Harris County Texas v. Carmax Auto

REVISED, June 22, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-20709
_____________________

HARRIS COUNTY TEXAS,

Plaintiff-Appellee,

v.

CARMAX AUTO SUPERSTORES INC,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
May 26, 1999

Before KING, Chief Judge, and JOLLY and JONES, Circuit Judges.

KING, Chief Judge:

Defendant-appellant CarMax Auto Superstores, Inc. appeals

the district court’s grant of a preliminary injunction

prohibiting it from selling or offering for sale motor vehicles

on consecutive days of Saturday and Sunday on the premises of its

stores in plaintiff-appellee Harris County, Texas in violation of

Texas Transportation Code § 728.002. We find that Harris County

is not bound by a prior state court injunction purporting to

enjoin all enforcement of the statute and that, therefore, the

district court’s injunction does not implicate the Anti-

Injunction Act, 28 U.S.C. § 2283. In addition, we conclude that

the district court properly exercised jurisdiction over this
action, that Harris County demonstrated a substantial likelihood

of success on the merits, and that the issuance of the injunction

did not violate Federal Rule of Civil Procedure 65(a)(1).

Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This procedurally tangled case concerns Chapter 728 of the

Texas Transportation Code (the Blue Law) and the voluminous state

and federal litigation brought both to enforce and challenge it.

Section 728.002(a) provides: “A person may not, on consecutive

days of Saturday and Sunday: (1) sell or offer for sale a motor

vehicle; or (2) compel an employee to sell or offer for sale a

motor vehicle.” TEX. TRANSP. CODE ANN. § 728.002(a). Section

728.004 provides that the operation of a business in a manner

contrary to this statute is a public nuisance and that the

attorney general or a district, county, or municipal attorney may

obtain an injunction restraining such a violation. See id.

§ 728.004(a)-(b).

In 1997, the El Paso Independent Automobile Dealers

Association, Inc. (EPIADA), an organization of small car dealers,

brought an action in state district court in El Paso, Texas to

challenge the constitutionality of the Blue Law, naming the

district and county attorneys of El Paso County and the city

attorney of El Paso as defendants. In accordance with state law,

a copy of EPIADA’s petition was also served upon the attorney

2
general of Texas, see TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b),1

who expressly declined to participate in the suit.

After an evidentiary hearing, the El Paso district court

determined that the classifications drawn in the Blue Law were

not rationally related to the state legislature’s stated purpose

and operated in an arbitrary and unjust manner by regulating only

weekend sales of motor vehicles without any restrictions

whatsoever on sales of such items as liquor, cigarettes, table

dances, and lottery tickets. See El Paso Indep. Auto. Dealers

Ass’n, Inc. v. Esparza, No. 97-3425, slip op. at 6 (383rd Dist.

Ct., El Paso County, Tex. Dec. 23, 1997) (findings of fact and

conclusions of law). Specifically, the court held:

. TEX. TRANS. CODE §§ 728.001 through 728.004 are hereby
declared unconstitutional;

. All officials authorized by TEX. TRANS. CODE § 728.004 to
enforce TEX. TRANS. CODE §§ 728.001 through 728.004 are
hereby permanently enjoined from enforcing the

1
That statute provides:

In any proceeding that involves the validity of a municipal
ordinance or franchise, the municipality must be made a
party and is entitled to be heard, and if the statute,
ordinance, or franchise is alleged to be unconstitutional,
the attorney general of the state must also be served with a
copy of the proceeding and is entitled to be heard.

TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b). Although this
provision could be read to apply only to constitutional
challenges to a municipal ordinance, as opposed to a state
statute such as the Blue Law, it in fact pertains to such attacks
on the latter as well. See Moore v. Morales, 63 F.3d 358, 360-61
(5th Cir. 1995) (“[B]y statute, the State of Texas requires that,
when the constitutionality of one of its laws is challenged, ‘the
attorney general of the state must also be served with a copy of
the proceeding and is entitled to be heard’. Tex.Civ.Prac. &
Rem. Code § 37.006(b) . . . .”).

3
 provisions of TEX. TRANS. CODE §§ 728.001 through 728.004
unless the Texas Supreme Court shall
subsequently rule that the statutes are constitutional.

El Paso Indep. Auto. Dealers Ass’n, Inc. v. Esparza, No. 97-3425,

slip op. at 1-2 (383rd Dist. Ct., El Paso County, Tex. Dec. 23,

1997) (judgment). In response, the attorney general and the

Motor Vehicle Division of the Texas Department of Transportation

filed a petition for a writ of mandamus with the state court of

appeals in El Paso to set aside the district court’s order; the

court denied the petition. See In re Attorney Gen., No. 08-98-

00021-CV (Tex. App.--El Paso Jan. 28, 1998, orig. proceeding).

The attorney general and the Motor Vehicle Division then sought

to appeal the district court decision. EPIADA filed a motion to

dismiss, alleging that since they were not parties of record in

the underlying lawsuit, they had no right of appeal. The state

court of appeals held that while the attorney general and the

Motor Vehicle Division were entitled to appeal because they were

virtually represented by the El Paso officials, they had waived

that right by specifically declining to participate in the case.

See Attorney Gen. v. El Paso Indep. Auto. Dealers Ass’n, Inc.,

966 S.W.2d 783, 785-86 (Tex. App.--El Paso 1998, no writ). All

appeals from the El Paso district court judgment and injunction

have since been dismissed.

In May 1998, after the El Paso court of appeals decision

stating that the attorney general had waived his right to appeal,

defendant-appellant CarMax Auto Superstores, Inc. (CarMax)

informed plaintiff-appellee Harris County, Texas (Harris County

4
or the County) that it intended to keep its three Houston-area

locations open on both weekend days. On July 1, 1998, Harris

County filed a state court application for a temporary

restraining order, temporary injunction, and permanent injunction

barring CarMax from violating the Blue Law.2 In its answer,

CarMax conceded that during two weekends in June 1998, one of its

Harris County stores sold or offered for sale motor vehicles on

consecutive days of Saturday and Sunday and indicated that it

intended to continue doing so. Before the court could rule,

however, CarMax removed the case to the United States District

Court for the Southern District of Texas on the basis of

diversity of citizenship. On July 22, 1998, Harris County filed

a first amended complaint and application for temporary

restraining order and injunctive relief in federal court. The

district court held a two-hour hearing on July 27, 1998 and on

July 31, 1998 granted an injunction ordering CarMax to “cease and

desist from selling and offering for sale motor vehicles on

2
At the time, as it is today, CarMax was also involved in
Blue Law litigation in the Northern District of Texas. In
January 1998, CarMax filed suit there challenging the Blue Law’s
constitutionality under both the state and federal constitutions.
On June 10, 1998, Nichols Ford and the Texas Auto Dealers
Association (TADA) filed a state action in Dallas against CarMax
seeking to enforce the Blue Law. CarMax removed the suit to
federal court, and it was transferred to the judge handling
CarMax’s case in the Northern District of Texas. On June 25,
1998, Prestige Ford also filed an action in state court in Dallas
seeking to enforce the statute. CarMax removed the case to
federal court, where the district judge denied Prestige’s
application for a temporary restraining order barring violations
of the Blue Law. Prestige Ford then filed a motion for voluntary
dismissal of its action. Later, CarMax joined both the Dallas
and Harris County enforcement officials to the remaining
litigation pending in the Northern District of Texas.

5
consecutive days of Saturday and Sunday on the premises of its

three automobile dealership outlets located . . . in Harris

County” from the date of the order until final judgment on the

merits. CarMax appealed.3

II. STANDARD OF REVIEW

Any injunctive relief is considered “an extraordinary and

drastic remedy, not to be granted routinely, but only when the

movant, by a clear showing, carries the burden of persuasion.”

White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989) (quoting

Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th

3
In addition, CarMax returned to the El Paso district
court and filed an action naming the state of Texas and its
attorney general, the Texas Department of Transportation, and the
director of the Motor Vehicle Board as defendants. On August 20,
1998, that court issued a temporary restraining order prohibiting
the defendants from acting in any way in violation of the court’s
prior judgment and injunction in El Paso Independent Automobile
Dealers Ass’n, Inc. v. Esparza, No. 97-3425 (383rd Dist. Ct., El
Paso County, Tex. Dec. 23, 1997) (judgment). See CarMax Auto
Superstores, Inc. v. State, No. 98-2879, slip op. at 3 (383rd
Dist. Ct., El Paso County, Tex. Aug. 20, 1998) (order granting
temporary restraining order). Two months later, the court
granted a preliminary injunction ordering that

the State of Texas, the Honorable Dan Morales in his
official capacity as Attorney General of Texas, the Texas
Department of Transportation, and Brett Bray in his official
capacity as Director of the Motor Vehicle Division are
commanded forthwith to desist and refrain from attempting to
enforce the provisions of TEX. TRANSP. CODE §§ 728.001 through
728.004, individually and collectively, by themselves or
through their agents, representatives, administrative
agencies, political subdivisions and/or privies until
judgment in this cause is rendered by this Court or the
Texas Supreme Court reverses the decision of
this court in Cause No. 97-4325.

Carmax Auto Superstores, Inc. v. State, No. 98-2879, slip op. at
2-3 (383rd Dist. Ct., El Paso County, Tex. Oct. 15, 1998) (order
granting preliminary injunction).

6
Cir. 1985)). A district court may grant a preliminary injunction

only if the movant establishes four requirements:

First, the movant must establish a substantial likelihood of
success on the merits. Second, there must be a substantial
threat of irreparable injury if the injunction is not
granted. Third, the threatened injury to the plaintiff must
outweigh the threatened injury to the defendant. Fourth,
the granting of the preliminary injunction must not disserve
the public interest.

Cherokee Pump & Equip., Inc. v. Aurora Pump, 38 F.3d 246, 249

(5th Cir. 1994) (citations omitted). Each of these elements is a

mixed question of fact and law; we review a district court’s

findings of fact under a clearly erroneous standard and its

conclusions of law de novo. See Hoover v. Morales, 164 F.3d 221,

224 (5th Cir. 1998) (quoting Sunbeam Prods., Inc. v. West Bend

Co., 123 F.3d 246, 250 (5th Cir. 1997), cert. denied, 118 S. Ct.

1795 (1998)). The ultimate issue, however, is whether the

district court abused its discretion in granting the preliminary

injunction. See House the Homeless, Inc. v. Widnall, 94 F.3d

176, 180 (5th Cir. 1996).

III. DISCUSSION

On appeal, CarMax contends that the district court’s

preliminary injunction was an abuse of discretion for four

reasons: (1) The El Paso injunction binds not only the named

defendants, but all officials authorized to enforce the Blue Law,

including the Harris County Attorney, and the federal injunction

therefore interferes with the effect of a state court injunction

7
in violation of the Anti-Injunction Act, 28 U.S.C. § 2283;4

(2) the district court erred in exercising jurisdiction over the

action because prior, duplicative litigation was pending in the

Northern District of Texas; (3) Harris County failed to establish

a substantial likelihood of success on the merits; and (4) the

district court issued the preliminary injunction in violation of

Federal Rule of Civil Procedure 65(a)(1). We address each of

these arguments in turn.

A. Does the federal preliminary injunction violate the Anti-
Injunction Act?

Our first task is to determine whether the district court’s

preliminary injunction violates the Anti-Injunction Act, which

prohibits federal courts from granting injunctions “to stay

proceedings in a State court.” 28 U.S.C. § 2283. The Supreme

Court has interpreted the Act to forbid federal injunctions

“prohibiting utilization of the results of a completed state

proceeding.” Atlantic Coast Line R.R. Co. v. Brotherhood of

Locomotive Eng’rs, 398 U.S. 281, 287 (1970). That is, a federal

court may not issue an injunction countermanding a state court

injunction. See id. at 283-85 (vacating a federal injunction

that enjoined a railroad from invoking a state court injunction

banning union picketing of a switching yard). Thus, in this

case, if the El Paso injunction binds Harris County, restraining

4
“A court of the United States may not grant an injunction
to stay proceedings in a State court except as expressly
authorized by Act of Congress, or where necessary in aid of its
jurisdiction, or to protect or effectuate its judgments.” 28
U.S.C. § 2283.

8
it from enforcing the Blue Law, then the federal injunction

arguably prevents the use of a state court injunction and

violates the Anti-Injunction Act. If, on the other hand, the El

Paso injunction does not apply to Harris County, then the federal

injunction in no way conflicts with a state court injunction and

does not implicate the Act at all.

The crucial question, then, is whether the El Paso

injunction binds Harris County and its officials. There is no

question that it purports to do so: By its own terms, the

injunction applies to “[a]ll officials authorized by TEX. TRANS.

CODE § 728.004 to enforce TEX. TRANS. CODE §§ 728.001 through

728.004,” a group consisting of “[t]he attorney general or a

district, county, or municipal attorney,” TEX. TRANSP. CODE ANN.

§ 728.004(a). CarMax urges us to take the injunction at face

value, while Harris County maintains that it does not bind the

County or any of its officials.

We begin with Texas Rule of Civil Procedure 683, which

provides that “[e]very order granting an injunction . . . is

binding only on the parties to the action, their officers,

agents, servants, employees, and attorneys, and upon those

persons in active concert or participation with them who receive

actual notice of the order by personal service or otherwise.”

The Texas Supreme Court has stated that this rule means

[a] decree of injunction not only binds the parties
defendant but also those identified with them in interest,
in “privity” with them, represented by them or subject to
their control. In essence it is that defendants may not
nullify a decree by carrying out prohibited acts through

9
 aiders and abettors, although they were not parties to the
original proceeding.

Ex parte Chambers, 898 S.W.2d 257, 260 n.2 (Tex. 1995) (quoting

Waffenschmidt v. Mackay, 763 F.2d 711, 717 (5th Cir. 1985)); see

Regal Knitwear Co. v. National Labor Relations Bd., 324 U.S. 9,

14 (1945) (stating the same with respect to Federal Rule of Civil

Procedure 65(d)).5

It is apparent that neither Harris County nor any of its

officials was a party to the El Paso district court action. They

were not named as defendants and, in fact, had no knowledge of

the El Paso lawsuit. The fact that the final judgment and

permanent injunction purports to bind them does not confer party

status, which “cannot be created at entry of judgment where none

existed before by the mere inclusion of a person or entity in a

judgment.” Subsequent Injury Fund v. Service Lloyds Ins. Co.,

961 S.W.2d 673, 677 (Tex. App.--Houston [1st Dist.] 1998, writ

denied).

Nor are Harris County and its county attorney officers,

agents, servants, employees, or attorneys of the El Paso

district, county, or city attorneys. Rather, the officials of

each county have parallel responsibilities within their own

5
Federal Rule of Civil Procedure 65(d) provides that
“[e]very order granting an injunction . . . is binding only upon
the parties to the action, their officers, agents, servants,
employees, and attorneys, and upon those persons in active
concert or participation with them who receive actual notice of
the order by personal service or otherwise.” The Texas Supreme
Court has described Texas Rule of Civil Procedure 683 as having
been taken from this rule. See Ex parte Davis, 470 S.W.2d 647,
649 (Tex. 1971).

10
county. Compare TEX. GOV’T CODE ANN. § 45.171(a) (“It is the

primary duty of the county attorney in El Paso County or his

assistants to represent the state, El Paso County, and the

officials of El Paso County in all civil matters pending before

the courts of El Paso County and any other courts in which the

state, the county, or the officials of the county have matters

pending.”), with id. § 45.201 (“It is the primary duty of the

county attorney in Harris County or his assistants to represent

the state, Harris County, and the officials of Harris County in

all civil matters pending before the courts of Harris County and

any other courts in which the state, the county, or the officials

of the county have matters pending.”).

Thus, if the El Paso injunction binds the County and its

officials, it must do so under one of the theories recognized in

Rule 683 or by the Supreme Court in Chambers. That is, the

County is bound if it is in active concert or participation with

the El Paso officials, identified with them in interest, in

privity with them, represented by them, or subject to their

control. The many different terms employed by the courts boil

down to the fundamental principle that an injunction does not

bind a non-party unless he stands in a special relationship to a

party. Discussing Federal Rule of Civil Procedure 65(d), one

commentator has written that “[a]lthough the rule itself does not

speak of ‘privity,’ the concept frequently is used by the federal

courts as synonymous with the enumeration in Rule 65(d) of

nonparties who may be bound.” 11A CHARLES ALAN WRIGHT ET AL., FEDERAL

11
PRACTICE AND PROCEDURE § 2956, at 340 (1995) (emphasis added). The

general concept is that an injunction binds only non-parties who

are “so identified in interest with those named in the decree

that it would be reasonable to conclude that their rights and

interests have been represented and adjudicated in the original

injunction proceeding.” Id. at 340-41. In other words, the non-

party must have constructively had his day in court:

The central reason that one who is not a party to the action
in which the injunction was issued cannot be bound by it is
that he has not had his day in court with respect to the
validity of the injunction. Absent an opportunity to
contest liability, his knowledge of the injunction is not
sufficient to bind him as an individual, as distinguished
from prohibiting him from acting in the forbidden way on
behalf of the enjoined party. Thus, the relevant inquiry is
not merely whether (in addition to having knowledge of the
injunction) [the person putatively bound] was a “key
employee” of [the bound party] but whether he had such a key
role in the corporation’s participation in the injunction
proceedings that it can be fairly said that he has had his
day in court in relation to the validity of the injunction.

G. & C. Merriam Co. v. Webster Dictionary Co., 639 F.2d 29, 37

(1st Cir. 1980) (citations omitted) (second emphasis added).

According to CarMax, the El Paso court of appeals has

already found that the attorney general of Texas and all

district, county, and city attorneys in the state were in privity

with and virtually represented by the El Paso officials and,

therefore, were bound by the injunction. See Attorney Gen., 966

S.W.2d at 785. That case, however, held no such thing. Rather,

it considered only one issue: whether the attorney general of

Texas and the Motor Vehicle Division of the Texas Department of

Transportation could appeal the El Paso injunction. The court

first noted that while as a general rule, only parties of record

12
may exercise a right of appeal, a party who was not present in

the trial court and who wishes to participate in the appeal may

do so under the doctrine of virtual representation. See id.

Although the El Paso appeals court determined that the El Paso

officials virtually represented the attorney general and the

Motor Vehicle Division, it did not consider whether the El Paso

injunction binds any entity other than the attorney general, the

Motor Vehicle Division, and the named defendants in the trial

court. In order to answer that question, we must examine the

relationship between the Harris County Attorney and his El Paso

counterparts.

The Supreme Court of Texas has stated that a person is “in

active concert or participation” with a named party if he

participated in the original proceeding and was a real party in

interest when the decree was rendered. See Ex parte Davis, 470

S.W.2d 647, 649 (Tex. 1971). The Texas cases finding such a

relationship, the Davis court asserted, “all contain some

evidence of involvement with the named enjoined party or

involvement in the original injunctive proceeding.” Id. In Ex

parte Foster, 188 S.W.2d 382, 383-84 (Tex. 1945), for example,

the court held that a non-party was bound by an injunction

because he had a “vital interest” in the subject matter and the

outcome of the injunction proceedings, knew about the injunction

suit, employed an attorney to “go to the courthouse and ‘watch

the lawsuit,’” was present at the injunction hearing, and had

numerous conversations with the parties about the injunction.

13
The Foster court concluded that “by virtue of his knowledge of

and interest in the subject matter of the litigation” and “his

participation in the proceedings therein,” the non-party was

bound by the injunction. Id. at 384.

In this case, however, the non-party was not involved with

the litigation of the injunction at all. The record clearly

demonstrates that EPIADA, the plaintiff in the El Paso case,

never served Harris County with citation. There is no evidence

that Harris County authorities had any knowledge of the El Paso

lawsuit until after the state trial court rendered judgment and

issued a permanent injunction. Neither the County nor any of its

officials participated in any way in the El Paso proceedings. In

State v. Cook United, Inc., 469 S.W.2d 709 (Tex. 1971), the Texas

Supreme Court found under very similar circumstances that an

injunction should be limited to the parties of record. In Cook

United, the state of Texas itself, by and through the criminal

district attorney of Tarrant County, filed four lawsuits seeking

injunctive relief against Cook United under the Sunday closing

law in effect at the time. See id. at 710. By way of cross-

action, Cook United sought and obtained a temporary injunction

enjoining the state, its attorney general, all district and

county attorneys in the state, their agents and employees, and

Tarrant and McLennan Counties from filing any more enforcement

actions. See id. The Texas Supreme Court modified the

injunction to apply only to the district attorneys of Tarrant and

McLennan Counties. See id. at 712. The court first noted that

14
“no persons other than representatives or public officials of

Tarrant and McLennan Counties were served with citation or notice

of hearing” upon Cook United’s cross-action and that Texas Rule

of Civil Procedure 681 provides that “[n]o temporary injunction

shall be issued without notice to the adverse party.” Id. It

then reasoned:

In the absence of notice to or service of citation upon
the Attorney General of the State of Texas, or county and
district attorneys other than those of Tarrant and McLennan
Counties the temporary injunction is hereby modified to
enjoin only the county and district attorneys of Tarrant and
McLennan Counties, and shall have no effect on the Attorney
General of the State of Texas or the other district and
county attorneys in this State.
We do not agree with the Respondent’s contention that
Article 1926-42, Vernon’s Texas Civil Statutes, makes the
criminal District Attorney of Tarrant County the agent of
the State of Texas or the Attorney General for the purposes
of service of citation. Neither do we agree that the State
of Texas and the Attorney General are properly enjoined by
virtue of Rule 683, Texas Rules of Civil Procedure, in that
they are not officers, agents, servants, employees or
attorneys of the criminal District Attorney of Tarrant
County. Moreover, not having served citation upon the State
or Attorney General, Respondent cannot validly contend that
the other county and district attorneys throughout the State
would be bound by this temporary injunction under Rule 683,
Texas Rules of Civil Procedure.

Id. Thus, even where the state is a plaintiff--in Cook United,

the state brought suit by and through one of its district

attorneys--its attorney general is not bound in the absence of

service or pre-hearing notice. This suggests that service, or at

least notice, must be afforded an entity for that entity to be

bound. In the El Paso suit, Harris County received neither

service nor notice and was not a plaintiff that could be charged

15
with knowledge of the action. Thus, it appears, the El Paso

injunction has no effect on Harris County.6

We next consider the law of privity and virtual

representation. While it is well-established under Texas law

that a non-party who is in privity with or virtually represented

by a party to a lawsuit is bound by the judgment therein, see

Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363-64 (Tex.

1971), the definitions of each concept and the distinctions

between them are not as clear. Indeed, the Texas Supreme Court

has acknowledged that “there is no generally prevailing

definition of privity which can be automatically applied to all

cases involving the doctrine of res judicata and the

determination of who are privies requires careful examination

into the circumstances of each case as it arises.” Benson, 468

S.W.2d at 363; see Getty Oil Co. v. Insurance Co. of N. Am., 845

6
At first glance, Cook United would seem to run counter to
the principle enunciated by the United States Supreme Court in
Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03
(1940), that “[t]here is privity between officers of the same
government so that a judgment in a suit between a party and a
representative of the United States is res judicata in
relitigation of the same issue between that party and another
officer of the government.” But by its own terms, this statement
applies only when the non-governmental party is the same in both
suits, which is clearly not the case here. Even if “privity”
between officers of the same government exists when the private
parties are different, Sunshine Anthracite Coal involved a
government officer (the Commissioner of Internal Revenue) who was
essentially the agent of the coal company’s opponent in the
earlier case (the governmental body that found the company liable
for the tax at issue). Once again, that situation does not exist
here. Finally, except insofar as the Due Process Clause of the
federal constitution may be implicated, the question of whether
the El Paso injunction binds Harris County is a matter of state
law on which the Texas Supreme Court, not the United States
Supreme Court, is the ultimate authority.

16
S.W.2d 794, 800 (Tex. 1992). Nevertheless, the courts have

distilled some general principles. First, “privity is not

established by the mere fact that persons may be interested in

the same question or in proving the same state of facts.”

Benson, 468 S.W.2d at 363. More specifically, the Texas Supreme

Court has also stated that “privity connotes those who are in law

so connected with a party to the judgment as to have such an

identity of interest that the party to the judgment represented

the same legal right,” id., a definition that includes those who

control an action although not a party to it, those whose

interests are represented by a party to the action, and

successors in interest, see Amstadt v. United States Brass Corp.,

919 S.W.2d 644, 653 (Tex. 1996).7 The definition of virtual

representation is somewhat more straightforward: “The test in

determining whether a person is covered by the doctrine of

virtual representation is whether that person is bound by the

judgment of the trial court by virtue of the fact that he or she

was ‘represented’ by a party to the original suit.” Subsequent

Injury Fund, 961 S.W.2d at 677 (citing California & Hawaiian

Sugar Co. v. Bunge Corp., 593 S.W.2d 739, 740 (Tex. Civ. App.--

7
Several judicial definitions of privity have focused on
property rights; for example, the Subsequent Injury Fund court
said that “[p]rivity is generally defined as a mutual or
successive relationship to the same rights in property,” 919
S.W.2d at 653 (emphasis added), and that “[a]ll persons are privy
to a judgment whose succession to the rights of property therein
adjudicated are derived through or under one or the other of the
parties to the action and which accrued after the commencement of
the action,” id. (emphasis added). These definitions are not
relevant to this case.

17
Houston [1st Dist.] 1979, writ ref’d n.r.e.)); see Avila v. St.

Luke’s Lutheran Hosp., 948 S.W.2d 841, 855 (Tex. App.--San

Antonio 1997, writ denied). Because Harris County neither

controlled the El Paso action nor was a successor in interest to

the El Paso officials, it is a privy only if it was represented

by them. Thus, our inquiry coalesces into a single issue: Was

Harris County represented by the El Paso County officials?

In order for such representation to bind a non-party, it

must amount to the non-party’s “participat[ing] through adequate

representation.” Avila, 948 S.W.2d at 848; see id. at 855; cf.

TEX. R. CIV. P. 683 (providing that an injunction binds only those

non-parties who are in “active concert or participation with” a

party); G. & C. Merriam Co., 639 F.2d at 37 (“The central reason

that one who is not a party to the action in which the injunction

was issued cannot be bound by it is that he has not had his day

in court with respect to the validity of the injunction.”). The

record demonstrates that Harris County did not participate

through actual and adequate representation. While the attorney

general was given notice of the El Paso suit and expressly

declined to appear on the grounds that “the real parties in

interest were capable of adequately presenting the issues to the

court,” Harris County neither knew of nor participated in the

suit. It is therefore not bound by the El Paso injunction. Cf.

Avila, 948 S.W.2d at 855 (“Cristina’s interests were neither

represented nor protected in the former action. . . . [O]ne not

before the court cannot be bound by any judgment entered.”).

18
 CarMax’s final argument is that Harris County is in privity

with or represented by the attorney general, see Attorney Gen.,

966 S.W.2d at 785, and since the latter is bound by the

injunction, Harris County is as well. CarMax makes much of Cook

United’s statement that “not having served citation upon the

State or Attorney General, Respondent cannot validly contend that

the other county and district attorneys throughout the State

would be bound by this temporary injunction under Rule 683, Texas

Rules of Civil Procedure,” 469 S.W.2d at 712. According to

CarMax, this indicates that if the attorney general is served,

all district and county attorneys throughout the State of Texas

are bound by a subsequent injunction. In this case, CarMax

claims, the attorney general was served pursuant to Texas Civil

Practice and Remedies Code § 37.006(b). We do not think that

compliance with this statute constitutes “service” within the

meaning of Cook United. That opinion draws a distinction between

“notice to” and “service of citation upon” a potential party.

Id. (“In the absence of notice to or service of citation upon the

Attorney General of the State of Texas . . . the temporary

injunction . . . shall have no effect on the Attorney

General . . . .”) (emphasis added). The El Paso district court’s

findings of fact indicate that while “[s]ervice of citation was

made on the District Attorney for El Paso County, Texas; the

County Attorney for El Paso County, Texas; and, the City Attorney

for the City of El Paso, Texas[,] . . . . [N]otice of the

petition was delivered to the Honorable Dan Morales, Attorney

19
General of the state of Texas.” El Paso Indep. Auto. Dealers

Ass’n, No. 97-3425, slip op. at 3-4 (findings of fact and

conclusions of law); cf. Lone Starr Multi Theatres, Inc. v.

State, 922 S.W.2d 295, 298 (Tex. App.--Austin 1996, no writ)

(finding that Texas Civil Practice and Remedies Code § 37.006(b)

requires that the attorney general be given notice of a suit to

declare a statute unconstitutional, not that he actually be sued

as a party in such an action). Thus, while the attorney general

may have received notice in this case, he was not served, and

CarMax therefore “cannot validly contend that the other county

and district attorneys throughout the state would be

bound . . . .” Cook United, 469 S.W.2d at 712.

But even assuming that the attorney general was, in fact,

“served,” as that term is used in Cook United, the sentence to

which CarMax points provides only weak support for its argument.

While it may imply that a plaintiff must “serve” the attorney

general before he can even “validly contend” that all district

and county attorneys are bound by the injunction, it does not

take the further step of holding that such “service” upon the

attorney general, without more, makes a judgment binding on all

district and county attorneys. “Service,” in the sense of mere

delivery of a copy of the proceeding to the attorney general,

does not necessarily mean that non-parties such as Harris County

were actually and adequately represented so that they had a day

in court with respect to the validity of the injunction. Indeed,

while it may be true that a local law enforcement official is

20
bound when his interests are represented by the state attorney

general, see American Libraries Ass’n v. Pataki, 969 F. Supp.

160, 163 (S.D.N.Y. 1997) (holding that an injunction against the

governor and attorney general, where they actively defended the

case, also would bind local district attorneys); American

Booksellers Ass’n v. Webb, 590 F. Supp. 677, 693 (N.D. Ga. 1984)

(concluding that subordinate law enforcement officials were bound

by an injunction against the state attorney general, who, while

not named as a party, was served with a copy of the proceeding

and entered an appearance to argue in support of the challenged

statute’s constitutionality), that was not the case here. Unlike

his counterparts in American Libraries Association and American

Booksellers Association, the Texas attorney general, while served

with a copy of the El Paso proceeding, chose not to appear to

defend the constitutionality of the Blue Law. Nor did the

attorney general necessarily speak for Harris County in allowing

the El Paso officials to prosecute the El Paso litigation. We

have previously held that the attorney general does not represent

all district and county attorneys in the state when he makes

decisions regarding the conduct of litigation. See Baker v.

Wade, 769 F.2d 289, 291 (5th Cir. 1985) (allowing a Texas

district attorney to appeal even after the attorney general

declined to do so); see also League of United Latin American

Citizens Council No. 4434 v. Clements, 999 F.2d 831, 841 n.7 (5th

Cir. 1993) (en banc) (explaining that Baker means that in a suit

challenging the constitutionality of a state statute, the

21
attorney general does not possess exclusive authority to choose

whether the state’s interests will be asserted on appeal and that

another state official charged with the duty of enforcing a

statute held unconstitutional could appeal the judgment even if

the attorney general chose not to do so).8

We therefore conclude that the El Paso injunction does not

bind Harris County and its officials because they were not

parties to the El Paso lawsuit or officers, agents, servants,

employees, or attorneys of, or in active concert or participation

with, the parties to that action. Nor are Harris County and its

officials in privity with or virtually represented by the El Paso

district, county, and city attorneys, or by the attorney general

of Texas, such that they are bound by the El Paso judgment.

Because the County is subject to no state court injunction, the

district court’s preliminary injunction does not implicate the

Anti-Injunction Act.

B. Did the district court erroneously proceed notwithstanding
prior, duplicative litigation in another district court?

CarMax also contends that the court below should not have

exercised jurisdiction over Harris County’s lawsuit because

prior, duplicative litigation is pending in the Northern District

8
In Baker and League of United Latin American Citizens, of
course, the officials opposing the attorney general were bound by
the trial court judgment. This does not mean, however, that such
officials are automatically bound whenever the attorney general
is bound. Rather, the district attorney in Baker was a member of
a certified defendant class, and the Chief Justice of the Texas
Supreme Court in League of United Latin American Citizens was a
named defendant. We cite these cases only for the proposition
that the attorney general does not speak for all officials
authorized to enforce a state statute.

22
of Texas. In support of its argument, CarMax points to West Gulf

Maritime Association v. ILA Deep Sea Local 24, 751 F.2d 721 (5th

Cir. 1985), in which we said:

The federal courts long have recognized that the
principle of comity requires federal district courts--courts
of coordinate jurisdiction and equal rank--to exercise care
to avoid interference with each other’s affairs. “As
between federal district courts, . . . the general principle
is to avoid duplicative litigation.” The concern manifestly
is to avoid the waste of duplication, to avoid rulings which
may trench upon the authority of sister courts, and to avoid
piecemeal resolution of issues that call for a uniform
result. To avoid these ills, a district court may dismiss
an action where the issues presented can be resolved in an
earlier-filed action pending in another district court. In
particular, “[a] court may . . . in its discretion dismiss a
declaratory judgment or injunctive suit if the same issue is
pending in litigation elsewhere.”

Id. at 728-29 (citations and footnote omitted). Complete

identity of neither the parties nor of the lawsuit itself is

required for dismissal or transfer of a case filed subsequently

to an action with substantial overlap of substantive issues. See

Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 950-51 (5th

Cir. 1997). But while a district court may dismiss an injunction

suit if duplicative litigation is pending in another

jurisdiction, it is not required to do so. Indeed, we made clear

in West Gulf Maritime Association, as the Supreme Court did in

Abbott Laboratories v. Gardner, 387 U.S. 136, 155 (1967),

abrogated on other grounds, Califano v. Sanders, 430 U.S. 99

(1977), that such dismissal is committed to the district court’s

discretion.

We do not think that the district court abused that

discretion in exercising jurisdiction over this case. The Blue

23
Law requires that a suit to enforce it must be brought in the

county in which the violation is alleged. See TEX. TRANSP. CODE

§ 728.004(a). The plaintiff here therefore properly sued in

Harris County. While CarMax filed a motion to transfer venue to

the Northern District of Texas, 28 U.S.C. § 1404(a) provides that

“[f]or the convenience of parties and witnesses, in the interest

of justice, a district court may transfer any civil action to any

other district or division where it might have been brought.” It

is not clear that this action could have been brought in the

United States District Court for the Northern District of Texas,

as the Blue Law authorizes suit only “in the county in which a

violation is alleged,” TEX. TRANSP. CODE § 728.004(a), and Harris

County is not in the Northern District of Texas. Moreover, we

find it doubtful that transfer would have been “[f]or the

convenience of parties and witnesses.” 28 U.S.C. § 1404(a). The

plaintiff and the three CarMax stores whose activity was at issue

are all located in Harris County. The County also alleged in its

response to the motion to transfer, and CarMax did not contest,

that the county attorney and the majority of witnesses reside in

Harris County. In light of the fact that this case probably

could not have been transferred to any other federal court and

its strong ties to Harris County, we conclude that the district

court did not abuse its discretion in exercising jurisdiction

over it.

C. Did Harris County establish a substantial likelihood of
success on the merits?

24
 As we observed above, a preliminary injunction is properly

granted only if the movant establishes a substantial likelihood

of success on the merits. See Cherokee Pump, 38 F.3d at 249.

CarMax contends that the Blue Law is “no longer rationally

related to the purpose behind [its] enactment,” contravenes

article III, § 56 of the Texas Constitution, is

unconstitutionally vague, and violates the Commerce Clause of the

United States Constitution.9 We consider each of these claims in

turn.

1. Rational Relationship

CarMax first contends that the Blue Law is not rationally

related to the purposes behind its enactment. CarMax maintains

that while the objective of earlier versions of the statute was

to achieve a one-day surcease from commerce, and the

legislature’s current goal is to maximize consumer protection and

9
Unlike many retailers who have challenged similar
statutes in the past, CarMax does not contend that the Blue Law
violates the First Amendment’s guarantee of freedom of religion.
See U.S. CONST. amend. I (“Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise
thereof . . . .”). The courts generally have rejected these
First Amendment attacks. See, e.g., McGowan v. Maryland, 366
U.S. 420, 429-53 (1961) (finding that the Maryland Blue Law did
not constitute an establishment of religion); Two Guys from
Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 592-98 (1961)
(holding that the Pennsylvania Sunday closing law did not violate
the Establishment Clause); Braunfeld v. Brown, 366 U.S. 599, 601-
10 (1961) (plurality opinion) (concluding that Pennsylvania
Sunday closing law did not violate Orthodox Jewish merchants’
right to free exercise of their religion); Home Depot, Inc. v.
Guste, 773 F.2d 616, 619 n.3 (5th Cir. 1985) (stating agreement
with district court that Louisiana Sunday closing law did not
violate First Amendment); Kirt v. Humphrey, 1997 WL 561249, at
*3-*5 (Minn. Ct. App. Sept. 9, 1997) (unpublished opinion)
(concluding that Minnesota law banning the sale of motor vehicles
on Sunday did not violate the First Amendment).

25
the health, safety, and welfare of the people of Texas, modern

Texans do not now recognize either Saturday or Sunday as a day of

cessation from commercial activities, and the Blue Law in no way

benefits them. The district court rejected CarMax’s

constitutional challenge, concluding that “[i]n view of the long

and consistent affirmance of the constitutionality of such

statutes, and in the absence of any distinguishing arguments with

respect to the instant statute, it is evident that the County

Attorney of Harris County has a substantial likelihood of

prevailing on the merits.” In addition, it stated, the evidence

presented at the preliminary injunction hearing contained “ample

public policy reasons for retaining the Saturday or Sunday

closing requirement as to automobile dealers.”

Laws forbidding certain forms of commerce on given days of

the week have a long history in this country. In McGowan v.

Maryland, 366 U.S. 420, 422 (1961), the Supreme Court considered

a constitutional challenge to a state statute proscribing all

labor, business, and other commercial activities, with certain

limited exceptions, on Sunday. The appellants argued that the

Maryland law violated the Fourteenth Amendment’s Equal Protection

Clause because, among other things, the classifications regarding

what commodities could or could not be sold on Sunday were

“without rational and substantial relation to the object of the

legislation.” Id. at 425. The Court first stated the standard

for evaluating such an equal protection challenge:

The standards under which this proposition is to be
evaluated have been set forth many times by this Court.

26
 Although no precise formula has been developed, the Court
has held that the Fourteenth Amendment permits the States a
wide scope of discretion in enacting laws which affect some
groups of citizens differently than others. The
constitutional safeguard is offended only if the
classification rests on grounds wholly irrelevant to the
achievement of the State’s objective. State legislatures
are presumed to have acted within their constitutional power
despite the fact that, in practice, their laws result in
some inequality. A statutory discrimination will not be set
aside if any state of facts reasonably may be conceived to
justify it.

Id. at 426. The Court then found that there was a reasonable

basis for the specific exemptions from the general ban on Sunday

commerce at issue in the case. It noted that the purpose of the

law was to provide a uniform day of rest for all citizens, see

id. at 445, and concluded that such exceptions as soft drinks,

fruit, ice cream, gasoline, alcoholic beverages, and games of

chance could enhance “the recreational atmosphere of the day,”

while medication and newspapers “should always be available to

the public.” Id.

Similarly, in Two Guys from Harrison-Allentown, Inc. v.

McGinley, 366 U.S. 582, 589-92 (1961), a case decided the same

day as McGowan, the Court faced an equal protection challenge to

a Pennsylvania statute that imposed a heavier penalty for the

Sunday sale of certain commodities than for others. The court

below had made a factual finding that the goods subject to the

higher fine were the kinds of merchandise sold in large suburban

department stores for which a small fine was not a deterrent.

See id. at 590. The Supreme Court held that the state

legislature reasonably could have concluded “that these

businesses were particularly disrupting the intended atmosphere

27
of the day because of the great volume of motor traffic

attracted, the danger of their competitors also opening on

Sunday, and their large number of employees.” Id. at 591.

“Evils in the same field may be of different dimensions and
proportions, requiring different remedies. . . . Or the
reform may take one step at a time, addressing itself to the
phase of the problem which seems most acute to the
legislative mind. . . . The legislature may select one phase
of one field and apply a remedy there, neglecting the
others.”

Id. at 591-92 (quoting Williamson v. Lee Optical, 348 U.S. 483,

489 (1955)); see Braunfeld v. Brown, 366 U.S. 599, 601 (1961)

(plurality opinion) (rejecting an equal protection challenge to

the Pennsylvania statute considered in Two Guys); Gallagher v.

Crown Kosher Super Market, 366 U.S. 617, 622-23 (1961) (plurality

opinion) (finding that the exceptions to a Massachusetts law

prohibiting Sunday commerce were “reasonably explainable on their

face” as enhancing “the day’s special character” or, at least, as

not detracting from it).

We now turn to the Texas courts. In State v. Spartan’s

Industries, Inc., 447 S.W.2d 407 (Tex. 1969), the Supreme Court

of Texas considered an equal protection challenge to an earlier

version of the Blue Law: Texas Penal Code article 286a, which

authorized injunctions against sales of certain items on

consecutive days of Saturday and Sunday, and other code

provisions levying fines for opening a place of business on

Sunday. The court concluded that the statute was intended to

achieve a “one day a week surcease from commerce” and that “[t]he

Legislature was entitled to expect that Article 286a would yield

28
Sunday operations only by Sabbatarians and perhaps an occasional

small storekeeper,” id. at 412, because the typical merchant

given a choice between opening on Saturday or Sunday was unlikely

to choose to be open on Sunday, see id. at 411. The court also

rejected the storekeepers’ claim that they were denied equal

protection because the statute authorized an injunction only

against those who were in the business of selling certain

enumerated articles. See id. at 412. The court stated that Two

Guys involved nearly exactly the same commodities as article

286a, and it upheld the Texas law on the grounds that sellers of

the named items were “particularly disrupting.” Id.

In 1973, the Texas legislature repealed the Penal Code

provisions (articles 282 through 287) broadly prohibiting labor

and sales on Sunday, leaving only the commodities listed in the

former article 286a, recodified as article 9001 of the Texas

Civil Statutes, as those that could not legally be sold on

consecutive Saturdays and Sundays. See Gibson Prods. Co. v.

State, 545 S.W.2d 128, 129 (Tex. 1976). In Gibson, a merchant

argued that there was no rational justification for article

9001’s proscriptions on goods that could be sold. Whereas

article 286a had been part of a larger legislative scheme

requiring almost all stores to close one day of the weekend, with

enhanced penalties for certain types of stores, article 9001 now

restricted sales of only certain kinds of goods. See id.

Nevertheless, the court upheld the statute:

In State v. Spartan’s Industries, Inc., supra, we said
that we understood the principal plan of this statute to be

29
 the provision of effective sanctions to close most
mercantile establishments on Sunday--Saturday being the
better day for sales than Sunday. Allowing latitude for
Sabbatarians and for some who prefer to tend only the Sunday
trade, the Legislature thereby maintains the prevailing
custom of people doing their serious shopping for clothing,
furniture, automobiles, household and office appliances, and
hardware on weekdays. When the Legislature retained the
statute in 1973, it apparently decided to continue to serve
that purpose. We regard the matter as a legislative
question and reaffirm the constitutionality of the present
statute.

Id. at 129-30. Texas courts subsequently have upheld article

9001 against a variety of attacks. See Gibson Distrib. Co. v.

Downtown Dev. Ass’n, 572 S.W.2d 334, 335 (Tex. 1978) (rejecting

equal protection, due process, and federal preemption

challenges); State v. Revco, D.S., Inc., 675 S.W.2d 219, 221

(Tex. App.--Dallas 1984, no writ) (holding that challengers

failed to establish in a summary judgment proceeding that there

was no reasonable relation between article 9001 and the health,

recreation, and welfare of the people of Texas); cf. Michelle

Corp. v. El Paso Retailers Ass’n, 626 S.W.2d 615, 616 (Tex. App.-

-El Paso 1981, writ ref’d n.r.e.) (holding that a plaintiff

seeking a preliminary injunction against violations of article

9001 completes its case upon showing that the defendant sold the

enumerated items on both Saturday and Sunday).

But the statutes involved in these cases differ from the

current Texas Blue Law in one crucial respect: Whereas the older

laws proscribed the sale on consecutive days of Saturday and

Sunday of a relatively long list of items, the statute at issue

here applies only to motor vehicles. Every other article may be

sold seven days a week. Our task is to determine whether such a

30
restriction bears a rational relationship to a legitimate state

end. We have emphasized that in suits involving a challenge to a

law’s rational basis, the burden is not upon the state to

establish the rationality of its statute, but is upon the

challenger to show that the restriction is wholly arbitrary. See

Home Depot, Inc. v. Guste, 773 F.2d 616, 621 (5th Cir. 1985).

Although the original justification for the Texas Blue Laws

was to achieve a one-day surcease from commerce, see Spartan’s

Indus., 447 S.W.2d at 411, the legislature found when enacting

the current version of the statute that

regulation of the purchase, sale, and exchange of motor
vehicles on certain days, as part of the state’s motor
vehicle regulatory scheme, is a valid exercise of the
state’s police power in order to provide maximum protection
to consumers of motor vehicles and that this regulation is
necessary for the preservation of the public health, safety,
and welfare.

TEX. REV. CIV. STAT. ANN. art. 6686-1 note (Vernon 1985); see TEX.

REV. CIV. STAT. ANN. art. 6686-1, § 5 (Vernon 1985) (“The purpose

of this Act being to promote the health, recreation, and welfare

of the people of this state . . . .”).10

We think that Harris County has a substantial likelihood of

prevailing on the merits of this issue. At the preliminary

10
The current Blue Law, which applies only to motor
vehicles, was enacted in 1985. See Act of May 17, 1985, 69th
Leg., R.S., ch. 220, § 3, 1985 Tex. Sess. Law Serv. 1767, 1768.
In 1995, the legislature repealed this version, see Act of Apr.
21, 1995, 74th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Sess. Law
Serv. 1025, 1871, and recodified it, with non-substantive
revisions, to appear at its present location in the Texas
Transportation Code, see id. at 1830. The current codification
does not contain a statement of legislative purpose. See TEX.
TRANSP. CODE §§ 728.001-.004.

31
injunction hearing before the district court, the County elicited

testimony that because the demand for motor vehicles is

inelastic, allowing car dealership employees to work both days of

the weekend would impose hardship on them without any increase in

the number of cars purchased. The additional cost of paying the

existing employees overtime (or hiring additional staff) then

would be passed on to the consumer in the form of higher car

prices. The County’s witnesses also stated that a seven-day work

week would create burdens on state licensing, titling, and

dealership inspection personnel and that Sunday sales were

impractical because it is difficult to obtain insurance,

licensing information, and employment or residency verification

on that day. Finally, several witnesses testified that consumers

supported the Blue Law because it allowed them to browse car

dealership lots one day a week without encountering salespeople.

We think that this evidence suffices to show a substantial

likelihood that there is a rational relationship between the Blue

Law and the purposes for which it was enacted. Cf. Lakeside

Imports, Inc. v. State, 639 So. 2d 253, 256-57 (La. 1994)

(concluding that a Louisiana law barring the Sunday sale of cars

and trucks was rationally related to the legitimate state

objective of protecting small rural dealerships from unfair

competition by large metropolitan dealerships, consumers from

higher prices for automobiles brought on by higher overhead from

Sunday sales, and the welfare of commissioned car salesmen).

32
 We caution the district court, however, that while Harris

County has shown a substantial likelihood that there is a

rational relationship between the Blue Law and the purposes for

which it was enacted, CarMax has raised a number of

countervailing considerations that must be weighed carefully

before a permanent injunction is issued. It is true, of course,

that rational basis review does not require that a legislature

actually articulate at any time the purpose or rationale

supporting its classification, and the reviewing court need only

find that a legitimate goal “conceivably” or “reasonably” could

have been the purpose and policy of the relevant decisionmaker.

Nordlinger v. Hahn, 505 U.S. 1, 15 (1992). But the Supreme Court

also has made clear (albeit in contexts somewhat different from

ours) that the rational basis test “is not a toothless one.”

Mathews v. Lucas, 427 U.S. 495, 510 (1976) (examining the

constitutionality under the Fifth Amendment’s Due Process Clause

of a federal statute regulating eligibility of illegitimate

children for insurance benefits); see Cleburne v. Cleburne Living

Ctr., Inc., 473 U.S. 432, 447-50 (1985) (holding that, under

rational basis review, an ordinance requiring a special use

permit for homes for the mentally retarded violated equal

protection). CarMax argued vigorously that the state legislature

could not rationally have thought that the Blue Law benefits

consumers or protects the health, safety, and welfare of the

people of Texas. It contended, for example, that the cost per

car sold is lower with a seven-day week than with a six-day week

33
and that the principal expense of opening a seventh day is the

variable cost of the salespeople’s pay, which is absorbed by the

cars they sell. CarMax also pointed out that it employs several

shifts of sales consultants and that each sales consultant

typically works only forty to forty-five hours per week.

Finally, CarMax asserted, it had experienced no problems

obtaining insurance and financing on Sundays, and consumers

appreciate being able to shop on both weekend days. While we

think that the County showed a sufficient likelihood of success

on the merits to survive a challenge at the preliminary

injunction stage, we caution that there are a number of

considerations that must be carefully examined when this case

comes up on an application for a permanent injunction. With that

caveat, we proceed to CarMax’s other arguments.

2. Special Law

Article III, § 56 of the Texas Constitution provides that

“[t]he Legislature shall not, except as otherwise provided in

this Constitution, pass any local or specialized law” for certain

named purposes. In addition, “in all other cases where a general

law can be made applicable, no local or special law shall be

enacted . . . .” TEX. CONST. art. III, § 56. “The primary and

ultimate test of whether the law is general or special is whether

there is a reasonable basis for the classification it makes and

whether the law operates equally on all within the class.”

Trinity River Auth. v. URS Consultants, Inc.--Texas, 889 S.W.2d

259, 265 (Tex. 1994); see Edgewood Indep. Sch. Dist. v. Meno, 917

34
S.W.2d 717, 745 (Tex. 1995). We concluded above that Harris

County has a substantial likelihood of successfully showing that

there is a reasonable basis for the Blue Law’s classification,

and CarMax does not contend that the statute does not apply

equally to all motor vehicle dealers. Therefore, we decline to

disturb the district court’s preliminary finding that the Blue

Law is not special legislation in violation of the Texas

Constitution.

3. Vagueness

CarMax also argues that the Blue Law is impermissibly vague

because the phrase “offer for sale” fails to provide persons of

ordinary intelligence an opportunity to know what is prohibited.

According to CarMax, it is unclear whether “offer for sale”

includes allowing consumers to review its inventory via the

Internet, a fact the district court itself acknowledged when it

limited its injunction to prohibit selling or offering to sell

motor vehicles “on the premises” of CarMax’s Harris County

locations.11 At the preliminary injunction hearing, however,

11
Although the current Blue Law’s predecessors have been
attacked on vagueness grounds, these challenges have focused on
the list of items subject to the statute and not on the phrase
“offer for sale.” See Home Depot, 773 F.2d at 627-29; Spartan’s
Indus., 447 S.W.2d at 413; Retail Merchants Ass’n v. Handy Dan
Hardware, Inc., 696 S.W.2d 44, 51-52 (Tex. App.--Houston [1st
Dist.] 1985, no writ); Michelle Corp. v. El Paso Retailers Ass’n,
675 S.W.2d 610, 611-12 (Tex. App.--El Paso 1984, no writ); Hill
v. Gibson Discount Ctr., 437 S.W.2d 289, 292 (Tex. Civ. App.--
Amarillo 1968, writ ref’d n.r.e.); Spartan Indus., Inc. v. State,
379 S.W.2d 931, 932 (Tex. Civ. App.--Eastland 1964, no writ).
This precedent does not assist us in evaluating CarMax’s
argument.

35
Harris County stipulated that it was not seeking to enjoin

CarMax’s Internet operations, and in its brief to this court, the

County concedes that “Chapter 728 has absolutely no effect on

Carmax’ [sic] use of the Internet.”

CarMax lacks standing to press this challenge. Its argument

that the County cannot enforce the Blue Law because it is not

clear whether “offer for sale” applies to Internet activity

amounts to a contention that the Blue Law is unconstitutionally

vague on its face. A facial challenge for vagueness is

appropriate only on an allegation that the law is vague “not in

the sense that it requires a person to conform his conduct to an

imprecise but comprehensible normative standard, but rather in

the sense that no standard of conduct is specified at all.”

Ferguson v. Estelle, 718 F.2d 730, 735 (5th Cir. 1983) (citing

Smith v. Goguen, 415 U.S. 566, 578 (1974)). CarMax does not

claim that the Blue Law is inherently standardless, enforceable

only on the exercise of the state’s unlimited and arbitrary

discretion; instead, it complains that the statute is imprecise

in that it does not make clear whether it applies to Internet

activity. But a litigant will not be permitted to challenge a

statute for imprecision if his own conduct is clearly within the

core of proscribed conduct, see id., and in fact, as applied

here, the Blue Law does not implicate the Internet at all, and

CarMax does not claim that it fails to give adequate notice as to

whether it reaches on-the-premises motor vehicle sales, cf. Home

Depot, 773 F.2d at 629 (finding that a Louisiana law barring the

36
sale of certain items on Sunday was not facially unconstitutional

because “there is patently a substantial core of products to

which [the statute] is not impermissibly vague”). CarMax has no

standing to challenge the Blue Law as it might be applied to

others. See Ferguson, 718 F.2d at 735; see also Basiardanes v.

City of Galveston, 682 F.2d 1203, 1210 (5th Cir. 1982)

(“Ordinarily, a litigant to whom a statute clearly applies lacks

standing to argue that the statute is vague as to others.”).12

In summary, Harris County has shown that it has a

substantial likelihood of success on the merits. We therefore

decline to reverse the district court’s grant of a preliminary

injunction on this ground.

D. Did the district court’s grant of a preliminary injunction
violate Federal Rule of Civil Procedure 65(a)(1)?

Finally, CarMax contends that the district court’s grant of

a preliminary injunction violated Federal Rule of Civil Procedure

65(a)(1) because the court construed Harris County’s motion for a

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CarMax also contends that the Blue Law
unconstitutionally interferes with interstate commerce in
violation of the Commerce Clause. CarMax argues that the state
can enforce the Blue Law only by barring vendors from offering
used cars for sale on their Internet sites on consecutive
Saturdays and Sundays regardless of the regulated business’s
geographical location, and because of the national scope and
interconnectedness of the Internet, such a restriction is
essentially an unconstitutional blanket prohibition on an entire
category of Internet commerce. As we mentioned above, however,
Harris County explicitly stated at the preliminary injunction
hearing that it was not seeking to restrain CarMax’s Internet
activity, and the district court’s injunction applies only to
sales or offers to sell “on the premises” of CarMax’s three
Harris County stores. We therefore leave the question of whether
the Blue Law violates the Commerce Clause by inhibiting Internet
activity for another day.

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temporary restraining order as a motion for a preliminary

injunction, gave CarMax only three business days’ notice that it

should be prepared to defend against a motion for a preliminary

injunction, and allowed only two hours for the hearing.

Rule 65(a)(1) provides that “[n]o preliminary injunction

shall be issued without notice to the adverse party.” The Rule’s

notice requirement necessarily requires that the party opposing

the preliminary injunction has the opportunity to be heard and to

present evidence. See Granny Goose Foods, Inc. v. Brotherhood of

Teamsters & Auto Truck Drivers, Local No. 70, 415 U.S. 423, 434

n.7 (1974) (“The notice required by Rule 65(a) before a

preliminary injunction can issue implies a hearing in which the

[opposing party] is given a fair opportunity to oppose the

application and to prepare for such opposition.”); Commerce Park

at DFW Freeport v. Mardian Constr. Co., 729 F.2d 334, 341 (5th

Cir. 1984) (explaining that Rule 65(a) mandates that where

factual disputes are presented, “the parties must be given a fair

opportunity and a meaningful hearing to present their differing

versions of those facts before a preliminary injunction may be

granted”). Furthermore, notice under Rule 65(a)(1) should comply

with Rule 6(d), which requires five days’ notice before a hearing

on a motion. See Marshall Durbin Farms, Inc. v. National Farmers

Org., 446 F.2d 353, 358 (5th Cir. 1971) (citing FED. R. CIV. P.

6(d)). Because “[c]ompliance with Rule 65(a)(1) is mandatory,” a

preliminary injunction granted without adequate notice and a fair

opportunity to oppose it should be vacated and remanded to the

38
district court. Parker v. Ryan, 960 F.2d 543, 544 (5th Cir.

1992).

CarMax, however, failed to preserve error below. Typically,

we will not consider on appeal matters not presented to the trial

court. See Quenzer v. United States (In re Quenzer), 19 F.3d

163, 165 (5th Cir. 1993). Rather, the litigant must raise his

argument to such a degree that the district court may rule on it.

See FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994). Before

the district court, CarMax never requested a postponement of the

preliminary injunction hearing. Instead, it filed a detailed

Brief in Opposition to Request for Injunctive Relief accompanied

by six exhibits, including transcripts of a temporary restraining

order hearing in the Northern District of Texas and the pre-

removal state court proceedings in the instant action. During

the preliminary injunction hearing itself, CarMax presented the

testimony of three witnesses, including its president and the

manager of Internet activity for its parent company, and

vigorously cross-examined Harris County’s four witnesses.

Moreover, even if CarMax had not waived its Rule 65(a)(1)

argument, the record suggests that CarMax had ample notice and

opportunity to oppose Harris County’s motion for a preliminary

injunction. CarMax first received notice that Harris County was

seeking a temporary restraining order and preliminary and

permanent injunctions on July 1, 1998, when the County filed its

petition in state court. Furthermore, the County states in its

brief, although no evidence to prove or disprove this contention

39
appears in the record, that the federal district court informed

CarMax at a conference on July 13, 1998, that the preliminary

injunction hearing would take place on July 27, 1998. Finally,

as we observed above, CarMax had a full opportunity during the

hearing itself to defend its position.

Under all these circumstances, we cannot say that CarMax

was deprived of notice and an opportunity to oppose the

preliminary injunction in violation of Federal Rule of Civil

Procedure 65(a)(1).

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the preliminary

injunction entered by the district court.

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