rehearing">

ON MOTION FOR REHEARING

DUGGAN, Justice,

dissenting.

Appellee has filed a motion for rehearing, in which he raises four points of error for reversal of this Court’s panel opinion. The majority of the panel, having determined the motion to be without merit, has overruled the motion. After reconsidering the matter, I find merit to appellee’s fourth point of error raised in the motion for rehearing.

Appellee’s contention that appellants did not properly plead the special venue provisions of Sec. 17.56 of the Texas Deceptive Trade Practices Act, Tex. Business & Comm.Code, should be sustained and the judgment be affirmed as to that point. While appellants were authorized under Rule 58 to incorporate the allegations of their petition into their controverting affidavit, the particular question here presented is whether or not the special venue provisions of the DTPA were properly pleaded in the petition. The incorporation by reference would only be curative here insofar as the petition itself properly alleged the necessary prerequisites.

Disposition of this appeal should be governed by the case of Munoz v. Farmland Industries, Inc., 603 S.W.2d 225 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ dism’d). As stated in Munoz, reliance upon the special venue provisions of the DTPA must be specifically set forth. While the majority’s opinion would appear to state that the setting forth of a DTPA action would be sufficient to “bootstrap” the DTPA’s special venue provisions, Munozclearly establishes an opposite rule: “Although plaintiffs allege a cause of action under the Deceptive Trade Practices Act in their fifth amended petition, they did not specifically set out Sec. 17.56 as grounds for venue in the controverting plea.” 603 S.W.2d at 229.

After reviewing appellant’s original petition, no reference to the special venue provisions of Sec. 17.56 appears. While the original petition does allege that appellees had been “engaged in trade and commerce” in Harris County, this statement does not specifically set forth reliance upon the special venue provision of Sec. 17.56. I would respectfully dissent from the majority’s decision to overrule the motion for rehearing, grant the rehearing and affirm the judgment.

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