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  1. #1
    joentexas is offline Junior Member
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    Filing a Motion for Change of Venue

    What is the name of your state (only U.S. law)? Texas
    My mother was sued in small claims court in Lamar County for recovery of half the cost of installing a fence. The lady that installed the fence had called my mother and asked her to split the cost of installing a fence between our two properties. My mother told her that she could not afford the cost of the fence and did not want to split the cost with her. Months later the lady sent my mother a letter describing the installation of the fence along with an itemized list of costs and asked that she pay half the cost. I wrote the lady telling her that we never agreed to share the cost of the fence and did not owe her anything. Again, months later my mother was sued in small claims court for recovery of half the cost. The lady is representing herself. There is no law in Texas requiring that the cost of a fence be shared. There is not even a law requiring a fence be installed. The suit was brought in Lamar County where the lady lives. My mother lives in Dallas County. From what I have read the venue should have been in Dallas County and not Lamar. I filed the Answer to the claim and a court date has been set. The proper venue would be Dallas. My mother cannot travel the distance to Lamar County to defend herself.

    My question is what format should the motion to transfer venue from Lamar County to Dallas County take. Does someone have a sample change of venue form that they can share?

    Joe
  2. #2
    dcatz is offline Senior Member
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    TX is not my state, and I unsuccessfully looked online for a form. Texas Pooh may see your post and have an easier answer. For the moment, Iíd suggest promptly contacting your SC court to see if this canít be facilitated, because you may have made at least one mistake by first filing a response. A venue challenge in SC is often a simple, uncomplicated procedure, but the protocol that Iím familiar with calls for filing the challenge before/instead of/with an Answer. By filing an Answer, you are generally treated as submitting to the jurisdiction of the court. Your Rules follow:

    A defendant may file a motion in the Small Claims Court asking that the case be transferred to a different precinct. This request must be made in writing at the earliest opportunity and must state why the precinct in which the lawsuit is filed is not the proper precinct, and also state to what precinct the action should be transferred. If the Justice of the Peace orders that the case be transferred, the original papers will be sent to the Small Claims Court in the proper precinct, and the parties and witnesses will be required to appear before the Small Claims Court to which the case was transferred. See Section 28.014, Texas Government Code.

    The Rules concerning the motion to transfer are found in the Texas Rules of Civil Procedure, See Rule 527, Texas Rules of Civil Procedure.

    RULE 527. MOTION TO TRANSFER
    A motion to transfer filed in the justice court shall contain the requisites prescribed in Rule 86; and in addition shall set forth the precinct to which transfer is sought.

    RULE 86. MOTION TO TRANSFER VENUE
    1. Time to File. An objection to improper venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance motion provided for in Rule 120a. A written consent of the parties to transfer the case to another county may be filed with the clerk of the court at any time. A motion to transfer venue because an impartial trial cannot be had in the county where the action is pending is governed by the provisions of Rule 257.
    2. How to File. The motion objecting to improper venue may be contained in a separate instrument filed concurrently with or prior to the filing of the movant's first responsive pleading or the motion may be combined with other objections and defenses and included in the movant's first responsive pleading.
    3. Requisites of Motion. The motion, and any amendments to it, shall state that the action should be transferred to another specified county of proper venue because:
    (a) The county where the action is pending is not a proper county; or
    (b) Mandatory venue of the action in another county is prescribed by one or more specific statutory provisions which shall be clearly designated or indicated.
    The motion shall state the legal and factual basis for the transfer of the action and request transfer of the action and request transfer of the action to a specific county of mandatory or proper venue. Verification of the motion is not required. The motion may be accompanied by supporting affidavits as provided in Rule 87.
    Last edited by dcatz; 12-02-2008 at 11:30 PM.
  3. #3
    Texas Pooh is offline Member
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    Joe,

    There may be an issue because the answer was filed before the motion to change venue, altough the Rules of Civil Procedure are usually not required in small claims court, but, a question first:

    where is the property where the fence was built?

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