support thereof would show the Court the following:
MOTION TO TRANSFER VENUE

A. Introduction

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Pursuant to Texas Gov’t Code § 28.014 and Texas Rule of Civil Procedure 527,

Defendants request the Court to transfer this case from Harris County, Texas to Travis

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County, Texas. In support of this motion, the Defendants respectfully show the following:
2. On June 16, 2009, Plaintiff, Daniel W. Harbaugh, sued Defendants in a small claims court of Harris County for the recovery of $600.00 which Plaintiff alleges is owed to him by the TCEQ attorney's fees, and costs.

3. This case should be transferred out of Harris County, which is not a proper
county for venue, to Travis County, a proper county for venue. B. Mandatory Venue 4. The Government Code provides mandatory venue for suits brought in small claims court: "[a]n action in small claims court must be brought in the county and precinct in which the defendant resides. Tex. Gov't Code § 28.011. 5. The residence for venue purposes of a State Official is Travis County. Burton

v. Rogers, 504 S.W.2d 404, 406 (Tex. 1973).

6. Plaintiff's Original Petition fails to state a specific cause of action, and is
therefore unclear whether the Plaintiff seeks money damages in tort or seeks judicial review of TCEQ ruling or other decision. If the Court finds that Plaintiff's suit seeks review of a TCEQ ruling or other decision, the Texas Water Code provides jurisdiction and mandatory venue in a district court in Travis County. Tex. Water Code § 5.354.

C. Venue for the TCEQ

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7. Defendant, the TCEQ. is an agency of the State of Texas and is a resident of

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Travis County because its central offices are located in Travis County, Texas. Under the
mandatory venue statute, a lawsuit in small claims court must be brought in the county and precinct in which the defendant resides. Tex. Gov't Code § 28.011. Therefore, venue for the TCEQ is improper in Harris County, and this case should be transferred to Travis

County, which is the proper county under the mandatory venue statute.
8. In addition, if the Court finds that Plaintiff's suit seeks review of a TCEQ ruling or other decision, the Texas Water Code provides jurisdiction and mandatory venue in a district court in Travis County. Tex. Water Code § 5.354.

D. Venue for the Attorney General of Texas
9. For venue purposes, the residence of a state official is Travis County. Burton, 504 S.W.2d at 406. The Attorney General of Texas is a state official. Therefore, for the .. purpose of determining venue, the residence of the Attorney General is in Travis County. 10. Under the mandatory venue statute, a lawsuit in small claims court must be brought in the county and precinct in which the defendant resides. Tex. Gov't Code § 28.011. Therefore, venue for the Attorney General of Texas is improper in Harris County, and this case should be transferred to Travis County, which is the proper county under the mandatory venue statute. " 3

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E. Venue for Mark Vickery in his Official Capacity as Executive Director of the TCEQ
11. Plaintiff's Original Petition does not clearly specify whether it is brought against the TCEQ only, or also against Mark Vickery in his official capacity as Executive Director of the TCEQ. If the Court finds Mark Vickery in his official capacity as Executive Director of the TCEQ to be a Defendant in this cause, venue is also improper in Harris County . 12. For venue purposes, the residence of a state official is Travis County. See Burton, 504 S.W.2d at 406. The Executive Director of the TCEQ is a state official. Therefore, for the purpose of determining venue, the residence of Mark Vickery in his official capacity as the Executive Director of the TCEQ is Travis County.
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13. Under the mandatory venue statute, a lawsuit in small claims court must be brought in the county and precinct in which the defendant resides. Tex. Gov't Code § 28.011. Therefore, venue for Mark Vickery in his official capacity as the Executive Director of the TCEQ.is improper in Harris County, and this case should be transferred to Travis County, which is 'the proper county under the mandatory venue statute. 14. In addition, if the Court finds that Plaintiff's suit seeks review of a TCEQ ruling or other decision, the Texas Water Code provides jurisdiction and mandatory venue

in a district court in Travis County. Tex. Water Code § 5.354.

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F. Conclusion
15. Because venue is mandatory in Travis County for each Defendant, the Court should transfer this case to Travis County. The Defendants contend that this case cannot r be heard in a small claims court because it is either a suit against the State for money

damages, which is barred by sovereign immunity, or it is a suit seeking judicial review of
an agency action, which must be heard in a district court in Travis County. If, however, the Court finds that this case should be transferred to a small claims court in Travis County,

the proper precinct is Precinct 5.

PLEA TO THE JURISDICTION 16. Plaintiff's claims against the TCEQ should be dismissed because Plaintiff has failed to state a jurisdictional basis for bringing a suit against the TCEQ. Sovereign

immunity protects the State and its agencies from lawsuits unless there has been legislative
consent to sue the State. Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 641 (Tex. 2004). Plaintiff's Original Petition refers to chapter 107 of the Texas Civil Practice and .. Remedies Code, but fail~ to identify any resolution of the Texas Legislature granting him

permission to sue the State or any of its agencies. Plaintiff has failed to allege or indicate
that there has been legislative consent for him to bring this lawsuit against the TCEQ. 17. Plaintiff's Original Petition does not clearly specify whether it is brought against the TCEQ only, or also against Mark Vickery in his official capacity as Executive

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Director of the TCEQ. If the Court finds Mark Vickery as Executive Director of the TCEQ

to be a Defendant in this cause, Plaintiff's claims should be dismissed because Plaintiff has
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failed to state a jurisdictional basis for bringing a suit. A suit against a State official in his

official capacity is a suit against the State, and sovereign immunity applies. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 843 (Tex. 2007). Plaintiff has failed to allege or
indicate that there has been legislative consent for him to bring this lawsuit against Mark

Vickery in his official capacity as Executive Director of the TCEQ.
18. Plaintiff's Original Petition does not specify any claims brought against the Attorney General of Texas. If, however, the Court finds any claims made against the Attorney General of Texas, Plaintiff's claims should be dismissed because Plaintiff has .. failed to state a jurisdictional basis for bringing a suit against the Attorney General of Texas. A suit against a State official in his official capacity is a suit against the State, and sovereign immunity applies. See ld. Plaintiff has failed to allege or indicate that there has

been legislative consent for him to bring this lawsuit against the Attorney General of Texas.

5 SPECIAL EXCEPTIONS 19. Defendant, the Attorney General of Texas, specially excepts to Plaintiff's Original Petition in that it fails to specify a cause of action or other relief sought against the Attorney General of Texas. Defendant, the Attorney General of Texas, requests that the Court require Plaintiff to replead within 30 days and specify each cause of action and

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request for relief asserted against the Attorney General of Texas. 20. Defendants, the TCEQ and Mark Vickery acting in his official capacity as Executive Director of the TCEQ, specially except to Plaintiff's Original Petition in that it fails to state a cause of action against the TCEQ or Mark Vickery as Executive Director of

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the TCEQ. Defendants, the TCEQ and Mark Vickery, request that the Court require
Plaintiff to replead within 30 days and specify each cause of action and request for relief asserted against the TCEQ or Mark Vickery in his official capacity as Executive Director of the TCEQ.

GENERAL DENIAL 21. Subject to the above Motion to Transfer Venue and without waiving the same, Defendants deny each and every allegation contained in Plaintiff's Original Petition and demand strict proof thereof. PRAYER The Defendants, TCEQ, Mark Vickery in his official capacity as Executive Director of the TCEQ, and the Attorney General of Texas respectfully pray:

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That the Court set the Defendants' Motion to Transfer Venue for a hearing,

and that upon hearing enter an order transferring all claims asserted in Plaintiff's Original Petition to a district court in Travis County; 2. That the Court set Defendants' plea to the jurisdiction for hearing, and after hearing grant Defendants' plea to the jurisdiction and dismiss Plaintiff's claims.

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3. That the Court set Defendants' special exceptions for hearing, and after

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hearing grant Defendants' special exceptions and enter an order requiring the Plaintiff to replead within 30 days of the order; 4. That subject to the Defendants' Motion to Transfer Venue, the Plaintiff take
nothing by his suit and the Defendants recover their costs; and

5. and

The Defendants further pray for such other and further relief, both at law

in equity, to which they may show themselves to be justly entitled. Respectfully submitted, GREG ABBOTT Attorney General of Texas

C. ANDREW WEBER First Assistant Attorney General
DAVID S. MORALES Deputy Attorney General for Civil Litigation BARBARA B. DEANE Chief, Environmental Protection and Administrative Law Division DAVID PREISTER Chief, Environmental Protection Section

MARK A. STEINBACH State Bar No. 24056653

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