The Texas Nexus -- Why state justices owed an apology to George Strait

Steve Korris Aug. 1, 2007, 9:42am

Anyone on earth can sue in a Texas court over an injury that happened anywhere on earth, as long as the injured person lives in a nation that allows personal injury lawsuits.

The Court of Appeals of Texas, First District, warmly welcomed foreigners with a 1988 decision in favor of Costa Ricans.

The First District rendered its decision despite finding that, "All plaintiffs are citizens of Costa Rica, and the events giving rise to their cause of action all occurred in Costa Rica."

The decision admitted that, "�there is little Texas nexus in our case."

Nexus means tie or connection.

A dissenting Justice mocked the decision by placing in the record a ditty, "I cain't prove no Texas nexus," to the tune of "All My Exes Live in Texas."

The case began in 1984, when Domingo Alfaro and other workers at a Standard Fruit banana plantation sued Dow and Shell in Harris County.

They claimed physical and mental harm from handling a pesticide that Dow and Shell made.

Dow and Shell moved to dismiss the suit under the doctrine of "forum non conveniens."

Under the doctrine a judge may dismiss a case so that a plaintiff can file it in a more convenient court.

A Harris County judge granted the motion to dismiss.

For the Costa Ricans, Russell Budd and Charles Siegel of Baron and Budd in Dallas, appealed.

Attorneys at Baker and Botts, in Houston, represented Dow and Shell.

Budd and Siegel relied on Chapter 71 of state law, providing that an action for death or injury of a citizen of Texas, the U. S. or a foreign country "may be enforced in the courts of this state."

Under Chapter 71, a foreigner can sue if his nation allows similar court action and his nation has equal treaty rights with the United States.

Shell and Dow argued that the words, "may be enforced," indicated that Texas legislators recognized a court's power to dismiss.

Budd and Siegel countered that legislators chose "may" because they did not want to limit a plaintiff's choice of courts.

The argument persuaded Justices Warren and Levy. Warren wrote, "�the legislature did not intend to require a plaintiff to bring suit in a Texas court, but merely to allow him to bring suit in Texas."

He wrote that the Texas Supreme Court had not ruled directly in favor of foreign plaintiffs but its decisions inclined that way.

He added a paragraph suggesting he didn't like his decision.

He wrote, "Although we are of the opinion that public policy considerations favor allowing Texas district courts to exercise at least some limited discretion in deciding whether Texas is the most appropriate forum for cases brought under 71.031, our construction of the statute and the apparent inclination of the Texas Supreme Court on this question require a holding that 71.031 provides a foreign plaintiff with an absolute right to maintain a death or personal injury cause of action in Texas, without being subject to forum non conveniens dismissal."

Justice Duggan dissented. He wrote that the Supreme Court had not spoken decisively because it recognized "the potential for unfairness that could follow a sweeping abolition of the doctrine of forum non conveniens."

He wrote, "Unless litigants are afforded some relief in cases where a trial in Texas would be grossly unfair, it is not far fetched to imagine that the following ditty might become the number one hit in Yugoslavia by 1990."

He wrote, "I cain't prove no Texas nexus. I got hurt near my home in Zren-Ja-Neen. Still I filed my suit in Texas. They ain't got no forum non conveen."

He offered apologies to George Strait and gave credit for the lyrics to First District briefing attorney Kate Hall.

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