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A motion for new trial tendered without the necessary filing fee is nonetheless conditionally filed when it is presented to the clerk, and that date controls for purposes of the appellate timetable. The failure to pay the fee before the motion is overruled by operation of law may forfeit altogether the movant's opportunity to have the trial court consider the motion; it does not, however, retroactively invalidate the conditional filing for purposes of the appellate timetable.
The Legislature amended the venue statutes in 1995 to allow a trial court to transfer venue "for the convenience of the parties and witnesses and in the interest of justice." At the same time, the Legislature mandated that a trial court's order granting or denying such a transfer for convenience is "not grounds for appeal or mandamus and is not reversible error." The record reflects that petitioner Ines Gonzalez Garcia (a resident of Hidalgo County) brought suit against J&R Valley Oilfield Services, Inc. (a business in Hidalgo County) and Ramiro Garza (a resident of either Hidalgo or Starr County) concerning an auto accident occurring in Hidalgo County. Of sixteen potential lay and expert witnesses designated by the parties, fourteen were residents of Hidalgo County, and two of Mexico. None resided in Starr County. Nevertheless, suit was brought in Starr County, based on evidence that Garza lived there. J&R's motion to transfer venue (which Garza joined) argued that Starr County was not a county of proper venue, and added "alternatively, your Defendant would show that venue should be transferred to Hidalgo County for the convenience of the parties." The trial court's order stated that "after considering the motion, the pleadings, the affidavits, the responses as well as arguments of counsel and after a hearing, the Court grants Defendants' Motion to Transfer Venue." At the trial in Hidalgo County, the jury awarded Garcia $ 120,000. Unsatisfied, she appealed seeking automatic reversal and a new trial based on the venue transfer. The court of appeals reversed, refusing to presume a venue order was granted on convenience grounds unless the order specifically said so.
Did the court of appeals err in considering and reversing the trial court's venue order?
The court held that because no new trial fee was ever paid, the court of appeals correctly never addressed Garcia's factual sufficiency complaint, but correctly considered her venue complaint. The court of appeals should have affirmed the trial court's transfer order on convenience grounds. Because Garcia failed to present her factual sufficiency point to the trial court (by failing to ever pay the filing fee), she failed to preserve her remaining point, and the appellate court rendered judgment reinstating the trial court's judgment.