author: Justice OWEN

text:
    Jannete GONZALEZ, as Dependent Administrator of the Estate of Guadalupe Gonzalez, Jr., Deceased, Petitioner, v. RELIANT ENERGY, INC., Respondent, and Jannete Gonzalez, as Dependent Administrator of the Estate of Guadalupe Gonzalez, Jr., Deceased, Petitioner, v. Reliant Energy, Inc., Respondent.
    Nos. 03-0469, 03-0470.
    Supreme Court of Texas.
    Argued Nov. 19, 2003.
    Decided March 11, 2005.

      Pamela Stanton Baron, Austin, Anthony F. Constant, Miguel Jose Chapa, Constant & Vela, Corpus Christi, Thomas C. Wright, Wright Brown & Close, LLP, Houston, for petitioner.

      Macey Reasoner Stokes, David Michael Rodi, John Anaipakos, Stephen G. Tipps, Susanna Dokupil, Baker & Botts, L.L.P., Houston, for respondent.
    Ben Taylor, Fulbright & Jaworski L.L.P., Dallas, for Zachry Construction Corporation and H.B. Zachry Company, Docket No. 03-0469.
   Justice OWEN

delivered the opinion of the Court.

Two interlocutory appeals in the same underlying case present the issue of whether section 15.007 of the Texas Civil Practice and Remedies Code places venue limitations on a statutory probate court’s discretionary authority, pursuant to section 5B of the Texas Probate Code, to transfer to itself a wrongful death, personal injury, or property damage case in which a personal representative of an estate pending in that court is a party. The court of appeals held that under section 15.007, a statutory probate court cannot effectuate such a transfer unless venue in the county in which the probate court is located would be proper under section 15.002 of the Civil Practice and Remedies Code. We affirm.

I

Guadalupe Gonzalez, Jr., lived with his wife Jannete and their children in Hidalgo County. Guadalupe Gonzalez was killed in an accident while working at a Reliant Energy power plant in Fort Bend County, near Houston. Jannete Gonzalez initiated an estate administration proceeding in statutory probate court in Hidalgo County and was appointed dependent administrator of her husband’s estate. While the administration of the estate was pending, Gonzalez filed a wrongful death and survival action against Reliant in the Hidalgo County statutory probate court. Reliant moved to transfer venue of the wrongful death and survival case to a district court in Harris County, where its principal place of business is located. The probate court denied the motion.

Meanwhile, Gonzalez filed an identical wrongful death and survival action in a Harris County district court and ten days later filed a motion in the Hidalgo County probate court asking that court to transfer the Harris County suit to Hidalgo County and consolidate the two actions, citing former section 5B of the Texas Probate Code. The version of section 5B that was in effect prior to the 2003 amendments applies to this suit, and it provided:

A judge of a statutory probate court, on the motion of a party to the action or on the motion of a person interested in an estate, may transfer to his court from a district, county, or statutory court a cause of action appertaining to or incident to an estate pending in the statutory probate court or a cause of action in which a personal representative of an estate pending in the statutory probate court is a party and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to that estate.

Back in Harris County, Reliant answered in the Harris County suit and applied for an anti-suit injunction, requesting that Gonzalez be enjoined from pursuing the wrongful death and survival action in Hidalgo County. Reliant argued that section 15.007 of the Civil Practice and Remedies Code rendered venue of that suit improper in Hidalgo County and that the Harris County court had dominant jurisdiction over Gonzalez’s wrongful death and survival claims even though they were first filed and remained pending in Hidalgo County. Section 15.007 provides:

Notwithstanding Sections 15.004, 15.005, and 15.031, to the extent that venue under this chapter for a suit by or against an executor, administrator, or guardian as such, for personal injury, death, or property damage conflicts with venue provisions under the Texas Probate Code, this chapter controls.

Gonzalez countered by filing an amended motion to transfer in Hidalgo County, informing the probate court of the impending anti-suit injunction hearing in Harris County. The Hidalgo County probate court then advanced its hearing on the motion to transfer to itself the Harris County suit so that its hearing would occur before the Harris County anti-suit injunction hearing. Reliant responded by moving for and obtaining a temporary restraining order in the Harris County court requiring Gonzalez to contact the Hidalgo County court and reschedule the hearing on the motion to transfer for a date after the anti-suit injunction hearing.

In accordance with the Harris County district court’s temporary restraining order, Gonzalez filed a request in the Hidal-go County probate court to reschedule the transfer hearing. The probate court denied that request, as well as Reliant’s motion for a continuance, proceeded with its hearing, and granted Gonzalez’s motion to transfer her suit out of the Harris County district court and into the Hidalgo County probate court. The Hidalgo County probate court also denied Reliant’s motion to abate.

Subsequently, the hearing on Reliant’s application for an anti-suit injunction went forward in the Harris County district court, and that court refused to grant in-junctive relief. Reliant then initiated proceedings in two courts of appeals. It sought a writ of mandamus from the Thirteenth District Court of Appeals directing the Hidalgo County court to vacate its transfer order, and that request for relief was denied. Reliant also perfected an interlocutory appeal in the First District Court of Appeals from the Harris County district court’s denial of temporary injunc-tive relief. One business day before the Hidalgo County wrongful death and survival case was set for trial, a divided court of appeals sitting en banc, held that the Harris County district court had abused its discretion in denying Reliant’s request for an anti-suit injunction. The court of appeals remanded the case to the Harris County district court with instructions to enter a temporary injunction. In accordance with the court of appeals’ directive, the Harris County district court enjoined Gonzalez “from engaging in proceedings with respect to the wrongful death suit” pending in the Hidalgo County probate court. Gonzalez filed a motion for rehearing of the court of appeals’ decision and a separate interlocutory appeal of the district court’s injunction.

The court of appeals, again sitting en banc and again divided, considered Gonzalez’s motion for rehearing and her interlocutory appeal at the same time, though it denied her motion to consolidate. The court of appeals denied Gonzalez’s motion for rehearing of its decision in Reliant’s appeal from the denial of injunctive relief, withdrew that opinion, and dismissed the first (Reliant’s) appeal. In the same opinion, the court of appeals affirmed the trial court’s order granting Reliant’s application for an anti-suit injunction, which had been issued in compliance with the court of appeals’ directive in the first interlocutory appeal. The court of appeals concluded that section 5A of the Probate Code gives the Hidalgo County statutory probate court concurrent jurisdiction with the Harris County district court over the wrongful death and survival suit at hand, but held that section 5A does not “dispense with the requirement that proper venue must lie for a statutory probate court to exercise its concurrent jurisdiction.” Similarly, the court of appeals held that section 5B of the Probate Code, which gives a statutory probate court discretionary authority to transfer to itself a cause of action in which a personal representative of an estate pending in that court is a party, does not dispense with the requirement that venue of the wrongful death and survival action must be proper in the probate court. The court rejected Gonzalez’s argument that the Hidalgo County probate court had dominant jurisdiction over the case, holding “it is axiomatic that a court cannot have ‘dominant jurisdiction’ if it does not have proper venue.”

Finally, the court of appeals concluded that venue was improper in Hidalgo County due to section 15.007 of the Civil Practice and Remedies Code, which states that “to the extent venue under this chapter for a suit by or against an executor, administrator, or guardian as such, for personal injury, death, or property damage conflicts with venue provisions under the Texas Probate Code, this chapter controls.”

Gonzalez filed two petitions for review in this Court. We have jurisdiction over these interlocutory appeals because there were dissents in the court of appeals and because the court of appeals’ opinion expressly declined to follow and conflicts ■with the holding in In re Houston Northwest Partners, Ltd. We granted Gonzalez’s petitions and the petition in Houston Northwest Partners and consolidated the cases for oral argument. The Houston Northwest Partners controversy has since settled.

We note that we also have had pending before us in a separate proceeding Reliant’s petition for a writ of mandamus directing the Hidalgo County probate court to withdraw its transfer order. We conditionally grant that request for mandamus relief today in a separate opinion.

II

It is undisputed that Gonzalez’s estate administration proceeding was properly brought in the Hidalgo County statutory probate court. That court has jurisdiction over the proceeding pursuant to section 5 of the Texas Probate Code, and venue is proper under section 6 of the Probate Code, which governs venue for the probate of wills and administration of estates. Gonzalez’s husband was domiciled in Hi-dalgo County at the time of his death.

It is also undisputed that the Hi-dalgo County statutory probate court has jurisdiction over Gonzalez’s wrongful death and survival action. Former section 5A(c)(l), which governs this suit, provided that “[a] statutory probate court has concurrent jurisdiction with the district court in all actions: (1) by or against a person in the person’s capacity as a personal representative.” This Court held in Palmer v. Coble Wall Trust Co. that this provision, added in 1985 and then contained in section 5A(b), gave probate courts jurisdiction over wrongful death and survival actions. However, this provision does not confer venue. Venue in wrongful death and survival actions is governed by section 15.002 of the Civil Practice and Remedies Code, which provides: plaintiff resided at the time of the accrual of the cause of action.

§ 15.002. Venue: General Rule
(a) Except as otherwise provided by this subchapter or Subchapter B or C, all lawsuits shall be brought:
(1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
(2) in the county of defendant’s residence at the time the cause of action accrued if defendant is a natural person;
(3) in the county of the defendant’s principal office in this state, if the defendant is not a natural person; or
(4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the

The accident that caused the death of Gonzalez’s husband occurred in Fort Bend County, and Reliant’s principal place of business is in Harris County. Accordingly, venue in Hidalgo County was not proper unless some provision of the Probate Code overrides section 15.002 with respect to wrongful death and survival actions. Gonzalez contends that even if she could not have filed and maintained her wrongful death and survival claims in Hidalgo County over Reliant’s objection that venue was improper, the 1999 version of section 5B of the Probate Code, which governs this case, gave the probate court unfettered authority to transfer wrongful death and personal injury claims to itself. Accordingly, Gonzalez contends that the Hidalgo County probate court had the power to transfer her Harris County suit to Hidalgo County even though venue in Hidalgo County would otherwise be improper. Neither the wording nor the history of section 5B of the Probate Code or section 15.007 of the Civil Practice and Remedies Code supports this position. Former section 5B provided:

However, section 15.007 of the Civil Practice and Remedies Code provides:

A judge of a statutory probate court, on the motion of a party to the action or on the motion of a person interested in an estate, may transfer to his court from a district, county, or statutory court a cause of action appertaining to or incident to an estate pending in the statutory probate court or a cause of action in which a personal representative of an estate pending in the statutory probate court is a party and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to that estate.

§ 15.007. Conflict With Certain Provisions

Notwithstanding Sections 15.004, 15.005, and 15.031, to the extent that venue under this chapter for a suit by or against an executor, administrator, or guardian as such, for personal injury, death, or property damage conflicts with venue provisions under the Texas Probate Code, this chapter controls.

Thus the question is whether section 5B of the Probate Code authorized the Hidalgo County statutory probate court’s transfer of the wrongful death case to itself from the Harris County district court despite section 15.007 and the fact that venue of the suit is not otherwise proper in Hidalgo County. We hold that section 15.007 of the Civil Practice and Remedies Code prohibits such a transfer when there is a timely objection.

Section 15.007 clearly curbs a party’s ability to initially bring a lawsuit involving personal injury, death, or property damage in a statutory probate court when venue of the suit is not proper under Chapter 15 in the county in which the probate court is located, even if the probate court has jurisdiction to hear the suit. Section 15.007 also limits the probate court’s discretion to transfer those kinds of cases to itself if venue is improper under Chapter 15.

Gonzalez’s main argument — that section 5B is not a venue provision and that section 15.007 is therefore inapplicable because it governs only when there is a conflict between Chapter 15 and the venue provisions of the Probate Code — is unpersuasive. Section 5B permits a transfer. The transfer of a case pertains to venue, not jurisdiction. While section 5A grants concurrent jurisdiction in probate and district courts, section 15.007 makes clear that the transfer authority granted in section 5B is limited by the venue constraints set forth in Chapter 15 for wrongful death, personal injury, and property damage claims. Hidalgo County is not a county of proper venue for the wrongful death suit under section 15.002, as it is not a “county in which all or a substantial part of the events or omissions giving rise to the claim occurred” or the “county of the defendant’s principal office in this state.” The venue provisions in Chapter 15 govern regardless of whether the issue is the propriety of bringing the suit in the Hidalgo County probate court in the first instance or the probate court’s authority to transfer the case. The fact that suit was first brought in another county does not make venue any more proper in Hidalgo County.

The Legislature chose between competing policy considerations in enacting section 5B of the Probate Code and section 15.007 of the Civil Practice and Remedies Code. On the one hand, the Legislature has “persistently] expan[ded]” the statutory probate courts’ jurisdiction over the years. On the other hand, the venue statutes were revised in 1995 — the same year section 15.007 was added — in an effort to reduce forum shopping. Section 15.007 thus evidences a policy choice by the Legislature in favor of ensuring that suits involving death, personal injury, and property damage are filed in accordance with Chapter 15’s venue statutes.

Because Hidalgo County was not a county of proper venue for the wrongful death suit, the Hidalgo County statutory probate court erred in granting Gonzalez’s section 5B motion to transfer. In doing so, the probate court “actively interfered with the jurisdiction” of the Harris County court.

III

With regard to the parties’ arguments as to which court had “dominant jurisdiction” over the wrongful death suit, we agree with the court of appeals that unless venue would be proper in both Harris and Hidalgo counties, the concept of “dominant jurisdiction” is inapplicable to this case. The court in which suit is first filed generally acquires dominant jurisdiction to the exclusion of other courts if venue is proper in the county in which suit was first filed. “As long as the forum is a proper one, it is the plaintiffs privilege to choose the forum.” Hidalgo County, however, was not a proper forum for Gonzalez’s wrongful death suit, and the Hidalgo County statutory probate court therefore could not have acquired dominant jurisdiction over the suit even though it was first filed there.

IV

Gonzalez contends that the court of appeals erred in determining that the trial court abused its discretion in denying an anti-suit injunction and by ordering the trial court to enter injunctive relief. We disagree.

When a Texas trial court enjoined a party from proceeding with a suit in Illinois that paralleled the Texas action, this Court observed in Golden Rule Insurance Co. v. Harper that an “anti-suit injunction is appropriate in four instances.” These were:

1) to address a threat to the court’s jurisdiction;
2) to prevent the evasion of important public policy;
3) to prevent a multiplicity of suits; or
4) to protect a party from vexatious or harassing litigation.

We further said that “[t]he party seeking the injunction must show that ‘a clear equity demands’ the injunction.” We held in that case that an anti-suit injunction was improperly entered because “‘[a] single parallel proceeding in a foreign forum, however, does not constitute a multiplicity nor does it, in itself create a clear equity justifying an anti-suit injunction.’ ”

In the case before us today, there are two facts, each of which distinguishes this case from the facts in Golden Rule. First, the Hidalgo County probate court’s transfer order purported to interfere with the jurisdiction of the Harris County district court by directing the clerk of Harris County to remove the case from the docket altogether. In Golden Rule, allowing a suit to proceed in Illinois did not prevent the Texas court from going forward with the Texas action. Second, there is a clear equity in the interlocutory appeals now before us that was not present in Golden Rule. Gonzalez initiated both the Hidalgo County and the Harris County suits. The fact that the Hidalgo County probate court had no authority to transfer the Harris County suit did not bring an end to the Hidalgo County suit. It remained pending, and Gonzalez could have continued to pursue both actions, one of which was in an improper venue, requiring Reliant to defend both actions and pursue appeals in both, if necessary. “It has long been the policy of the courts and the legislature of this state to avoid a multiplicity of lawsuits.” Both the need to protect the Harris County court’s jurisdiction and “clear equity” justified an anti-suit injunction.

Gonzalez argues that the court of appeals, by dismissing the first appeal as moot and focusing only on the injunction entered after the first interlocutory appeal, effectively deprived Gonzalez of the opportunity to seek rehearing and transformed the standard of review on appeal from whether the district court abused its discretion in denying injunctive relief to whether the district court abused its discretion in granting the relief.

In the first interlocutory appeal, brought by Reliant, the court of appeals directed the trial court to enter an injunction. The trial court had no discretion to do otherwise unless circumstances had changed pending appeal or the court of appeals’ ruling was withdrawn or reversed. When Gonzalez subsequently appealed from the trial court’s dutiful entry of a temporary injunction, that did not moot her request for rehearing of the decision in the first (Reliant’s) interlocutory appeal. Gonzalez was entitled to a resolution of whether the trial court abused its discretion when it initially refused to enter an anti-suit injunction. Despite the unusual procedural disposition of the case by the court of appeals, the error was nevertheless harmless. First, the court of appeals explicitly denied Gonzalez’s motion for rehearing of the first appeal, though it also withdrew the opinion and vacated the judgment from that appeal. In doing so, the court of appeals reiterated its conclusion that the trial court had erred in faffing to grant injunctive relief. Second and more importantly, the outcome on appeal is the same regardless of which of the district court’s orders is being reviewed because “a trial court has no discretion in determining what the law is or applying the law to the facts. Therefore, a failure by the trial court to analyze or apply the law correctly ... constitutes an abuse of discretion.” The decision to grant or deny the injunction in this case depended solely on a legal analysis, as there were no relevant, disputed facts. The denial of injunctive relief in this case would have resulted from an incorrect application of the law. The procedural errors by the court of appeals were thus harmless and do not require reversal.

⅛ ⅜ ⅜ ⅜ ⅜ ⅜

For the foregoing reasons, we affirm the court of appeals’ judgment.

      . 102 S.W.3d 868, 875 (Tex.App.-Houston [1st Dist.] 2003).

      . See Tex. Civ. Prac. & Rem.Code § 15.002(a)(3).

      . Tex. Prob.Code §§ 5A(f), 5B(b) (added by Act of June 2, 2003, 78th Leg., R.S., ch. 204 §§ 3.05, .06, 2003 Tex. Gen. Laws 847, 854) (“Notwithstanding any other provision of this chapter, the proper venue for an action by or against a personal representative for personal injury, death, or property damages is determined under Section 15.007, Civil Practice and Remedies Code.”).

      .Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 847, 899 (effective September 1, 2003) ("Except as otherwise provided in this section or by a specific provision in an article, this Act applies only to an action filed on or after the effective date of this Act. An action filed before the effective date of this Act, including an action filed before that date in which a party is joined or designated after that date, is governed by the law in effect immediately before the change in law made by this Act, and that law is continued in effect for that purpose.”).

      .Act of May 20, 1999, 76th Leg., R.S., ch. 1431, § 1, 1999 Tex. Gen. Laws 4876, 4876 (amended 2003) ("former Tex. Prob.Code § 5B") (current version at Tex. Prob.Code § 5B).

      . Tex. Civ. Prac. & Rem.Code § 15.007.

      . Tex. Civ. Prac. & Rem.Code § 51.014(a)(4).

      . 102 S.W.3d 868, 870 n. 1.

      . Mat 869-70.

      . Id. at 870.

      . Tex. Prob.Code § 5A.

      . 102 S.W.3d at 873.

      . Former Tex. Prob.Code § 5B, supra n. 5.

      . 102 S.W.3d at 873.

      . Id. at 874.

      . Tex. Civ. Prac. & Rem.Code § 15.007.

      . Tex. Gov't Code § 22.001(a)(1), (2). Section 22.001 was amended in 2003 to add subsection (e), which provides that one court "holds differently from another” for purposes of section 22.002(a)(2) “when there is inconsistency in their respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to the litigants.” Tex. Gov’t Code § 22.001(e); see

        also id. § 22.225(c), (e). That amendment does not apply to the appeals before us today.

      . 98 S.W.3d 777, 780 (Tex.App.-Austin 2003, orig. proceeding).

      . In re Reliant Energy, Inc., 159 S.W.3d 624, 2005 WL 563093 (Tex.2005).

      . The applicable version of section 5 provides that “[i]n those counties in which there is a statutory probate court, all applications, petitions, and motions regarding probate or administrations shall be filed and heard in the statutory probate court, unless otherwise provided by law.” Act of May 1, 2001, 77th Leg., R.S., ch. 63, § 1, 2001 Tex. Gen. Laws 104, 105 (amended 2003) (current version at Tex. Prob.Code § 5(d)).

      . Tex. Prob.Code § 6 ("Wills shall be admitted to probate, and letters testamentary or of administration shall be granted ... [i]n the county where the deceased resided, if he had a domicile or fixed place of residence in this State.”).

      . Act of May 23, 1989, 71st Leg., ch. 1035, § 3, 1989 Tex. Gen. Laws 4162, 4164, repealed by Act of May 28, 2003, 78th Leg., R.S., ch. 1060, § 16, 2003 Tex. Gen. Laws 3052, 3057.

      . 851 S.W.2d 178, 182 (Tex.1992).

      . Tex. Civ. Prac. & Rem.Code § 15.002(a).

      . Former Tex. Prob.Code § 5B, supra n. 5.

      . Id.

      . Tex. Civ. Prac. & Rem.Code § 15.007.

      . Tex. Civ. Prac. & Rem.Code § 15.002(a).

      . In re Graham, 971 S.W.2d 56, 59-60 (Tex.1998) (citing Palmer v. Coble Wall Trust Co., 851 S.W.2d 178, 181 (Tex.1992)).

      . Sen. Comm. on Economic Development, Bill Analysis, Tex. S.B. 32, 74th Leg., R.S. (1995); see also DB Entm't, Inc. v. Windle, 927 S.W.2d 283, 288 (Tex.App.-Fort Worth 1996, orig. proceeding).

      . In re SWEPI, L.P., 85 S.W.3d 800, 809 (Tex.2002) (holding that "because the probate court transferred the Bailey suit to itself without statutory authority and thereby actively interfered with the Harris County court’s jurisdiction over the case, mandamus relief is appropriate”).

      . Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988).

      . Id. (citation omitted).

      . 925 S.W.2d 649, 651 (Tex.1996).

      . Id. (citation omitted).

      . Id. (quoting Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 (Tex.1986)).

      . Id. (quoting Christensen, 719 S.W.2d at 163).

      . Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 246 (Tex.1988).

      . 102 S.W.3d at 875-76.

      . In re Kuntz, 124 S.W.3d 179, 181 (Tex.2003) (citations omitted); see also Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex.2001).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re RELIANT ENERGY, INC., Relator.
    No. 02-0700.
    Supreme Court of Texas.
    March 11, 2005.
    David Michael Rodi, Ioannis Vasilios Anaipakos, Macey Reasoner Stokes, Stephen G. Tipps, Baker & Botts, L.L.P., Houston, Eduardo R. Rodriguez, Robert Patrick Rodriguez, Rodriguez, Colvin, Chaney & Saenz, L.L.P., Brownsville, for relator.
    Pamela Stanton Baron, Austin, Anthony F. Constant, Miguel Jose Chapa, Constant & Vela, Corpus Christi, Jose E. Chapa, Yzaguirre & Chapa, Juan J. Hinojosa, Hi-nojosa & Powell, P.C., McAllen, for respondent.
   PER CURIAM.

Reliant Energy, Inc. seeks a writ of mandamus directing the Hidalgo County statutory probate court to vacate an order purporting to transfer to itself a wrongful death and survival action pending in a Harris County district court. Because venue is improper in Hidalgo County and Reliant has objected, section 5B of the Probate Code does not authorize the transfer. Accordingly, we conditionally grant mandamus relief.

We have today decided Gonzalez v. Reliant Energy, Inc., which involves the same parties and many of the same issues. The facts are more fully set forth in our opinion in that case, and we will recount them only briefly here.

Guadalupe Gonzalez, Jr. was killed while working at Reliant’s power plant in Fort Bend County. He was domiciled in Hidal-go County at the time of his death, and his widow Jannete Gonzalez instituted probate proceedings in that county for the administration of his estate. Gonzalez then filed a wrongful death and survival action against Reliant in the Hidalgo County probate court. Reliant moved to transfer the wrongful death and survival suit to Harris County, where Reliant’s principal place of business is located. The probate court denied that motion.

Gonzalez then filed a second, identical wrongful death and survival action in a district court in Harris County, and ten days after doing so, requested that the Hidalgo County probate court transfer the Harris County action to the Hidalgo County probate court. The probate court granted that motion. Subsequently, the Harris County district court entered a temporary injunction prohibiting Gonzalez “from engaging in proceedings with respect to the wrongful death suit” pending in Hidalgo County. However, the probate court’s transfer order has not been withdrawn or vacated and remains outstanding. Reliant sought mandamus relief in the Thirteenth District Court of Appeals, requesting that court to order the probate court to withdraw its transfer order, and that request was denied. Reliant then sought mandamus relief from this Court.

The version of section 5B of the Probate Code in effect prior to the 2003 amendments governs this case, and it provides:

A judge of a statutory probate court, on the motion of a party to the action or on the motion of a person interested in an estate, may transfer to his court from a district, county, or statutory court a cause of action appertaining to or incident to an estate pending in the statutory probate court or a cause of action in which a personal representative of an estate pending in the statutory probate court is a party and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to that estate.

However, as we have held today in the related interlocutory appeals from the First District Court of Appeals, section 15.007 of the Civil Practice and Remedies Code directs that in a wrongful death or personal injury case, the venue provisions in Chapter 15 are paramount, not the Probate Code. Section 15.007 provides:

Notwithstanding Sections 15.004, 15.005, and 15.031, to the extent that venue under this chapter for a suit by or against an executor, administrator, or guardian as such, for personal injury, death, or property damage conflicts with venue provisions under the Texas Probate Code, this chapter controls.

Section 15.002 governs venue in wrongful death and survival actions. Venue of Gonzalez’s suit was not proper in Hidalgo County. None of the events giving rise to Guadalupe Gonzalez’s death occurred in that county, and Reliant’s principal place of business is in Harris County. Accordingly, the Hidalgo County probate court had no authority to transfer to itself the Harris County action.

In In re SWEPI, L.P., we held that when a probate court transfers a case to itself without statutory authority, it has “actively interfered with the jurisdiction” of the other court, and mandamus relief should be granted. In the case presently before us, the Hidalgo County probate court’s transfer order actively interferes with the Harris County district court’s jurisdiction. Although the Harris County district court entered an anti-suit injunction prohibiting Gonzalez from proceeding further with the wrongful death and survival claims in Hidalgo County, the Hidal-go County probate court’s transfer order remains outstanding. The district clerk of Harris County or the clerk of the Harris County district court in which Gonzalez’s suit is pending is still faced with a directive to transfer a case from Harris County to Hidalgo County. The anti-suit injunction directed at Gonzalez did not obviate the need for mandamus relief, and as we explain in Gonzalez v. Reliant, mandamus relief in this original proceeding does not obviate the need for an injunction prohibiting Gonzalez from proceeding with the wrongful death and survival claims in Hi-dalgo County. Complete relief requires both a writ of mandamus and an anti-suit injunction.

Pursuant to Texas Rule of Appellate Procedure 52.8(c), we issue this opinion without hearing oral argument and conditionally grant a writ of mandamus directing the Hidalgo County probate court to vacate its transfer order. That writ will issue only if the probate court fails to act in accordance with this opinion.

      . Act of May 20, 1999, 76th Leg., R.S., ch. 1431, § 1, 1999 Tex. Gen. Laws 4876, 4876 (amended 2003) ("former Tex. Prob.Code § 5B") (current version at Tex. Prob.Code § 5B).

      . 159 S.W.3d 615, 2005 WL 563092 (Tex.2005).

      . Former Tex. Prob.Code § 5B, supra n. 1.

      . Gonzalez, 159 S.W.3d at 621, 2005 WL 563092, at *4.

      . Tex. Civ. Prac. & Rem.Code § 15.007.

      . It provides:
      § 15.002. Venue: General Rule
      (a) Except as otherwise provided by this subchapter or Subchapter B or C, all lawsuits shall be brought:
      (1)in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
      (2) in the county of defendant's residence at the time the cause of action accrued if defendant is a natural person;
      (3) in the county of the defendant’s principal office in this state, if the defendant is not a natural person; or
      (4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.
      Tex. Civ. Prac. & Rem.Code § 15.002.

      . 85 S.W.3d 800, 809 (Tex.2002).

      . 159 S.W.3d at 622, 2005 WL 563092, at *5.

      . Tex.R.App. Proc. 52.8(c).


text:
    In re OMNI HOTELS MANAGEMENT CORPORATION and Omni Hotels Franchising Company, L.L.C., Relators.
    No. 04-0140.
    Supreme Court of Texas.
    March 11, 2005.
    Rebecca M. Alcantar, Jack Kevin Kindred, Janet Loy Hunter-Tolbert, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Kristin Michelle Bliss, Dallas, for Relators.
    Britton D. Monts, Scott R. Jacobs, Monts & Ware, LLP, Dallas, Kelcie A. Hibbs, Loe Warren Rosenfield Kaitcer & Hibbs, P.C., Fort Worth, for Real Party In Interest.
   PER CURIAM.

The controlling issue in this case is whether an agreement consenting to venue in Tarrant County and stipulating that all or part of the cause of action arose there should be given effect. Because the record does not reflect that the agreement was withdrawn, it remains in effect based on the record before us. We accordingly deny mandamus relief.

Matt King drowned in Cancún, Mexico while a guest at the Omni Cancún Hotel & Villa. His wife Lynn Neel King has not sued the Omni Cancún, but she did file a wrongful death and survival action in April 2003 in her individual capacity and as ad-ministratrix of her husband’s estate against the relators, to whom we will refer as Omni. That suit was filed in a Tarrant County statutory probate court. Omni filed a motion to transfer venue to a district court in Dallas County. While that motion was pending, King and Omni filed a “Consent to Transfer of Venue” with the probate court signed by counsel for each party which said:

The parties to this action, through their attorneys, agree and consent to transfer of venue to a civil district court in Tarrant County, Texas, which is a county of proper venue.
Tarrant County is a proper venue in this matter because all or part of the Plaintiffs cause of action arose in Tar-rant County. No mandatory venue statute requires that this action be maintained in the Probate Court of Tarrant, [sic] County.

Omni asserts that the day after this consent was filed, the judge of the probate court contacted its counsel, informing him that the court was not inclined to transfer the case to a district court in Tarrant County. That same day, Omni filed a letter brief with the Tarrant County probate court again urging it to transfer the case to a Tarrant County district court, but requesting that if the court did not do so, that a hearing on Omni’s motion to transfer venue to Dallas County be heard and granted as soon as possible.

Omni’s briefing states that about three weeks later, on October 29, 2003, a hearing was held on its motion to transfer venue to Dallas County, and the probate court granted that motion. Omni also contends that at the hearing, the probate court allowed Omni to withdraw the “Consent to Transfer of Venue.” King asserts in her briefing that Omni “verbally attempted to withdraw the Consent to Transfer Venue; however, [King] did not agree to it either verbally or in writing.” We do not have a transcript of that hearing or any other indication in the record regarding withdrawal of the agreement. We have only the probate court’s order transferring the wrongful death and survival suit to a Dallas County district court.

About fifteen days after the Tarrant County probate court signed the transfer order, King filed a motion in the Tarrant County probate court asking it to transfer the case back to that court. The motion was granted. Omni’s petition for a writ of mandamus was denied by the court of appeals.

Because the record does not reflect that the “Consent to Transfer of Venue” was withdrawn, we must assume that it remains in effect. We cannot presume, as Omni urges, that the probate court either voided the agreement or allowed Omni to withdraw it simply because the probate court initially transferred the case to Dallas County rather than Tarrant County.

In the “Consent to Transfer of Venue,” the parties agreed that venue was proper in Tarrant County and that all or part of King’s cause of action arose in Tarrant County. Accordingly, venue of the wrongful death and survival action was proper in Tarrant County, and under former section 5A of the Probate Code, which governs this case, the statutory probate court had concurrent jurisdiction with district courts of wrongful death and survival actions. Because of the consent to venue in Tarrant County and the stipulation that all or part of the cause of action arose there, Omni could not complain that King originally filed her suit in Tarrant County. The probate court therefore abused its discretion in initially transferring the case to Dallas County because when a plaintiff files suit in a proper venue, that choice of venue should be honored absent a mandatory venue statute that requires transfer. Nevertheless, the Tarrant County probate court had the authority under former section 5B of the Probate Code, which applies in this case, to transfer the Dallas County suit back to itself since venue was proper in Tarrant County based the parties’ agreed statement of facts. Accordingly, we deny the request for mandamus relief.

      . Act of May 23, 1989, 71st Leg., ch. 1035, § 3, 1989 Tex. Gen. Laws 4162, 4164, repealed by Act of May 28, 2003, 78th Leg., R.S., ch. 1060, § 16, 2003 Tex. Gen. Laws 3052, 3057. (former section 5A(c)(l) provided that “[a] statutory probate court has concurrent jurisdiction with the district court in all actions: (1) by or against a person in the person’s capacity as a personal representative.”); see also Palmer v. Coble Wall Trust Co., 851 S.W.2d 178, 182 (Tex.1992) (holding that this provision, added in 1985 and then contained in section 5A(b), gave probate courts jurisdiction over wrongful death and survival actions).

      . GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 544 (Tex.1998).

      . Act of May 20, 1999, 76th Leg., R.S., ch. 1431, § 1, 1999 Tex. Gen. Laws 4876, 4876 (amended 2003) (current version at Tex. Prob. Code § 5B).

      . Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 847, 899 (effective September 1, 2003) ("Except as otherwise provided in this section or by a specific provision in an article, this Act applies only to an action filed on or after the effective date of this Act. An action filed before the effective date of this Act, including an action filed before that date in which a party is joined or designated after that date, is governed by the law in effect immediately before the change in law made by this Act, and that law is continued in effect for that purpose.”).

      .See Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 2005 WL 563092 (Tex.2005) (decided today); In re Reliant Energy, Inc., 159 S.W.3d 624, 2005 WL 563093 (Tex.2005) (also decided today).


text:
    In re WILSON N. JONES MEMORIAL HOSPITAL, Ramona Henson, R.N., and Shelly Self, L.V.N., Relators.
    No. 03-0867.
    Supreme Court of Texas.
    March 11, 2005.
    John B. Kyle, Dena L. Mathis, Kim A. Nicholas, Kyle Mathis & Lucas, L.L.P., Dallas, Glenn M. Karisch, Barnes & Kar-isch, P.C., Austin, for relators.
    Jack W. London, Law Offices of Jack W. London & Associates, P.C., Alice London, Watson Bishop London & Galow, Austin, for real party in interest.
   PER CURIAM.

The issue in this original proceeding is whether section 15.007 of the Civil Practice and Remedies Code authorizes a statutory probate court to transfer a wrongful death and survival case to itself under section 5B of the Probate Code when venue would be improper under chapter 15 of the Civil Practice and Remedies Code in the county in which the probate court is located and a party objects. In our opinions issued today in Gonzalez v. Reliant Energy, Inc. and In re Reliant Energy, Inc., we answered this question in the negative. We therefore hold in this case that the Travis County probate court erroneously transferred a wrongful death and survival action from a Grayson County district court to itself pursuant to section 5B of the Probate Code. Venue was not proper in Travis County under chapter 15 of the Civil Practice and Remedies Code.

Pursuant to Texas Rule of Appellate Procedure 52.8(c), we issue this opinion without hearing oral argument and conditionally grant mandamus relief directing the Travis County probate court to vacate its order granting the motion to transfer. Our writ will issue only if the probate court fails to act in accordance with this opinion.

      . 159 S.W.3d 615, 2005 WL 563092 (Tex.2005).

      . 159 S.W.3d 624, 2005 WL 563093 (Tex.2005).

      . Act of May 20, 1999, 76th Leg., R.S., ch. 1431, § 1, 1999 Tex. Gen. Laws 4876, 4876 (amended 2003) (current version at Tex. Prob. Code § 5B).

      . Tex. Civ. Prac. & Rem.Code 15.002.

      . Tex.R.App. P. 52.8(c).


text:
    In re TEREX CORP., Terex Cranes, Inc., Harnischfeger Corp., Anthony Crane Rental d/b/a Maxim Crane Works, Curtis Shiflet, David Keener, Keith Clark, and Crane & Rigging Consultants, Inc., Relators.
    No. 04-0015.
    Supreme Court of Texas.
    March 11, 2005.
    R. Chris Harvey, Jenifer L. Balch, James A. Harrison, Gwinn & Roby, Dallas, M. Mitchell Moss, Robles Bracken Coff-man & Hughes LLP, El Paso, John Hilton Dies Jr., Rick Lee Oldenettel, Oldenettel <& Associates, P.C., William O’Rourke, Ann E. Knight, O’Rourke & Knight, P.L.L.P., Houston, for relators.
    Steven C. Laird, John Michael Cummings, Jean Robb Hubert, Law Offices of Steven C. Laird, P.C., Fort Worth, John P. Mobbs, J. Roberto Oaxaca, Oaxaca Bernal & Associates, El Paso, for real party in interest.
   PER CURIAM.

The issue in this original proceeding is whether section 15.007 of the Civil Practice and Remedies Code authorizes a statutory probate court to transfer a wrongful death and survival case to itself under section 5B of the Probate Code when venue is improper under chapter 15 of the Civil Practice and Remedies Code in the county where the probate court is located and a party objects. Because we answered this question in the negative in our opinions released today in Gonzalez v. Reliant Energy, Inc. and In re Reliant Energy, Inc., we hold in this case that the El Paso County probate court erred in transferring a wrongful death action from a Tarrant County district court to itself under section 5B of the Probate Code. Venue was improper in El Paso County under chapter 15 of the Civil Practice and Remedies Code.

Pursuant to Texas Rule of Appellate Procedure 52.8(c), we issue this opinion without hearing oral argument and conditionally grant mandamus relief directing the El Paso County Probate Court to vacate its order granting the motion to transfer. Our writ will issue only if the probate court fails to act in accordance with this opinion.

      . 159 S.W.3d 615, 2005 WL 563092 (Tex.2005).

      . 159 S.W.3d 624, 2005 WL 563093 (Tex.2005).

      . Act of May 20, 1999, 76th Leg., R.S., ch. 1431, § 1, 1999 Tex. Gen. Laws 4876, 4876 (amended 2003) (current version at Tex. Prob. Code § 5B).

      . Tex. Civ. Prac. & Rem.Code § 15.002.

      . Tex.R.App. P. 52.8(c).


text:
    The UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON d/b/a John Sealy Hospital (“UTMB”), Petitioner, v. Kevin BARRETT, M.D., Respondent.
    No. 03-0827.
    Supreme Court of Texas.
    March 11, 2005.

      Greg Abbott, Atty. Gen., Merle Hoffman Dover, Edward D. Burbaeh, Barry Ross McBee, Rafael Edward Cruz, Ranee L. Craft, Office of the Attorneys General, Austin, for petitioner.
    Mark W. Stevens, Galveston, for respondent.
    Joshua S. Cantrell, Texas Municipal League, Kevin Wayne Cole, Cole & Powell, P.C., Austin, Ramon G. Viada III, Abrams Scott & Bickley, L.L.P., Houston, for amicus curiae.
   PER CURIAM.

We previously denied the petition for review in this case. In its motion for rehearing, petitioner urges us to resolve the conflict in the courts of appeals over the single issue here presented. We agree that the conflict should be resolved and grant the motion for rehearing to do so.

Before suing under the Texas Whistle-blower Act, a public employee must timely initiate his employer’s grievance or appeal procedures relating to employee discipline. Then, as section 554.006(d) states:

If a final decision is not rendered before the 61st day after the date [such] procedures are initiated ..., the employee may elect to:
(1) exhaust the applicable procedures ..., in which event the employee must sue not later than the 30th day after the date those procedures are exhausted to obtain relief under this chapter; or
(2) terminate procedures ..., in which event the employee must sue within the time remaining under Section 554.005 to obtain relief under this chapter.

Dr. Kevin Barrett sued his former employer, the University of Texas Medical Branch at Galveston, only 27 days after initiating grievance procedures complaining of the termination of his employment. UTMB filed a plea to the jurisdiction, asserting that Barrett’s failure to wait 60 days before suing deprived the trial court of jurisdiction over his action. The trial court denied the plea, and a divided court of appeals, sitting en banc, affirmed. We agree that the plea was properly denied.

Section 554.006 does not require that grievance or appeal procedures be exhausted before suit can be filed; rather, it requires that such procedures be timely initiated and that the grievance or appeal authority have 60 days in which to render a final decision. We need not decide here whether the failure to meet these requirements deprives the court of jurisdiction over the action. Whether the purpose of the requirements is, as the court of appeals concluded, to allow an opportunity for resolution of disputes before going to court, or instead, as UTMB argues, to deny a court jurisdiction over an action unless the requirements have been satisfied, the purpose is adequately protected by abating a prematurely filed action until the end of the 60-day period, provided that the procedures have been timely initiated and can continue for the required 60 days or until a final decision is rendered, whichever occurs first. To the extent other cases have suggested or held to the contrary, we disapprove them.

Accordingly, we grant petitioner’s motion for reheating, grant the petition for review, and without hearing oral argument, affirm the judgment of the court of appeals.

Justice BRISTER did not participate in the decision.

      . 47 Tex. Sup.Ct. J. 1188 (Sept. 10, 2004).

      . Tex. Gov't Code §§ 554.001-.010.

      . Id. § 554.006(a)-(c):
      "(a) A public employee must initiate action under the grievance or appeal procedures of the employing state or local governmental entity relating to suspension or termination of employment or adverse personnel action before suing under this chapter.
      "(b) The employee must invoke the applicable grievance or appeal procedures not later than the 90th day after the date on which the alleged violation of this chapter:
      "(1) occurred; or
      "(2) was discovered by the employee through reasonable diligence.
      "(c) Time used by the employee in acting under the grievance or appeal procedures is excluded, except as provided by Subsection (d), from the period established by Section 554.005.”

      .112 S.W.3d 815 (Tex.App.-Houston [14th Dist.] 2003) (en banc opinion by Brister, C J.; dissenting opinions by Anderson, J., and by Yates, J.) (interlocutory appeal after reversal and remand in Barrett v. University of Texas Med. Branch at Galveston, No. 14-97-00981-CV, 1999 WL 233341, 1999 Tex.App. LEXIS 2947 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (not designated for publication)).

      . Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 184 (Tex.2004) ("Rather, the statute’s goal — avoidance of protracted litigation — can be accomplished by requiring an abatement of the proceeding until the requirement that the parties ‘are unable to agree’ has been satisfied.") (citing Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961-962 (Tex.1999); Hines v. Hash, 843 S.W.2d 464, 469 (Tex.1992); State v. $435,000, 842 S.W.2d 642, 645 (Tex.1992) (per curiam); Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex.1983)); American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 805 (Tex.2001) ("If a claim is not within a court’s jurisdiction, and the impediment to jurisdiction cannot be removed, then it must be dismissed; but if the impediment to jurisdiction could be removed, then the court may abate proceedings to allow a reasonable opportunity for the jurisdictional problem to be cured.”).

      . Watson v. Dallas Indep. Sch. Dist., 135 S.W.3d 208, 224-227 (Tex.App.-Waco 2004, no pet.) (stating that the requirements of section 554.006 are jurisdictional, but concluding that the plaintiff satisfied them); Harris County v. Lawson, 122 S.W.3d 276, 281-284 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (en banc) (suggesting that the requirements of section 554.006 are jurisdictional, but holding that the plaintiff satisfied them).

      . Bellows v. Hendrick, No. 13-03-00445-CV, 2004 WL 1854240, at *2 (Tex.App.-Corpus Christi Aug. 19, 2004, pet. filed [no. 04— 0973]) (mem. op.); City of San Antonio v. Marin, 19 S.W.3d 438, 441-442 (Tex.App.-San Antonio 2000, pet. denied) (holding that the trial court lacked jurisdiction of an action filed during the 60-day period provided by section 554.004(d)).

      . See Tex. Gov’t Code § 22.225(c) (regarding the Supreme Court's jurisdiction over interlocutory appeals); Long v. Humble Oil & Ref. Co., 380 S.W.2d 554, 555 (Tex.1964) (regarding the Supreme Court’s jurisdiction to determine whether appellate court had jurisdiction).

      . Tex.R.App. P. 59.1.


text:
    The HEARST CORPORATION d/b/a The Houston Chronicle Publishing Company and Evan Moore, Petitioners, v. Jack SKEEN, Jr., David E. Dobbs, and Alicia Cashell, Respondents.
    No. 04-0414.
    Supreme Court of Texas.
    March 11, 2005.

      Gregory S. Coleman, Weil Gotshal & Manges, LLP, Austin, William W. Ogden, Joel R. White, Ogden Gibson White Broocks & Longoria, LLP, Houston, Jonathan Donnellan, Office of General Counsel, New York, NY, for Petitioners.
    Bruce L. Mulkey, The Mulkey Attorneys Group, P.A., Rogers, AR, Gary L. Richardson, Richardson, Stoops, Richardson & Ward, Tulsa, OK, Charles Kester, Law Office of Charles M. Kester, Fayetteville, AR, Beth Anne Harding Miller, Richardson, Stoops, Richardson & Ward, Athens, for Respondents.
    Thomas J. Williams, Haynes & Boone, LLP, Fort Worth, for Amicus Curiae.
   PER CURIAM.

In this interlocutory appeal we consider whether it was error to deny the media defendants’ motion for summary judgment against the plaintiffs’ libel claim. Because the plaintiffs, who were public figures, failed to raise a fact issue on actual malice, we conclude that the media defendants were entitled to summary judgment.

On June 11, 2000, The Hearst Corporation published “Justice Under Fire” in The Houston Chronicle. Written by Evan Moore, the article contained pointed criticisms of the Smith County criminal justice system and included three companion articles examining specific cases. With the subheading “ Win at all costs’ is Smith County’s rule, critics claim,” the lead article reported that Smith County “is noted for its own brand of justice,” which is “driven by aggressive prosecutors who achieve some of the state’s longest sentences.” The article stated, “Critics say Smith County’s justice system is tainted and inequitable.” It also declared that Smith County prosecutors “have been accused of serious infractions” including “suppressing evidence, encouraging perjury and practicing selective prosecution.”

Claiming the article was false and malicious, three Smith County prosecutors named in the article, District Attorney Jack Skeen and two of his assistants, David Dobbs and Alicia Cashell, filed a defamation suit against Hearst and Moore. The trial court denied Hearst and Moore’s motion for summary judgment, and on interlocutory appeal, the court of appeals affirmed the trial court’s ruling. 130 S.W.3d 910. We have jurisdiction over the petition for review in this interlocutory appeal because the trial court denied the media defendants’ motion for summary judgment in a defamation case. Tex. Gov’t Code § 22.225(d); Tex. Civ. Prac. & Rem. Code § 51.014(a)(6).

To recover for defamation, the public-figure plaintiffs must prove that Hearst and Moore published a false and defamatory statement with actual malice. See Huckabee v. Time Warner Entm’t Co. L.P., 19 S.W.3d 413, 420 (Tex.2000). Although the parties disputed whether the article was capable of a defamatory meaning before the court of appeals, the issue was not raised here. Moreover, we need not decide whether the article was actually false to resolve this appeal. The plaintiffs can prevail here only if there is some evidence that Hearst and Moore published the article with actual malice.

To establish actual malice, the plaintiffs must prove Hearst and Moore published the article with either knowledge of the falsity or reckless disregard for the truth. See New Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex.2004). Knowledge of falsity is a relatively clear standard, but reckless disregard is much less so. Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex.2002). Reckless disregard is a subjective standard, requiring evidence that Hearst and Moore entertained serious doubts as to the truth of the article at the time it was published. See id.

A libel defendant is entitled to summary judgment under Texas law if it can negate actual malice as a matter of law. Huckabee, 19 S.W.3d at 420. Hearst and Moore supported their motion for summary judgment with numerous exhibits, including Moore’s affidavit, which stated he believed the article was true and accurate based on his extensive research. Having negated actual malice, the burden shifted to the plaintiffs to raise a fact issue. See id. at 424.

The plaintiffs contend that Moore knew the article was false because the ten cases discussed in the article were a relatively insignificant sample from which to conclude that the Smith County D.A.’s office routinely engaged in unethical practices to win convictions. At Moore’s deposition, the plaintiffs’ attorney pointed out that these ten cases amounted to only .04% of the total indictments handled during D.A. Skeen’s service. Moore admitted that he had done no statistical analysis but had only focused on the problem cases he had discovered. The fact that Moore had not reviewed every indictment during D.A. Skeen’s service or discussed a larger number of problem cases is not evidence that he knew the article contained false statements.

Arguing the article was published with reckless disregard for the truth, the plaintiffs claim Hearst and Moore purposefully avoided the truth, relied on dubious information from bias sources, deviated from professional standards of care, and were motivated to fabricate. See Bentley, 94 S.W.3d at 596.

“A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is.” Bentley, 94 S.W.3d at 596. We analyzed evidence of purposeful avoidance in Bentley when a talk show host was sued for libel after repeatedly accusing a judge of being corrupt. Id. at 601. Although the host claimed that his accusations were based on his investigations, there was a “complete absence of any evidence that a single soul ... ever concurred in [the host’s] accusations of misconduct against [the judge]. All those who could have shown [the host] that his charges were wrong [the host] deliberately ignored.” Id. For example, the host made a false accusation that the judge had improperly delayed a criminal trial without even contacting any attorney involved in the case to inquire about the delay. Id.

Similarly, in Harte-Hanks Communications, Inc. v. Connaughton, a newspaper deliberately avoided verifying false allegations it printed about a judicial candidate. 491 U.S. 657, 692, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). The candidate had persuaded a certain Stephens to give him a recorded statement concerning bribes that she had made to his opponent’s employee. Id. at 668-69, 109 S.Ct. 2678. Stephens’ sister, who was present for the recorded statement, told the newspaper that the candidate used “dirty tricks” to get Stephens’ statement with the intent of blackmailing his incumbent opponent into resigning before the election. Id. at 670, 109 S.Ct. 2678. Before printing the sister’s allegations, the newspaper failed to interview Stephens, the key witness, or listen to the tape provided of Stephens’ recorded statement. Id. at 692, 109 S.Ct. 2678. By ignoring the two sources that could objectively verify the sister’s allegations, the newspaper had purposefully avoided discovering facts that might show the falsity of the allegations. Id.

In contrast, we held in Huckabee that the purposeful avoidance theory did not apply because “no source could have easily proved or disproved the documentary’s allegations.” 19 S.W.3d at 428. When a documentary criticized a judge’s order granting an allegedly abusive father custody of a child, the judge sued, arguing the filmmakers had purposefully avoided discovering the truth. Id. at 427. The filmmakers’ extensive research, which involved interviewing several people on both sides of the story, including the judge, and reading transcripts of the case, precluded a finding of purposeful avoidance. Id. at 428. “Although the filmmakers did not interview [the father or his lawyers], they were not required to continue their research until they could find one more person who agreed with [the judge’s] order.” Id. (indicating failure to track down every possible source is not purposeful avoidance).

Like the filmmakers’ research in Hucka-bee, Moore’s five months of research involved interviewing parties on both sides of the issue, including the plaintiffs, and reviewing the court records of the cases discussed in the article. Furthermore, no source existed that could have easily disproved the criticisms of the Smith County D.A.’s office included in the article. The evidence simply does not support a purposeful avoidance theory.

“An understandable misinterpretation of ambiguous facts does not show actual malice, but inherently improbable assertions and statements made on information that is obviously dubious may show actual malice.” Bentley, 94 S.W.3d at 596. In Harte-Hanks, despite knowing the judicial candidate had turned the tape concerning bribery over to the police, the newspaper still published the improbable assertion that he intended to blackmail his opponent with the tape. 491 U.S. at 691, 109 S.Ct. 2678. Moreover, the sister’s uncorroborated allegations were doubtful because every other witness the newspaper interviewed denied the sister’s version of the events. Id. Additionally, the sister’s hesitant demeanor and inaudible responses in her taped interview with the newspaper raised “obvious doubts about her veracity.” Id. With the sister as the only source of the dubious allegations, the evidence showed the newspaper had recklessly disregarded the truth in publishing the article. Id. at 691-93, 109 S.Ct. 2678.

In the current case, Moore had many sources corroborating the criticisms of the Smith County D.A.’s office. Moore testified that he spoke to over twenty attorneys, who told him that the Smith County D.A.’s office: was too aggressive; was too closely aligned with law enforcement; was overly influenced by prominence of the victim or accused; had sentences that were harsh or excessive as compared to other jurisdictions; and had suppressed evidence or encouraged false testimony to win convictions. Although most conditioned their responses on anonymity, several attorneys, including perhaps most significantly a former Smith County D.A., allowed their names to appear in the article. The criticisms were not inherently improbable because Moore had reviewed multiple statements in court-filed documents alleging prosecutorial misconduct. Such documents included: a Court of Criminal Appeals opinion stating an assistant D.A. attempted to interview a defendant without his attorney’s knowledge; a writ of habeas corpus petition alleging the Smith County D.A.’s office suppressed exculpatory evidence in the Mims case; a deposition in the Smith case of chief prosecutor Dobbs, in which he admitted confronting the plaintiff of the malicious prosecution case in a bar and asking “how much money would it take to make it go away”; and a motion for new trial in the Bendy case that included affidavits accusing the prosecutor, Cashell, of soliciting a key witness to perjure her testimony. Moore’s article was based on many sources that corroborated the criticisms, which his research showed were not inherently improbable. Therefore, no fact issue exists as to whether Moore relied on obviously doubtful sources of information for his article.

“A lack of care or an injurious motive in making a statement is not alone proof of actual malice, but care and motive are factors to be considered.” Bentley, 94 S.W.3d at 596. In the current case, the plaintiffs presented an expert who testified about the professional standard for investigative reporting and concluded that the article was biased and failed to impartially give a balanced account of the information it discussed. Assuming this expert testimony should be considered, evidence that the article was written “from a particular point of view, even when [the article is] hard-hitting or sensationalistic, is no evidence of actual malice.” Huckabee, 19 S.W.3d at 425.

To establish motivation for recklessly disregarding the truth, the plaintiffs presented evidence that Hearst and Moore ignored the plaintiffs’ letter questioning the truth of the article because they received the letter two days before the article’s publication deadline. This, however, is no evidence of actual malice. First, Hearst and Moore incorporated a portion of the letter into the article in the form of a quote by the plaintiffs. Second, “[t]he mere fact that a defamation defendant knows that a public figure has denied harmful allegations or offered an alternative explanation of events is not evidence that the defendant doubted the allegations.” Huckabee, 19 S.W.3d at 427. Third, without more, mere evidence that a newspaper was motivated to meet a publication deadline is no evidence of actual malice. See Harte-Hanks, 491 U.S. at 667, 109 S.Ct. 2678 (discussing profit motives).

Viewing the evidence in its entirety, no fact issue is raised as to whether the article was published with actual malice. Accordingly, without hearing argument, we grant the petition for review, reverse the court of appeals’ judgment, and render summary judgment in favor of Hearst and Moore. Tex.R.App. P. 59.1.

      . Proving falsity in a public-figure defamation case is the plaintiff's burden of proof; in such a case, the defendant does not have the burden of proving substantial truth as an affirmative defense. Bentley v. Bunton, 94 S.W.3d 561, 586-87 (Tex.2002).

      . Cook v. State, 940 S.W.2d 623, 626 (Tex. Crim.App.1996).


author: Chief Justice JEFFERSON

text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. Ruth HALLMAN, Respondent.
    No. 03-0957.
    Supreme Court of Texas.
    Argued Oct. 20, 2004.
    Decided March 11, 2005.

      Roy L. Stacy, Pamela J. Touchstone, Stacy & Condor, LLP, Dallas, for Petitioner.
    David Taubenfeld, Erika Lea Blomquist, Matthew Scott Carol, Charles George Orr, Haynes and Boone, LLP, Dallas, for Respondent.
   Chief Justice JEFFERSON

delivered the opinion of the Court.

In this case we must determine whether, under a homeowners insurance policy’s terms, an insurer has a duty to defend and indemnify an insured’s potential liability for damages resulting from limestone mining operations conducted on the insured’s property. Neighboring property owners sued Ruth Hallman (“Hallman”) for damages related to limestone mining on her property. Hallman sought coverage under her homeowners insurance policy (“the policy”) with Allstate Insurance Company (“Allstate”), requesting that Allstate defend and indemnify her in the lawsuit. Allstate and Hallman both sought a declaratory judgment to determine whether the policy covered the underlying litigation. The trial court granted summary judgment in Allstate’s favor. The court of appeals reversed the trial court’s judgment and remanded for further proceedings, holding that Allstate had a duty to defend and indemnify Hallman in the limestone mining litigation. 114 S.W.3d 656, 663. Because we conclude that damages to third parties caused by commercial limestone mining conducted on an insured’s property fall within the policy’s business pursuits exclusion, we reverse the court of appeals’ judgment and render judgment for Allstate.

I

Background

In 1995, Hallman leased property she owns in rural Kaufman County to Norton Crushing, Inc. (“Norton”) for limestone mining. In 1996, neighboring landowners sued Hallman, Norton, and all subcontractors involved in the mining project, alleging that the blasting from the mining damaged their property and their health. Hallman filed a claim under the policy requesting defense and indemnification. Allstate agreed to defend Hallman under a reservation of rights but filed this declaratory judgment action seeking a determination that Hallman’s claim was not covered under the policy’s terms. Hallman counterclaimed seeking a declaration that Allstate had a duty to defend and indemnify her in the underlying litigation. Both parties sought attorney’s fees.

Allstate moved for summary judgment, arguing that the injuries and damages relating to the limestone mining did not constitute an “occurrence” as required for coverage under the policy, and alternatively, that the mining operations were excepted from coverage under the policy’s business pursuits exclusion. Hallman moved for partial summary judgment, asserting that she was entitled to a defense because her neighbors’ allegations constituted an “occurrence” as defined in the policy. The trial court granted Allstate’s motion, denied Hallman’s, and denied both parties’ requests for attorney’s fees. The court of appeals reversed, concluding that the policy covered Hallman’s claim because: (1) the mining damages constituted an “occurrence,” and (2) the business pursuits exclusion did not apply. 114 S.W.3d at 663. The court of appeals remanded the attorney’s fees issue to the trial court for further proceedings. Id. at 663-64. We granted Allstate’s petition for review to determine whether the policy covers potential liability for damages from commercial limestone mining. 47 Tex. Sup.Ct. J. 753 (July 2, 2004).

During oral argument before this Court, the parties announced that the underlying lawsuit between Hallman and her neighbors had recently concluded with a jury verdict in Hallman’s favor. Allstate provided Hallman with a defense throughout the trial and does not intend to seek reimbursement for the defense costs.

II

Mootness

As a preliminary matter, we must consider whether the conclusion of the underlying litigation renders this case moot. The main issue here is whether Alstate has a duty to defend and indemnify Hall-man in the mining litigation. Allstate, however, has already provided the requested defense, for which it will not seek reimbursement. Additionally, because Hallman was not found liable at trial, there is nothing for Allstate to indemnify. Nevertheless, both parties maintain that a justiciable controversy remains because Hallman continues to seek an award of attorney’s fees for expenses incurred in defending against Allstate’s declaratory judgment action and in pursuing her own declaratory relief.

We agree with the parties that this case is not moot. A case becomes moot if a controversy ceases to exist or the parties lack a legally cognizable interest in the outcome. Bd. of Adjustment of San Antonio v. Wende, 92 S.W.3d 424, 427 (Tex.2002). In Camarena v. Texas Employment Commission, 754 S.W.2d 149, 151 (Tex.1988), we held that a dispute over attorneys fees is a live controversy. In that declaratory judgment action, farm workers sued to challenge the constitutionality of the Texas Unemployment Compensation Act’s (“TUCA”) agricultural exemption. Id. at 150. The trial court held that the act was unconstitutional but found that sovereign immunity barred the farm workers’ request for attorney’s fees. Id. Four months later, the Legislature amended the TUCA, rectifying the offending provision. Id. Consequently, the trial court modified its judgment, holding that the amended act was constitutional and enjoining the former act’s enforcement. Id. The Texas Employment Commission appealed, arguing that the amendment rendered the case moot. Id. The farm workers cross-appealed, contesting the denial of attorney’s fees. Id. The court of appeals held that the case was moot and that attorney’s fees were barred by sovereign immunity. Id. at 150-151. We disagreed, holding:

Clearly, a controversy exists between the farm workers and TEC. The “live” issue in controversy is whether or not the farm workers have a legally cognizable interest in recovering their attorney’s fees and costs. The fact that the Legislature wisely undertook action to bring the farm workers within the scope of TUCA does not moot or void the workers’ interest in obtaining attorneys fees and costs for the successful disposition of their claim. Contrary to the court of appeals’ suggestion, the attorney’s fees issue need not be severed in order to be considered; it is an integral part of the farm workers’ claim and as such breathes life into the appeal. Due to the existence of the “live” issue of attorney’s fees and costs, we hold that the suit was not moot.

Id. at 151.

Similarly, Hallman’s remaining interest in obtaining attorney’s fees “breathes life” into this appeal and prevents it from being moot. See id. The parties correctly point out that in order to resolve the attorney’s fees dispute, we must first determine whether Allstate had a duty to defend and indemnify under the policy. In a declaratory judgment proceeding, the trial court has the discretion to award “equitable and just” attorney’s fees. Tex. Civ. Prac. & Rem.Code § 37.009. Here, the trial court, having found against Hallman on the coverage issue, also denied her request for attorney’s fees. Because the court of appeals found that Hallman prevailed on the coverage issue, it remanded the attorney’s fees question to the trial court. 114 S.W.3d at 663-64. Our decision in this case will resolve whether Allstate had a duty to defend. The controversy is live because an affirmative answer would necessitate a remand to the trial court to consider whether an award of attorney’s fees is appropriate in light of the changed status of prevailing parties. Accordingly, we will address the merits of this coverage dispute.

Ill

Discussion

To determine an insurer’s duty to defend, we look at the allegations in the pleadings and the insurance policy’s language. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997); Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965). If the pleadings do not allege facts within the scope of the policy’s coverage, an insurer does not have a duty to defend. Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 848 (Tex.1994). However, in the event of an ambiguity, we construe the pleadings liberally, resolving any doubt in favor of coverage. Merchs. Fast Motor Lines, Inc., 939 S.W.2d at 141; Heyden Newport Chem. Corp., 387 S.W.2d at 26.

Under the terms of the policy, Allstate has a duty to defend Hallman against a suit alleging damages caused by an “occurrence.” However, the policy specifically excludes from coverage: “bodily injury or property damage arising out of or in connection with a business engaged in by an insured. But this exclusion does not apply to activities which are ordinarily incidental to non-business pursuits.” “Business” is defined as “includpng] trade, profession or occupation.” Allstate argues that Hall-man’s claim is barred from coverage under this business pursuits exclusion.

Although the business pursuits exclusion is a fairly common provision of insurance policies, we have never directly addressed its application. The parties and the court of appeals relied on the standard set forth by the San Antonio Court of Appeals in United Services Automobile Ass’n v. Pennington, 810 S.W.2d 777, 778-80 (Tex.App.-San Antonio 1991, writ denied), a case involving a business pursuits exclusion provision substantially identical to the one here. The Pennington court, after reviewing the dictionary definitions of “trade,” “profession,” and “occupation,” as well as case law from other jurisdictions, defined the “business pursuits” inquiry as involving two elements: “(1) continuity or regularity of the activity, and (2) a profit motive, usually as a means of livelihood, gainful employment, earning a living, procuring subsistence or financial gain, a commercial transaction or engagement.” Id. at 780 (citations omitted). Regarding the second element, the court further noted: “The profit need not be realized — the issue is the expectation or anticipation for profit in the future — since often business ventures result in a loss.” Id.

Most jurisdictions follow similar versions of this two-part inquiry when construing business pursuits exclusions. See, e.g., Sun Alliance Ins. Co. of P.R., Inc. v. Soto, 836 F.2d 834, 836 (3d Cir.1988); Stuart v. Am. States Ins. Co. 134 Wash.2d 814, 953 P.2d 462, 465 (1998); Frankenmuth Mut. Ins. Co. v. Kompus, 135 Mich.App. 667, 354 N.W.2d 303, 307-308 (1984); see also Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 128:13 (3d ed. 1997 & Supp.2004). A few jurisdictions, however, limit the exclusion’s application to those activities that constitute an insured’s principal occupation. See, e.g., Brown v. Peninsular Fire Ins. Co., 171 Ga.App. 507, 320 S.E.2d 208, 209 (1984); Asbury v. Ind. Union Mut Ins. Co., 441 N.E.2d 232, 239 (Ind.Ct.App.1982). Because the policy’s definition of business as “including trade, profession or occupation” encompasses more than an insured’s primary occupation, we conclude that the majority approach more accurately describes the exclusion’s parameters. Accordingly, we adopt the two-part standard articulated in Pennington for determining whether a claim is excluded from coverage under the business pursuits exclusion. See Pennington, 810 S.W.2d at 780.

Applying the Pennington standard, the court of appeals concluded that the underlying petition did not allege continuity of activity because Hallman entered into only one lease agreement, which was executed nearly ten years ago. 114 S.W.3d at 662. The court further noted the petition’s failure to allege that Hallman leased her property as a means of livelihood, or earning a living, or that her principal business was leasing property. Id. Based on these conclusions, the court of appeals held that the business pursuits exclusion did not apply to Hallman’s claim. See id. at 662-63.

We disagree. By narrowly limiting its focus to Hallman’s initial execution of the lease, the court of appeals misconstrued the nature of commercial leasing activity. The pleadings establish that the mining activity conducted on Hallman’s property pursuant to the lease began in 1995, was ongoing at the time the plaintiffs initiated their suit in 1996, and remained ongoing at the time the plaintiffs filed their sixth amended petition in 2001. Although Hall-man executed only one lease, until that lease expires, she is perpetually engaged in the continuous act of leasing her property to the mining company. Thus, the limestone mining lease meets the continuity requirement of the business pursuits exclusion.

Next, we consider whether profit was Hallman’s motivation for leasing her property. The court of appeals, noting that courts are limited to the language in the pleadings and the policy when determining an insurer’s duty to defend, concluded that the lease failed to meet the profit motive requirement. 114 S.W.3d at 662-63. Admittedly, the pleadings do not contain any reference to Hallman’s pecuniary interest in the lease, nor do they expound on her motive for leasing her property. However, we conclude that, in this circumstance, a profit motive can be inferred from the nature of the activity. One generally does not allow limestone mining with dynamite blasting to occur on his or her property without some expectation of remuneration or monetary gain. See Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 128:13 (3d ed.1997) (noting that courts look “particularly to the nature of the activity” when determining if an activity constitutes a “business pursuit”); cf. In re San Juan Dupont Plaza Hotel Fire Litig., 789 F.Supp. 1212, 1220 (D.P.R.1992) (holding that business pursuits exclusion defeated coverage because “[i]nvestment activities are commercial ventures which, by their very nature, are entered into with the intent to earn profit”); Vallas v. Cincinnati Ins. Co., 624 So.2d 568, 571 (Ala.1993) (finding business pursuits exclusion applicable and noting “we cannot say that the limited partnership, which was formed to buy and sell investment real property for capital gain, was not ‘an undertaking ... for gain [or] profit’ ”); State Farm Fire & Cas. Co. v. Drasin, 152 Cal.App.3d 864, 199 Cal.Rptr. 749, 750, 753 (1984) (claims arising from partnership agreement to acquire mining leases fell under business pursuits exclusion where “[t]he purpose of acquiring the mining leases was to enjoy the production of income, profits and write-offs incidental to the mining operations”).

Furthermore, as numerous courts have recognized, the purpose of the business pursuits exclusion is to lower homeowners insurance premiums by removing coverage for activities that are not typically associated with the operation and maintenance of one’s home. See, e.g., Buirkle v. Hanover Ins. Cos., 832 F.Supp. 469, 486-487 (D.Mass.1993); Kepner v. W. Fire Ins. Co., 109 Ariz. 329, 509 P.2d 222, 223 (1973); LeBlanc v. Broussard, 396 So.2d 535, 536 (La.Ct.App.1981). Commercial limestone mining is not an activity typically associated with owning and maintaining a home. Thus, the limestone mining lease at issue here is exactly the type of commercial enterprise that the business pursuits provision was designed to exclude.

We hold that Hallman’s lease to Norton constituted a business pursuit and therefore the allegations in the underlying litigation are excluded from coverage under the policy.

IV

Conclusion

Therefore, even if the allegations in the underlying lawsuit state an “occurrence,” — a question we do not reach — we nevertheless conclude that the business pursuits exclusion applies and bars coverage. Because the trial court reached the same conclusion and denied Hallman’s request for fees, there is no need to remand this case to the trial court for a determination of Hallman’s request for attorney’s fees. Accordingly, we reverse the court of appeals’ judgment and render judgment for Allstate. See Tex.R.App. P 60.2(c).

      . Meridien Aggregates, Co., L.L.P. ("Meri-dien”) purchased Norton’s interest in 1999 and now operates the lease.

      . We have, however, addressed the "activities incidental to non-business pursuits” exception to the exclusion. See State Farm Fire & Cas. Co. v. Reed, 873 S.W.2d 698, 698-701 (Tex.1993).


author: KELLER, P.J.,

text:
    The Honorable Thomas F. GREENWELL, Judge of the 319th District Court, Relator, v. THE COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT.
    No. AP-75017.
    Court of Criminal Appeals of Texas.
    Feb. 9, 2005.

      Joseph V. Colhna, Corpus Christi, for Appellant.
    Douglas K. Norman, Asst. District Atty., Corpus Christi, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KELLER, P.J.,

delivered the opinion of the unanimous Court.

This mandamus action arises from a court of appeals’s order requiring a trial court to amend its “certification of the defendant’s right of appeal.” We will grant relief.

I. BACKGROUND

A. Procedural history

Defendant Brian Ernst was indicted for indecency with a child. He entered into a pretrial diversion agreement with the State, and his indictment was dismissed. A little over a year later, the State filed a notice of noncompliance, alleging that the defendant had broken the terms of the agreement, and Ernst was subsequently re-indicted. He filed a pretrial motion to dismiss the indictment. His motion argued, among other things, that he had “substantially completed the requirements” of the pretrial diversion agreement. No order or other explicit ruling on this motion appears in the record.

The defendant also filed a pretrial application for writ of habeas corpus raising the same issue. The trial court held a hearing on the merits of the application. At the end of the hearing, the trial court stated that it would consider the case law and the parties’ briefs and would rule on the habe-as application by the end of the week. The record contains no written order concerning the habeas application, but there is a docket entry noting that the trial court denied relief on the same day as the hearing on the merits.

Ernst later pled guilty pursuant to a plea bargain, which the trial court followed. The defendant filed a notice of appeal on May 8, 2002. On July 21, 2003, the court of appeals abated the appeal and ordered the trial court to supplement the record with a “certification of the defendant’s right of appeal.” The trial court supplemented the record with a certification indicating that the case is a plea bargain case and the defendant has no right of appeal.

B. Court of Appeals order

The court of appeals issued an order requiring the trial court to amend the certification to say that the case “is a plea bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal.” The appellate court reasoned that “insofar as both the motion to dismiss and the application for habeas corpus urged the same ground for relief, the trial court’s ruling on [the defendant’s] habeas corpus application was an implicit ruling on his motion to dismiss [the indictment].” Under this reasoning, the defendant’s motion to dismiss triggered his right of appeal because the motion to dismiss was a written motion ruled upon before trial. In response to Justice Castillo’s dissent, the court of appeals suggested that the trial court’s denial of the habeas action showed that it had informally overruled the motion to dismiss.

C. Request for mandamus relief

The trial judge, the Honorable Thomas Greenwell, has filed a petition for mandamus relief. Among other things, the trial judge complains that the court of appeals “clearly abused its discretion in ordering the trial court to certify that the defendant has a right to appeal in a plea-bargained case based on a pretrial motion on which the trial court never ruled.” We now consider that contention.

II. ANALYSIS

A. Overview

When mandamus is sought to require a court to withdraw an order, the relator must demonstrate that: (1) there is no other adequate legal remedy, and (2) there is a clear and indisputable right to the relief sought. Under the rules of appellate procedure, an “appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules.” A defendant who enters a plea bargain may appeal only:

(A) those maters that were raised by written motion filed and ruled on before trial,
or
(B) after getting the trial court’s permission to appeal.

No one disputes that the trial court did not give permission to appeal as required by subsection (B). The question before us is whether the court of appeals’s order to change the certification form to show that appellant met the requirement in subsection (A) entitles relator to mandamus relief.

B. No adequate remedy

There is no provision for obtaining immediate review of the court of appeals’s interlocutory order. If we did not give relief on mandamus and the court of appeals ultimately reversed the conviction, the State could then seek review by way of petition for discretionary review in this Court. But potential review at a later time is not always or automatically an adequate remedy: “In some cases, a remedy at law may technically exist; however, it may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate.” When, for instance, a trial court erroneously removed appointed counsel before trial, we found that the defendant had no adequate remedy, for mandamus purposes, despite the availability of appeal sometime after trial. Using “the appellate process in this situation to correct this particular ill would be too burdensome and would only aggravate the harm and most likely would result in a new trial compelling relator to again endure a trip through the system.” In the pretrial habeas corpus context, we have found that appeal after trial was not an adequate remedy for certain double jeopardy claims because protection of the constitutional right of double jeopardy requires review before exposure to jeopardy occurs.

Similar considerations are present here. The purpose of the certification requirement is to efficiently sort appealable cases from non-appealable cases. Certification allows appealable cases to move through the system unhindered while eliminating, at an early stage, the time and expense associated with non-appealable cases. When appeal is barred by Texas Rule of Appellate Procedure 25.2(a)(2), the clerk’s and court reporter’s records need not be prepared, counsel need not be appointed, and briefs need not be filed. On the other hand, if there is something in whatever record does exist that indicates that an appellant has the right to appeal, the court of appeals must determine whether the certification is deficient and resolve the conflict.

Delaying review of a court of appeals’s order that allows an appeal to proceed would frustrate the purpose of furthering judicial economy by requiring all the actions — appointment of counsel, preparation of the record, filing of briefs, and other proceedings before a court of appeals— that the certification requirement was designed to prevent. One purpose of the certification requirement is to permit earlier identification of an appeal from a defendant who has no right to appeal. The 1977 legislation that restricted the right of plea-bargainers to appeal and curtailed the right to bail pending appeal “were aimed at eliminating, or reducing, the ability of plea-bargaining defendants to delay the execution of their sentences by taking meritless appeals.” That purpose would be frustrated in this case if the State had no remedy until the court of appeals considered the merits of appellant’s appeal, the State petitioned for discretionary review, we granted review, briefs were filed, and our decision was rendered. Relator has shown that he lacks an adequate remedy other than mandamus.

C. Clear and indisputable right to relief

A habeas corpus proceeding has always been regarded as separate from the criminal prosecution, as Professors Dix and Dawson explain:

A habeas corpus action is, in theory, a different litigation than the criminal prosecution.... When habeas corpus is used as a vehicle for raising matters pretrial in a pending criminal prosecution, the difference between the pending prosecution and the habeas corpus proceeding is both more subtle and more significant. An order denying relief on the merits is a final judgment in the habeas corpus proceeding. Therefore, it is immediately appealable by the unsuccessful petitioner.

The professors’ view is amply supported by our caselaw. We have denoted the separateness of habeas corpus in the post-conviction context by characterizing the procedure as a “collateral attack” on the judgment of conviction. But we have also long recognized the separateness of pre-conviction habeas proceedings by permitting an immediate appeal from a denial of relief, before the trial proceedings in a criminal prosecution have been concluded. In the double jeopardy context, an immediate appeal from the denial of relief in a habeas corpus proceeding is permitted even though an immediate appeal would not be permitted when the same claim was raised only in a pretrial motion to dismiss. However, there are no statutes that specifically grant a right to immediately appeal the denial of relief in a pre-conviction habeas corpus proceeding. The right of appeal occurs because the habeas proceeding is in fact considered a separate “criminal action,” and the denial of relief marks the end of the trial stage of that criminal action and the commencement of the timetable for appeal. The appealability of a habeas proceeding turns not upon the nature of the claim advanced but upon the use of the procedure itself and the trial court’s decision to consider the claim (i.e. “issue the writ”). And we have expressly disapproved implying the existence of a habeas action from proceedings in a criminal prosecution when a separate habeas action has not been filed.

Because a habeas corpus action is separate from the underlying criminal prosecution, a ruling in the habeas action is not tantamount to a ruling on the same issue in a motion to dismiss in the criminal prosecution. Nor can a ruling in the habe-as action, by itself, be a basis for an inference that the trial court made, in the criminal prosecution, a ruling not reflected in the record. Here, nothing in the record indicates that the trial court made a ruling, explicit or implicit, on the motion to dismiss. The court of appeals was indisputably incorrect to hold otherwise.

Relator is entitled to a writ of mandamus from this Court ordering the court of appeals to vacate its order. As is our custom, we will withhold issuance of the writ and accord the court of appeals an opportunity to conform its actions to this opinion. Only if such action is not taken will the writ of mandamus issue.

      . See Tex.R.App. P. 25.2(a)(2)(a).

      . Ernst v. State, 159 S.W.2d 656, 658, 2004 WL 1166210, 2004 Tex.App. LEXIS 4704, at 8 (Corpus Christi, delivered May 26, 2004).

      . Id. at 4.

      . Id. at 7.

      . Id. at 6-7.

      . State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex.Crim.App.2001).

      . Tex.R.App. P. 25.2(d).

      . Tex.R.App. P. 25.2(a)(2)(emphasis added).

      . See Tex R.App. P. and Tex.Code Crim Proc., passim. See also State ex rel. Holmes v. Court of Appeals for Third Dist., 885 S.W.2d 389, 394 (Tex.Crim.App.1994)(adequacy of remedy affected by interlocutory nature of the order relator seeks to overturn).

      . Smith v. Flack, 728 S.W.2d 784, 792 (Tex.Crim.App.1987),

      . Stearnes v. Clinton, 780 S.W.2d 216, 225 (Tex.Crim.App. 1989).

      . Ex parte Robinson, 641 S.W.2d 552, 555 (Tex.Crim.App.1982).

      . Dears v. State, 154 S.W.3d 610 (Tex.Crim.App.2005)(certification reflected plea bargain; docketing statement reflected no plea bargain).

      . Young v. State, 8 S.W.3d 656, 665 (Tex.Crim.App.2000).

      . Dix and Dawson, Texas Practice: Criminal Practice And Procedure, 2nd ed., Vol. 43B, § 47.51, 219-220 (2001)(ellipsis inserted; emphasis in original).

      . Ex parte Rieck, 144 S.W.3d 510, 516 (Tex.Crim.App.2004)(citing Ex parte Tuley, 109 S.W.3d 388, 390 (Tex.Crim.App.2002)).

      . Ex parte Halsted, 147 Tex.Crim. 453, 456-457, 182 S.W.2d 479, 481-482 (1944).

      . Robinson, 641 S.W.2d at 555, ns. 4 & 5(double jeopardy claim raised in habeas immediately appealable although same claim raised in a motion to dismiss could not have been immediately appealed).

      . See Tex.Code Crim. Proc., Art. 11.01, et seq. and Art. 44.02, passim.

      . See State ex. rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex.Crim.App.1994).

      . Id.

      . See Art. 44.02 (defendant’s right to appeal "any criminal action”).

      . Ex parte McCullough, 966 S.W.2d 529, 531-532 (Tex.Crim.App.1998).

      . Jordan v. State, 54 S.W.3d 783, 786 (Tex.Crim.App.2001).

      . See Hill, 34 S.W.3d at 927-928 (relief sought must be "clear and indisputable”).

      . While an appellate court may require a trial court to certify whether there is a right to appeal, the appellate court may not dictate the content of the certification. See Tex.R.App. P. 37.1.