### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00478- CV

In re Volksw agen Clean Diesel Litigation: Texas Clean Air Ac t Enf orce m ent Cases

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

O P I N I O N

The State s ee k s m andamus relief from the MDL pre- trial court’s ref usal to abate eig hteen later- filed case s involving the State’s and various counties’ enfor ceme nt of the Texas Clean
Air Act ag ainst Volkswag en. The principal issue in this mandamus proce eding —o n e o f fi rs t 1 impression—is whether , under this unique fac tual and proce dural posture, the common-law doctrine

o f d o m i nant jurisdiction require s that the counties’ later- filed enfor ceme nt suits, pending in the
MDL , be abate d until resolution of the State’s enfor ceme nt suit. Be cause we conclude that they must be abate d, as explained below, we will conditionally g rant the State’s petition for writ of mandamus.

I nvoking the doctrine of dominant jur isdiction, the State asser ts tha t it is e ntitled to
mandamus relief order ing the pretria l court to abate the later- filing counties’ suits beca use the State’s

The State included t h i s re quest for mandamus relief in In re Volkswagen Clean Diesel 1 Liti gation: Texas Clean Air Act Enforceme nt Cases , our cause number 03-16-000718- CV. On our own motion, we sever ed the State’s petition for writ of mandamus into a separ ate cause , No. 03-17- 000478-CV. The fac ts and statutory scheme rele vant to this orig inal pro ce ed i n g are the same as those set forth in our opinion issued today in In re Volkswagen Clean Diesel Liti g.: Tex. Clean Air Act Enf’t Cases , No. 03-16-000718- CV (Tex. App.—Austin J uly 28, 2017, no pet. h.).enfor ceme nt suit ag ainst Volkswag en was filed before the later- filing counties’ enforcem ent suits

ag ainst Volkswag en. We ag ree
. “I n instances wher e inhere ntly interre lated suits are pending in two counties, and venue is proper in either county , the court in which suit was first filed acquires
dominant jurisdiction. I n these circ umstances, the g ener al rule is that the court in the second action

must abate the suit.” I f the trial court in the second action—her e, the MDL pretria l court acting , as 2
it wer e, on behalf of the courts in which the later- filing counties broug ht suit—abuses its discretion by not abating the ac tion, no additional showing is re quired for mandamus re lief. 3
There is no dispute that the State’s TCAA-e nforc ement action ag ainst Volkswag en

was filed first, that venue is prope r in ea ch of the counties whe re the respe ctive ca ses wer e filed,

4 5

or that the lawsuits are inhere ntly interre lated. Nor do the lat er -f i l i n g counties sug g est that any 6 exceptions to dominant jurisdiction apply here

. I nstead, the lat er-filing counties arg ue that the 7 pretria l court did not abuse its discretion by deny ing abate ment here beca use the statutory MDL

In re Red Dot Bldg. Sys

. , In c. , 504 S.W .3d 320, 321 (Tex. 2016) (citing In re J.B. Hunt 2 Transp., Inc ., 492 S.W .3d 287, 294 (Tex. 2016) (orig

. proce eding ); Gonzalez v. Reliant Energy, Inc. , 159 S.W .3d 615, 622 (Tex. 2005); W yatt v. Shaw Plumbing Co. , 760 S.W .2d 245, 248 (Tex. 1988)). Id. (citing J.B. Hunt , 492 S.W .3d at 299–300). 3 See id. at 323 (de termining chronolog ical orde r of suits). 4
See Tex. Water Code § 7.105(c) (“The suit may be broug ht in Travis County , in the county 5 i n which the defe ndant resides, or in the county in which the violation or threa t of violatio n occur s.”); Red Dot , 504 S.W .3d at 322 (dete rmining whether venue was proper in counties where inhere ntly interre lated suits were filed). See Red Dot , 5 0 4 S.W .3d at 322 (lawsuits must be “inherently interre lated”) ; J.B. Hunt , 6 492 S.W .3d at 294; W

yatt , 760 S.W .2d at 248. See J.B. Hunt , 495 S.W .3d at 2 9 4 (e s t o p pel and lack of intent to prosec ute); Perry v. 7 Del Rio , 66 S.W .3d 239, 252–53 (Tex. 2001) (lac k of nec essar y parties)

. 2scheme h as somehow displaced the common-law doctrine of dominant jurisdiction. Whil e this

arg ument may be up for deb at e i n a situation wher e the dominant-jurisdiction issue arises in

connec tion with more ty

pical MDL case s—i.e., case s wher e claimants seek recove ry of t heir own
separ ate and individual injuries—in the unique circ umstance of t h e s t atutory enfor ceme nt claims

asser ted her e, we hold that the doctrine of dominant jurisdiction controls. “‘[S] tatutes can modify common law rules, but befor e we construe one to do so, we
must look car efully to be sure that was what the L eg islature i n t ended.’” I n the MDL statute, the 8
L eg islature cre ated a sy stem wher e civil case s that “involv[e] one or more common questio n s o f
fac t” can be transfe rre d to a pretria l c ourt for “consolidate d or coordina ted pretria l pr ocee dings” if
the transfe r will “be for the convenie nce of the parties and witnesses” and “p ro m o te the just and
eff icient conduct of t h e ac t i o n s
. ” The MDL proce ss is a statutory tool of economy intended to 9
coordina te or consolidate the pretria l proce eding s in pending case s that share underly ing questions
of fac t, but wher e the claimants eac h seek rec overy for their own injuries and wher e, ultimately , the
individual case s will be rema nded for separ ate trial s
. The doctrine of dominant jurisdiction, by

contra st, applies wher e case s are inhere ntly interre lated beca use they “involv[e] the same parties and
the same controve rsy ,” and require s that the later- filed case s “be dismiss ed if a party to that suit calls
the second court’s attention to the pendenc y of the prior suit by a plea in abate m en t

. ” “T he 1 0

Dugger v. Arredondo , 408 S.W .3d 825, 828 (Tex. 2013) (quotin g Energy Serv. Co. of 8 Bowie v. Superior Snubbing Serv s., Inc ., 236 S.W .3d 190, 194 (Tex. 2007)). Tex. Gov’t Code § 74.162. 9
Curtis v. Gi b b s , 511 S.W .2d 263, 267 (Tex. 1974) (empha sis added) ; see W arren v. 1 0 W einer , 462 S.W .3d 140, 144–45 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (q u oting Curtis for same proposition); L o p ez v. Texas W

orkers’ Comp. Ins. Fund , 11 S.W .3d 490, 493 (Tex. 3jurisprudential re ason for the [domi nant-jurisdiction] rule is tha t once a matter is bef

ore a court of competent jurisdiction, ‘its action must nece ssarily be exclusive’ beca use it is ‘impossible that two
courts can, at the same time, possess the power t o m ak e a fi n al deter mination of the same
controve rsy betwee n the same parties.’ ” Given the unique circ umstances we have befor e us—i.e., 1 1
wher e the State’s and re s p ec t i v e counties’ case s all seek to enfor ce the same environmenta l
laws by imposing penal t i es o n t h e same parties for the same violations—we cannot say that the
L eg islature intended for the MDL statute to modify or cre ate an exception to the common-law rule of dominant jurisdiction. 1 2

The later- fil i ng counties arg ue that, even if dominant jurisdiction attache s to the
State’s case , the abate ment issue can be revisited if nece ssary when the civil-pena lty actions are

rema nded for their respe ctive trials and, rela tedly , that mandamus revie w is unwar rant ed h ere beca use neither the State nor the leg al s y stem will suffe r any harm if the later- filing counties are allowed to participa te in the coordina ted pretria l proce eding s in the MDL court. Be cause the pretria l
court’s order s are binding in the trial court afte r re m an d , h oweve r, this “re visiti ng ” could only happen if the pre trial court de cided to r ehea r an issue it ha d alre ady decide d. But even assuming 1 3
that this could or would happen, the Texas Supreme Court h as decla red that once a rela tor has

App.—Austin 2000, pet. denied) (same) ; see also J.B. Hunt , 492 S.W .3d at 295 n.21 (re fer encing Curtis ’s “same par t i es and same controve rsy ” lang uag e in context of explaining that inhere ntly interre lated ca ses ar e subjec t to abatement)

.

Perry v . Del Rio , 66 S.W .3d 239, 252 (quoting Cleveland , 285 S.W . at 1071). 1 1
See D ugger , 408 S.W .3d at 828. 1 2
See Tex. R. J ud. Admin. 13.8(b) (“Without the written concur renc e of the pretria l c ourt, 1 3 the trial cour

t cannot, over

objection, vac ate, se t aside, or modify pretria l court orde rs . . . .”)

. 4established that the doctrine of dominant jur isdiction a pplies—i.e., the rela

tor’s suit wa s filed first
in an appropr iate venue, rema ins pending , and is inhere ntly interre lated to the later- filed suit —the 1 4
trial court in the later- filed case must abate the later- filed case and abuses its discretion in failing to do so. Fur

ther, the supreme court’s decision in J.B. Hunt sug g ests th at we may not delay here , 1 5
whether to allow the dominant-jurisdiction issue to “ripe n” or beca use the pretria l court could revisit
the issue befor e rema

nd. I n J.B. Hunt , the supreme court overturne d its prior decision holding that
manda mu s r e li e f w as not available unless the second- filed court “ac tively interfe res with the exercise of jurisdiction” in the other c ourt. I nstead, the supreme court held that reg ardle ss of whethe r the 1 6
second court is actively interfe ri n g wi t h the dominant court, “a rela tor need only establish a trial
court’s abuse of discretion to demonstrate entitlement to mandamus re lief with reg ard to a plea in
abate ment in a dominant-jurisdiction case .” 1 7

Severa l of the later- filing counties arg ue that t he doctrine of dominant jurisdiction
does not ap p l y to their respe ctive suits beca use their lawsuits wer e the first to include cer tain

See R ed Dot , 504 S.W .3d at 324; J.B. Hunt , 492 S.W .3d at 298. 1 4 Red Dot , 504 S.W .3d at 323 (“I n sum , t h e [ first-filed] court acquir ed dominant 1 5 jurisdiction, the [ second- filed] court should have g rante d [relator]’s plea in aba tement and a bused its discretion in failing to do so, a nd [relator] is entit led to mandamus re lief.”)

. S ee J.B. Hunt , 492 S.W .3d at 298 (“ Abor held that mandamus relief is unavailable to 1 6 corr ect an err oneous denial of a plea in abate ment wher e there is ‘no conflict of jurisdiction’—that is, there wa s n o injunction or order in one court ‘which actively interfe res with the exercise of jurisdiction’ in the other cour t.” (quoting Abor v. Black , 695 S.W .2d 564 (Tex. 1985)). Id. at 300. 1 7
5defe ndants that wer e not na med in the State’s enfor ceme nt suits and, thus, that their case s should 1 8
be considere d the first-filed case s ag ainst the defe ndants not name d i n t h e State’s enfor ceme nt action. But the supreme court has reje cted this arg ument, explaining that “[i] t is not require d that the

exact issues and all the parties be included in the first action befor e the second is filed, provided that
the claim in the first suit may be ame nded to bring in all ne cessa ry and proper parties and issues. 1 9
Her e, nothing preve nts the State from adding additional defe ndants to its enforce ment action.

Finally , we note that our decision here is not an assault on the MDL scheme , but
rathe r is limit ed to the unique nature and proce dural posture of the case s befor e us. Although fairly
char acte rized as falling within the MDL statute’s broad scope of sharing common questions of fac t, the case s here are also inhere ntly interre lated, and thus subject to the dominant-jurisdiction doctrine,
beca use the later- filed suits all seek to rec over civil penalties from the same TCAA violators for the

same TCAA violations as does the State’s case
. Put another way , these TCAA enfor ceme nt actions 2 0
di ffe r from the ty

pical MDL case s in that eac h local-g overnme nt action seeks, by definition, to

The counties asser

ti n g t h i s arg ument are Be x ar, Br azos, Denton, J eff erson, L ubbock, 1 8 Nuec es, Parker , and Taylor counties. These newly named defe ndants include Volkswag en Aktieng esellscha ft; Volkswag en Group o f Americ a Chattanoog a Oper ations, L L C; Audi Aktieng esellscha ft; Dr. I ng H.c.F

. Porsche Aktieng esellscha ft; Porsche Cars o f North Americ a, I nc.; Robert B osch, L L C; and Robert Bosc h GmbH.

W yatt , 760 S.W .2d at 247. 1 9
See id. (“In deter

mining whether an inhere nt interre lationship exis ts, courts should be 2 0 g uided by the rule g overning persons to be joined if fea sible and the compulsory counter claim rule.” (citing Tex. R. Civ. P. 39, 97(a) ). The case s here meet both rules beca use, as explained, the counties’ claims are , with the exception of the g eog raphic restric tion, identical to the State’s cl aim s and beca use the T C AA m ak es T C E Q (i.e., the State) a nece ssary and indispensable part to all localg overnme nt suits. See Tex. Water Code § 7.353 (“I n a suit broug ht by a local g overnme nt under this subchapte r, the c ommissi on is a nec essar y and indispensable pa

rty .”). 6punish the very same violations that the State could, using the s am e p en al ty and enfor ceme nt

mecha nism set forth in the TCAA and includi n g t h e State as a nece ssary party as require d by
the TCAA.
I n sum, the Travis County District Court acquir ed dominant jurisdiction over TCAA
violations in 252 Texas counties, including the county parties h er e, when the State filed its
enfor ceme nt action in that court. The courts in which the later- filed case s wer e filed—and now the
MDL pretria l court in their stead—should have g rante d the State’s plea in abate ment and abate d the
l at er- filed case s until the State’s first-filed case is resolved. The MDL pretria l court abused i t s discretion in fa iling to do so. 2 1

Acc ording ly , we conditionally g rant mandamus relief and direc t the pretria l court to
g rant the State’s pleas in abate ment as to the later- filing counties. We are confide nt the pretria l court will promptly

comply , and our w rit will iss ue only if it does not.

__________________________________________ J eff Rose, Chief J ustice
Be fore Chief J ustice Rose, Jus tices F ield and B ourland
Filed: Jul y

28, 2017

See R ed Dot , 504 S.W .3d at 324. 2 1
7