Are Forum Selection Clauses Enforceable In Texas ?

Forum selection clauses are enforceable in Texas, provided: (1) the parties have contractually consented to submit to the exclusive jurisdiction of another forum; (2) the other forum recognizes the validity of such provisions. See Southwest Intelecom, Inc. v. Hotel Networks Corp., 997 S.W.2d 322, 324 (Tex. App.-Austin 1999, pet. denied); Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 70 (Tex. App.-Dallas 1996, no writ). A trial court, however, is not bound by the forum selection clause if the interests of the witnesses and of the public strongly favor jurisdiction in a forum other than the one the parties agreed to in their contract. Accelerated Christian, 925 S.W.2d at 71. This Court has previously held that a motion to dismiss without prejudice is a proper procedural mechanism for enforcing a forum selection clause. See id. at 70; see also Sarieddine v. Moussa, 820 S.W.2d 837, 839 (Tex. App.-Dallas 1991, writ denied). In deciding the motion, the trial court may base its decision on affidavit testimony. See Accelerated Christian, 925 S.W.2d at 71 (noting testimony opposing motion to dismiss based on forum selection clause was submitted by affidavit). When the issue is whether a forum selection clause should be enforced in a particular case, a trial court's order of dismissal is reviewed under an abuse of discretion standard. See Greenwood v. Tillamook Country Smoker, Inc., 857 S.W.2d 654, 657 (Tex. App.-Houston [1st Dist.] 1993, no writ). In Accelerated Christian, a Texas corporation brought suit in Dallas against a California corporation alleging various causes of action arising out of two computer software contracts. Accelerated Christian, 925 S.W.2d at 69. The contracts specified that California law would govern, and also contained a forum selection clause providing that any legal action initiated by the Texas corporation and relating to the contracts must be brought in California. Id. This Court concluded that neither the interest of the witnesses nor public policy strongly favored maintaining the litigation in Texas and upheld the trial court's order dismissing the case based on the forum selection clause. Accelerated Christian, 925 S.W.2d at 71.