UNION CARBIDE CORPORATION et al., Relators, v. The Honorable B.D. MOYE, Judge, Respondent, 798 S.W.2d 792

OPINION SPEARS, Justice. This mandamus proceeding arises out of a suit in which over two thousand plaintiffs are alleging harm from exposure to toxic chemicals around the Lone Star Steel plant in Morris County. Relators here are Union Carbide Corporation and most of the four hundred defendants in the underlying suit (hereinafter referred to as Union Carbide). Union Carbide filed in the trial court a motion to transfer venue on the ground that an impartial trial could not be had in Morris County. See Tex.R.Civ.P. 257.

The trial judge conducted a hearing based on a written record only and refused to allow live testimony. The trial judge overruled the motion to transfer venue. Union Carbide contends that, under Texas Rule of Civil Procedure 258, it was entitled to a full evidentiary hearing with the presentation of live testimony in support of its motion to transfer venue. Alternatively, Union Carbide contends it was entitled to a continuance in order to better prepare for the written submission of its venue motion. We address only the second contention.

After the motion to transfer venue was filed in September 1988, the parties engaged in discovery relevant to the motion. Interrogatories were sent to the plaintiffs in order to identify their relatives in Morris County. Depositions of corporate representatives were noticed. Expert witnesses were designated and deposed. On January 13, 1989, the trial court handed down an order reciting the parties’ agreement “regarding the designation of expert witnesses and persons having knowledge of relevant facts to be called to testify at. the venue hearing_” (emphasis added).

The order further stated that it applied “only to potential witnesses who may testify at the hearing on Defendants’ Motion to Transfer Venue....” The record also reflects that, when the trial judge was scheduling the venue hearing, he stated his expectation that the hearing might last as long as eight weeks. All of the above circumstances led Union Carbide to believe that the court would conduct an evidentiary hearing at which witnesses would be allowed to testify. On the day the venue hearing was scheduled to begin, plaintiffs filed a motion opposing oral testimony.

After allowing Union Carbide less than twenty-four hours to respond, the trial court sustained the plaintiffs’ motion and ruled that no oral testimony would be permitted at the venue hearing. Union Carbide was taken by surprise. Because it had anticipated an eight-week venue hearing, Union Carbide had not arranged to have all of its evidence immediately available at the start of the hearing. Many of the witnesses Union Carbide had expected to call were not in Morris County at that time. Numerous deposition transcripts were not yet available.

And, because the trial court had previously extended plaintiffs’ deadline for responding to interrogatories to a date after the hearing would be concluded, the defendants had intended to call certain plaintiffs as live witnesses. Thus, Union Carbide had made preparations to assemble its proof in format for a lengthy evidentiary hearing, and its plans were effectively blocked by the trial court’s sudden change. Union Carbide moved for a continuance and requested additional time in order to supplement the record with more affidavits and discovery products.

The trial judge denied the continuance and instructed Union Carbide to “present what you have now.” Thus, Union Carbide was left unprepared and was unable to present for consideration numerous affidavits and depositions that it might otherwise have had ready. Given these circumstances, we conclude that the trial court abused its discretion in denying a continuance.

Texas Rule of Civil Procedure 258 provides that “reasonable discovery” in support of a motion to change venue “shall be permitted” and expressly provides that deposition testimony and other discovery products may be attached to affidavits on the motion. Since the trial court ruled before most of Union Carbide’s discovery products were even available, it effectively denied Union Carbide this right to reasonable discovery set forth in Rule 258.

Moreover, because the trial court implicated itself in misleading Union Carbide as to the format for proof, we conclude that the court effectively deprived Union Carbide of its fundamental due process right to notice and a hearing. Having been misled as to the form of proof that would be acceptable, Union Carbide was placed in the untenable position of being allowed to attend the hearing without being able to submit its proof. Union Carbide cannot be penalized for relying on the court’s own order as to the form of proof that would be acceptable.

Justice requires that Union Carbide be afforded a reasonable opportunity to supplement the venue record with appropriate affidavits and discovery products prior to the trial court’s ruling on the venue motion. Cf. Powell v. United, States, 849 F.2d 1576 (5th Cir.1988) (holding that trial court’s failure to give adequate notice that case would be decided on a written

summary judgment record constituted harmful error). We conditionally grant the writ of mandamus. The trial judge must vacate his order overruling defendants’ motion to change venue and, prior to ruling on the venue motion, must permit a reasonable period of time for supplementation of the record. The writ will issue only if the trial judge fails to act in accordance with this opinion. Concurring opinions by GONZALEZ and HECHT, JJ. .

While it is clear that Texas Rule of Civil Procedure 258 requires a trial judge to allow deposition testimony, we do not at this time address the question of whether or in what circumstances Rule 258 also requires that a trial judge allow live testimony on an application to transfer venue.