IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

HOUSTON FEDERATION OF 

TEACHERS, et al.,

Plaintiffs,

v.

THE TEXAS EDUCATION AGENCY and 

MIKE MORATH, Commissioner of 

Education, in his Official Capacity,

Defendants.

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 Civil Action No. SA-20-CV-222-XR

 

ORDER ON MOTION TO TRANSFER VENUE

On this date, the Court considered Defendants’ Motion to Transfer Venue to the Austin 

Division pursuant to § 1404(a). Docket no. 8. After careful consideration, the Court grants the 

motion.

Background and Applicable Law

This case is a challenge to the Texas Education Agency’s (“TEA”) decision to install a 

board of managers to run the Houston Independent School District (“HISD”). Suit is brought by 

the Houston Federation of Teachers, a labor union that represents employees of HISD, the Texas 

American Federation of Teachers, a statewide labor organization that represents employees of 

public school districts across Texas, and individuals Jackie Anderson, Maxie Hollingworth, and 

Daniel Santos, who reside in Harris County and within the boundaries of HISD.

In 2016, the TEA notified HISD that it was appointing a Conservator for Kashmere High 

School. In January 2019, the TEA initiated a Special Accreditation Investigation in response to 

multiple complaints and requests to investigate the HISD Board of Trustees’ alleged violations 

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of the Texas Open Meetings Act and provisions of the Texas Education Code that govern 

independent school districts and the specific powers and duties of a district’s board. In March 

2019, the Conservator issued a directive to the Board of Trustees and administration of HISD to 

immediately suspend its search for a new superintendent until the TEA completed its Special 

Accreditation Investigation.

On May 24, 2019, the TEA prepared a second amended Notice of Special Accreditation 

Investigation describing complaints that the HISD Board of Trustees may have violated the 

contract procurement process, competitive bidding, awarding, and management of contracts.

On June 27, 2019, HISD sued the TEA and Commissioner Mike Morath in state court 

in Travis County. The TEA removed the case to the Austin Division of the Western District on 

July 3, 2019, and it was assigned to Judge Lee Yeakel. 1:19-CV-00684-LY. The lawsuit sought 

declaratory relief and an injunction prohibiting the TEA from taking any regulatory actions 

against HISD and/or its Board based on either the Special Accreditation Investigation or a recent 

Texas Attorney General Opinion.

On August 5, 2019, the TEA issued a preliminary report, recommending that the 

accreditation status of HISD be lowered, a conservator be appointed, and a board of managers 

installed. Following objections by HISD and informal administrative review, the TEA issued a 

Final Special Accreditation Investigation Report on October 30, 2019. The Report concludes 

that the Agency substantiated that HISD trustees (1) violated the Texas Open Meetings Act, (2) 

acted individually on behalf of the Board thereby exceeding the scope of the trustees’ authority, 

and (3) violated contract-procurement rules while the district was selecting a vendor and 

attempted to tamper with an awarded contract.

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On November 4, 2019, HISD amended its Complaint to assert claims for First 

Amendment Retaliation, Unlawful Speech Restriction, Overbreadth, Unconstitutional 

Vagueness, Procedural Due Process Violations, violations of the Voting Rights Act, violations 

of Title VI of the Civil Rights Act of 1964, Violations of the Equal Protection Clause, and for 

Declaratory Judgment.

On November 6, 2019, Commissioner Morath notified HISD that, based on the Report, 

he would lower HISD’s 2018-19 accreditation status to “Accredited-Warned,” temporarily 

suspend the Board, install a board of managers to exercise the powers and duties of the Board,

and appoint a superintendent. In early November, the Commissioner informed Judge Yeakel

that a final decision on the recommendations in the Report would occur on or after December 

20, 2019.

On December 18, 2019, Judge Yeakel issued an Order. Therein, he noted that Plaintiff 

HISD alleged that the TEA, Morath, and Conservator Doris Delaney violated federal and state 

law during the Agency’s Special Accreditation Investigation and will further violate such laws 

by replacing HISD’s elected Board of Trustees with a board of managers appointed by the TEA.

HISD sought preliminary injunctive relief to prevent the Commissioner from interfering in the 

selection of a new or interim superintendent, replacing the Board with a board of managers 

appointed by the TEA, and sanctioning HISD as a result of the Investigation. Judge Yeakel 

dismissed HISD’s federal claims for lack of standing and remanded the remaining state-law 

claims. Judge Yeakel also withdrew his prior order granting the Federation’s motion to intervene 

as improvidently granted because the interests of the Federation and HISD diverge significantly.

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In January 2020, on remand, a state court judge issued a temporary injunction preventing 

the Commissioner from installing a board of managers, and that decision in on appeal.

The Federation and individual Plaintiffs now bring this lawsuit asserting that the TEA’s 

decision to appoint a board of mangers violates Section 2 of the Voting Rights Act and the 

Fourteenth and Fifteenth Amendments, and seeking injunctive relief. Defendants have moved 

to dismiss and to transfer venue, and urge the Court to consider the venue transfer motion first. 

Plaintiffs have responded in opposition.

The venue transfer statute provides: “For the convenience of parties and witnesses, in 

the interest of justice, a district court may transfer any civil action to any other district or division 

where it might have been brought or to any district or division to which all parties have 

consented.” 28 U.S.C. § 1404(a). The § 1404(a) factors apply as much to transfers between 

divisions of the same district as to transfers from one district to another. In re Radmax, Ltd., 720 

F.3d 285, 288 (5th Cir. 2013). A motion to transfer venue pursuant to § 1404(a) should be 

granted if “the movant demonstrates that the transferee venue is clearly more convenient,” 

taking into consideration (1) “the relative ease of access to sources of proof”; (2) “the availability 

of compulsory process to secure the attendance of witnesses”; (3) “the cost of attendance for 

willing witnesses”; (4) “all other practical problems that make trial of a case easy, expeditious 

and inexpensive”; (5) “the administrative difficulties flowing from court congestion”; (6) “the 

local interest in having localized interests decided at home”; (7) “the familiarity of the forum 

with the law that will govern the case”; and (8) “the avoidance of unnecessary problems of 

conflict of laws [or in] the application of foreign law.” Id. (citing In re Volkswagen of Am. 

(“Volkswagen II”), 545 F.3d 304, 315 (5th Cir. 2008) (en banc)).

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Analysis

Plaintiff Houston Federation of Teachers is located in Houston, Texas. Plaintiff Texas 

American Federation of Teachers is a statewide labor organization with its principal office in 

Austin, Texas. Plaintiffs are individual residents and voters in Harris County, Texas. Defendant 

TEA is a state agency headquartered in Austin. All of the events underlying this lawsuit occurred 

in Austin and Houston; none occurred in San Antonio.

As to the first factor, relative ease of access to sources of proof, Defendants contend that 

the events giving rise to Plaintiffs’ claims occurred in the Austin Division, where the TEA and 

the Commissioner are located. Most importantly, the Special Accreditation Investigation 

occurred in the Austin Division. Defendants contend that this case has no ties to San Antonio, 

as HISD is in Houston, in the Southern District of Texas. As a result, Defendants argue, all 

sources of proof are in the Austin Division, as Defendants and TEA employees and records are 

in Austin. Plaintiffs complain that Defendants offer no evidence as to the sources of evidence 

solely present in Austin, but that fact appears to be self-evident. Plaintiffs contend that there are 

also important documents and witnesses in San Antonio because they allege that TEA has sought 

to replace the elected Boards of Trustees of several school districts in San Antonio. Plaintiffs 

therefore contend that this factor is neutral because important documents are located in both 

divisions.

This factor is concerned with relative ease of access, not absolute ease of access. 

Radmax, 720 F.3d at 288 (citing Volkswagen II, 545 F.3d at 316 (“That access to some sources 

of proof presents a lesser inconvenience now than it might have absent recent developments 

does not render this factor superfluous.”)). The case has no ties to San Antonio, and all of the 

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events occurred and thus sources of proof are in Austin (or Houston). The fact that Plaintiffs 

wish to have witnesses testify about similar actions in San Antonio (for which they bring no 

claims), has only marginal relevance, if any, to the facts of this case concerning HISD, and thus 

the relative ease of access clearly favors Austin. Where all of the documents and physical 

evidence are located in another division, this factor weighs in favor of transfer. Radmax, 720 

F.3d at 288. The Court finds that this factor weighs strongly in favor of transfer.

As to “the availability of compulsory process to secure the attendance of witnesses,” 

when all of the witnesses are within the subpoena power of either court, as here, this factor is 

neutral. Radmax, 720 F.3d at 288.

Considering the cost of attendance for willing witnesses, “[w]hen the distance between 

an existing venue for trial of a matter and a proposed venue under § 1404(a) is more than 100 

miles, the factor of inconvenience to witnesses increases in direct relationship to the additional 

distance to be traveled.” In re Volkswagen AG (“Volkswagen I”), 371 F.3d 201, 204–05 (5th 

Cir. 2004) (per curiam). In Volkswagen II, the Court reiterated that guidance and characterized 

it as a 100–mile “threshold” or “rule.” Volkswagen II, 545 F.3d at 317. The Court did not imply, 

however, that a transfer within 100 miles does not impose costs on witnesses or that such costs 

should not be factored into the venue-transfer analysis, but only that this factor has greater 

significance when the distance is greater than 100 miles. Radmax, 720 F.3d at 289.1In Radmax, 

the Fifth Circuit granted mandamus relief when the factors weighed in favor of transfer despite 

there being only a 60-mile distance between divisions.

1 The Radmax panel noted that the district court’s anticipation “that [the requirement for obtaining mandamus] will 

rarely be satisfied in any case involving a requested intra-district transfer between divisions within 100 miles of 

each other” was “off the mark.” Radmax, 720 F.3d at 289 n.6.

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Plaintiffs assert that only non-parties should be considered and concede that “it is 

possible that the testimony of some non-parties may be required.” However, § 1404(a) transfers 

are concerned with convenience to the parties as well non-party witnesses, and thus all potential 

witnesses should be considered, though non-party witnesses may be afforded greater 

consideration. See Volkswagen II, 545 F.3d at 317 (considering that the plaintiffs lived in the 

Dallas Division). Defendants and one Plaintiff are located in Austin. Further, TEA employees 

in Austin would need to testify about the investigation. Although the distance between Austin 

and San Antonio is approximately 80 miles, it is unquestionably less costly for Austin witnesses 

to attend trial in Austin. In re Volkswagen of Am., Inc (“Volkswagen I”), 545 F.3d 201, 205 (5th 

Cir. 2004) (noting that it is an “obvious conclusion” that it is more convenient for witnesses to 

testify at home). No witnesses having knowledge of the underlying facts of the HISD 

investigation have been identified as living in the San Antonio Division.

2

As to witnesses from Houston, Austin is somewhat closer (approximately 165 miles) 

than is San Antonio (approximately 197 miles) and thus somewhat more conveniently located 

and less costly for travel by car. The cost for witnesses attending from Houston would be 

substantially similar in Austin or San Antonio, though Plaintiffs contend it would be less costly 

to travel to San Antonio from Houston because hotels are cheaper and airline rates are “equal or 

greater” to Austin. Even if the costs for Houston witnesses are slightly higher for Austin than 

San Antonio, that cost difference is greatly outweighed by the cost of Austin witnesses having 

to travel to San Antonio versus not having to travel at all. Witnesses not only suffer monetary 

2 Plaintiffs further state they anticipate hiring an expert who resides in San Antonio, and the additional costs of 

housing experts in Austin compared to San Antonio will increase litigation costs for Plaintiffs. But this fact is as 

yet hypothetical, and Defendants may hire an expert from Austin that would balance it out.

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costs, but also the personal costs associated with being away from work, family, and community. 

In re Volkswagen II, 545 F.3d at 317. Houston witnesses have to be away from home for trial in 

either San Antonio or Austin, while Austin witnesses would not have to travel at all if trial were 

in Austin. Accordingly, the Court finds this factor weighs in favor of transfer.

Next, the Court considers “all other practical problems that make trial of a case easy, 

expeditious and inexpensive.” Garden variety delay associated with transfer is not to be taken 

into consideration. Radmax, 720 F.3d at 289. Defendants argue that all of Defendants’ attorneys 

and one of Plaintiffs’ attorneys are in Austin, but the Court does not consider the convenience 

of counsel in its analysis. In re Volkswagen, 371 F.3d at 206 (citing In re Horseshoe Entm’t, 

337 F.3d at 429,434 (“[t]he factor of ‘location of counsel’ is irrelevant and improper for 

consideration in determining the question of transfer of venue”). Plaintiffs contend that although 

the Federation has an office in Austin, it has more than 4600 members in the San Antonio area, 

some of whom are witnesses to TEA investigations in their districts and in their schools and can 

provide insight into the investigative process and TEA’s disparate treatment of minoritymajority school districts. However, as noted above, testimony about what occurred in San 

Antonio would appear to have only marginal, if any, relevance in this case. Thus, the Court finds 

this factor neutral.

The fifth factor to consider is “the administrative difficulties flowing from court 

congestion.” Neither party addresses this factor and the Court finds that it is neutral.

The sixth factor is “the local interest in having localized interests decided at home.”

Neither Austin nor San Antonio has a strong localized interest in this dispute. However, the 

events underlying the suit occurred in Austin, the TEA is located in Austin, and the Texas 

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Federation has its principal office in Austin, giving Austin somewhat of an interest in the matter

even though it affects a school district in Houston. There is no relevant factual connection to 

San Antonio. In re Volkswagen II, 545 F.3d at 318 (local interest favored transferee forum where 

the case had no relevant factual connection to transferor forum). The Court finds this factor is 

neutral or weighs in favor of transfer.

The seventh factor is “the familiarity of the forum with the law that will govern the case.”

Although both courts are equally capable of applying the relevant law, the Austin Division 

(specifically Judge Yeakel) has already held a preliminary injunction hearing on similar issues, 

heard Plaintiffs’ arguments, and is familiar with the general issues. Defendants contend that the 

fact that Judge Yeakel has already considered and addressed the underlying facts in this lawsuit 

is alone enough for transfer to Austin, but, as Plaintiffs point out, although Judge Yeakel heard 

Plaintiffs’ arguments, the motion to intervene was later denied as improvidently granted and 

there was no adjudication of Plaintiffs’ claims in Judge Yeakel’s court. Further, there is no case 

currently pending in the Austin Division; it is in state court. Plaintiffs contend that this Court is 

arguably more familiar with voting rights legislation. While this Court may have familiarity 

with voting rights legislation in the statewide redistricting context, it has no more familiarity 

with voting rights law in this context or in general than the judges in the Austin Division. The 

Court finds this factor to be neutral or weighing slightly in favor of transfer. 

And the last factor, “the avoidance of unnecessary problems of conflict of laws [or in] 

the application of foreign law” is neutral.

The Court finds that In re Radmax controls the disposition of this motion. In Radmax, 

the Fifth Circuit found a clear abuse of discretion and granted mandamus relief for an order 

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denying transfer to the Tyler Division from the Marshall Division (a distance of only 60 miles) 

when the only factor weighing against transfer was the plaintiff’s choice of forum and the case 

had no connection to the transferor forum and all the events, facts, witnesses, and other sources 

of proof were in the transferee forum. Radmax, 720 F.3d at 290. Because all the factors here are 

either neutral or weigh in favor of transfer, as in Radmax, transfer is required.

Conclusion

Pursuant to In re Radmax, the Court finds that transfer of this case to the Austin Division 

is required. Defendants’ Motion to Transfer Venue (docket no. 8) is therefore GRANTED. The 

Clerk is directed to transfer the case and, once docketed in the Austin Division, to close this 

case.

 It is SO ORDERED

SIGNED this 28th day of May, 2020.

XAVIER RODRIGUEZ

UNITED STATES DISTRICT JUDGE

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