ACCEPTED
03-14-00725-CV
4240941
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/22/2015 3:49:29 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00725-CV
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
2/23/2015 12:00:00 AM
In the Third Court of Appeals JEFFREY D. KYLE
Clerk
Austin, Texas
GEORGE GREEN AND GARLAN GREEN (DECEASED),
Appellants
v.
PORT OF CALL HOMEOWNERS ASSOCIATION
Appellee
APPEAL FROM CAUSE NO. 18314
RD
33 JUDICIAL DISTRICT COURT OF LLANO COUNTY, TEXAS
HON. ALLAN GARRETT, PRESIDING
APPELLANTS’ RESPONSE TO APPLELLEE’S MOTION TO DISMISS
AND REQUEST FOR ADDITIONAL TIME TO SUPPLEMENT
RESPONSE IN ORDER TO COMPLETE THE RECORD
David Junkin
State Bar No. 11058020
Law Office of David Junkin
P.O. Box 2910
Wimberley, Texas 78676
512/847-8600
512/847-8604 (fax)
david@junkinlawoffice.com
Attorney for Appellants
TABLE OF CONTENTS
Index of Authorities ...................................................................................... ii
Brief Statement of the Case ..........................................................................1
Request for Additional Time to Supplement This Response .....................3
Issue Presented
DID THE TRIAL COURT’S VACATING THE
SECOND ORDER (THE ORDER ON WHICH THE
APPEAL IS BASED) CONFER ON IT THE
JURISDICTION TO ENTER THE “DISCOVERY
ORDER” (A NEW ORDER COVERING THE SAME
SUBJECT MATTER) AND MOOT THIS APPEAL? ........................3
Summary of the Response .............................................................................4
Argument ........................................................................................................4
Prayer ............................................................................................................. 8
Certificate of Service .....................................................................................9
Appendix
Appellee’s Request for Clerk’s Record and Reporter’s Record ... Tab 1
Second Order (order on which the appeal is based) ...................... Tab 2
Vacating Order .............................................................................. Tab 3
“Discovery Order” ......................................................................... Tab 4
Cases .............................................................................................. Tab 5
Rules .............................................................................................. Tab 6
i
INDEX OF AUTHORITIES
Case Law Page(s)
Ahmed v. Shimi Ventures, LP,
99 S.W.3d 682 (Tex. App.—Houston [1st Dist.] 2003, no pet.) ............. 5
Burton v. Cravey,
759 S.W.2d 160 (Tex. App.—Houston [1st Dist.] 1988, no writ) ............ 7
Episcopal Diocese of Fort Worth v. Episcopal Church,
422 S.W.3d 646 (Tex. 2013), cert. denied, 135 S.Ct. 431 (2014)........... 6
Parsons v. Galveston County Employees Credit Union,
576 S.W.2d 99 (Tex. Civ. App.—Houston [1st Dist.] 1987, no writ) ...... 4
Qwest Communications Corp. v. AT&T Corp.,
24 S.W.3d 334 (Tex. 2000). .................................................................... 6
Reeves v. City of Dallas,
68 S.W.3d 58 (Tex. App.—Dallas 2001, pet. denied) .......................... 4, 5
Tanguy v. Laux,
259 S.W.3d 851 (Tex. App.—Houston [1st Dist.] 1988, no pet). ........... 5
Texas Health and Human Services Commission v Advocates for
Patient Access, Inc.,
399 S.W.3d 615 (Tex. App.—Austin 2013, no pet.) .......................... 5, 6
Texas Workers’ Compensation Commission v. Garcia,
817 S.W.2d 60 (Tex. 1991) ..................................................................... 6
Rules
Tex. R. App. P. 29 ............................................................................................. 4
ii
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellants, George Green and Garlan Green (now deceased) file this
response to the Appellee’s Motion to Dismiss Appellant’s Appeal Because of
Mootness and respectfully request additional time to respond as follows:
BRIEF STATEMENT OF THE CASE
1. The nature of this case is described in more detail in the
Appellants’ Brief previously filed with this Court. Appellants brought claims
against Port of Call Homeowners Association (“POC”) and individual members
of its board of directors in connection with the mismanagement of POC funds.
The primary issue in the underlying suit that is also at issue in this interlocutory
appeal, is the Appellants’ access to the books and records of POC.
2. The suit was filed on February 5, 2013. CR 8. In connection with
discovery issues, both parties filed Motions to Compel. CR 89 and CR 100. A
hearing was held on those motions on August 14, 2014. The Trial Court
summarized its findings (RR, Vol. 2, page 52, line 9 - page 62, line 11) and an
Order was entered (the “Initial Order”). CR 131. The Initial Order was an
attempt by the Court to fashion a compromise between the broad rights of
access to POC’s records under the Texas Property Code (and the POC
governing documents) and the discovery obligations imposed on litigants, by
Appellants’ Response to Motion to Dismiss - Page 1
ordering the automatic production of POC records every forty-five (45) days.
No objection was made to the Initial Order by any party.
3. POC subsequently served Defendants’ Motion to Enforce
Protective Order. CR 153. The motion was generally based on letter requests
for records and information made by Appellants after the Initial Order. A non-
evidentiary was conducted. After the hearing, POC filed Defendants’
Supplemental Motion to Enforce Protective Order. CR 169.
4. On October 21, 2014, the Trial Court entered an Order Granting
Motion for Enforcement (the “Second Order”) which modified the Initial Order
“nunc pro tunc” and imposed injunctive relief against Appellants relating to
communications of any kind between Appellants and Appellees to include, but
is not limited to, requesting documents pursuant to document production
requirements under the Texas Property Code and the Texas Business
Organizations Code and POC governing documents. CR 175. It is the Second
Order that formed the basis of the Appellants’ interlocutory appeal.
5. On January 30, 2015, after Appellants had already filed their brief
in this Court, the Trial Court entered another Order vacating the Second Order,
without prejudice to Appellees seeking the relief granted in the Second Order
(the “Vacating Order”). Supp. CR 4. However, on the same day, the Trial
Court entered a “Discovery Order” 1 again purporting to prohibit oral or written
1
The Court changed the caption from “Amended Order” to “Discovery Order.” Supp. CR 5.
Appellants’ Response to Motion to Dismiss - Page 2
requests for documents by Appellants except through counsel and which also
vacated the Second Order. Supp. CR 5 - 6.
REQUEST FOR ADDITONAL TIME TO RESPOND
6. The Appellants respectfully request that the Court extend the time
for them to respond to the Motion to Dismiss until a reasonable time after the
Supplemental Reporter’s Record is filed. The Order Appellees claim moots this
interlocutory appeal was signed by the Court on January 30, 2015. On or about
February 6, 2015, the Appellees requested that the reporter’s record be
supplemented with the transcript from the January 30, 2015 hearing and the
Clerk’s Record be supplemented with the two (2) orders issued that day. See
Exhibit A which is incorporated by reference. The Supplemental Clerk’s Record
was filed with the Court on February 10, 2015. The Supplemental Reporter’s
Record has not been filed. That record contains statements from Appellees’
counsel reflecting the injunctive nature and purpose of the “Discovery Order.”
7. Accordingly, Appellants respectfully request the opportunity to
supplement this response when the Supplemental Reporter’s Record is filed.
Subject to this request for additional time to supplement this response, the
Appellants respond to Appellees’ Motion to Dismiss.
ISSUE PRESENTED
A. Did the Trial Court’s vacating the Second Order confer on it the
jurisdiction to enter the “Discovery Order” and moot this appeal?
Appellants’ Response to Motion to Dismiss - Page 3
SUMMARY OF THE RESPONSE
8. The Vacating Order did not moot the appeal, because, while the
Trial Court could vacate the Second Order, it lost jurisdiction to modify the
injunction by way of the Discovery Order issued the same day. The Trial Court
did not have jurisdiction to issue the “Discovery Order” and oust this Court of
jurisdiction by vacating the order on appeal and issuing a new one purporting to
cover the same subject matter. Tex. R. App. P. 29.5.
ARGUMENT
9. The appeal of a temporary injunction terminates the jurisdiction of
the trial court as to the merits of a temporary injunction. See e.g., Reeves v. City
of Dallas, 68 S.W.3d 58, 60 (Tex. App.—Dallas 2001, pet. denied), citing
Parsons v. Galveston County Employees Credit Union, 576 S.W.2d 99, 100 (Tex.
Civ. App.—Houston [1st. Dist.] 1978, no writ) (“An amended temporary
injunction entered after an appeal has been perfected will be stricken.”). While an
interlocutory appeal is pending, the trial court retains jurisdiction to dissolve or
vacate the order appealed and to proceed to trial on the merits. “But a trial court
cannot make any order which ‘interferes with or impairs the jurisdiction of the
appellate court or the effectiveness or any relief sought or that may be granted on
appeal’ while the interlocutory appeal is pending.” Tex. R. App. P. 29.5; Reeves,
68 S.W.3d at 60.
Appellants’ Response to Motion to Dismiss - Page 4
10. In Reeves, the trial court entered a temporary injunction in February,
but in March vacated the February injunction, but entered a new order that
granted basically the same relief, and in April entered another order allowing a
payout of the bond. The Court held:
we conclude that March injunction, except for the first paragraph, and the
April order are determinations of the merits of the temporary injunction
while the February injunction was pending on appeal. Thus we conclude
that March injunction, except the first paragraph that vacated the February
injunction, and the April order were issued without authority and must be
stricken. Additionally, we conclude the March injunction, again except for
the first paragraph, and the April order interferes with or impairs our
jurisdiction and the effectiveness of any relief sought from, or that may
have been granted, by this Court.
Reeves, 68 S.W.3d at 60; see also Texas Health and Human Services Commission
v. Advocates for Patient Access, Inc., 399 S.W.3d 615 (Tex. App.—Austin 2013,
no pet.) (“In accordance with TRAP 29.5, the trial court had authority to modify
or amend the May injunction order to (1) grant identical substantive relief, (2)
grant additional substantive relief, and (3) bring the injunction into compliance
with Civil Procedure Rules 683 and 684 as long as those actions did not interfere
with or impair this Court’s jurisdiction or the effectiveness of the relief HHSC
seeks on appeal from the May injunction order.”); see also Tanguy v. Laux, 259
S.W.3d 851, 855 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (concerning a
dissolved order replaced with new order that concerned exactly the same subject
matter), citing, Ahmed v. Shimi Ventures, LP, 99 S.W.3d 682, 689-90 (Tex.
App.—Houston [1st Dist.] 2003, no pet.) (modified temporary injunction order).
Appellants’ Response to Motion to Dismiss - Page 5
A trial court should not be allowed to frustrate a party’s right to appellate review.
Texas Health and Human Services Commission, 399 S.W.3d at 624.
11. The Vacating Order (Supp. CR 4) and “Discovery Order” (Supp. CR
5) vacated the order that is the basis of this appeal. Without more, the Appellants
agree the Trial Court had jurisdiction to vacate the Second Order and that the
appeal would be moot. However, the same day and in connection with the same
hearing, the Court signed a second order styled as a “Discovery Order.” Supp.
CR. 5. As noted above, the caption of the Order was changed from “Amended
Order” to Discovery Order, but in determining whether there is jurisdiction over
the interlocutory appeal, it is the actual substance of the trial court’s ruling, not the
title of the order that decides the issue. See Episcopal Diocese of Fort Worth v.
Episcopal Church, 422 S.W.3d 646, 649-50 (Tex. 2013) (“The effect of the trial
court’s order . . . is what determines this Court’s direct appeal jurisdiction.”), cert.
denied, 135 S.Ct. 435 (2014), citing, Texas Workers’ Compensation Commission
v. Garcia, 817 S.W.2d 60, 61-62 (Tex. 1991); Qwest Communications Corp. v.
AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000) (“We hold that, in character and
function, the trial court’s order grants a temporary injunction . . . .”).
12. The third paragraph of the Discovery Order again purports to
prohibit any oral or written request for documents by Appellants. Supp. CR 5.
This covers the same subject matter as the injunctive relief granted by the Second
Order. The Supplemental Reporter’s record is expected to confirm the Trial
Appellants’ Response to Motion to Dismiss - Page 6
Court initially intended to delete at least the third paragraph of the Discovery
Order, but was asked by Appellees’ counsel to leave it in to prohibit the conduct
alleged to have given rise to the Second Order – the order purportedly vacated.
13. Further, to the extent that the “Discovery Order” is being used to
prevent the Appellants from requesting documents under the Texas Property
Code, Texas Business Organizations Code (or, for example, the POC bylaws)
then the “Discovery Order” is an improperly broad preemptive injunctive order
extending beyond discovery requests and requiring Appellants to only exercise
their statutory and contractual rights through counsel. See generally, Burton v.
Cravey, 759 S.W.2d 160, 162 (Tex. App.—Houston [1st Dist.] 1988, no writ)
(“Again, we note that appellants are attempting to engraft notions borrowed from
Texas discovery practice onto a statutory right to inspect. Article 1396-2.23
contains no limitations on the members right to inspect as long as the books and
records are those of the non-profit corporation and the inspection is for “any
proper purpose.”).
14. The Vacating Order did not moot the appeal, because the Trial Court
issued an order the same day effectively granting injunctive relief that was also
part of the injunctive relief granted in the Second Order. The Trial Court did not
have jurisdiction to issue the “Discovery Order” and cannot oust this Court of
Appellants’ Response to Motion to Dismiss - Page 7
jurisdiction by vacating the order on appeal and issuing a new one purporting to
cover the same subject matter – even though arguably narrower in scope.2
PRAYER
Appellants move that the Appellees’ Motion to Dismiss be denied and
that Appellants be awarded all such other and further relief, including general
relief, to which they might be entitled.
Respectfully submitted,
Law Office of David Junkin
_______________________
David Junkin
State Bar No. 11058020
P.O. Box 2910
Wimberley, Texas 78676
512/847-8600
512/847-8604 (fax)
david@junkinlawoffice.com
Attorney for Appellants
George and Garlan Green
2
While the “Discovery Order” purports to allow communication (just no requests for “documents”) it arguably
then includes a prohibition on requests for information if the information would be provided in documentary
form. For example, the Discovery Order purports to prohibit Appellants from obtaining a simple accounting
from POC for Appellants’ payments to POC unless the request is made through counsel.
Appellants’ Response to Motion to Dismiss - Page 8
CERTIFICATE OF SERVICE
I hereby certify that a copy of this response brief was served on the
following counsel of record and in the manner indicated on February 22, 2015.
VIA FAX OR AND/OR ESERVE
Brantley Ross Pringle, Jr.
Heidi Coughlin
Wright & Greenhill, PC
221 West 6th Street, Suite 1800
Austin, TX 78701
VIA FAX AND/OR ESERVE
L. Hayes Fuller, III
Naman, Howell, Smith, & Lee, PLLC
P.O. Box 1470
Waco, TX 76703-1470
___________________________
David Junkin
Appellants’ Response to Motion to Dismiss - Page 9
175
176
4
5
6
Page 682 Page 685
99 S.W.3d 682 (Tex.App.—Houston [1st Dist.] 2003) Beltway incorporated in October 2000 and is the
managing general partner of Shimi, which was formed
Mohammed Atique AHMED, Appellant, [1] the same month. Shortly after Shimi's formation, Shimi
purchased the assets, goodwill, and books of business of
v. the Houston offices of Amco Insurance Agencies, Inc.
("Amco").
SHIMI VENTURES, L.P. and Beltway Insurance
Agency, Inc., Appellees. The undisputed evidence shows that, through the
date of the temporary injunction hearing, Beltway had
No. 01-02-00914-CV.
never been licensed as an insurance agency by the Texas
Department of Insurance, even though Beltway's petition
Court of Appeals of Texas, First District, Houston.
admitted that, since the purchase of Amco's business,
January 31, 2003. Beltway had been "in the business of selling Texas
personal automobile liability insurance." In contrast,
Page 683 Ahmed--originally the president, board member,
employee, and shareholder of Beltway and also a limited
[Copyrighted Material Omitted] partner in Shimi--had been a licensed, limited lines agent
since 1999. There was testimony that Beltway had
Page 684 wanted Ahmed to get an insurance license in Beltway's
name and that Ahmed could have obtained that license in
John H. Thomisee Jr., Houston, for Appellant.
as few as six weeks.
John H. Sklar, Houston, for Appellee.
Starting sometime in late 2000, Ahmed began
entering into producer agreements in his own name with
Panel consists of Justices TAFT, KEYES, and
insurers or their agents with whom Beltway did business.
HIGLEY.
Ahmed received commission checks pursuant to these
OPINION agreements. Through July 23, 2002, when he left
Beltway, Ahmed endorsed his commission checks earned
TIM TAFT, Justice. under any of these producer agreements to Beltway and
deposited them in Beltway's account.
Appellant, Mohammed Atique Ahmed, takes this
interlocutory appeal from the granting of a temporary Ahmed signed one such producer agreement in early
injunction. See TEX. CIV. PRAC. & REM.CODE 2002 with Logic Underwriters, Inc. ("Logic"), an
ANN.§ 51.014(a)(4) (Vernon Supp.2003). We determine insurance agency with which Beltway did business. As
(1) whether the trial court could enter, and whether we with his other producer agreements, Ahmed signed the
may review in this interlocutory appeal, a modified agreement in his own name, not expressly as agent of
temporary injunction order that was entered after Ahmed Beltway. Logic generally issued commission checks
had appealed the original temporary injunction order; (2) either in Ahmed's name or jointly in his and Beltway's
whether we must vacate the injunction in part because it name, showing Beltway's address under the payee line.
requires some acts violating the Insurance Code; and (3) [3] However, Logic mailed these checks to the addresses
whether the trial court abused its discretion in of Ahmed's personal stores, not to Beltway's address.
determining that appellees, Beltway Insurance Agency, Following the usual procedure, Ahmed endorsed the
Inc. ("Beltway") and Shimi Ventures, L.P. ("Shimi"), Logic commission checks to Beltway.
carried their burden of showing a probable right of
recovery and irreparable injury. We modify the On July 23, 2002, Beltway's shareholders and board
temporary injunction order in part, to vacate certain of its members met and removed Ahmed as a board member,
provisions, and affirm it as so modified. president, and employee of Beltway. The board removed
Ahmed because he had not obtained the licenses required
Background for Beltway to act as a limited lines agency. According to
Beltway and Shimi's evidence, Ahmed promised at that
The following background facts come from evidence meeting not to interfere with Beltway's operations or
presented at the temporary injunction hearing and from relations with insurers after his removal. Nonetheless,
two affidavits, which the trial court considered without Ahmed thereafter instructed Logic to issue commission
objection, that were attached to Beltway and Shimi's checks solely in his name and to send them to him.
petition. [2]
This dispute concerns who is entitled to the
commission checks issued after Ahmed's removal for conduct business and shall deliver such proceeds to
insurance policies that Ahmed wrote before his removal. [Shimi and Beltway's] counsel....
In a nutshell, the parties dispute the capacity in which
Ahmed acted under the producer IT IS FURTHER ORDERED that Mohammed
Atique Ahmed shall deliver to [Shimi and Beltway's]
Page 686 counsel a photocopy of each commission check that has
been deposited to accounts under his control for
agreements and, thus, the ownership of his commissions. commissions earned on policies written through July 23,
Ahmed testified that he entered into the producer 2002 from Logic Underwriters, Inc. or paid by any
agreements on his own behalf, not as Beltway's agent; insurer with whom [Shimi] or [Beltway] conduct
that the commissions earned pursuant to his producer business and shall deliver such photocopies to [Shimi and
agreements were his alone; and that the commission Beltway's] counsel....
checks that he endorsed to Beltway were loans, although
he admitted that no loan documents existed. Beltway and Page 687
Shimi presented evidence that Ahmed acted as Beltway's
agent under the producer agreements through July 23, IT IS FURTHER ORDERED that Mohammed
2002; that Ahmed knew that the commissions he earned Atique Ahmed shall endorse and make payable to the
on policies written before that date belonged to Beltway; order of [Beltway] all checks from Logic Underwriters,
and that no loan existed. Inc. or paid by any insurer with whom [Shimi] or
[Beltway] conduct business for commissions earned on
Shimi and Beltway sued Ahmed for fraud and policies written through July 23, 2002 and shall deliver
conversion, seeking a temporary restraining order within forty-eight (48) hours after his receipt of all such
("TRO") and temporary and permanent injunctions and checks to [Shimi and Beltway's] counsel.
damages. [4] The ancillary judge granted an ex parte
TRO that restrained Ahmed, his wife, and those acting IT IS FURTHER ORDERED that [Shimi and
for or with them from "directly or indirectly removing, Beltway] and Mohammed Atique Ahmed shall photocopy
transferring, wiring, spending, investing, secreting, or ... each commission check that comes into their respective
disposing" of funds belonging to Beltway and Shimi, possession for commissions earned on policies written
whether from Logic or otherwise. The TRO also through July 23, 2002 from Logic Underwriters, Inc. or
restrained the same people from contacting any insurers any other insurer with whom [Shimi] or [Beltway]
with whom Beltway and Shimi conducted business. conduct business and shall make such photocopies
available to opposing counsel upon request.
Ahmed answered, seeking to dissolve the TRO,
counter-claiming for contract breach and conversion, and IT IS FURTHER ORDERED that Mohammed
seeking a TRO and temporary and permanent injunctions Atique Ahmed, his family members, agents, servants,
against Beltway and Shimi. On August 19, 2002, the trial employees, attorneys and all other persons or entities in
court held an evidentiary hearing on the applications for active concert or participation with him are enjoined from
temporary injunction. The trial court orally granted directly or indirectly contacting Logic Underwriters, Inc.
Beltway and Shimi's application and denied Ahmed's. [5] or any insurer with whom [Shimi] or [Beltway] conduct
On August 23 2002, the trial court signed a temporary business for any purpose related to insurance policies
injunction order, which provided in pertinent part as written or commissions earned on insurance policies
follows: written through July 23, 2002 and claiming that they
represent the interests of [Shimi and Beltway].
IT IS THEREFORE ORDERED that Mohammed
Atique Ahmed and all persons acting on behalf of or in (Emphasis added.)
concert with him, and all persons with actual notice of
this Order, are temporarily enjoined from directly or Ahmed appealed the temporary injunction order
indirectly removing, transferring, wiring, spending, three days later. He then left the country, reportedly to
investing, secreting, or in any manner whatsoever visit a sick family member. In September 2002, Beltway
disposing of the commissions from Logic Underwriters, and Shimi moved to modify the temporary injunction
Inc. or the commissions paid by any insurer, or any other order because Ahmed had allegedly failed to remit the
funds that belong to [Shimi] or [Beltway]. commissions that he had already deposited (about
$47,000), to endorse further commission checks to
IT IS FURTHER ORDERED that Mohammed Beltway, and to provide Beltway and Shimi with copies
Atique Ahmed shall remit to [Beltway] the proceeds from of further commission checks. Beltway and Shimi
all commission checks that have been deposited to claimed that Ahmed had not returned to the country.
accounts under his control for commissions earned on After holding a non-evidentiary hearing on the
policies written through July 23, 2002 modification motion, the trial court entered a modified
(approx.$47,325.00) from Logic Underwriters, Inc. or temporary injunction order, which was substantively
paid by any insurer with whom [Shimi] or [Beltway] similar to the first order except that it lowered Shimi and
Beltway's bond and also ordered all insurers doing
business with Shimi or Beltway to reissue any on a party's motion or on the appellate court's own
commission checks issued to Ahmed or Ahmed and initiative, the appellate court may review the following:
Beltway jointly since August 2002, making them payable (1) a further appealable interlocutory order concerning
solely to Beltway, and to make all future commissions the same subject matter; and (2) any interlocutory order
checks on policies written through July 23, 2002 payable that interferes with or impairs the effectiveness of the
solely to Beltway. relief sought or that may be granted on appeal.
Effect of Temporary Injunction's Modification TEX.R.APP. P. 29.6(a) (emphasis added).
After Perfection of Appeal
The modified temporary injunction order clearly
While this interlocutory appeal was pending, and "concern[s] the same subject matter" as the earlier order
after Ahmed had filed his brief, the trial court entered an that was appealed. See TEX.R.APP. P. 29.6(a)(1).
order modifying the appealed temporary injunction order. Therefore, we may review the modified order in this
Citing Rule of Appellate Procedure 29.6, Ahmed has interlocutory appeal as long as it is itself an "appealable
moved this Court to review the modified temporary interlocutory order." [8] See id.
injunction order in this appeal. See TEX.R.APP. P. 29.6.
Generally, we have jurisdiction to hear an appeal
The second temporary injunction order was entitled from an interlocutory order only if a statute explicitly
"order modifying temporary injunction," not "amended makes the order appealable. SeeStary v. DeBord, 967
order," and it did not expressly vacate the first order. S.W.2d 352, 352-53 (Tex.1998). "A person may appeal
However, other than adding a provision applicable to from an interlocutory order of a district court ... that: ...
insurers, reducing Beltway and Shimi's bond, and grants or refuses a temporary injunction or grants or
changing some compliance dates, the modified order was overrules a motion to dissolve a temporary injunction as
identical to the first order. Moreover, the modified order provided by Chapter 65." [9] TEX. CIV. PRAC. &
concerned exactly what the earlier order had, and it did REM.CODE ANN. § 51.014(a)(4) (Vernon Supp.2003).
not incorporate by reference any terms from the first
order or state that it merely supplemented the first We must strictly construe section 51.014's grant of
order--that is, the second order was a complete temporary interlocutory jurisdiction because the Legislature
injunction in itself concerning exactly the same subject intended it to be a narrow exception to the general rule
matter. The modified order thus implicitly that only final judgments are appealable. SeeBally Total
Fitness Corp. v. Jackson, 53 S.W.3d 352, 355
Page 688 (Tex.2001); Baylor Coll. of Med. v. Tate, 77 S.W.3d 467,
469-70 (Tex.App.-Houston [1st Dist.] 2002, no writ). An
superseded the earlier order. [6] Cf.Anderson v. Teco order modifying a temporary injunction order is not
Pipeline Co., 985 S.W.2d 559, 562 (Tex.App.-San exactly an order that "grants or refuses a temporary
Antonio 1998, pet. denied) (holding that later judgment, injunction
styled "amended final judgment," implicitly vacated
earlier judgment, styled "final judgment"). Page 689
Neither party questions whether we may consider or grants or overrules a motion to dissolve a temporary
the modified order in an interlocutory appeal from the injunction." See TEX. CIV. PRAC. & REM.CODE ANN.
superseded order, or whether the modified order is void § 51.014(a)(4). Nonetheless, this Court has construed
in whole or in part, or whether the interlocutory appeal is section 51.014(a)(4) to grant interlocutory review of an
somehow moot because it was taken from a order modifying a temporary injunction, given the
now-superseded injunction order. We note, however, that similarity of that order to the orders listed in section
these questions concern either our own jurisdiction over 51.014(a)(4). SeeToby Martin Oilfield Trucking, Inc. v.
this appeal, which we must consider even if the parties do Martin, 640 S.W.2d 352, 354-55 (Tex.App.-Houston [1st
not, [7] or the trial court's jurisdiction to modify its Dist.] 1982, no writ). [10] Allowing an interlocutory
injunction, which will affect which order we review, a appeal of such an order is especially appropriate when, as
matter we must decide anyway to review Ahmed's issues. here, the modified order implicitly vacates and then
Accordingly, we examine the effect of the modified replaces the original one: that situation is very much like
order. a dissolution, followed by a granting, over both of which
rulings section 51.014(a)(4) expressly allows an
A. Our Jurisdiction Over the Modified interlocutory appeal. See TEX. CIV. PRAC. &
Temporary Injunction Order REM.CODE ANN. § 51.014(a)(4).
Rule of Appellate Procedure 29.6 governs our Consistent with Martin, we hold that we have
jurisdiction to review, in an interlocutory appeal, a trial jurisdiction to review an order modifying a temporary
court order entered after the appeal's perfection: injunction by interlocutory appeal. SeeMartin, 640
S.W.2d at 354-55; see alsoCurrie v. Int'l Telecharge,
While an appeal from an interlocutory order is pending, Inc., 722 S.W.2d 471, 472-73 (Tex.App.-Dallas 1986, no
writ). Accordingly, we further hold that we have injunction order.
jurisdiction to review the modified temporary injunction
order in this interlocutory appeal from the There is case law that appears to be contrary, but
now-superseded temporary injunction order. See because of amendments to the applicable rules, it does
TEX.R.APP. P. 29.6(a)(1). not control. For example, at common law, before the
Supreme Court adopted the predecessor to these rules,
We grant Ahmed's motion to review the modified some courts had held that the interlocutory appeal of an
temporary injunction order. See id. order deprived the trial court of jurisdiction over the
subject matter of the appealed order, so that all
B. The Trial Court's Jurisdiction to Enter the subsequent trial court orders on the same subject were
Modified Temporary Injunction Order void. SeeParsons v. Galveston County Employees Credit
Union, 576 S.W.2d 99, 100 (Tex.Civ.App.-Houston [1st
That does not end our inquiry. Our holding that we Dist.] 1978, order granting stay) (in vacating amended
may review the modified temporary injunction order in order entered after interlocutory appeal taken, holding,
this interlocutory appeal is not the same as holding that "The perfection of an appeal from an order granting a
the modified order itself is valid. temporary injunction terminates the jurisdiction of the
trial court insofar as the temporary injunction is
The modified order is valid if the trial court had
concerned."). [12] Under the pre-rules common law, the
jurisdiction to enter it during the interlocutory appeal.
modified temporary injunction order here would have
Rule of Appellate Procedure 29.5 sets out the trial court's
been void, and only the original temporary injunction
jurisdiction after an interlocutory appeal is filed. See
order would have remained in effect. SeeHumble
TEX.R.APP. P. 29.5. Rule 29.5 provides that, during the
Exploration Co. v. Fairway Land Co., 641 S.W.2d 934,
pendency of an interlocutory appeal, the trial court retains
940 (Tex.App.-Dallas 1982, writ ref'd n r.e.) (considering
subject-matter jurisdiction of the case and may make
merits of original receivership order on interlocutory
"further orders, including one dissolving the order
appeal, while vacating order modifying receivership after
appealed from, and if permitted by law, may proceed
appeal for lack of jurisdiction in trial court).
with a trial on the merits." Id. [11] The rule expressly
prohibits the trial court from making an order that is But the Supreme Court's adoption of Rule of Civil
inconsistent with any temporary orders of the appellate Procedure 385b in 1983, and its adoption of substantively
court or that "interferes with or impairs" the appellate similar Rule of Appellate Procedure 43(d) in 1986,
court's jurisdiction or the effectiveness of the relief that a changed that common law rule. See TEX.R. CIV. P.
party 385b(d), Order of the Supreme Court, Adopting Rules of
Civil Procedure (Dec. 5, 1983, eff.Apr.1, 1984), TEXAS
Page 690
CASES, 661-62 S.W.2d XXIX, XCIII (West 1984),
seeks or that the appellate court may grant. TEX.R.APP. superseded by TEX.R.APP. P. 43(d), Order of the
P. 29.5(a), (b). Supreme Court and the
We have already held that we have interlocutory Page 691
jurisdiction to review the modified order under statute
Texas Court of Criminal Appeals, Promulgating New
and rule; therefore, the fact that the modified order
Rules of Appellate Procedure (Apr. 10, 1986, eff. Sept. 1,
implicitly supplanted the earlier, appealed order does not
1986, superseded eff. Sept. 1, 1997), TEXAS CASES,
in itself interfere with our interlocutory jurisdiction in
707-08 S.W.2d XXIX, LV (West 1986). Former rules
violation of rule 29.5. Additionally, to the extent that the
385b(d) and 43(d) provided that the trial court retained
modified order's content does not materially differ from
jurisdiction to "issue further orders, including dissolution
that of the superseded order, the modified order neither
of the order appealed from," but expressly prohibited
prevents our review of Ahmed's issues nor affects the
orders "granting substantially the same relief as that
relief that he requests or that we could grant him. Finally,
granted by the order appealed from," those contrary to
we note that the modified temporary injunction order's
temporary appellate orders, or those interfering with or
additional provisions do not adversely affect the relief
impairing the effectiveness of relief on appeal. See id.
that Ahmed requests or that we could grant him.
Under either former rule 385b(d) or former rule 43(d), the
Compare, e.g.,McAllen Med. Ctr., Inc. v. Cortez, 66
modified order would have been void for granting
S.W.3d 227, 238 (Tex.2001) (holding that severance
substantially the same relief as the original order, and we
order, entered after defendant appealed class-action
would have reviewed only the original temporary
certification, violated rule 29.5(b) because it severed out
injunction order. SeeSt. Louis S.W. Ry. Co. v. Voluntary
what had been the class-action claims against appealing
Purchasing Groups, Inc., 929 S.W.2d 25, 33
defendant and because, although appellant could have
(Tex.App.-Texarkana 1996, no writ); Cobb v. Thurmond,
intervened in severed suit, deadline for appealing
899 S.W.2d 18, 19 (Tex.App.-San Antonio 1995, writ
class-certification order in that suit had already expired).
denied); Hopper v. Safeguard Bus. Sys., Inc., 787 S.W.2d
Therefore, under the plain language of rule 29.5, the trial
court had jurisdiction to enter the modified temporary
624, 626-27 (Tex.App.-San Antonio 1990, no writ). and its prompt administration as is equitable relief. Id.
Once again, however, the Supreme Court Whether to grant a temporary injunction lies within
substantively amended the rules in 1997 by adopting rule the trial court's sound discretion. Tel. Equip. Network, 80
29.5, quoted above. See Order of the Supreme Court and S.W.3d at 607. We will thus not reverse the trial court's
the Texas Court of Criminal Appeals, Final Approval of order unless the trial court's action was "so arbitrary that
Revisions to the Texas Rules of Appellate Procedure it exceeded the bounds of reasonable discretion." Id. One
(Aug. 15, 1997, eff.Sept.1, 1997), TEXAS CASES, way that a trial court abuses its discretion is to apply the
948-49 S.W.2d LXI, C (West 1997). Importantly, the law erroneously to undisputed facts. Id. A trial court also
revision omitted the prohibition against entering an order abuses its discretion when it issues an injunction that
granting substantially the same relief as that granted by orders an illegal act, even when done in the name of
the appealed order--which change was made, according preserving the status quo. SeeRegistered Nurse Care
to the comments, because the former prohibition was too Home, 965 S.W.2d at 708 (vacating temporary injunction
broad. See TEX.R.APP. P. 29.5 & cmt. Therefore, the order granted in favor of plaintiffs/appellees because trial
case law interpreting the "substantially similar" court abused discretion by issuing injunction that
prohibition of former rules 43(d) and 385b(d) is not preserved status quo by allowing plaintiffs to continue
binding under rule 29.5. Neither is the pre-rules common operating facilities under conditions violating law); see
law prohibition against any further orders viable under alsoDeNoie v. Bd. of Regents of Univ. of Tex. Sys., 609
rule 29.5. [13] S.W.2d 601, 603 (Tex.Civ.App.-Austin 1980, no writ)
("Status quo can never be a course of conduct which is a
We hold that the trial court had jurisdiction to enter prima facie violation of law."). We view the evidence in
the modified temporary injunction order. See the light most favorable to the trial court's order,
TEX.R.APP. P. 29.6. We also hold that we may review indulging every reasonable inference in its favor.
that modified order in this interlocutory appeal. See Amalgamated Acme Affiliates, Inc. v. Minton, 33 S.W.3d
TEX.R.APP. P. 29.5. 387, 392 (Tex.App.-Austin 2000, no pet.); Tel. Equip.
Network, 80 S.W.3d at 607.
Page 692
B. Violation of Law
The Merits of the Modified Temporary
Injunction Order 1. Whether the Modified Temporary Injunction
Order Requires Acts Violating Statute
A. Standard of Review and Burden of Proof
In issue four, Ahmed argues that the modified
A temporary injunction's purpose is to preserve the temporary injunction order is void to the extent that it
status quo of the litigation's subject matter pending trial. compels him and third parties to violate the Insurance
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 Code.
(Tex.2002). We may not review the merits of the
applicant's case in an interlocutory appeal from a The Insurance Code prohibits an insurer or
temporary injunction order. Tel. Equip. Network, Inc. v. insurance agent engaged in the business of insurance in
TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 Texas from "pay[ing], directly or indirectly, ... any
(Tex.App.-Houston [1st Dist.] 2002, no pet.). commission or other valuable consideration to ... any
person for services performed by that person as an
To obtain a temporary injunction, an applicant must insurance agent in this state" unless the person holds an
plead and prove (1) a cause of action against the insurance license.
defendant, (2) a probable right to the relief sought, and
(3) a probable, imminent, and irreparable injury in the Page 693
interim. Butnaru, 84 S.W.3d at 204. In establishing a
probable right to the relief sought, the applicant need not TEX. INS.CODE ANN. art. 21.01-2, § 2A(b) (Vernon
establish that it will prevail at trial. SeeCity of Supp.2003). [14] The Insurance Code also prohibits "any
Friendswood v. Registered Nurse Care Home, 965 person to act, as an agent or otherwise, in soliciting or
S.W.2d 705, 707 (Tex.App.-Houston [1st Dist.] 1998, no receiving applications for insurance of any kind
pet.). To establish an irreparable injury, the injured whatever" in Texas and from "in any manner" aiding "in
applicant must show that it "cannot be adequately the transaction of the business of any insurance
compensated in damages or ... the damages cannot be company" without "first procuring a license or certificate
measured by any certain pecuniary standard." Butnaru, of authority...." TEX. INS.CODE ANN. art. 21.01, § 2
84 S.W.3d at 204. That is, the applicant must establish (Vernon Supp.2003). [15] The Code defines an "agent" as
that there is no adequate remedy at law for damages.
SeeSurko Enters., Inc. v. Borg-Warner Acceptance Corp., [a]ny person who solicits insurance on behalf of any
782 S.W.2d 223, 225 (Tex.App.-Houston [1st Dist.] insurance company, ... or who takes or transmits other
1989, no writ). An adequate remedy at law is one that is than for himself any application for insurance or any
as complete, practical, and efficient to the ends of justice policy of insurance to or from such company, ... or who
shall receive or deliver a policy of insurance of any such injunction the amount of revenues that would have
company, or who shall ... receive, or collect, or transmit flowed to Beltway had Ahmed obtained Beltway's
any premium of insurance, ... or do or perform any other license. That is, the protected funds represent the
act or thing in the making or consummating of any damages that Beltway and Shimi hope to collect under
contract of insurance for or with any such insurance their fraud claim. However, that theory of the injunction's
company other than for himself, ... whether any of such purpose has nothing to do with the fact that the
acts shall be done at the instance or request, or by the mechanism that the injunction uses to carry out that
employment of such insurance company, or of, or by, any purpose requires licensed agents and insurers to pay
broker or other person.... commissions directly to an unlicensed corporation
performing insurance services, contrary to the law.
TEX. INS.CODE ANN. art. 21.02, § (a) (Vernon
Supp.2003). [16] Accordingly, we must vacate those portions of the
modified temporary injunction order that require Ahmed's
The quoted prohibitions apply to persons licensed commissions to be paid, directly or indirectly, to
as, among other things, property and casualty insurance Beltway. SeeRegistered Nurse Care Home, 965 S.W.2d
agents. See TEX. INS.CODE ANN. art. 21.01,§ 3(16) at 708. We thus sustain issue four. [19]
(Vernon Supp.2003). The undisputed evidence showed
that Ahmed was at all pertinent times such an agent, Page 695
specifically, a licensed limited lines agent for automobile
insurance. 2. Whether Beltway and Shimi Showed a
Probable Right of Recovery
The Insurance Code defines "person" for purposes of
the above-quoted statutes to include corporations and In issue one, Ahmed argues that Beltway and Shimi
partnerships. See TEX. INS.CODE ANN. art. 21.07, § did not establish a probable right of recovery on their
1A(8) (Vernon Supp.2003). [17] The Code further conversion or fraud claims because those claims were
allegedly based on Ahmed's payment of commissions to
Page 694 them, an act that we have held would violate the
Insurance Code. With respect to the fraud claim, Ahmed
defines a "corporation" to be "a legal entity that is also argues that there was no evidence that he
organized under the business corporations laws or limited misrepresented anything.
liability company laws of this state, another state, or a
territory of the United States and that has as one of its Courts have long refused to enforce contracts that
purposes the authority to act as an insurance agent." TEX. called for paying or sharing insurance commissions in
INS.CODE ANN. art. 21.07,§ 1A(3) (Vernon violation of the Insurance Code provisions discussed
Supp.2003). It was undisputed that Beltway was a Texas above. SeeBenefits Admin. Corp. v. Rearick, 705 S.W.2d
corporation and that, through the time of the temporary 234, 235-36 (Tex.App.-Texarkana 1986, no writ);
injunction hearing, Beltway was not a licensed insurance Perkins v. Lambert, 325 S.W.2d 436, 440
agency. Therefore, the statutes prohibiting (Tex.Civ.App.-Austin 1959, writ dism'd); Stone v.
commission-sharing and insurance solicitation applied to Sterling Mut. Life Ins. Co., 127 S.W.2d 345, 347-48
Beltway to the extent that it wrote insurance policies or (Tex.Civ.App.-Galveston 1939, no writ); Employers Cas.
otherwise acted as an insurance agent, which Beltway Co. v. Mitchell, Gartner & Walton, 84 S.W.2d 862, 864
admitted here and below that it did. (Tex.Civ.App.-Fort Worth 1935, no writ); see alsoIns.
Co. of N. Am. v. Morris, 981 S.W.2d 667, 681-82
The modified temporary injunction order requires (Tex.1998); Tidelands Life Ins. Co. v. Armstrong, 414
Ahmed, a licensed insurance agent, to remit his S.W.2d 196, 198 (Tex.Civ.App.-Austin 1967, no writ).
commissions and to endorse his commission checks to Ahmed relies on this line of cases. However, Ahmed
Beltway, a corporation that is not a licensed insurance overlooks that at least one cause of action that Beltway
agency. The order also requires third-party insurers or and Shimi pled--that for fraud--does not seek to enforce
their managing agents to make commission payments an agreement to share commissions. To the contrary, as
directly to Beltway, which again is unlicensed. The Beltway and Shimi explain on appeal, that cause of action
Insurance Code clearly prohibits such actions. The assumes that Beltway could not legally share Ahmed's
modified temporary injunction order thus requires illegal commissions. Instead, the cause of action relies on their
acts, even if the trial court merely intended to keep the allegation that Ahmed did not obtain Beltway's license
status quo by ordering them. [18] SeeRegistered Nurse after having been charged with doing so specifically so
Care Home, 965 S.W.2d at 708. that he could keep the commissions from Beltway,
allegedly contrary to the parties' arrangement. [20] That
Beltway and Shimi do not argue that an unlicensed theory of recovery is not based on enforcement of an
corporation performing insurance agent services can illegal arrangement to share commissions.
legally share a licensed agent's commissions. Rather, they
respond that they never contracted to share Ahmed's Fraud requires " 'a material misrepresentation, which
commissions, but sought merely to preserve by the
was false, and which was either known to be false when as Beltway's officer and employee for the purpose of
made or was asserted without knowledge of its truth, obtaining Beltway's license. This means that Beltway
which was intended to be acted upon, which was relied (through its corporate representative, Ahmed) was itself
upon, and which caused injury.' " Formosa Plastics Corp. taking responsibility for getting its own license before
USA v. Presidio Engs. & Contractors, Inc., 960 S.W.2d allowing Ahmed (as its employee) to earn commissions.
41, 47-48 (Tex.1998) (quoting Sears, Roebuck & Co. v. The fact that Ahmed never got that license might show
Meadows, 877 S.W.2d 281, 282 (Tex.1994)). Ahmed that Ahmed failed his corporate principal, but it does not
relies on Armstrong v. Tidelands Life Insurance Co. to necessarily demonstrate that Beltway was not entitled to
argue that no reliance existed as a matter of law. 466 rely on him as its own corporate officer. Therefore,
S.W.2d 407 (Tex.Civ.App.-Corpus Christi 1971, no writ). Armstrong does not as a matter of law defeat the reliance
The Armstrong court considered, among other things, needed for Beltway and Shimi's fraud claim.
summary judgments in favor of the defendant insurer on
the contract-breach and fraud claims of an insurance Ahmed also argues that the trial court abused its
agent. Seeid. at 408. The agent based his fraud claim on discretion because there was no evidence that Ahmed had
the insurer's having misrepresented that it would obtain misrepresented anything. However, there was evidence
the proper license for him to act as an agent. See id. The that Ahmed had been charged with obtaining a license for
damages that the agent sought were the commissions that Beltway and that he could have done so in as few as six
he would have received had the weeks, but that he did not. The law prevented unlicensed
Beltway from sharing Ahmed's commissions, yet
Page 696 Beltway still collected commissions. Additionally,
Beltway did not remove Ahmed for failure to obtain
insurer obtained the license. Seeid. at 409. After holding Beltway's license until mid-2002, close to two years after
that the contract between the agent and the insurer was he earned his first commissions. Viewed in the required
void and unenforceable because the agent was not light, these facts raise reasonable inferences that Ahmed
properly licensed, the Armstrong court affirmed the hid his failure to get the license and that Beltway relied
summary judgment rendered on the fraud claim. See id. on that misrepresentation.
The court noted that the statute placed the responsibility
on the agent to obtain the license before acting as an Accordingly, we hold that the trial court did not
insurance agent. See id. Based on this statutory abuse its discretion if it concluded that Beltway and
requirement, the Armstrong court held that the agent Shimi showed a probable right of recovery on at least
could not rely on the insurer's promise to get a license for their fraud cause of action.
him. Seeid. at 409-10, 411.
We overrule issue one. [21]
We distinguish Armstrong for two reasons. First, in
Armstrong, it was the insurance agent who performed the Page 697
services requiring a license, yet he relied on another
entity first to obtain that license for him. Put another way, C. Irreparable Injury
one party took responsibility for obtaining the insurance
In issue two, Ahmed argues that Beltway and Shimi
agent's license, while the other party took responsibility
presented no evidence that injury was imminent or
for acting as the insurance agent. Under that arrangement,
irreparable or that Beltway and Shimi had no adequate
the individual began acting as an insurance agent without
legal remedy absent the temporary injunction.
having first confirmed that the insurer, a separate entity,
had gotten the license that was a prerequisite to the
The modified temporary injunction order recited that
individual's acting. Here, in contrast, viewed in the
Ahmed's possession of commission checks would
appropriate light and indulging all reasonable inferences
irreparably harm Beltway and Shimi by making them
in Beltway and Shimi's favor, one party (Ahmed) took
experience "an immediate, and if not addressed, ongoing,
responsibility both for obtaining the license, which the
shortfall in operating revenues resulting in disruption of
evidence shows might have been done quickly, and for
business operations, including the inability to provide
earning the disputed commissions. Ahmed determined
insurance services to its customers." The order also
both when Beltway would be licensed and when he
recited that Beltway and Shimi had no adequate remedy
would start earning commissions on Beltway's behalf.
at law to compensate them for these damages.
The individual in Armstrong could not rely on another to
obtain his license before acting as an agent, which We hold that evidence supported the trial court's
arrangement might (and did) end up violating the statute; determination on both grounds. Regarding irreparable
in contrast, nothing prevented Ahmed from procuring a harm, Ahmed testified that, through July 23, 2002--that
license for his corporation before acting as an agent. is, for over 20 months--he had deposited all his
commission checks into Beltway's account. Ahmed
Second, the individual in Armstrong relied on a
testified that he had loaned these sums to Beltway to pay
separate entity to obtain his license. In contrast, viewed in
for Beltway's operating expenses: "I was trying to keep
the right light, Ahmed, as Beltway's president, was acting
the money [sic] afloat. Without my loaning this money,
the company would have gone under and the investment ---------
my partners would have [sic] made would have
physically vanished. " (Emphasis added.) The temporary Notes:
injunction hearing was held only 29 days after Ahmed
had left Beltway and stopped depositing commissions [1] Mohammed Atique Ahmed and his wife, Farheen
into Beltway's account. Given Ahmed's own testimony Ahmed, were both defendants below. However, only
that Beltway had depended on these sums for survival for Mohammed Atique Ahmed filed a notice of interlocutory
almost two years, the trial court could reasonably have appeal, and appellees state in their brief that they
inferred that Beltway's needs had not changed nonsuited Farheen Ahmed during the pendency of this
substantially in 29 days. interlocutory appeal.
Moreover, there was evidence from which the trial [2] Ahmed argues that we may not consider the affidavits
court could reasonably have concluded that Beltway and because they are not evidence and because the parties did
Shimi had no adequate remedy at law. Ahmed admitted not agree to treat them as evidence. Ahmed is correct
that, although he considered the commissions that he had that, absent the parties' agreement, affidavits attached to
earned since the beginning to be his personal property, he pleadings and not admitted into evidence do not
had not paid any income taxes on them to date. Ahmed's constitute evidence. SeeMillwrights Local Union No.
counterclaim alleged that the amount of commissions he 2484 v. Rust Eng'g Co., 433 S.W.2d 683, 685-86
had loaned to Beltway was $1,500,000 over the 22 (Tex.1968) (holding that, absent parties' agreement, proof
months preceding the suit's filing; he also testified that, at required for temporary injunction cannot be made by
least at the time of the hearing, his commissions were affidavit attached to injunction application); Letson v.
about $300,000 a year. One could thus reasonably infer Barnes, 979 S.W.2d 414, 417, 418-19
that, under Ahmed's theory of the case, he could have (Tex.App.-Amarillo 1998, pet. denied) (same). However,
potential, outstanding tax liability on a substantial we disagree with Ahmed that we may not consider these
income. Additionally, Ahmed testified that he no longer affidavits under the circumstances present here. Here, the
had errors and omissions coverage for himself trial court announced during the hearing that it could base
individually, from which one could reasonably infer its decision on the exhibits and testimony from the
possible personal liability if Ahmed were sued. Finally, hearing and also on "affidavits filed with the petition" and
two days after the original temporary injunction hearing, on "evidence [sic] provided in [Ahmed's] answer." No
Ahmed went to Pakistan. The next day, Ahmed's counsel one objected to this stated procedure. The trial court was
filed a motion to extend the temporary injunction's the fact finder; therefore, its declaring during the
deadlines, which motion attached a family member's evidentiary hearing that it could consider the affidavits
affidavit estimating that Ahmed would return from was tantamount to its having--rightly or
Pakistan in three weeks. However, as of the date of the wrongly--admitted those affidavits into evidence.
injunction-modification hearing held about two months Ahmed's counsel, who now argues that the affidavits did
later--and as was clear from counsels' discussion at that not constitute evidence, implicitly acquiesced in this
second hearing--Ahmed had not yet returned from procedure below when, after the trial court's quoted
Pakistan. The trial court thus knew of Ahmed's continued statement, he questioned his own client based on the
absence when it signed the modified temporary affidavits attached to Beltway and Shimi's petition.
injunction order. That order carried forth the same Cf.Millwrights, 433 S.W.2d at 686 (holding that parties
inadequate-remedy recital that had appeared in the may agree to allow temporary injunction proof by
original order. affidavit). In any event, Ahmed cannot now complain
about the trial court's having considered these affidavits
Based on this evidence, we hold that the trial court when, after having been advised that the trial court would
did not abuse its discretion in concluding that Beltway do so, Ahmed did not complain below. See TEX.R.APP.
and Shimi would suffer irreparable harm and had no P. 33.1(a)(1); cf.Tigua Gen. Hosp., Inc. v. Feuerberg, 645
adequate remedy at law. S.W.2d 575, 576 (Tex.App.-El Paso 1982, no writ)
(treating affidavits as sufficient temporary injunction
We overrule issue two. proof, despite lack of parties' agreement to do so below,
when opposing party did not complain of deficiency of
Page 698 affidavits on appeal).
Conclusion [3] There were some exceptions. In June 2002, at
Ahmed's request while he was out of town, Logic issued
We modify the modified temporary injunction order commission checks jointly to Ahmed and a company
by vacating those portions of that order that require called BW Insurance Agency, Inc. ("BWI"). BWI was
Ahmed to relinquish or to sign over commissions to formed by Beltway's board of directors in March 2002.
Beltway or that require licensed insurers or their agents to BWI had obtained assumed-name certificates to do
pay commissions directly to Beltway. We affirm the business as "Beltway Insurance" and was actually
modified temporary injunction order as so modified. operating Beltway's stores by the time of the temporary
injunction hearing. It appears to be for these reasons, Exploration Co. v. Fairway Land Co., 641 S.W.2d 934,
among others, that Ahmed requested that Logic issue the 936, 940 (Tex.App.-Dallas 1982, writ ref'd n.r.e.); Holst
commission checks for June in his absence to BWI, rather v. Newsletters, Inc., 578 S.W.2d 420, 421
than to Beltway. (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref'd n r.e.);
Caldwell v. Meyers, 446 S.W.2d 709, 710
[4] Beltway and Shimi also pled conspiracy between (Tex.Civ.App.-Austin, orig.proceeding); City of Corpus
Ahmed and his wife, Farheen Ahmed. However, during Christi v. Lone Star Fish & Oyster Co., 335 S.W.2d 621,
the appeal, Beltway and Shimi non-suited Ahmed's wife 622 (Tex.Civ.App.-San Antonio 1960, no writ); Hyatt v.
without prejudice, and they admit in their brief that the Mercury Life & Health Co., 202 S.W.2d 325, 327
non-suit vitiates their conspiracy claim. (Tex.Civ.App.-San Antonio 1947, orig. proceeding).
[5] Ahmed does not complain on appeal of the denial of [13] Only one case is to the contrary. In Reeves v. City of
his temporary injunction application. Dallas, after a temporary injunction order had been
appealed, the trial court entered a second temporary
[6] We note that, even if the modified temporary injunction order (1) that expressly vacated the first
injunction order had not supplanted the original order in injunction order and (2) that granted essentially the same
its entirety, our disposition would have been the same for relief as had the first. Seeid., 68 S.W.3d 58, 60
the reasons discussed below. (Tex.App.-Dallas 2001, pet. denied). Relying on rule
29.5's express grant of jurisdiction to dissolve an
[7] SeeBrown v. Herman, 852 S.W.2d 91, 93
appealed temporary injunction, the Reeves court first held
(Tex.App.-Austin 1993, orig. proceeding) (holding that
that the trial court had jurisdiction to enter the second
court of potential jurisdiction has jurisdiction to
temporary injunction order to the extent that the second
determine its jurisdiction).
order vacated the first order, further holding that the
[8] For reasons discussed further below, only subsection vacating of the first order rendered the appeal from the
(a)(1) of rule 29.6 concerns us here. first order moot. See id. With this holding we do not
necessarily disagree. The Reeves court also held that the
[9] TEX. CIV. PRAC. & REM.CODE ANN. §§ remainder of the second temporary injunction
65.001-.045 (Vernon 1997 & Supp.2003) (concerning order--which apparently added a trial date that the first
injunctions). order did not have (see TEX.R. CIV. P. 683, requiring
temporary injunction order to set trial date)--interfered
[10] AccordBarrier v. Little, No. 01-98-01361-CV, slip with its appellate jurisdiction and the relief that it could
op. at 2, 1999 WL 439011 (Tex.App.-Houston [1st Dist.] grant and so violated rule 29.5(b). SeeReeves, 68 S.W.3d
June 17, 1999, no pet.) (not designated for publication) at 60. Neither do we disagree with this holding, and we
(quoting Martin ); Currie v. Int'l Telecharge, Inc., 722 distinguish Reeves on this basis. However, the Reeves
S.W.2d 471, 472-73 (Tex.App.-Dallas 1986, no writ) court alternatively held that the trial court had no
(relying on Martin ); seeArrechea v. Plantowsky, 705 jurisdiction to enter the second temporary injunction
S.W.2d 186, 187, 188-89 (Tex.App.-Houston [14th Dist.] order to the extent that it did anything but vacate the first
1985, no writ) (without discussing jurisdictional issue, order. See id. In this holding, the Reeves court relied
reviewing by interlocutory appeal order modifying solely on pre-rules authority--now superseded by
temporary injunction); Pierce Mortuary Colls., Inc. v. rule--that the trial court loses jurisdiction completely over
Bjerke, 841 S.W.2d 878, 880 (Tex.App.-Dallas 1992, writ the merits of the injunction order once interlocutory
denied) (in dicta, explaining why Currie's holding was appeal is perfected. See id. Because this holding of the
correct for orders modifying temporary injunctions, but Reeves court is based on superseded law, we respectfully
did not apply to amended class certification order that disagree with it.
expanded class). But seeLudewig v. Houston Pipeline
Co., 737 S.W.2d 15, 16 (Tex.App.-Corpus Christi 1987, [14] The parties began their business arrangement before
no writ) (holding that order amending temporary article 21.01-2, section 2A(b)'s effective date of
injunction order was not appealable). September 1, 2001. See Act of May 18, 2001, 77th Leg.,
R.S., ch. 703, §§ 1.04, 10.01, 2001 Tex. Gen. Laws 1348,
[11] The trial court issued both temporary injunction 1354, 1401 (now codified at TEX. INS.CODE ANN. art.
orders before rule 29.5 was modified effective January 1, 21.01-2, § 2A(b) (Vernon Supp.2003)). However, article
2003. See Order of the Supreme Court, Final Approval of 21.01-2A(b) merely recodified prior law (1) that was in
Amendments to the Texas Rules of Appellate Procedure, effect at all times pertinent to this case and (2) that
Misc. Docket No. 02-9237 (Dec. 23, 2002, eff.Jan.1, contained a prohibition not materially different in any
2003). Because the 2003 amendment does not affect the way pertinent to this appeal from the prohibition in the
disposition of this appeal, however, we quote the current current law. See Act of May 25, 1979, 66th Leg., R.S.,
version of the rule. See id. ch. 404, § 1, 1979 Tex. Gen. Laws 884, 885 (eff. June 6,
1979) (first adding this prohibition to Insurance Code,
[12] AccordBoynton v. Brown, 164 S.W. 897, 897 prohibiting commission payment to unlicensed "person or
(Tex.Civ.App.-San Antonio 1914, writ ref'd); Humble corporation" for insurance-agent services), amended by
Act of May 23, 1997, 75th Leg., R.S., ch. 596, § 1, 1997 which Beltway and Shimi would be entitled on final trial
Tex. Gen. Laws 2083, 2083-84,recodified at current code and (2) granted more relief than that for which Beltway
section by Act of May 18, 2001, 77th Leg., R.S., ch. 703, and Shimi pled. Because our holding on issue four does
§§ 1.04, 1.09, 10.01, 2001 Tex. Gen. Laws 1348, 1354, not require vacating the entire modified temporary
1357-58, 1401 (now codified at TEX. INS.CODE ANN. injunction order, our holding does not moot Ahmed's
art. 21.01-2, § 2A(b) (Vernon Supp.2003)). Accordingly, issue one (whether Beltway and Shimi showed a probable
for simplicity's sake, we refer only to current statute. right of recovery on their two claims), his issue two
(whether Beltway and Shimi proved a probable,
[15] Again, because the 2001 amendment to this statute imminent, and irreparable injury), or his issue five
did not change the preexisting law in any way material to (whether the trial court abused its discretion by allegedly
this appeal, we refer only to the current statute. See (Act relying on a finding of breach of fiduciary duty in
of 1951, 52nd Leg., R.S., ch. 491, 1951 Tex. Gen. Laws granting the temporary injunction).
868, 1061, title heading added by Act of April 23, 1999,
76th Leg., R.S., ch. 101, § 2, 1999 Tex. Gen. Laws 486, [20] This theory of Beltway and Shimi's fraud cause of
534, amended by Act of May 18, 2001, 77th Leg., R.S., action was not precisely the theory that they pled below.
ch. 703, § 1.01, 2001 Tex. Gen. Laws 1348, 1349) (now Rather, their petition alleged that Ahmed had committed
codified at TEX. INS.CODE ANN. art. 21.01, § 2 fraud by allegedly falsely claiming that he would not
(Vernon Supp.2003)). interfere with Beltway's business after his removal.
However, the fraud theory on which Beltway and Shimi
[16] The definition of an agent was substantively similar rely on appeal was supported by the temporary-injunction
at all times pertinent to this appeal. See Act of 1951, 52nd evidence, when viewed in the light most favorable to the
Leg., R.S., ch. 491, 1951 Tex. Gen. Laws 868, 1061-62, ruling, and Ahmed has not claimed surprise at the
amended by Act of May 13, 1985, 69th Leg., R.S., ch. assertion of this theory on appeal.
203, § 1, 1985 Tex. Gen. Laws 790, 790, amended by Act
of May 18, 2001, 77th Leg., R.S., ch. 703, § 1.07, 2001 [21] Our holding on issue one moots Ahmed's issue
Tex. Gen. Laws 1348, 1357 (now codified at TEX. five--whether the trial court abused its discretion by
INS.CODE ANN. art. 21.02, § (a) (Vernon Supp.2003)). allegedly relying on a finding of breach of fiduciary duty
in granting the temporary injunction: even if the trial
[17] At all times pertinent to this appeal, persons and court erred in finding this, a claim for fraud does not
corporations both were prohibited from sharing require a breach of fiduciary duty.
commissions and acting as an agent without a license. See
Act of May 26, 1977, 65th Leg., R.S., ch. 579, § 2, 1977 ---------
Tex. Gen. Laws 1421, 1421-22 (adopting "person or
corporation" language), amended by Act of May 25,
1979, 66th Leg., R.S., ch. 404, § 1, 1979 Tex. Gen. Laws
884, 884-85, amended by Act of May 23, 1997, 75th
Leg., R.S., ch. 596, § 1, 1997 Tex. Gen. Laws 2083,
2083-84, amended by Act of May 18, 2001, 77th Leg.,
ch. 703, § 1.09, 2001 Tex. Gen. Laws 1357, 1357-58
(now codified at TEX. INS.CODE ANN. art. 21.07, §
1A(8) (Vernon Supp.2003)).
[18] Sometime in the summer of 2002, BWI (not
Beltway) obtained the license and registrations needed to
act as a limited lines agency. Although BWI was actually
operating Beltway's stores by the time of the temporary
injunction hearing, the undisputed evidence showed that
BWI and Beltway were separate corporate entities and
that BWI was not Beltway's corporate successor.
Moreover, the modified temporary injunction order did
not order Ahmed's commissions paid to BWI, but to
Beltway. BWI's relationship with Beltway, and the fact
that BWI was licensed, are thus immaterial to our holding
under issue four.
[19] Our holding on this issue obviates the need to reach
Ahmed's issue three, which argues that the trial court
exceeded its jurisdiction in issuing the temporary
injunction because the order to turn over and endorse all
commission checks to Beltway (1) granted all the relief to
Page 160 challenged by point of error and is therefore binding on
appeal. Wade v. Anderson, 602 S.W.2d 347, 349
759 S.W.2d 160 (Tex.App. —Houston [1 Dist.] 1988) (Tex.Civ.App.--Beaumont 1980, writ ref'd n.r.e.). The
court ordered the production of "all of Lou W. Burton's
Lou W. BURTON and Galleria Diplomat Association, records and files in any way related to his representation"
Inc., Appellants, of the Association.
v. In their first of three points of error, appellants
contend that the trial court erred in ordering the
Jeffrey M. CRAVEY, et al., Appellees.
production of Burton's records because the application
and proof fail to establish a cause of action or a probable
No. 01-88-00270-CV.
right and a probable injury.
Court of Appeals of Texas, First District, Houston
Appellants mischaracterize the nature of the trial
August 18, 1988 court proceedings. For example, they argue that appellees
have other adequate remedies under Tex.R.Civ.P. 167,
Rehearing Denied Sept. 8, 1988. 168 and 737 to pursue inspection. This assertion ignores
the fact that a writ of mandamus is the proper remedy to
Wade B. Reese, Houston, for appellants. enforce the right of inspection. See 20 R. Hamilton,
Texas Business Organizations § 801 (1973). Appellees
Lou W. Burton, Houston, pro se. did not have to establish an independent cause of action;
they merely had to establish their statutory right to
John K. Grubb, Houston, for appellees.
inspect.
Before SAM BASS, DUGGAN and LEVY, JJ.
Tex.Prop.Code Ann. § 81.209 (Vernon 1984)
provides the following for condominium records:
OPINION
(a) The administrator or board of administration of a
DUGGAN, Justice.
condominium regime or a person appointed by the
This appeal involves the right to inspect records and bylaws of the regime shall keep a detailed written
books of a condominium association. Appellees, a group account of the receipts and expenditures related to the
of dissident owners, filed a petition for writs of building and its administration that specifies the expenses
mandamus and injunction because of the appellant incurred by the regime.
Galleria Diplomat Association's board of directors'
(b) The accounts and supporting vouchers of a
refusal to allow the inspection of records. In a corrected
condominium regime shall be made available to the
order dated March 2, 1988, the trial court granted the writ
apartment owners for examination on working days at
of
convenient, established, and publicly announced hours.
Page 161
(c) The books and records of a condominium regime must
mandamus, ordering the Association to maintain its comply with good accounting procedures and must be
books and records at its offices and make these records audited at least once each year by an auditor who is not
available for inspection and copying. The trial court also associated with the condominium regime.
enjoined appellants from interfering with appellees' right
(Emphasis added.)
to inspect these books and records. The court further
ordered the delay of the annual election by the
The Texas Non-Profit Corporation Act,
Association's members.
Tex.Rev.Civ.Stat.Ann. art. 1396-2.23 (Vernon 1980),
additionally provides:
All of the points of error attack the ordered
production of records in the possession of appellant
A. Each corporation shall keep correct and complete
Burton, the attorney for the appellant Association. The
books and records of account and shall keep minutes of
trial court entered a finding of fact that the Association's
the proceedings of its members, board of directors, and
Board of Directors hired Burton "to handle numerous
committees having any authority of the board of directors
matters for the Association and that records of Lou W.
and shall keep at its registered office or principal office in
Burton relating to Association matters are part of the
this State a record of the names and addresses of its
books and records of the Galleria Diplomat Townhomes
members entitled to vote.
Homeowner's Association, Inc. a/k/a the Galleria
Diplomat Association, Inc." This finding of fact is not B. All books and records of a corporation may be
inspected by any member, or his agent or attorney, for the Law of Private Corporations § 2253.1 (1987). The
any proper purpose at any reasonable time. trial court, however, sustained appellees' objections to
appellants' attempted inquiries about ulterior or vindictive
(Emphasis added.) motives for the inspection of records. Appellants do not
complain about the exclusion of this testimony.
In their application for writ of mandamus, appellees
were attempting to enforce their statutory rights as Appellants' second point of error is overruled.
condominium apartment owners to inspect the "accounts
and supporting vouchers of a condominium regime" Appellants contend in their third point of error that
under Property Code § 81.209, and as corporation the trial court erred in granting the production order
members to inspect "all books and records" of a because it requires the inspection of privileged
non-profit corporation under article 1396-2.23. The trial documents.
court did not err in ordering the production of Burton's
records. Again, we note that appellants are attempting to
engraft notions borrowed from Texas discovery practice
Appellants' first point of error is overruled. onto a statutory right to inspect. Article 1396-2.23
contains no limitations on the member's right to inspect
Page 162 as long as the books and records are those of the
non-profit corporation and the inspection is for "any
Appellants contend in their second point of error that proper purpose." The trial court found that Burton's
the trial court erred in ordering production of the records records and files relating to the Association were part of
and files of the attorney for the condominium association the Association's books and records, and appellants have
because the order is overly broad, unduly burdensome, not contended that the intended inspection is for an
and requires the production of irrelevant information. improper purpose. The only limitation under article
1396-2.23 is "proper purpose." Appellants have failed to
Appellees sought the production of records that they
prove that the purpose of the inspection was improper.
were statutorily entitled to inspect. Appellants'
complaints about the order appear to be an attempt to Moreover, if the attorney-client privilege did apply,
engraft discovery notions upon the appellees' statutory we would hold that the trial court did not abuse its
right of inspection, which is independent of any right of discretion in ordering the inspection of Burton's records.
discovery in litigation. See San Antonio Models, Inc. v. The attorney-client privilege is not absolute; appellants'
Peeples, 686 S.W.2d 666 (Tex.App.--San Antonio 1985, interest in the nondisclosure of communications protected
orig. proceeding). The right to inspect under article by the privilege would have to be balanced against the
1396-2.23 encompasses "all books and records." The trial inspection rights of the members of the non-profit
court found that Burton's files and records relating to the corporation. See In re LTV Securities Litigation, 89
Association were the "books and records" of the F.R.D. 595, 609-611 (N.D.Tex.1981). Under the facts of
Association. This finding is not challenged on appeal. this case, the trial court did not abuse its discretion in
This right of condominium owners to inspect the books ordering the inspection of Burton's records.
and records, like the comparable right to inspect granted
shareholders in corporations, is limited by the Appellants' third point of error is overruled.
requirement that the inspection be for any "proper
purpose." See R. Hamilton, Texas Business The judgment is affirmed.
Organizations § 804 (1973); see also Annotation, What
Corporate Documents Are Subject to Shareholder's Right
to Inspection 88 A.L.R.3d 663 (1978).
Once the trial court found that Burton's files and
records relating to the Association were part of the books
and records of the Association, appellees were entitled to
inspect them for any "proper purpose." Appellants,
however, do not contend that the intended inspection is
for an improper purpose. There was testimony by
appellees that they were concerned about the
"substantial" and "inordinate" fees paid to Burton by the
Association. Although the parties have presented no cases
squarely on point, it would appear that it was the
appellant Association's burden of proof to establish the
absence of proper purpose. Uvalde Rock Asphalt Co. v.
Loughridge, 425 S.W.2d 818 (Tex.1968); Moore v. Rock
Creek Oil Corp., 59 S.W.2d 815 (Tex.Comm'n App.1933,
holding approved); see also, 5A Fletcher, Cyclopedia of
Page 646 OPINION
422 S.W.3d 646 (Tex. 2013) Page 647
THE EPISCOPAL DIOCESE OF FORT WORTH, Phil Johnson, Justice.
ET AL, PETITIONERS,
This direct appeal involves the same principal issue
v. we addressed in Masterson v. Diocese of Northwest
Texas, __ S.W.3d __, (Tex. 2013): what methodology is
THE EPISCOPAL CHURCH, ET AL., to be used when Texas courts decide which faction is
RESPONDENTS entitled to a religious organization's property following a
split or schism? In Masterson we held that the
No. 11-0265 methodology referred to as " neutral principles of law"
must be used. But, in this case the trial court granted
Supreme Court of Texas
summary judgment on the basis of the " deference" or "
August 30, 2013 identity" methodology, and the record does not warrant
rendition of judgment to either party based on neutral
Argued October 16, 2012. principles of law.
Released for Publication March 21, 2014. We reverse and remand to the trial court for further
proceedings.
ON DIRECT APPEAL FROM THE 141ST
DISTRICT COURT, TARRANT COUNTY, TEXAS. I. Background
Amicus Curiae for Liberty Institute: Kelly J. The Episcopal Church (TEC) is a religious
Shackelford, Liberty Legal Institute, Plano, TX. organization founded in 1789. It has three structural tiers.
The first and highest is the General Convention. The
Eprhaim Radner, Pro se. General Convention consists of representatives from each
diocese and most of TEC's bishops. It adopts and amends
For The Episcopal Diocese of Fort Worth, TEC's constitution and canons. The second tier is
Appellant: J. Shelby Sharpe, Sharpe & Rector, Fort comprised of regional, geographically defined dioceses.
Worth, TX; Kendall M. Gray, Andrews Kurth LLP, Dioceses are governed by their own conventions. Each
Houston, TX; R. David Weaver, The Weaver Law Firm diocese's convention adopts and amends its own
PC, Arlington, TX; Scott A. Brister, Andrews Kurth LLP, constitution and canons, but must accede to
Austin, TX.
Page 648
For Local Episcopal Congregations, Appellee:
Frank Gilstrap, Frank Hill, Hill Gilstrap, P.C., Arlington, TEC's constitution and canons. The third tier is
TX. comprised of local congregations. Local congregations
are classified as parishes, missions, or congregations. In
For Local Episcopal Parties, Appellee: Jonathan order to be accepted into union with TEC, missions and
D.F. Nelson, Jonathan D. F. Nelson PC, Arlington, TX; congregations must subscribe to and accede to the
Kathleen Wells, Taylor Olson Adkins Sralla & Elam constitutions and canons of both TEC and the Diocese in
LLP, Fort Worth, TX; Thomas S. Leatherbury, William which they are located.
D. Sims Jr., Vinson & Elkins LLP, Dallas, TX.
In 1982 the Episcopal Diocese of Fort Worth (the
For The Episcopal Church, Appellee: David Beers, Diocese or Fort Worth Diocese) was formed after the
Mary Kostel, Goodwin Proctor LLP, Washington, DC; Episcopal Diocese of Dallas voted to divide into two
Sandra Cockran Liser, Naman Howell Smith & Lee parts. The Fort Worth Diocese was organized " pursuant
PLLC, Fort Worth, TX. to the Constitution and Canons of the Episcopal Church"
and its convention adopted a constitution and canons. The
JUSTICE JOHNSON delivered the opinion of the Diocese's constitution provided that all property acquired
Court, in which JUSTICE HECHT, JUSTICE GREEN, for the Church and the Diocese " shall be vested in [the]
and JUSTICE GUZMAN joined, and in Parts I, II, III, Corporation of the Episcopal Diocese of Fort Worth."
and IV-A of which CHIEF JUSTICE JEFFERSON The canons of the Diocese provided that management of
joined. JUSTICE WILLETT filed a dissenting opinion, in the affairs of the corporation " shall be conducted and
which JUSTICE LEHRMANN, JUSTICE BOYD, and administered by a Board of Trustees of five (5) elected
JUSTICE DEVINE joined. members, all of whom are either Lay persons in good
standing of a parish or mission in the Diocese, or
members of the Clergy canonically resident in the significant disagreement between the parties was whether
Diocese." The Bishop of the Diocese was designated to the " deference" (also sometimes referred to as the "
serve as chair of the board of the corporation. After identity" ) or " neutral principles of law" methodology
adopting its constitution and canons the Diocese was should be applied to resolve the property issue. TEC
admitted into union with TEC at TEC's December 1982 contended that pursuant to this Court's decision in Brown
General Convention. v. Clark , 102 Tex. 323, 116 S.W. 360 (Tex. 1909), the
deference methodology has been applied in Texas for
In February 1983, the Fort Worth Diocese filed over a century and should continue to be applied. Under
articles of incorporation for the Fort Worth Corporation. that methodology, it argued, TEC was entitled to
That same year the Dallas and Fort Worth Dioceses filed summary judgment because it recognized Bishops Gulick
suit in Dallas County and obtained a judgment and Ohls, the leaders elected at the 2009 convention, and
transferring part of the Dallas Diocese's real and personal the appointees of the Bishops as the true and continuing
property to the Fort Worth Diocese. The 1984 judgment Episcopal Diocese. TEC also contended that even if the
vested legal title of the transferred property in the Fort neutral principles methodology were applied, it would be
Worth Corporation, except for certain assets for which entitled to summary judgment. The Diocese, on the other
the presiding Bishop of the Dallas Diocese and his hand, contended that in Brown this Court effectively
successors in office had been designated as trustee. The applied the neutral principles methodology without
judgment transferred the latter assets to the Bishop of the specifically calling it by that name, and Texas courts
Fort Worth Diocese and his successor in office as trustee. have continued to substantively apply that methodology
to resolve property issues arising when churches split.
Doctrinal controversy arose within TEC, leading the Under the neutral principles methodology, the Diocese
Fort Worth Corporation to file amendments to its articles argued, it was entitled to summary judgment affirming its
of incorporation in 2006 to, in part, remove all references right to the property. The Diocese also maintained that
to TEC. The corporate bylaws were similarly amended. even if the deference methodology were applied, it would
The 2007 and 2008 conventions of the Fort Worth still be entitled to summary judgment.[3]
Diocese voted to withdraw from TEC, enter into
membership with the Anglican Province of the Southern The trial court agreed with TEC that deference
Cone, and adopt amendments to the Diocese's principles should apply, applied them, and granted
constitution removing references to TEC.[1] summary judgment for TEC. The Diocese sought direct
appeal to this Court and we noted probable jurisdiction.
Page 649 We had previously granted the petition for review in
Masterson, and we heard oral arguments for both cases
TEC responded. It accepted the renunciation of Jack
on the same day.
Iker, Bishop of the Fort Worth Diocese, and TEC's
Presiding Bishop removed Iker from all positions of II. Jurisdiction
authority within TEC. In February 2009, TEC's Presiding
Bishop convened a " special meeting of Convention" for The Government Code provides that " [a]n appeal
members of the Fort Worth Diocese who remained loyal may be taken directly to the supreme court from an order
to TEC. Those present at the meeting elected Edwin of a trial court granting or denying an interlocutory or
Gulick as Provisional Bishop of the Diocese and Chair of permanent injunction on the ground of the
the Board of Trustees for the Fort Worth Corporation. constitutionality of a statute of this state." Tex. Gov't
The 2009 Convention also voted to reverse the Code § 22.001(c). The trial court granted summary
constitutional amendments adopted at the 2007 and 2008 judgment and issued injunctions ordering the defendants
Conventions and declared all relevant offices of the to surrender all Diocesan property and control of the
Diocese to be vacant. Bishop Gulick then appointed Diocesan Corporation to the Episcopal Diocese of Fort
replacements to the offices declared vacant, including the Worth, and ordering the defendants to desist from
offices of the Trustees of the Corporation. TEC holding themselves out as leaders of the Diocese. While
recognized the persons elected at the 2009 Convention as the trial court order did not
the duly constituted leadership of the Diocese.
Page 650
TEC, Rev. C. Wallis Ohls, who succeeded Bishop
Gulick as Provisional Bishop of the Episcopal Diocese of explicitly address the constitutionality of a statute, " [t]he
Fort Worth, and clergy and lay individuals loyal to TEC effect of the trial court's order . . . is what determines this
(collectively, TEC) filed suit against The Episcopal Court's direct appeal jurisdiction." Tex. Workers'
Diocese of Fort Worth, the Fort Worth Corporation, Compensation Comm'n v. Garcia, 817 S.W.2d 60, 61
Bishop Iker, the 2006 trustees of the corporation, and (Tex. 1991).
former TEC members (collectively, the Diocese), seeking
title to and possession of the property held in the name of In its motion for summary judgment TEC argued, in
the Diocese and the Fort Worth Corporation.[2] Both part, that the actions of the Board of Trustees in
TEC and the Diocese moved for summary judgment. A amending the Fort Worth Corporation's articles of
incorporation were void because the actions went beyond of our decision in
the authority of the corporation, which was created and
existed as an entity subordinate to a Diocese of TEC. Page 651
TEC argued that " [t]he secular act of incorporation does
not alter the relationship between a hierarchical church Brown v. Clark, 102 Tex. 323, 116 S.W. 360 (Tex. 1909),
and one of its subordinate units" and that finding and that Texas courts should utilize that methodology in
otherwise " would risk First Amendment implications." determining which faction of a religious organization is
The Diocese, on the other hand, argued that the case was entitled to the property when the organization splits. __
governed by the Texas Non-Profit Corporation Act[4] S.W.3d at __, We also concluded that even though both
and the Texas Uniform Unincorporated Nonprofit the deference and neutral principles methodologies are
Association Act[5]; under those statutes a corporation constitutionally permissible, Texas courts should use only
may amend its articles of incorporation and bylaws; and the neutral principles methodology in order to avoid
TEC had no power to limit or disregard amendments to confusion in deciding this type of controversy. Id.
the Corporation's articles and bylaws.
IV. Application
In its summary judgment order the trial court cited
A. Summary Judgment--Deference
cases it said recognized " that a local faction of a
hierarchical church may not avoid the local church's
Based on our decision in Masterson, we hold that
obligations to the larger church by amending corporate
the trial court erred by granting summary judgment to
documents or otherwise invoking nonprofit corporations
TEC on the basis of deference principles. __ S.W.3d at
law." The trial court substantively ruled that because the
__.
First Amendment to the United States Constitution
deprived it of jurisdiction to apply Texas nonprofit B. Summary Judgment--Neutral Principles
corporation statutes, applying them to determine the
parties' rights would violate Constitutional provisions. TEC asserts that application of neutral principles
The court's injunction requiring defendants to surrender may violate free-exercise protections if, for example, the
control of the Fort Worth Corporation to the Episcopal Diocese is permitted to void its commitments to church
Diocese of Fort Worth was based on that determination. laws because the specific formalities of Texas law
The effect of the trial court's order and injunction was a governing trusts were not followed or if they are applied
ruling that the Non-Profit Corporation Act would violate retroactively. See Jones, 443 U.S. at 606 (noting that the
the First Amendment if it were applied in this case. case did not " involve a claim that retroactive application
Accordingly, we have jurisdiction to address the merits of of a neutral-principles approach infringes free exercise
the appeal. rights" ). But TEC recognizes that whether application of
the neutral principles approach is unconstitutional
III. " Deference" and " Neutral Principles" depends on how it is applied. See id. at 606 (" It remains
to be determined whether the Georgia neutral-principles
In Masterson we addressed the deference and
analysis was constitutionally applied on the facts of this
neutral principles methodologies for deciding property
case." ). Because neutral principles have yet to be applied
issues when religious organizations split. __ S.W.3d at
in this case, we cannot determine the constitutionality of
__. Without repeating that discussion in full, suffice it to
their application. Further, TEC does not argue that
say that generally courts applying the deference approach
application of procedural matters such as summary
to church property disputes utilize neutral principles of
judgment procedures and burdens of proof are
law to determine where the religious organization has
unconstitutional. Thus, we address the arguments of the
placed authority to make decisions about church
parties regarding who is entitled to summary judgment
property. See Jones v. Wolf, 443 U.S. 595, 603-04, 99
pursuant to neutral principles and conclude that neither
S.Ct. 3020, 61 L.Ed.2d 775 (1979). Once a court has
TEC nor the Diocese is. See Gilbert Tex. Constr., L.P. v.
made this determination, it defers to and enforces the
Underwriters at Lloyd's London , 327 S.W.3d 118, 124
decision of the religious authority if the dispute has been
(Tex. 2010) (noting that when both parties move for
decided within that authority structure. Id. But courts
summary judgment and the trial court grants one motion
applying the neutral principles methodology defer to
and denies the other, appellate courts consider the
religious entities' decisions on ecclesiastical and church
summary-judgment evidence, determine all questions
polity issues such as who may be members of the entities
presented, and render the judgment the trial court should
and whether to remove a bishop or pastor, while they
have rendered).
decide non-ecclesiastical issues such as property
ownership and whether trusts exist based on the same Under the neutral principles methodology,
neutral principles of secular law that apply to other ownership of disputed property is to be determined by
entities. See Serbian E. Orthodox Diocese v. considering evidence such as deeds to the properties,
Milivojevich, 426 U.S. 696, 708-09, 96 S.Ct. 2372, 49 terms of the local church charter (including articles of
L.Ed.2d 151 (1976). We concluded in Masterson that the incorporation and bylaws, if any), and relevant provisions
neutral principles methodology was the substantive basis of governing documents of the general church. E.g.,
Jones, 443 U.S. at 602-03; see Presbyterian Church v. E. required by the corporate bylaws to be lay persons in "
Heights, 225 Ga. 259, 167 S.E.2d 658, 659-60 (Ga. good standing," the Diocese rules require them to be
1969). TEC points out that deeds to the properties loyal Episcopalians, and the bylaws provide that trustees
involved were not part of the summary judgment record do not serve once they become disqualified. Those
when the trial court ruled. Thus, TEC argues, if we do not determinations, TEC argues, were made by Bishops
sustain the summary judgment in its favor, we should Gulick and Ohls and the 2009 convention, and courts
remand the case so the trial court may consider the record must defer to those determinations because they are
on the basis of neutral principles and the four factors ecclesiastical decisions.
referenced in Jones : (1) governing documents of the
general church, (2) governing documents of the local While we agree that determination of who is or can
church entities, (3) deeds, and (4) state statutes governing be a member in good standing of TEC or a diocese is an
church property. See Jones, 443 U.S. at 602-03. We agree ecclesiastical decision, the decisions by Bishops Gulick
that the case must be remanded for further proceedings and Ohls and the 2009 convention do not necessarily
under neutral principles. determine whether the earlier actions of the corporate
trustees were invalid under Texas law. The corporation
Although deeds to the numerous properties was incorporated pursuant to Texas corporation law and
involved were not before the trial court when it granted that law dictates how the corporation can be operated,
summary judgment, the Diocese asserts that there is no including determining the terms of office of corporate
dispute directors, the circumstances under which articles and
bylaws can be amended, and the effect of the
Page 652 amendments. See Tex. Bus. Org. Code § § 22.001-.409.
We conclude that this record fails to show that, as a
about its holding title to and having control of the matter of law, the trustees had been disqualified from
properties. But TEC disagrees with that position. And serving as corporate trustees at the relevant times. Nor
absent agreement or conclusive proof of title to the does the record conclusively show whether the 2009
individual properties and the capacities in which the titles appointments to the corporation board by Bishop Ohl
were taken, fact questions exist under neutral principles were valid or invalid under Texas law, or whether, under
of law, at a minimum, about who holds title to each Texas law, the actions taken by the trustees appointed
property and in what capacity.[6] Accordingly, we cannot
render judgment on the basis of neutral principles. Page 653
C. Remand by Bishop Ohl in 2009 were valid or invalid.
Because the trial court must apply neutral principles Third, the Diocese argues that TEC has no trust
on remand, for its guidance we address certain arguments interest in the property. TEC Canon I.7.4, also known as
made by the parties relating to that methodology. See the Dennis Canon, provides:
Edinburg Hosp. Auth. v. Trevino , 941 S.W.2d 76, 81
(Tex. 1997) (" Although resolution of this issue is not All real and personal property held by or for the benefit
essential to our disposition of this case, we address it to of any Parish, Mission or Congregation is held in trust for
provide the trial court with guidance in the retrial . . . ." ). this Church and the Diocese thereof in which such Parish,
Mission or Congregation is located. The existence of this
We first note that on remand the trial court is not trust, however, shall in no way limit the power and
limited to considering only the four factors listed in Jones authority of the Parish, Mission or Congregation
. As we said in Masterson, Jones did not purport to otherwise existing over such property so long as the
establish a federal common law of neutral principles to be particular Parish, Mission or Congregation remains a part
applied in this type of case. __ S.W.3d at __. Rather, the of, and subject this Church and its Constitution and
elements listed in Jones are illustrative. If it were Canons.
otherwise and courts were limited to applying some, but
not all, of a state's neutral principles of law in resolving The Diocese asserts that this canon does not create a
non-ecclesiastical questions, religious entities would not trust under Texas law, but that even if it does, it was
receive equal treatment with secular entities. We do not revocable and the Diocese revoked it when the Diocesan
believe the Supreme Court intended to say or imply that canons were amended to state:
should be the case.
Property held by the Corporation for the use of a Parish,
Next we address the Diocese's argument that under Mission or Diocesan School belongs beneficially to such
neutral principles courts do not defer to TEC's decisions Parish, Mission or Diocesan School only. No adverse
about non-ecclesiastical matters such as the identity of claim to such beneficial interest by the Corporation, by
the trustees of the Fort Worth Corporation. The Diocese the Diocese, or by The Episcopal Church of the United
argues that under the Non-Profit Corporation Act the States of America is acknowledged, but rather is
trustees are the 2006 trustees who are named as expressly denied.
defendants in this suit. TEC responds that the trustees are
TEC counters that the Dennis Canon creates a trust an injunction " on the ground of the constitutionality of a
because the corporation acceded to it and the Diocese statute of this state." [1]
could not have adopted a canon revoking the trust. TEC
also asserts that the statutes applicable to charitable trusts Today's direct appeal is directly unappealable. The
apply, but if they do not, a resulting trust or other trust trial court's order nowhere mentions any constitution or
may be applied here because the history, organization, statute, much less the constitutionality of a statute.
and governing documents of the Church, the Diocese, and Indeed, the trial court stated verbally that it was not
the parish support implication of a trust. The Diocese pivoting on the constitutionality of state law. This dispute
responds to TEC's arguments by referencing Texas undoubtedly has a First Amendment overlay, but for a
statutory law requiring a trust to be in writing and direct appeal, constitutionality must exist not just in the
providing that trusts are revocable unless they are ether, but in the order.
expressly made irrevocable. See Tex. Prop. Code §
112.004, .051. These issues were not addressed by the As the trial court did not determine " the
trial court because it granted summary judgment based on constitutionality of a statute of this state," its injunction
deference principles. Upon remand the parties will have could hardly be issued " on the ground of the
the opportunity to develop the record as necessary and constitutionality of a statute of this state." Accordingly,
present these arguments for the trial court to consider in we lack jurisdiction. As I have underscored before (albeit,
determining the rights of the parties according to neutral like today, in a dissent):
principles of law. But regarding the trial court's
Ultimately, it falls to us, the courts, to police our own
consideration of the issue, we note that in Masterson we
jurisdiction. It is a responsibility rooted in renunciation, a
addressed the Dennis Canon and Texas law. There we
refusal to exert power over disputes not properly before
said that even assuming a trust was created as to parish
us. Rare is a government official who disclaims power,
property by the Dennis Canon and the bylaws and actions
but liberties are often secured best by studied inaction
of a parish nonprofit corporation holding title to the
rather than hurried action.[2]
property, the Dennis Canon " simply does not contain
language making the trust expressly irrevocable...Even if The merits in this case are unquestionably
the Canon could be read to imply the trust was important--and thankfully they are resolved today in a
irrevocable, that is not good enough under Texas law. companion case[3]--but here the Court can only reach
[Texas Property Code § 112.051] requires express terms them by overreaching. We have no jurisdiction to decide
making it irrevocable." Masterson, __ S.W.3d at __. this case as a direct appeal. I would dismiss for want of
jurisdiction, and because the Court does otherwise, I
Finally, as to the argument that application of
respectfully dissent.
neutral principles may pose constitutional questions if
they are retroactively applied, we note that over a century
I. Background
ago in Brown v. Clark, 102 Tex. 323, 116 S.W. 360 (Tex.
1909), our analysis and holding substantively reflected The trial court in this case issued two injunctions,
the neutral principles methodology. requiring the defendants (now styling themselves as the
Episcopal Diocese of Fort Worth):
V. Conclusion
1. " to surrender all Diocesan property, as well as control
We reverse the judgment of the trial court and of the Diocesan Corporation" to the Episcopal Church
remand the case to that court for further proceedings and other plaintiffs; and 2. " to desist from holding
consistent with this opinion. themselves out as leaders of the Diocese."
DISSENT The court's reasons for granting the injunctions are
laid out in paragraphs one through three of its order:
Page 654
1. The Episcopal Church (the " Church" ) is a hierarchical
Justice Willett, joined by Justice Lehrmann, Justice
church as a matter of law, and since its formation in 1983
Boyd and Justice Devine, dissenting.
the Episcopal Diocese of Fort Worth (the " Diocese" ) has
Until 1940, when Texans amended their been a constituent part of the Church. Because the
constitution, the Supreme Court of Texas lacked any Church is hierarchical, the Court follows Texas precedent
authority to decide direct appeals (i.e., appeals that governing hierarchical church property disputes, which
leapfrog the court of appeals and pass directly to this holds that in the event of a dispute among its members, a
Court). Four years later, the Legislature first exercised its constituent part of a hierarchical church consists of those
new power to permit direct appeals, and in the sixty-nine individuals remaining loyal to the hierarchical church
years since, this Court has exercised that jurisdiction body. Under the
sparingly, only forty-three times. The reason is simply
Page 655
stated: Our direct-appeal jurisdiction is exceedingly
narrow and only proper if the trial court granted or denied
law articulated by Texas courts, those are the individuals II. Discussion
who remain entitled to the use and control of the church
property. A. History of Direct Appellate Jurisdiction
2. As a further result of the principles set out by the A 1940 constitutional amendment gave the
Supreme Court in Brown and applied in Texas to Legislature power to grant direct appeals to this Court.[7]
hierarchical church property disputes since 1909, the Not until 1944, though, did the Legislature do so.[8] The
Court also declares that, because The Episcopal Church is original conferral allowed direct appeals from injunctions
hierarchical, all property held by or for the Diocese may based on two grounds,
be used only for the mission of the Church, subject to the
Church's Constitution and canons. Page 656
3. Applying those same cases and their recognition that a either (1) the constitutionality or unconstitutionality of a
local faction of a hierarchical church may not avoid the state statute, or (2) the validity or invalidity of certain
local church's obligations to the larger church by state administrative orders.[9] Today, the statutory grant
amending corporate documents or otherwise invoking of direct-appeal jurisdiction covers just one situation: "
nonprofit corporations law, the Court further declares that [A]n order of a trial court granting or denying an
the changes made by the Defendants to the articles and interlocutory or permanent injunction on the ground of
bylaws of the Diocesan Corporation are ultra vires and the constitutionality of a statute of this state." [10]
void.
I have found only forty-three cases where we have
(citations omitted). exercised direct-appeal jurisdiction. That is, while such
jurisdiction has existed for nearly seventy years, we have
There are no findings of fact or conclusions of law exercised it stintingly. In twenty-four of the forty-three
attached. The order does not mention the United States cases, our opinion made clear that the trial court either
Constitution, the Texas Constitution, or any particular made a direct holding about a statute's constitutionality or
state statute. The only possible allusion to a statute is to " issued declaratory relief that a statute was or was not
nonprofit corporations law," which the trial court found constitutional.[11] In eleven other cases, the trial court's
the defendants could not " invok[e]" to " avoid [their] order clearly must have been based on constitutional
obligations to the larger church." The trial court's legal grounds, either because the opinion implies that only
support for this conclusion was a string citation to a constitutional issues were raised to the trial court[12] or
number of cases, not a citation to any constitutional because the trial court granted an injunction enforcing a
provision. statute over constitutional objection, thus implicitly
upholding the statute against
What is more, the defendants asked the trial court to
amend the order to specify that the court had held a Page 657
statute unconstitutional. The court declined to do so,
orally stating that its ruling was based not on constitutional attack.[13] In two other cases, we
constitutionality, but rather on its application of Brown v. summarily stated that the trial court granted or denied the
Clark [4]: injunction on the ground of a statute's
constitutionality.[14] But in at least six direct-appeal
I still can't just craft something to make it go to the cases, we did not make it clear why we thought the trial
Supreme Court. I mean, it -- my understanding was that court's injunction was based on constitutional
the -- the trust laws that you were talking about don't grounds.[15] These cases address jurisdiction rather
apply in this situation because of Brown, not because cursorily, and only one of the opinions garnered a dissent
they're not constitutional. on the jurisdictional issue,[16] to which the majority
opinion declined to respond.[17]
Our decision in Brown relied heavily on Watson v.
Jones .[5] Watson, in turn, " appl[ied] not the But in the vast majority of cases where we have
Constitution but a 'broad and sound view of the relations exercised direct-appeal jurisdiction, it has been
of church and state under our system of laws.'" [6] abundantly clear that the trial court issued or denied an
injunction on the ground of a statute's constitutionality.
Nonetheless, the defendants filed a direct appeal.
We noted probable jurisdiction and heard oral argument. We have also issued at least eleven opinions in
But jurisdictional defects do not heal with age, no matter which we dismissed attempted direct appeals for want of
how novel, pressing, or consequential the issues at stake jurisdiction because the statutory test was not met.[18]
or how many judicial and party resources have been We have variously explained that our direct-appeal
expended. The most fundamental restraint on judicial jurisdiction " is a limited one," [19] that we have been "
power is jurisdiction--our very authority to decide cases strict in applying" or have " strictly applied" direct-appeal
in the first place--and if we lack it, we lack it. jurisdictional requirements,[20] and that " [w]e have
strictly construed our direct appeal jurisdiction." [21]
Therefore, we have held that to meet the jurisdictional case was decided two years before the United States
prerequisites, a trial court must actually " pass upon the Supreme Court clarified in Jones v. Wolf that the "
constitutionality of [a] statute," [22] " determin[e]" a deference" rule is not mandated by the First
statute's constitutionality,[23] or " base its decision" on Amendment.[37]
constitutional grounds.[24] Indeed, " [i]t is not enough
that a question of the constitutionality of a statute may A diaphanous hint that a statute was viewed through
have been raised in order for our direct appeal a constitutional prism is not enough to justify exercising
jurisdiction to attach in injunction cases; in addition the our " limited" [38] and " strictly construed" [39]
trial court must have made a holding on the question direct-appeal
based on the grounds of the constitutionality or
unconstitutionality of the statute." [25] Page 659
Page 658 jurisdiction. And here, the trial judge orally eschewed
such a ruling, making it doubly clear that its order was
A close examination of the eleven cases where we not based on constitutional grounds. In light of Jones
dismissed for want of jurisdiction reveals strict adherence (that the deference approach is not constitutionally
to the Legislature's restricted framework. For example, required) and the trial court's comments (that it was
we held " no jurisdiction" where the trial court made the holding the statutes inapplicable but not
injunction decision based on res judicata[26] or where the unconstitutional), it seems an impressive stretch to
trial court was directed to do so by a writ of prohibition transform the trial court's citation to an ambiguous pre-
by the court of civil appeals.[27] That is, because the trial Jones case into a constitutional holding striking down
court did not decide the merits of the constitutional issue, state law.
we lacked direct-appeal jurisdiction.[28] Similarly, we
held that we did not have such jurisdiction where the trial Perhaps the order's silence and the judge's
court denied an injunction because the plaintiffs lacked " disavowal are beside the point if unconstitutionality was
the necessary justiciable interest" to sue.[29] We even the inescapable basis for the trial court's ruling, as the
held that we lacked jurisdiction over a direct appeal of a majority concludes. Indeed, the defendants contend the
temporary injunction involving a " serious question" of order makes no sense unless it turned on a constitutional
the constitutionality of a statute, because the real purpose holding. As the defendants interpret the order, the trial
of the temporary injunction was merely to preserve the court effectively held certain statutes unconstitutional if
status quo, and the trial court did not make any holdings applied to local churches of hierarchical religions. In their
finally determining the constitutional issue.[30] Statement of Jurisdiction, the defendants argue that a
court can only reject statutes like this on " constitutional
B. Application grounds." This assertion rests on the faulty premise that
any time a court deems a statute inapplicable, it's because
Given our long, consistent history of cautiously and the statute would be unconstitutional if applied. Not true.
narrowly construing our direct-appeal jurisdiction, the
outcome of this case seems essentially predetermined: A court can refuse to apply a statute for various
We lack jurisdiction. The Legislature allows parties to non-constitutional reasons. For example, if a statute
skip the court of appeals in one extraordinarily limited purports to change long-standing common law, a court
circumstance: where the trial court's injunction turned " closely examines whether the Legislature truly intended
on the ground of the constitutionality of a [state] statute." to supplant the settled rule.[40] The trial court in this case
[31] The crux and rationale of the trial court's order is may have applied (or misapplied) this kind of analysis,
dispositive. Here, the trial court did not " pass upon the finding that pertinent statutes did not indicate legislative
constitutionality of a statute," [32] " determin[e]" a intent to abandon the common-law deference principle
statute's constitutionality,[33] or " base its decision" on that we declared in Brown . Perhaps the trial court looked
constitutional grounds.[34] While the constitutional at a century of legislative inaction after Brown and took it
issues may have been raised in the trial court, that alone as legislative acquiescence. There are other
is " not enough." [35] non-constitutional reasons to deem a statute ineffective,
like the absurdity doctrine.[41] So even if a trial court
At most, the trial court's order only vaguely alludes implicitly invalidates a statute or finds it inapplicable, its
to nonprofit-related statutes, and there is certainly no reason for doing so is not necessarily because the
indication in the order that the trial court was making a Constitution demands it.
constitutional determination. The trial court order refers
generally to nonprofit law and says the defendants cannot Thus, it cannot be true that by following Brown v.
rely on this law to escape the deference principle, Clark, the trial court implicitly held that any statute that
providing a string citation as support. But only one of the might apply under neutral principles is necessarily
cases in the string citation even refers to constitutional unconstitutional if applied to a church-property dispute in
principles, and that case does not hold that only the a hierarchical setting. This argument is foreclosed by
deference approach is constitutional.[36] Moreover, that Jones v. Wolf . If states are free, consistent with the First
Amendment, to choose either approach, then choosing declare laws unconstitutional--is a genuinely stunning
the deference test cannot equate to an implicit holding one, and one that judges exercise with surpassing
that applying statutes relevant under neutral principles trepidation. Given the stakes, it is difficult to imagine a
would be unconstitutional. Nobody can argue that Texas judge striking down a legislative enactment stealthily,
courts are required to adopt neutral principles-- Jones using gauzy language that requires reading between the
precludes that argument. lines. This judge certainly didn't believe he had declared
anything unconstitutional, and he said as much--on the
Tellingly, the defendants do not attempt to record and unequivocally.
analogize this case to any other in which the Court has
exercised direct-appeal jurisdiction. None is comparable. Today marks the second time this Court has
No constitutional question was presented (or decided) in stretched our direct-appeal jurisdiction beyond its
the trial court, and none is presented (or decided) statutory bounds.[44] The objective in both cases has
here.[42] apparently been to let the Court fast-forward to the merits
of an important case. But an issue's importance and our
Page 660 commendable desire to resolve it swiftly does not give us
license to enlarge our jurisdictional powers by fiat. In
Undoubtedly, we have already noted probable language that could have been written with today's case
jurisdiction, heard argument on the merits, and committed in mind, Chief Justice Phillips wrote in dissent over a
substantial judicial resources to resolving the issues--to decade ago:
say nothing of the effort and cost expended by the parties.
But to assert jurisdiction simply because it would be Dismissing a case on jurisdictional grounds may be
inconvenient to do otherwise betrays the deeply rooted frustrating to judges
constitutional principle that our jurisdiction is conferred
ultimately from the People, directly through our Page 661
Constitution and indirectly through our elected
representatives. and litigants alike, particularly when issues of statewide
import are involved . . . . However, the Legislature has
Dismissing this case for want of jurisdiction would chosen to make direct appeal an uncommon remedy,
be sure to furrow brows, but there is no more principled available only in rare and specific situations. Regardless
reason to dismiss a case than to decide, even belatedly, of the day's exigencies, our highest and only duty is to
that you lack the power to decide. Besides, and this is respect the appropriate limits of our power . . . . I fear that
some consolation, the core merits issue our Court has allowed a hard case to make bad law
presented--deciding which legal test should govern today.[45]
church-property disputes--is squarely resolved in today's
companion case,[43] so a dismissal here would not The Court may come to rue its decision to assert
unduly delay authoritative resolution or work any direct-appeal jurisdiction in this case. Our rules seem to
irreparable harm. mandate our exercise of such jurisdiction in cases where
a permanent injunction is based on the constitutionality
III. Conclusion of a statute (because our rules make direct-appeal
jurisdiction discretionary only in temporary injunction
Our characterizations of direct-appeal jurisdiction, cases).[46] Therefore, in addition to encroaching on the
something we have " strictly construed," are not Legislature's constitutional prerogative to define our
ambiguous: direct-appeal jurisdiction, the Court's decision may
perversely require this Court to immediately hear all
o " rare" direct appeals of permanent injunctions that even vaguely
implicate a statute's constitutionality.
o " restricted"
I would dismiss this case for want of jurisdiction,
o " very limited"
and because the Court does otherwise, I respectfully
In light of this consistent clarity, the Court's dissent.
exercise of jurisdiction has an unfortunate ipse dixit
---------
quality to it. The statutory test for direct-appeal
jurisdiction is whether the trial court made its decision " Notes:
on the ground of the constitutionality of a [state] statute."
A statute, for example, must be invalidated, not just [1]Three parishes in the Diocese did not agree with the
implicated. Direct-appeal jurisdiction is a rare (as it actions and withdrew from the Diocese. The Fort Worth
should be) short-circuiting of the usual rules, and I Corporation transferred property used by the withdrawing
respectfully take exception to broadening the exception. parishes to them.
The power of judicial review--the authority to [2]The defendants sought mandamus in the court of
appeals regarding whether the attorneys for TEC had v. Del Rio , 67 S.W.3d 85, 98 n.4 (Tex. 2001) (Phillips,
authority to file suit on behalf of the Corporation and the C.J., dissenting) (" Since 1981, the Court's appellate
Diocese. See In re Salazar, 315 S.W.3d 279 (Tex. jurisdiction has extended to all civil cases 'as . . . provided
App.--Fort Worth 2010, orig. proceeding). The court of . . . by law,' Tex. Const. art. V, § 3, so that the Legislature
appeals conditionally granted mandamus relief, holding could now provide for direct appeals without a specific
they did not. Id. at 285-86. constitutional grant of authority." ). Accordingly, the
Legislature has now provided for direct appeal from
[3]The Diocese also asserts that we should dismiss certain trial court rulings that involve Public Utility
certain tort claims TEC brought against individual Commission financing orders. Tex. Util. Code §
defendants. The Diocese moved for summary judgment 39.303(f).
to dismiss these claims and argues that if we conclude the
trial court erred in determining who was entitled to the [11] See Neeley v. West Orange-Cove Consol. Indep. Sch.
property at issue, we should render the judgment the trial Dist., 176 S.W.3d 746, 753-54 (Tex. 2005); State v.
court should have rendered and dismiss the tort claims. Hodges, 92 S.W.3d 489, 493 (Tex. 2002); FM Props.
Because of our disposition of the issue regarding who is Operating Co. v. City of Austin , 22 S.W.3d 868, 872
entitled to the property, we do not address those claims. (Tex. 2000); Owens Corning v. Carter, 997 S.W.2d 560,
567-68 (Tex. 1999); Maple Run at Austin Mun. Util. Dist.
[4]Tex. Rev. Civ. Stat. arts. 1396-1.01 to 1396-11.02 v. Monaghan, 931 S.W.2d 941, 945 (Tex. 1996); Barshop
v. Medina Cnty. Underground Water Conservation Dist.,
[5]Tex. Rev. Civ. Stat. art. 1396-70.01 925 S.W.2d 618, 623, 625 (Tex. 1996); Edgewood Indep.
Sch. Dist. v. Meno , 917 S.W.2d 717, 727 (Tex. 1995);
[6]Deeds filed after the trial court granted summary
Richards v. League of United Latin Am. Citizens , 868
judgment were dated both before and after the 1984
S.W.2d 306, 308 (Tex. 1993); Tex. Ass'n of Bus. v. Tex.
judgment transferring properties from the Dallas Diocese.
Air Control Bd., 852 S.W.2d 440, 442 (Tex. 1993);
The deeds dated after the judgment reflect various
Orange Cnty. v. Ware, 819 S.W.2d 472, 473 (Tex. 1991);
grantees. Some properties were deeded to the Fort Worth
O'Quinn v. State Bar of Tex., 763 S.W.2d 397, 398 (Tex.
Corporation or local entities, while others were deeded in
1988); LeCroy v. Hanlon , 713 S.W.2d 335, 336 (Tex.
trust to the Corporation, local entities, or various other
1986); Wilson v. Galveston Cnty. Cent. Appraisal Dist .,
persons and entities.
713 S.W.2d 98, 99 (Tex. 1986); Spring Branch Indep.
[1]Tex. Gov't Code § 22.001(c). Sch. Dist. v. Stamos , 695 S.W.2d 556, 558 (Tex. 1985);
Shaw v. Phillips Crane & Rigging of San Antonio, Inc .,
[2] In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 474 636 S.W.2d 186, 187 (Tex. 1982); Gibson Distrib. Co. v.
(Tex. 2011) (Willett, J., concurring in part and dissenting Downtown Dev. Ass'n of El Paso, Inc., 572 S.W.2d 334,
in part). 334 (Tex. 1978); Tex. Antiquities Comm. v. Dallas Cnty.
Cmty. Coll. Dist ., 554 S.W.2d 924, 925-27 (Tex. 1977)
[3] Masterson v. Diocese of N.W. Tex., __ S.W.3d __, (plurality opinion); Smith v. Craddick , 471 S.W.2d 375,
(Tex. 2013). 375-76 (Tex. 1971); State v. Scott, 460 S.W.2d 103, 105
(Tex. 1970); State v. Spartan's Indus., Inc ., 447 S.W.2d
[4]102 Tex. 323, 116 S.W. 360 (Tex. 1909). 407, 409 (Tex. 1969); Jordan v. State Bd. of Ins., 160
Tex. 506, 334 S.W.2d 278, 278-80 (Tex. 1960); Smith v.
[5]80 U.S. 679, 20 L.Ed. 666 (1871). Decker, 158 Tex. 416, 312 S.W.2d 632, 633 (Tex. 1958);
Rodriguez v. Gonzales , 148 Tex. 537, 227 S.W.2d 791,
[6] Hosanna-Tabor Evangelical Lutheran Church & Sch.
792-93 (Tex. 1950); Dodgen v. Depuglio, 146 Tex. 538,
v. E.E.O.C., __ U.S. __, 132 S.Ct. 694, 704, 181 L.Ed.2d
209 S.W.2d 588, 591-92 (Tex. 1948).
650 (2012) (quoting Watson, 80 U.S. at 727).
[12] See Conlen Grain & Mercantile, Inc. v. Tex. Grain
[7] See R.R. Comm'n of Tex. v. Shell Oil Co., 146 Tex.
Sorghum Producers Bd., 519 S.W.2d 620, 621-22 (Tex.
286, 206 S.W.2d 235, 238 (Tex. 1947).
1975); Robinson v. Hill, 507 S.W.2d 521, 523 (Tex.
1974); Itz v. Penick , 493 S.W.2d 506, 508 (Tex. 1973);
[8] Id.
Smith v. Davis, 426 S.W.2d 827, 829 (Tex. 1968);
[9] Id. Shepherd v. San Jacinto Junior Coll. Dist ., 363 S.W.2d
742, 742-43 (Tex. 1962); King v. Carlton Indep. School
[10]Tex. Gov't Code § 22.001(c). The Constitution still Dist., 156 Tex. 365, 295 S.W.2d 408, 409 (Tex. 1956);
allows the Legislature to provide for direct appeal from Dallas Cnty. Water Control & Improvement Dist. No. 3 v.
injunctions based on the validity of administrative orders, City of Dallas, 149 Tex. 362, 233 S.W.2d 291, 292 (Tex.
however. Tex. Const. art. V, § 3-b. But the express 1950).
constitutional grant of direct-appeal jurisdiction in Article
5, Section 3-b of the Constitution is arguably now [13] See Gibson Prods. Co. v. State, 545 S.W.2d 128, 129
unnecessary given the broadened wording of the general (Tex. 1976); Dancetown, U.S.A., Inc. v. State, 439
jurisdictional provision in Article 5, Section 3. See Perry S.W.2d 333, 334 (Tex. 1969); Schlichting v. Tex. State
Bd. of Med. Exam'rs , 158 Tex. 279, 310 S.W.2d 557, [30] Mitchell, 515 S.W.2d at 103-04.
558-59 (Tex. 1958); H. Rouw Co. v. Tex. Citrus Comm'n,
151 Tex. 182, 247 S.W.2d 231, 231-32 (Tex. 1952). [31]Tex. Gov't Code § 22.001(c).
[14] See State v. Project Principle, Inc., 724 S.W.2d 387, [32] Corona, 274 S.W.2d at 541-42.
389 (Tex. 1987); Duncan v. Gabler , 147 Tex. 229, 215
S.W.2d 155, 156-57 (Tex. 1948). [33] King, 341 S.W.2d at 425; Bryson, 297 S.W.2d at
119.
[15] See Del Rio, 67 S.W.3d 85 (majority opinion); Tex.
Boll Weevil Eradication Found., Inc. v. Lewellen, 952 [34] Holmes, 339 S.W.2d at 663-64.
S.W.2d 454 (Tex. 1997); Carrollton-Farmers Branch
[35] Mitchell, 515 S.W.2d at 103.
Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826
S.W.2d 489 (Tex. 1992); Ass'n of Tex. Prof'l Educators v. [36] See Presbytery of the Covenant v. First Presbyterian
Kirby, 788 S.W.2d 827 (Tex. 1990); Parker v. Nobles , Church of Paris, Inc., 552 S.W.2d 865, 870-71
496 S.W.2d 921 (Tex. 1973); Dobard v. State, 149 Tex. (Tex.Civ.App.--Texarkana 1977, no writ).
332, 233 S.W.2d 435 (Tex. 1950).
[37]443 U.S. 595, 605, 99 S.Ct. 3020, 61 L.Ed.2d 775
[16] Del Rio, 67 S.W.3d at 98-100 (Phillips, C.J., (1979).
dissenting).
[38] Gardner, 333 S.W.2d at 588.
[17] Id. at 89, 95 (majority opinion).
[39] Garcia, 817 S.W.2d at 61.
[18] See Tex. Workers' Comp. Comm'n v. Garcia , 817
S.W.2d 60 (Tex. 1991); Querner Truck Lines, Inc. v. [40] See Energy Serv. Co. of Bowie v. Superior Snubbing
State, 652 S.W.2d 367, 368 (Tex. 1983); Mitchell v. Servs., Inc., 236 S.W.3d 190, 194 (Tex. 2007) (" Of
Purolator Sec., Inc., 515 S.W.2d 101 (Tex. 1974); course, statutes can modify common law rules, but before
Holmes v. Steger , 161 Tex. 242, 339 S.W.2d 663 (Tex. we construe one to do so, we must look carefully to be
1960); Standard Sec. Serv. Corp. v. King, 161 Tex. 448, sure that was what the Legislature intended." ).
341 S.W.2d 423 (Tex. 1960); Gardner v. R.R. Comm'n of
Tex., 160 Tex. 467, 333 S.W.2d 585 (Tex. 1960); Bryson [41] See, e.g., TGS-NOPEC Geophysical Co. v. Combs ,
v. High Plains Underground Water Conservation Dist. 340 S.W.3d 432, 439 (Tex. 2011).
No. 1, 156 Tex. 405, 297 S.W.2d 117 (Tex. 1956);
Corona v. Garrison, 154 Tex. 124, 274 S.W.2d 541 (Tex. [42]The Rules of Civil Procedure previously specified
1955); Lipscomb v. Flaherty , 153 Tex. 151, 264 S.W.2d that we could not accept such jurisdiction unless the case
691 (Tex. 1954); Boston v. Garrison, 152 Tex. 253, 256 presented a constitutional question to this Court.
S.W.2d 67 (Tex. 1953); McGraw v. Teichman, 147 Tex. Lipscomb, 264 S.W.2d at 691-92, quotes the former rule
142, 214 S.W.2d 282 (Tex. 1948). (Tex. R. Civ. P. 499a(b)) as providing (emphasis added):
[19] Gardner, 333 S.W.2d at 588. An appeal to the Supreme Court directly from such a trial
court may present only the constitutionality or
[20] Querner Truck , 652 S.W.2d at 368; Mitchell, 515 unconstitutionality of a statute of this State, or the
S.W.2d at 103. validity or invalidity of an administrative order issued by
a state board or commission under a statute of this State,
[21] Garcia, 817 S.W.2d at 61. when the same shall have arisen by reason of the order of
a trial court granting or denying an interlocutory or
[22] Corona, 274 S.W.2d at 541-42.
permanent injunction .
[23] King, 341 S.W.2d at 425; Bryson, 297 S.W.2d at Accordingly, we said that one of the prerequisites for
119. direct-appeal jurisdiction was that a constitutional "
question is presented to this Court for decision." Bryson,
[24] Holmes, 339 S.W.2d at 663-64.
297 S.W.2d at 119. Admittedly, our Rules (which have
[25] Mitchell, 515 S.W.2d at 103 (emphasis in original). since migrated to the Rules of Appellate Procedure) no
longer specify that a direct appeal must present an actual
[26] Lipscomb, 264 S.W.2d at 691-92. constitutional question to this Court. Tex. R. App. P. 57;
see also Del Rio, 67 S.W.3d at 98-99 (Phillips, C.J.,
[27] Gardner, 333 S.W.2d at 589. dissenting). But the Legislature's limited grant of such
jurisdiction has not wavered, and we simply cannot
[28] Corona, 274 S.W.2d at 541-42. accept a direct appeal unless a statute has been declared
constitutional or unconstitutional. That did not happen
[29] Holmes, 339 S.W.2d at 664. here.
[43] Masterson, __ S.W.3d __.
[44] See Del Rio, 67 S.W.3d at 89 (majority opinion).
[45] Id. at 100 (Phillips, C.J., dissenting).
[46] See Tex. R. App. P. 57.2.
---------
Page 99 6252-13a, he executed orders on June 30, 1978,
suspending the business operations of the Credit Union
576 S.W.2d 99 (Tex.Civ.App.—Houston [1 Dist.] 1978) and removing its president from office. The suspension
order stated that it was issued because it had been
John P. PARSONS, Credit Union Commissioner of determined that the affairs of the Credit Union were
Texas, Appellant, being conducted in an unauthorized, unsafe, and unlawful
manner. This court has no information as to the accuracy
v.
or inaccuracy of these charges. The Commissioner took
possession of the business, records, assets, and property
GALVESTON COUNTY EMPLOYEES CREDIT
of the Credit Union (he asserts that he still holds them)
UNION, Appellee.
and set further proceedings under the Administrative
No. 17297. Procedure Act for a hearing on July 11.
Court of Civil Appeals of Texas, First District, On July 3, Judge Ed Harris issued a temporary
Houston restraining order enjoining the Commissioner from
proceeding with his suspension and removal orders, and
September 1, 1978 on August 21, after a hearing, entered an order converting
the temporary restraining order into the temporary
John L. Hill, Atty. Gen. of Texas, Thomas M. Pollan, injunction in question. As we have noted, the August 21
Thomas A. Rutledge, Asst. Atty. Gen., Austin, for order permits the Credit Union to take possession of its
appellant. business and assets and to resume full business
operations. Clearly, this would result in changes in
Richard Thornton, Galveston, for appellee. condition of the accounts in the Credit Union, since it
will, in carrying out its operations, allow withdrawals,
PEDEN, Justice.
incur liabilities, declare dividends and complete other
transactions in the course of its business. Such
The Credit Union Commissioner of Texas
transactions will change or destroy the subject matter of
(Commissioner) has petitioned us for a stay during the
this appeal, making it likely to become at least partially
pendency of an appeal from the granting of a temporary
moot by the time its final disposition is reached.
mandatory injunction ordering the Commissioner to
Therefore, we grant the stay to preserve the jurisdiction
surrender to the Galveston County Employees Credit
of this court.
Union all its records, properties and funds in his
possession and authorizing the Credit Union to resume
One other matter must be noticed.
operations. The trial judge's order, entered on August 21,
1978, (and apparently signed the same day) declared the On August 28, 1978, after the Commissioner had
Texas Credit Union Act unconstitutional, required no perfected an appeal to this court from the trial court's
bond as a condition for issuance of the injunction, denied August 21 order by giving notice of appeal on the same
the motion to disqualify himself, and overruled the day, the trial judge entered another order. It supplemented
Commissioner's plea of privilege to be sued in Travis and amended his August 21 order so as to place
County. We grant the stay. supervision over operation of the Credit Union in the trial
court. Unfortunately, it came too late. The perfection of
Article 1823 of Vernon's Texas Civil Statutes
an appeal from an order granting a temporary injunction
provides that courts of civil appeals may issue "writs
terminates the jurisdiction of the trial court insofar as the
necessary to enforce the jurisdiction of said courts."
temporary injunction is concerned. 4 Tex.Jur.2d Rev. Part
Under this statute we have no power to issue original
1, 168, Appeal & Error Civil Cases § 323, citing
writs solely to protect a party from damage pending
Caldwell v. Meyers, 446 S.W.2d 709 (Tex.Civ.App.1969,
appeal, but we may grant them to preserve the subject
no writ); Hyatt v. Mercury Life & Health Co., 202
matter pending appeal and prevent the case from
S.W.2d 325 (Tex.Civ.App.1947, no writ). An amended
becoming moot. General Telephone Co. of the Southwest
temporary injunction entered after appeal has been
v.
perfected will be stricken. City of Corpus Christi v. Lone
Star Fish and Oyster Co., 335 S.W.2d 621
Page 100
(Tex.Civ.App.1960, no writ).
City of Garland, 522 S.W.2d 732 (Tex.Civ.App.1975, no
The temporary injunction granted by the trial court
writ).
on August 21 is stayed pending this appeal.
After the Commissioner had initiated other
procedures under the Texas Credit Union Act, Article
2461-5.09, and the Administrative Procedure Act, Article
Page 334 set for the temporary injunction hearing, and then read
the agreement into the record. Among other restrictions
24 S.W.3d 334 (Tex. 2000) applicable to all activities within the United States, the
agreement required Qwest to notify AT & T of any
43 Tex. S.Ct. J. 600 construction operations within thirty feet of an AT & T
underground facility, and to electronically monitor the
QWEST COMMUNICATIONS CORPORATION
location of the drill borehead used during boring and
and Qwest Communications International, Inc.,
pullback operations. Further, the agreement dissolved the
Petitioners,
previous temporary restraining order bond, left open any
claims for damages, and expired three years from the date
v.
it became effective unless extended or modified in a
AT & T CORPORATION and AT & T signed writing by the parties. At the conclusion of this
Communications of the Southwest, Inc., Respondents. hearing, the judge stated that "[w]ith respect to the
plaintiff's application for temporary injunction, judgment
No. 99-0306. is rendered" and told counsel for AT & T to prepare a
written order, deliver it to Qwest's counsel for comment,
Supreme Court of Texas and then submit it to the trial court. Ultimately, the
parties could not agree to the terms of the written order to
April 6, 2000 be submitted to the trial court. The trial court, after a
"clarification" hearing, signed an order following the
Rehearing Overruled June 8, 2000.
terms recited into the record at the temporary injunction
hearing.
Page 335
Qwest appealed. But the court of appeals dismissed
Claude E. Ducloux, Austin, P. Michael Jung,
the appeal for want of jurisdiction, holding that the order
Dallas, Delno J. Grosenheider, J. Stephen Ravel, Michael
did not grant a temporary injunction. The court concluded
Shaunessy, Diane Barlow-Sparkman, Austin, Bruce A.
that the order did not meet the "traditional requirements"
Featherstone, Nancy C. Shea, Denver, CO, for Petitioner.
of a temporary injunction because the order did not
Joseph Latting, John K. Schwartz, G. Alan preserve the status quo, require a bond, set a trial date,
Waldrop, C. W." Rocky" Rhodes, Barbara M. Ellis, require the clerk to issue a writ of injunction, nor was the
Kamela Bridges, Austin, for Respondent. order's duration limited until final judgment or further
order of the court. 983 S.W.2d at 888. Qwest then
PER CURIAM. petitioned this Court for review.
The single issue in this petition is whether the trial This Court has jurisdiction to determine whether a
court's interlocutory order is a temporary injunction and court of appeals correctly decided its jurisdiction over an
thus appealable under Texas Civil Practice and Remedies interlocutory
Code section 51.014(a)(4). The court of appeals held that
the order was not an appealable temporary injunction and Page 336
dismissed the appeal for want of jurisdiction. 983 S.W.2d
appeal. See Lesikar v. Rappeport, 899 S.W.2d 654, 655
885. Because we hold that the trial court's order grants a
(Tex.1995) (determining whether interlocutory order
temporary injunction, we grant the petition and remand
being appealed was temporary injunction). An appellate
the case to the court of appeals to consider the merits of
court lacks jurisdiction to review an interlocutory order
the appeal.
unless a statute specifically authorizes an exception to the
In 1997, AT & T Corporation and AT & T general rule, which is that appeals may only be taken
Communications of the Southwest, Inc. (collectively "AT from final judgments. See Stary v. DeBord, 967 S.W.2d
& T") sued Qwest Communications Corporation, Qwest 352, 352-53 (Tex.1998) ; Jack B. Anglin Co., Inc. v.
Communications International, Inc. (collectively Tipps, 842 S.W.2d 266, 272 (Tex.1992). In this case,
"Qwest"), and others for damages to AT & T's fiber optic Texas Civil Practice and Remedies Code section
cables. In addition, AT & T sought a temporary 51.014(a) states: "[a] person may appeal from an
restraining order, a temporary injunction, and a interlocutory order of a district court, county court at law,
permanent injunction. On the same day that the petition or county court that: ... (4) grants or refuses a temporary
was filed, the trial court issued an ex parte temporary injunction...." TEX. CIV. PRAC. & REM.CODE §
restraining order. 51.014(a)(4).
At the temporary injunction hearing, the parties An injunction is a remedial writ that depends on
informed the trial court that they had resolved the matters the issuing court's equity jurisdiction. See State v.
Morales, 869 S.W.2d 941, 947 (Tex.1994). One function injunction should remain in effect only until final hearing
of injunctive relief is to restrain motion and to enforce or until further order of the court. Id. Yet, the court did
inaction. See Boston v. Garrison, 152 Tex. 253, 256 not dismiss the appeal for
S.W.2d 67, 70 (1953). The trial court's order here
commands Qwest to undertake certain monitoring and Page 337
notice provisions when conducting certain boring
operations. Thus, the order is an injunction. want of jurisdiction, but instead simply modified the
order to remain in full force and effect until final
AT & T argues, however, that the order cannot be a judgment was entered. Other courts of appeals have
temporary injunction because it lacks the defining followed this reasoning and exercised jurisdiction over
characteristics of a temporary injunction. First, it appeals from orders that were not made effective until
contends that the order goes beyond what is necessary to final judgment or further action by the trial court. See
preserve the status quo because it applies to all of Qwest's Hailey v. Texas-New Mexico Power Co., 757 S.W.2d
operations in the United States. Second, AT & T asserts 833, 835 (Tex.App.--Waco 1988, writ dism'd w.o.j.);
that one of the hallmarks of a temporary injunction is that Owens v. Texaco Inc., 368 S.W.2d 780, 783
it is effective for an indefinite period, operating only until (Tex.Civ.App.--Beaumont 1963, no writ).
dissolved by another interlocutory order or until final
hearing. Here, the order governs Qwest's conduct for a But other courts of appeals have held that when an
period of three years, until December 2000, a period well injunction is effective for a fixed period of time it is a
beyond the original scheduled trial date of July 6, 1998. permanent rather than a temporary injunction. See Aloe
Finally, AT & T notes that the order did not set a bond or Vera of America, Inc. v. CIC Cosmetics Int'l Corp., 517
trial date and did not order issuance of a writ of S.W.2d 433, 436 (Tex.Civ.App.--Dallas 1974, no writ).
injunction. In Aloe Vera, the trial court signed an order styled
"Permanent Injunction" and directed the clerk to issue a
The order's features that AT & T identifies do not "Writ of Injunction permanently enjoining until January
necessarily control the classification of this order as a 1, 1975." The court of appeals held that limiting the
temporary injunction. In Del Valle Independent School restraint to the period ending January 1, 1975, precluded
District v. Lopez, we rejected the notion that "matters of the order from being a temporary injunction. "Whether
form control the nature of the order itself--it is the the restraint continues for six months or six years has no
character and function of an order that determine its bearing on the question of permanency. No more
classification." 845 S.W.2d 808, 809 (Tex.1992). We permanent order could be made with respect to this
reasoned that if errors in the form of the order determined particular claim for injunctive relief." Id. at 436 . The
the order's status, then those errors would deny review of court therefore held that the order was an interlocutory
the very defects that render the order void. See Del Valle, permanent injunction rather than a temporary injunction
845 S.W.2d at 809-10; Brines v. McIlhaney, 596 S.W.2d and thus was not appealable. See id. Other courts of
519, 523 (Tex.1980). appeals have adopted the reasoning of Aloe Vera. See
James v. Hubbard, 985 S.W.2d 516, 518 (Tex.App.--San
Here, AT & T requested and received a court order Antonio 1998, no writ); Brelsford v. Old Bridge Lake
restricting Qwest's conduct. The order recites that it is Community Service Corp., 784 S.W.2d 700, 702
effective for a set three-year period from the date it was (Tex.App.--Houston [14 th Dist.] 1989, no writ); Kelso v.
rendered unless it is extended or modified in writing Thorne, 710 S.W.2d 735, 736 (Tex.App.--Corpus Christi
signed by the parties. AT & T notes that this Court has 1986, no writ); Zoning Bd. of Adjustment v. Graham, 664
previously stated that a temporary injunction "operates S.W.2d 430, 434 (Tex.App.--Amarillo 1983, no writ);
until dissolved by an interlocutory order or until the final Gensco, Inc. v. Thomas, 609 S.W.2d 650, 651
hearing." Brines, 596 S.W.2d at 523; see also J.C. (Tex.Civ.App.--San Antonio 1980, no writ).
Matlock v. Data Processing Sec., Inc., 618 S.W.2d 327,
328 (Tex.1981) (stating the purpose of a temporary The approach taken by Aloe Vera and the line of
injunction is to preserve the status quo pending trial on cases that follow it is problematic in that a burdensome
the merits). Thus, we must decide whether the fixed interlocutory order that has the same effect as a
three-year term precludes the order's classification as a temporary injunction could be shielded from appellate
temporary injunction. review by the very defect that makes it erroneous. See
Del Valle, 845 S.W.2d at 809-10. Whether an injunction
Some courts of appeals' opinions have held an order is effective for a fixed period of time or is made effective
was a temporary injunction even when it granted the only until further order of the court or final judgment is
maximum duration of relief to which the plaintiff would only one of the factors in determining the character and
be entitled at a trial on the merits. See Glenn Advertising, nature of the order. Because the trial court's order places
Inc. v. Black, 454 S.W.2d 841, 844 restrictions on Qwest and is made effective immediately
(Tex.Civ.App.--Houston [14 th Dist.] 1970, writ ref'd so that it operates during the pendency of the suit, it
n.r.e.). In Glenn Advertising, the court of appeals noted functions as a temporary injunction.
that the order should correctly provide that the temporary
Finally, AT & T argues that the order is not a
temporary injunction because it does not set the case for
trial on the merits or set a bond. The Texas Rules of Civil
Procedure require that an order granting a temporary
injunction set the cause for trial on the merits and fix the
amount of security to be given by the applicant. See
TEX.R. CIV. P. 683, 684. These procedural requirements
are mandatory, and an order granting a temporary
injunction that does not meet them is subject to being
declared void and dissolved. See InterFirst Bank San
Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641
(Tex.1986) (stating that requirements of Rule 683 are
mandatory and must be strictly followed). In InterFirst
Bank, however, the order failed to set the case for trial on
the merits. Id. at 641. Yet rather than dismissing the
appeal for want of jurisdiction, we declared the
temporary injunction void and ordered it dissolved. See
id. We have also held that a temporary injunction was
void when there was no bond. See Lancaster v.
Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956)
(holding that bond provisions of Rule 684 are
mandatory). Here, these procedural requirements may
render the trial court's order void but they do not change
the order's character and function defining its
classification.
Page 338
We hold that, in character and function, the trial
court's order grants a temporary injunction and is
appealable under Texas Civil Practice and Remedies
Code section 51.014(a)(4). We do not express any
opinion, however, on the merits of the appeal.
Accordingly, the Court grants petitioner's petition for
review and, without hearing oral argument, reverses the
judgment of the court of appeals and remands the case to
that court for consideration of the merits of the appeal.
TEX.R. APP. P. 59.1
Page 58 Reeves to file his bond and added a setting for a trial on
the merits. [4] On April 10, Judge Keliher also signed an
68 S.W.3d 58 (Tex.App. —Dallas 2001) order allowing Reeves to make monthly payments to
satisfy the bond requirement of the March injunction (the
Jordan D. REEVES, Appellant, April order).
v. Reeves asserts the trial court erred in entering the
February and March injunctions because (1) the judge
CITY OF DALLAS, Appellee.
who signed the March injunction is not the judge who
heard the evidence in February and (2) the March
No. 05-01-00356-CV.
injunction does not sufficiently state the facts on which it
Court of Appeals of Texas, Fifth District, Dallas is based as required by rule 683 of the Texas Rules of
Civil Procedure.
May 7, 2001
A temporary injunction is an appealable
Rehearing Overruled June 26, 2001. interlocutory order. TEX.CIV.PRAC. & REM.CODE
ANN. § 51.014(a)(4) (Vernon 2001). While an
Page 59 interlocutory appeal is pending, the trial court retains
jurisdiction to dissolve the order appealed and to proceed
Russell Wilson, Dallas, for appellant. to trial on the merits. TEX.R.APP.P. 29.5. But a trial
court cannot make any order which "interferes with or
John Lomax Anderson, Asst. City Atty., Dallas, for
impairs the jurisdiction of the appellate court or the
appellee.
effectiveness of any relief sought or that may be granted
on appeal" while the interlocutory appeal is pending.
Before Chief Justice THOMAS, and Justices
TEX.R.APP.P. 29.5(b).
MORRIS and O'NEILL.
After Reeves appealed the February injunction, the
OPINION
trial court entered the March injunction, the first
Opinion By Chief Justice THOMAS. paragraph of which vacates the previous injunction. We
conclude the trial court was permitted under rule 29.5 of
The City of Dallas filed a petition against Jordan D. the Texas Rules of Appellate Procedure to take this
Reeves [1] alleging he habitually uses certain real action. The vacating of the February injunction renders
property located in Dallas, Texas for the delivery or use the appeal of it moot. Consequently, we conclude any
of controlled substances, making the property a public error asserted as to the February order is moot.
and common nuisance. The City requested relief under
chapter 125 of the Texas Civil Practice & Remedies The remainder of the March injunction issues a
Code, including a temporary restraining order, temporary new temporary injunction, and the April order alters the
injunction, and permanent injunction. bond payment required by the March injunction. The
appeal of a temporary injunction terminates the
On January 31, 2001, the trial court issued a jurisdiction of the trial court as to the merits of the
temporary restraining order against Reeves's use of the temporary injunction. See Parsons v. Galveston County
property and set a hearing for the temporary injunction. Employees Credit Union, 576 S.W.2d 99, 100
On February 12, 2001, after hearing the evidence and (Tex.Civ.App.--Houston [1st Dist.] 1978, no writ). "An
argument of counsel, Judge amended temporary injunction entered after an appeal has
been perfected will be stricken." Id. In this case, the trial
Page 60 court entered the March injunction and the April order
while this appeal was pending. We conclude the March
M. Kent Sims [2] signed a temporary injunction against injunction, except for the first paragraph, and the April
Reeves's use of the property (the February injunction). order are determinations of the merits of the temporary
Reeves filed a notice of appeal of the February injunction while the February injunction was pending on
injunction. appeal. Thus, we conclude the March injunction, except
for the first paragraph that vacated the February
While the February injunction appeal was pending,
injunction, and the April order were issued without
Judge Margaret Keliher [3] signed a new temporary
authority and must be stricken. Additionally, we conclude
injunction on March 21, 2001(the March injunction).
the March injunction again, except for the first paragraph,
Although the March injunction vacates the February
and the April order interferes
injunction, it grants essentially the same relief.
Additionally, the March injunction changed the date for
Page 61
with or impairs our jurisdiction and the effectiveness of
any relief sought from, or that may be granted, by this
Court. See Childers v. Pettengill, 696 S.W.2d 206, 208
(Tex.App.--Dallas 1985, no writ).
Accordingly, except for the first paragraph, we
VACATE the March 21, 2001 temporary injunction, and
the April 10, 2001 order. And, we DISMISS the appeal
as moot on all issues pertaining to the February 12, 2001
temporary injunction.
---------
Notes:
[1] Frederick B. Reeves is also named in the petition;
however, he is not a party to this appeal.
[2] Judge Sims was a visiting judge sitting by assignment
in the 44th District Court.
[3] Judge Keliher is the sitting judge of the 44th District
Court.
[4] The February injunction did not include a setting for
trial on the merits.
---------
Page 851 Background
259 S.W.3d 851 (Tex.App.-Houston [1 Dist.] 2008) In 2004, Laux filed suit against Richard Davis in
district court in Harris County, seeking damages for
Philippe TANGUY, Appellant, breach of contract in connection with a partnership
dispute. After a jury trial, the trial court, on or about
v. August 11, 2006, rendered a final judgment in favor of
Laux and against Davis for $384,126.94. Since that time,
David LAUX, Appellee.
Laux has been attempting to collect on his judgment.
No. 01-07-00765-CV.
The instant suit was filed against Tanguy, alleging
Court of Appeals of Texas, First District, Houston. that the transfer of the Twin Otter aircraft from Davis to
Tanguy violated the Texas Uniform Fraudulent Transfer
April 3, 2008 Act. After a temporary restraining order was initially
issued in favor of Laux, the trial court held a hearing and
Rehearing Overruled June 24, 2008. issued the temporary injunction against Tanguy on
August 16, 2007 (" the August Order" ). The August
Page 852 Order did not set the underlying case for trial.
[Copyrighted Material Omitted] Tanguy timely filed a notice of appeal on
September 4, 2007. Tanguy filed his initial brief in this
Page 853 Court on November 20, 2007, asserting four issues,
including a challenge that asserted that the August Order
Joe A. Izen, Jr., Bellaire, for appellant.
was void since it did not set the underlying case for trial.
Alice Oliver-Parrott, Justin David Burrow, Burrow
While the appeal of the August Order was pending
& Parrott, L.L.P., Houston, for appellee.
in this Court, Laux filed with the trial court, on December
4, 2007, a Motion for Temporary Injunction Nunc Pro
Panel consists of Justices TAFT, KEYES, and
Tunc to add a trial setting to the temporary injunction. In
ALCALA.
his Motion for Temporary Injunction Nunc Pro Tunc,
OPINION Laux specifically prayed that the trial court " vacate the
judgment previously signed, and enter judgment in
ELSA ALCALA, Justice. accordance with the proposed form [the December Order]
which is attached to this motion." The trial court granted
In this interlocutory appeal, appellant, Philippe Laux's motion and ordered that " the clerk will enter
Tanguy, appeals from the trial court's order granting a judgment in accordance with the judgment as
temporary injunction on behalf of appellee, David Laux.
See TEX. CIV. PRAC. & REM.CODE ANN. § Page 854
51.014(a)(4) (Vernon Supp.2007). Laux filed suit against
Tanguy asserting that a judgment debtor of Laux's, rendered and signed at this time." The trial court then
Richard Davis, had violated the Texas Uniform signed a temporary injunction on December 6, 2007 ("
Fraudulent Transfer Act [1] by transferring a 1986 Twin the December Order" ). The December Order contains the
Otter aircraft to Tanguy. The trial court issued a same language as the August Order, except that it has an
temporary injunction prohibiting Tanguy from " selling, additional sentence not in the August Order that states, "
encumbering, transferring and/or relocating from the It is further ORDERED, ADJUDGED, and DECREED
county" the aircraft. In four issues, Tanguy asserts that this matter is scheduled to begin trial on May 26, 2008."
(1) the temporary injunction order is void on its face; (2)
After the trial court signed the December Order,
Laux had no present right of recovery because he did not
Laux filed his appellee's brief with our Court on
have a lien on his judgment debtor's personal property;
December 10, 2007. In the brief, in response to the
(3) Laux was not entitled to injunctive relief because he
assertion that the August Order was void because it failed
did not record his alleged judgment lien in the records of
to set the underlying case for trial, Laux relies on the trial
the Federal Aviation Administration (" FAA" ) registry
court's grant of the nunc pro tunc order to contend that
for aircraft; and (4) Laux had no greater right in the
the failure to set the case for trial was a clerical error that
aircraft than his alleged judgment debtor. We conclude
was remedied by the December Order.
that the temporary injunction is not void and that the trial
court did not abuse its discretion in issuing a temporary
Failure to Set Case for Trial on the Merits
injunction. We therefore affirm.
In his first issue, Tanguy contends that the
temporary injunction is void because it fails to comply remain alive, despite the trial court's orders, because the
with the Texas Rules of Civil Procedure that require that two injunctions are substantively the same. See
the case be set for a trial on the merits.[2] In his brief, TEX.R.APP. P. 29.5. For example, if we agreed with
Laux asserts that (1) the failure of the August Order to Tanguy's challenges to the merits of the injunction, we
include the statement that the underlying case was set for could reverse the injunction and give him the relief he
trial was a clerical error that could be remedied by a nunc seeks in the appeal. See id. Therefore, the trial court's
pro tunc order and (2) the December Order that was actions in dissolving the August Order and issuing the
rendered pursuant to the nunc pro tunc order set the case December Order on the same subject do not diminish the
for trial and therefore complied with the requirements for effectiveness of the substantive challenges asserted by
temporary injunctions. In his reply brief, Tanguy asserts Tanguy in the appeal, which we address in issues two
that the trial court's failure to include a trial setting is a through four. See id.
judicial error, not a clerical one, and that a nunc pro tunc
order may not be used to correct a judicial error.[3] Although the substantive challenges by Tanguy are
not affected by the trial court's orders, Tanguy also made
Although the parties refer to the December Order a procedural challenge to the injunction. Tanguy's
as a nunc pro tunc order, it is a temporary injunction that procedural challenge asserts that the August Order was
is identical to the August Order, except that it adds a trial void on its face because it failed to set the case for trial.
setting for the case. In his Motion for Temporary Tanguy wanted the August Order dissolved due to its
Injunction Nunc Pro Tunc, Laux specifically prayed that lack of the trial setting, and the trial court agreed with
the trial court " vacate the judgment previously him by dissolving the order and issuing a new injunction
in the December Order that included a trial date. We
Page 855 conclude that the dissolution of the August Order does
not interfere with or impair the effectiveness of the relief
signed, and enter judgment in accordance with the sought because the trial court gave Tanguy all the relief
proposed form [the December Order] which is attached to he sought from us. See TEX.R.APP. P. 29.5(b). When we
this motion." The trial court granted Laux's motion and addressed an almost identical situation, we said,
ordered that " the clerk will enter judgment in accordance
with the judgment as rendered and signed at this time." A trial court should not be allowed to frustrate a party's
right to appellate review. However, that has not happened
" While an appeal from an interlocutory order is in this case. The amended order merely sets a trial date
pending, the trial court retains jurisdiction of the case and for a hearing on the permanent injunction, as required....
may make further orders, including one dissolving the The appellant should not be able to complain both that
order appealed from...." TEX.R.APP. P. 29.5. " But the the order is void because no trial date is set and also that
[trial] court must not make an order that ... interferes with a trial date has been set. The reason for requiring that a
or impairs the jurisdiction of the appellate court or temporary injunction set a date for trial on the merits is to
effectiveness of any relief sought or that may be granted prevent the temporary injunction from becoming
on appeal." TEX.R.APP. P. 29.5(b). " While an appeal effectively permanent, without a trial having occurred.
from an interlocutory order is pending, ... the appellate That purpose was accomplished
court may review ... a further appealable interlocutory
order concerning the same subject matter." TEX.R.APP. Page 856
P. 29.6(a)(1); see Ahmed v. Shimi Ventures, L.P., 99
S.W.3d 682, 688-89 (Tex.App.-Houston [1st Dist.] 2003, here by the setting of the trial date. The trial court's
no pet.). amended order accomplishes the purpose of rule 683 by
preventing the temporary injunction from becoming "
We have jurisdiction to address the December permanent" while the appellant waits indefinitely for a
Order because it is a further appealable interlocutory trial on the merits. Moreover, it does not interfere with
order that concerns the same subject matter. See our power to grant relief on appeal. It is unnecessary to
TEX.R.APP. P. 29.5; Ahmed, 99 S.W.3d at 689. Further, vacate this injunction in order to protect either appellant's
the trial court had jurisdiction to dissolve the August right to a speedy trial or to effective appellate review of
Order and to replace it with the December Order that the temporary injunction.
concerned exactly the same subject matter but with the
addition of the trial date, if those actions did not interfere Eastern Energy, Inc. v. SBY P'ship, 750 S.W.2d 5, 6
with or impair our jurisdiction or the effectiveness of the (Tex.App.-Houston [1st Dist.] 1988, no writ).[4]
relief sought in the appeal. See TEX.R.APP. P. 29.5; see
Ahmed, 99 S.W.3d at 688-89. We conclude that the trial We conclude the trial court had jurisdiction to
court's actions in dissolving the August Order and dissolve the August Order and to issue the December
replacing it with the December Order do not interfere Order that set the case for trial. See TEX.R.APP. P. 29.5;
with or impair our jurisdiction or the effectiveness of the Ahmed, 99 S.W.3d at 689. We hold that the December
relief sought in the appeal because Tanguy's appellate Order granting the injunction was not void. We overrule
challenges concerning the substance of the injunction Tanguy's first issue.
Merits of the Temporary Injunction construe these as an attack on the second element
necessary for a temporary injunction-" a probable right to
Tanguy's three remaining issues contend that Laux the relief sought." [5]
has not met his burden to establish the temporary
injunction. C. The Second Element: A Probable Right to the
Relief Sought
A. Standard of Review for the Temporary
Injunction A probable right to the relief sought is shown by
alleging a cause of action and presenting evidence that
The decision to grant or deny a temporary tends to sustain it. Tel. Equip. Network, Inc. v.
injunction lies in the sound discretion of the trial court, TA/Westchase Place, Ltd., 80 S.W.3d 601, 607
and the court's ruling is subject to reversal only for a clear (Tex.App.-Houston [1st Dist.] 2002, no pet.). Laux filed
abuse of discretion. TMC Worldwide, L.P. v. Gray, 178 suit against Tanguy asserting a cause of action under the
S.W.3d 29, 36 (Tex.App.-Houston [1st Dist.] 2005, no Texas Uniform Fraudulent Transfer Act. The Texas
pet.)(citing Walling v. Metcalfe, 863 S.W.2d 56, 58 Uniform Fraudulent Transfer Act provides,
(Tex.1993)). We must not substitute our judgment for the
trial court's judgment unless the trial court's action was so A transfer made ... by a debtor is fraudulent as to a
arbitrary that it exceeded the bounds of reasonable creditor, whether the creditor's claim arose before or
discretion. Id. (citing Johnson v. Fourth Ct.App., 700 within a reasonable time after the transfer was made ..., if
S.W.2d 916, 918 (Tex.1985)). In reviewing an order the debtor made the transfer ...:
granting or denying a temporary injunction, we draw all
legitimate inferences from the evidence in a manner most (1) with actual intent to hinder, delay, or defraud any
favorable to the trial court's judgment. Id. (citing creditor of the debtor; or
CRC-Evans Pipeline Int'l v. Myers, 927 S.W.2d 259, 262
(Tex.App.-Houston [1st Dist.] 1996, no writ)). Abuse of (2) without receiving a reasonably equivalent value in
discretion does not exist if the trial court heard exchange for the transfer ..., and the debtor:
conflicting evidence and evidence appears in the record
(A) was engaged or was about to engage in a business or
that reasonably supports the trial court's decision. Id.
a transaction for which the remaining assets of the debtor
(citing Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978);
were unreasonably small in relation to the business or
Myers, 927 S.W.2d at 262).
transaction; or
B. Elements of Temporary Injunction
(B) intended to incur, or believed or reasonably should
A temporary injunction's purpose is to preserve the have believed that the debtor would incur, debts beyond
status quo of the litigation's subject matter pending a trial the debtor's ability to pay as they became due.
on the merits. TMC Worldwide, 178 S.W.3d at 36 (citing
TEX. BUS. & COM.CODE ANN. § 24.005(a)
Walling, 863 S.W.2d at 57). A temporary injunction is an
(Vernon 2002). The allegations of Laux's petition track
extraordinary
these statutory provisions. In addition, the Texas Uniform
Page 857 Fraudulent Transfer Act provides that as a remedy a
creditor may seek " avoidance of the transfer ... to the
remedy and does not issue as a matter of right. Id. To extent necessary to satisfy the creditor's claim." Id. §
obtain a temporary injunction, the applicant must plead 24.008(a)(1). The statute also specifically provides that "
and prove three specific elements: (1) a cause of action subject to applicable principles of equity and in
against the defendant; (2) a probable right to the relief accordance with applicable rules of civil procedure," a
sought; and (3) a probable, imminent, and irreparable creditor may obtain " an injunction against further
injury in the interim. Id. (citing Butnaru v. Ford Motor disposition by
Co., 84 S.W.3d 198, 204 (Tex.2002)). An injury is
irreparable if the injured party cannot be adequately Page 858
compensated in damages or if the damages cannot be
the debtor or a transferee, or both, of the asset
measured by any certain pecuniary standard. Id.
transferred." Id. § 24.008(a)(3)(A).
Tanguy does not address any of the elements of a
Under the Texas Uniform Fraudulent Transfer Act,
temporary injunction in his brief. In his second, third, and
a temporary injunction may be sustained if the trial court
fourth issues, Tanguy contends that (1) Laux had no
was presented with evidence of intent to defraud the
present right of recovery because he did not have a lien
creditor. Tel. Equip. Network, 80 S.W.3d at 609. The
on his judgment debtor's personal property; (2) Laux was
Texas Uniform Fraudulent Transfer Act lists several
not entitled to injunctive relief because he did not record
nonexclusive factors to consider in determining intent:
his alleged judgment lien in the records of the FAA
registry for aircraft; and (3) Laux had no greater right in (1) the transfer or obligation was to an insider;
the aircraft than his alleged judgment debtor. We
(2) the debtor retained possession or control of the judgment lien in the records of the F.A.A. registry for
property transferred after the transfer; aircraft was fatal to his right to recover injunctive relief.
(3) the transfer or obligation was concealed; Under this issue, Tanguy contends, " A judgment
creditor who wants to impose a judgment lien on an
(4) before the transfer was made or obligation was aircraft must timely record his writ of execution or
incurred, the debtor had been sued or threatened with attachment in the FAA registry BEFORE the judgment
suit; Debtor sells the aircraft." Assuming that Tanguy's legal
contention concerning the imposition of a lien on an
(5) the transfer was of substantially all the debtor's assets; aircraft is correct, he makes no argument and cites to no
authority that the existence of a lien is necessary before a
(6) the debtor absconded;
temporary injunction may be issued or that the existence
(7) the debtor removed or concealed assets; of a lien has any relation to Laux's cause of action
asserted under the Texas Uniform Fraudulent Transfer
(8) the value of the consideration received by the debtor Act.
was reasonably equivalent to the value of the asset
transferred or the amount of the obligation incurred; Page 859
(9) the debtor was insolvent or became insolvent shortly We conclude that the lack of proof of the existence
after the transfer was made or the obligation was of a lien does not undermine Tanguy's showing of a
incurred; probable right to recovery under the Texas Uniform
Fraudulent Transfer Act, which allows a creditor to
(10) the transfer occurred shortly before or shortly after a obtain " an injunction against further disposition by the
substantial debt was incurred; and debtor or a transferee, or both, of the asset transferred."
Id. § 24.008(a)(3)(A). The express language of Texas
(11) the debtor transferred the essential assets of the Uniform Fraudulent Transfer Act, which Laux followed
business to a lienor who transferred the assets to an in his petition seeking relief against Tanguy, provides
insider of the debtor. that a transfer made by a debtor is fraudulent as to a
creditor if the debtor made the transfer " with actual
TEX. BUS. & COM.CODE ANN. § intent to hinder, delay, or defraud any creditor of the
24.005(b)(1)-(11). debtor." Id. § 24.005(1). The statute does not require that
a creditor have a lien against the debtor's property in
None of Tanguy's contentions undermine Laux's order to pursue relief under the Texas Uniform
showing of a probable right to recover under the Texas Fraudulent Transfer Act. Because the existence of a lien
Uniform Fraudulent Transfer Act. is not a prerequisite to Laux's cause of action under the
Texas Uniform Fraudulent Transfer Act, Tanguy's
1. Lack of Proof of Lien
assertions in his second and third issues do not tend to
establish that Laux did not have a probable right to the
Tanguy's challenges in his second and third issues
relief sought.
do not pertain to the proof required to establish a
violation of Texas Uniform Fraudulent Transfer Act.
We overrule Tanguy's second and third issues.
In his second issue, Tanguy contends,
2. Greater Right of Ownership
Appellee Laux had no present right to injunctive relief
In his fourth issue, Tanguy asserts,
since the mere recovery of a judgment or filing of an
abstract of judgment does not create a lien on a judgment Laux, as a judgment creditor, had no greater right in the
debtor's personal property. aircraft than his alleged judgment debtor Davis even if
Davis (not an L.L.C.) sold the aircraft to appellant
Under this issue, Tanguy contends that Laux has not
Tanguy.
established any type of lien against the personal property
of Davis, the judgment debtor. However, Tanguy does Tanguy contends that the FAA records reflect that
not assert that the existence of a lien is a prerequisite to 13,500 Air Express, L.L.C. was the owner of the disputed
injunctive relief and he does not cite any authority that aircraft, not Davis. Tanguy asserts that, even if Davis was
stands for the proposition that failing to establish a lien the owner, when Davis sold the aircraft to Tanguy, there
against Davis precludes Laux from obtaining injunctive was " no restriction by judicial lien or otherwise
relief. preventing him from transferring the aircraft to Tanguy."
The factual basis of this contention is that the documents
Similarly, in his third issue, Tanguy asserts,
that memorialize the sale of the aircraft are dated January
5, 2006, approximately seven months before the date that
Laux's failure to prove recordation of his alleged
Laux obtained a judgment against Davis. setting the matter for trial. InterFirst Bank, 715 S.W.2d at
640-41; see also Tex. Tech Univ. v. Finley, 223 S.W.3d
Although Tanguy presented evidence that indicated 510, 515 (Tex.App.-Amarillo 2006, no pet.)(declaring
that the sale of the aircraft occurred on January 5, 2006, temporary injunction void and dissolving it for failure to
which was before Laux obtained a judgment against include setting for trial on merits); City of Sherman v.
Davis, the standard of review dictates that we must view Eiras, 157 S.W.3d 931, 931 (Tex.App.-Dallas 2005, no
the evidence in favor of the trial court's judgment. See pet.)(same); Kaufmann v. Morales, 93 S.W.3d 650,
TMC Worldwide, 178 S.W.3d at 36. The bill of sale for 656-57 (Tex.App.-Houston [14th Dist.] 2002, no
the aircraft was not dated until May 3, 2007, pet.)(same).
approximately 9 months after the judgment against Davis
and only six weeks before Davis filed for bankruptcy. [3] A judgment nunc pro tunc may be used to correct a
Additionally, Laux filed suit against Davis in April 2004. clerical error in the trial court's judgment after the court's
Viewing the evidence in a light most favorable to the trial plenary power has expired, but cannot be used to correct
court's order, the court could have inferred that (1) Davis a judicial error. LaGoye v. Victoria Wood Condo. Ass'n,
or Tanguy attempted to conceal the transfer by waiting 16 112 S.W.3d 777, 783-84 (Tex.App.-Houston [14th Dist.]
months before filing the bill of sale with the FAA, see 2003, no pet.)(citing Escobar v. Escobar, 711 S.W.2d
TEX. BUS. & COM.CODE ANN. § 24.005(b)(3); (2) 230, 231 (Tex.1986) and In re Fuselier, 56 S.W.3d 265,
Davis became insolvent shortly after the transfer, see id. 268 (Tex.App.-Houston [1st Dist.] 2001, orig.
§ 24.005(b)(9); and (3) Davis had been sued before the proceeding)); see also TEX.R. CIV. P. 316, 329b(f).
transfer occurred, see id. § 24.005(b)(4). See also Tel. Having determined that the trial court did not lose
Equip. Network, 80 S.W.3d at 609 (finding that trial court jurisdiction to change the original temporary injunction,
did not abuse discretion by issuing temporary injunction we conclude it was a misnomer for Laux to file a motion
under Texas Uniform Fraudulent Transfer Act when that called the request for the new injunction a request for
evidence tended to support finding of factors listed in a nunc pro tunc. See TEX.R.APP. P. 29.5. The trial court
section 24.005(b), including that transfer had been did not change the August Order by use of the nunc pro
concealed and that debtor had been sued before the tunc procedure, but rather issued a new injunction in the
transfer). Although Tanguy asserts that there is evidence December Order that replaced the dissolved August
that weighs against the trial court's decision to issue a Order.
temporary injunction, we cannot conclude that the trial
court abused its discretion when the record contains [4] In Reeves v. City of Dallas, the Dallas court held that
conflicting evidence. See TMC Worldwide, 178 S.W.3d at the remainder of the second temporary injunction
36. order-which apparently added a trial date that the first
order did not have-interfered with its appellate
We overrule Tanguy's fourth issue. jurisdiction and the relief that it could grant and so
violated rule 29.5(b). 68 S.W.3d 58, 60 (Tex.App.-Dallas
Page 860 2001, pet. denied). We agreed with that premise in
footnote 13 in Ahmed. Ahmed v. Shimi Ventures, L.P., 99
Conclusion S.W.3d 682, 691 n. 13 (Tex.App.-Houston [1st Dist.]
2003, no pet.). The appellate issues in Reeves were that "
We affirm the trial court's order granting a
(1) the judge who signed the March injunction is not the
temporary injunction. All pending motions are dismissed
judge who heard the evidence in February, and (2) the
as moot.
March injunction does not sufficiently state the facts on
--------- which it is based as required...." Reeves, 68 S.W.3d at 60.
The Reeves court determined that the March injunction
Notes: issued to replace the February injunction interfered with
the appellate jurisdiction and the effectiveness of any
[1] See TEX. BUS. & COM.CODE ANN. § § relief sought in the appeal of the February order. Id. We
24.001-.013 (Vernon 2002 & Supp.2007). distinguish Reeves on the basis that the court determined
that under the facts of that case the trial court's later order
[2] In pertinent part, rule 683 of the Texas Rules of Civil interfered with the appellate court's jurisdiction and relief
Procedure provides, " Every order granting a temporary for the earlier order. See id. Unlike Reeves, the close
injunction shall include an order setting the cause for trial analysis of the appellate issues presented show none of
on the merits with respect to the ultimate relief sought." those concerns. See id.
TEX.R. CIV. P. 683. " The requirements of Rule 683 are
mandatory and must be strictly followed." InterFirst [5] Tanguy does not challenge the first or third elements.
Bank San Felipe v. Paz Constr. Co., 715 S.W.2d 640, 641 Concerning the first element, Tanguy does not contend
(Tex.1986); see also Qwest Commc'ns Corp. v. AT& T that a cause of action seeking, among other things,
Corp., 24 S.W.3d 334, 337 (Tex.2000) (citing InterFirst, injunctive relief was not brought against him. Although
715 S.W.2d at 641). A temporary injunction is void and Tanguy does not challenge the third element, we note that
should be dissolved when it does not include an order proof of an inadequate remedy at law may be shown by
evidence that the debtor is insolvent, and here it is
undisputed that Davis was in bankruptcy at the time the
temporary injunction issued. See Tel. Equip. Network,
Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 611
(Tex.App.-Houston [1st Dist.] 2002, no pet.).
---------
Page 615 J. WOODFIN JONES, Chief Justice.
399 S.W.3d 615 (Tex.App.-Austin 2013) In these two interlocutory appeals, the Texas
Health and Human Services Commission, Tom Suehs in
TEXAS HEALTH AND HUMAN SERVICES his official capacity as the Commissioner of Health and
COMMISSION; Tom Suehs, in his official capacity as Human Services, and Billy Millwee in his official
the Commissioner of Health and Human Services; capacity as the Texas State Medicaid Director
and Billy Millwee, in his official capacity as the Texas (collectively, " HHSC" ) appeal (1) a
State Medicaid Director, Appellants temporary-injunction order issued on behalf of Advocates
for Patient Access, Inc. and others [1] (collectively, "
v. Advocates" )
ADVOCATES FOR PATIENT ACCESS, INC.; John Page 619
Doe A, by and through his next friend, Laura Garza;
John Doe B, by and through his next friend, Nayeli and (2) a subsequent temporary-injunction order that
Garza; and Jane Doe A, by and through her next expanded the scope of injunctive relief and corrected
friend, Isabel Tijerina, Appellees. procedural defects in the original temporary-injunction
order. We will dismiss the appeal of the first
Texas Health and Human Services Commission; Tom temporary-injunction order as moot and affirm the second
Suehs, in his official capacity as the Executive order as modified.
Commissioner of Health and Human Services; and
Billy Millwee, in his official capacity as the Texas BACKGROUND
Medicaid Director, Appellants
Advocates filed a declaratory-judgment action
v. against HHSC, seeking a declaration that an HHSC
Medical Transportation Program (MTP) rule is invalid
Advocates for Patient Access, Inc.; John Doe A, by and asking the trial court to permanently enjoin its
and through his next friend, Laura Garza; John Doe enforcement. See Tex. Civ. Prac. & Rem.Code Ann. §§
B, by and through his next friend, Nayeli Garza; and 37.001-.011 (West 2008) (Uniform Declaratory Judgment
Jane Doe A, by and through her next friend, Isabel Act); Tex. Gov't Code Ann. § 2001.038 (West 2008)
Tijerina, Appellees. (authorizing declaratory-judgment action to determine
validity or applicability of agency rule); see also 1 Tex.
Nos. 03-12-00354-CV, 03-12-00606-CV.
Admin. Code § 380.207(4) (2012) (Tex. Health &
Court of Appeals of Texas, Third District, Austin. Human Servs. Comm'n, Program Limitations), amended,
37 Tex. Reg. 10192 (Dec. 28, 2012) (imposing
March 26, 2013 requirement of accompaniment by parent or guardian for
transportation to eligible recipients under age of 15). At
Page 616 the time of the proceedings below, the rule at
issue-section 380.207(4) of the regulations governing the
[Copyrighted Material Omitted] MTP-provided that transportation to Medicaid services
would not be available to recipients under the age of 15
Page 617 unless accompanied by a parent or guardian (subject to
certain exceptions).[2]1 Tex. Admin. Code § 380.207(4)
[Copyrighted Material Omitted]
(2012), amended, 37 Tex. Reg. 10192 (Dec. 28, 2012).
Page 618
Advocates challenged the validity of section
380.207(4) as applied to participants in the state's Early
Thomas A. Albright, Assistant Attorney General,
and Periodic Screening, Diagnosis, and Treatment
General Litigation Division, Austin, TX, for Appellants.
(EPSDT) Program because children under the age of 15
Thomas H. Watkins, Mark D. Chouteau, Elizabeth are statutorily eligible for EPSDT services if they are
G. Bloch, Michael R. Crowe, Brown McCarroll, LLP, accompanied at the services by a parent, guardian, or "
Austin, TX, for Appellees. another adult, including an adult related to the child,
authorized by the child's parent or guardian to accompany
Before Chief Justice JONES, Justices GOODWIN the child." Tex. Human Res.Code Ann. § 32.024(s) (West
and FIELD. Supp.2012). Because section 380.207(4) prescribed a
more restrictive accompaniment requirement for
OPINION transportation, Advocates asserted that the rule (1)
deprived eligible Medicaid recipients of the opportunity
to participate in services mandated by federal and state is a member of the group) to challenge HHSC's actions.
law and (2) conflicted with federal regulations and state
statutes requiring the provision of necessary Ancillary to the declaratory-judgment and
transportation services to eligible Medicaid recipients. permanent-injunction actions, Advocates sought a
See 42 U.S.C. § 1396a(13) (governing contents of state temporary injunction prohibiting HHSC from enforcing
plans for medical assistance); 42 U.S.C. § 1396d(a), section 380.207(4) and enjoining HHSC from applying a
(r)(5) (defining " medical assistance" and " early and narrow interpretation of section 32.024(s)(2) pending a
periodic screening, diagnostic, and treatment services" ); final disposition of the suit on the merits. Following an
42 C.F.R. § 431.53 (" A State plan must ... [s]pecify that evidentiary hearing, the trial court signed a
the Medicaid agency will ensure necessary transportation temporary-injunction order on May 17, 2012, that, in
for beneficiaries to and from providers." ), 441.62(a) (" effect, precluded HHSC from applying the MTP rule and
The agency must offer to the family ... [n]ecessary from deviating from the requirements of the EPSDT
assistance with transportation as required under statute (" the May injunction order" ). See Tex. Civ. Prac.
& Rem.Code Ann. § 65.021 (West 2008) (district court's
Page 620 jurisdiction to grant injunctive relief). Specifically, the
trial court enjoined HHSC from:
§ 431.53." ); Tex. Gov't Code Ann. § 531.0057 (West
2012) (" The commission shall provide medical (a) denying eligibility of a Medicaid recipient under the
transportation services for clients of eligible health and age of 18 for medical transportation services because a
human services programs." ), .02414 (West 2012) parent or guardian does not accompany the Medicaid
(defining " medical transportation program" ); Human recipient during the provision of such transportation
Res.Code § 32.024(s) (authorizing reimbursement for services, provided that the Medicaid recipient's parent or
EPSDT services for child under age 15 if accompanied guardian authorizes any other adult to accompany the
by parent, guardian, or authorized adult to provider visit child; or
or screening). With respect to the individual defendants,
Suehs and Millwee, Advocates further asserted that (b) requiring as a condition for eligibility for
enforcement of the MTP rule is ultra vires because the reimbursement for any visit or screening provided under
rule conflicts with the express language of the state the early and periodic screening, diagnosis and treatment
statutes governing the EPSDT program and the MTP. program of the Medicaid program that a child younger
than fifteen years of age be accompanied by the child's
Although section 380.207 of the MTP rules had parent or
been on the books for at least a decade and had
previously been unchallenged, Advocates asserted that Page 621
the rule was never enforced as a bar to eligibility for
transportation to EPSDT services as long as a child under guardian if the child's parent or guardian has authorized
the age of 15 was accompanied by a parent or guardian or any other adult to accompany the child to the visit or
any other adult authorized by a parent or guardian. screening.
Consequently, although clearly contrary to section
But the May injunction order did not include
380.207's terms, a practice developed whereby parents
provisions setting a bond or a trial date as required by
and guardians would authorize employees of EPSDT
Texas Rules of Civil Procedure 683 and 684.
service providers to accompany their children during
Accordingly, HHSC filed an interlocutory appeal
transportation services and at visits and screenings.
contending that the May injunction order was void ab
In March 2012, however, after discovering a initio due to these procedural defects. That appeal was
perceived " overutilization" of MTP services in South assigned Cause No. 03-12-00354-CV in this Court.
Texas, HHSC sent EPSDT service providers a letter
Although enforcement of the May injunction order
stating an intent to enforce the rule strictly. The letter also
was superseded upon HHSC's filing of the notice of
interpreted section 32.024(s)(2) of the human resources
appeal, see Tex. Civ. Prac. & Rem.Code Ann. § 6.001(a),
code as requiring that a child younger than age 15 be
(b) (West 2002) (state agencies exempt from appeal
accompanied by the child's parent or guardian or another
bond), HHSC voluntarily refrained from enforcing
authorized adult related to the child at an EPSDT visit or
section 380.207(4)'s accompaniment requirement and
screening. Cf. Human Res.Code § 32.024(s)(2)
instead instituted a process by which parents and
(providing that child can be accompanied at such services
guardians could designate another adult to accompany
by " another adult, including adult related to the child,
their children during transportation to services. HHSC
authorized by child's parent or guardian" ). In response to
also proposed amendments to the MTP accompaniment
the March 2012 letter, Advocates for Patient Access, Inc.
rule that would expand its scope to allow parents and
was formed as an advocacy group for patients and
guardians to designate another adult to accompany their
providers, and the underlying lawsuit was filed by the
children during transportation as long as such other adult
group and the individual plaintiffs (at least one of whom
was not employed by the medical-services provider.
Based on these developments, Advocates filed an " provisions of the May injunction order, and to expand the
Application for Expanded Temporary Injunction," scope of injunctive relief to include the new authorization
seeking to expand the prior injunction to preclude HHSC processes adopted following issuance of the May
from employing what it called an " overly burdensome" injunction order.
process for EPSDT participants to receive authorization
for transportation services. Advocates alleged that the HHSC perfected a separate interlocutory appeal
procedures HHSC implemented-including requiring use from the August injunction order, which was assigned
of a specified authorization form that identified the Cause No. 03-12-00606-CV in this Court and was
authorized adult and provided his or her contact consolidated with the earlier appeal for purposes of oral
information and requiring that a phone call be generated argument due to the overlapping issues. Cf. generally
to obtain authorization for transportation for each child Tex.R.App. P. (" TRAP" ) 27.3 (" After an order or
and each EPSDT session-were too onerous and resulted judgment in a civil case has been appealed, if the trial
in eligible recipients not being provided EPSDT services. court modifies the order or judgment ... the appellate
Advocates also complained about the proposed court must treat the appeal as from the subsequent order
amendments to section 380.207(4) and asked that HHSC or judgment and may treat actions relating to the appeal
be enjoined from enforcing any new rule that limited the of the first order or judgment as relating to the appeal of
persons authorized to accompany a Medicaid child to an the subsequent order or judgment." ), 29.6 (" While an
EPSDT visit or during transportation to such visit. appeal from an interlocutory order is pending, on a
Finally, Advocates requested that the court enjoin HHSC party's motion or on the appellate court's own initiative,
from enforcing administrative penalties against certain the appellate court may review ... a further appealable
providers based on claims that those providers had interlocutory order concerning the same subject
violated unrelated rules prohibiting providers from matter...." ).
offering inducements designed to influence a Medicaid
recipient's decision regarding the selection of a provider DISCUSSION
or the receipt of a good or service under Medicaid. See 1
On appeal, HHSC challenges the validity of the
Tex. Admin. Code § 371.27 (2012) (Tex. Health &
August injunction order on substantive and procedural
Human Servs. Comm'n, Office of Inspector General).
grounds, arguing that (1) pursuant to TRAP Rule 29.5,
Despite obvious procedural defects in the May injunction
the trial court lacked authority to modify the May
order, however, Advocates did not request that the May
injunction order while it was on appeal, (2) the August
injunction order be dissolved.
injunction order is void because it was issued while the
After another evidentiary hearing, the trial court May injunction order was on appeal and had been
signed a " Modified Temporary Injunction" on August superseded by virtue of section 6.001 of the civil practice
31, 2012, (" the August injunction order" ) that included and remedies code, (3) the August injunction order is
the same relief granted in the May injunction order- parts void because it lacks the specificity required by Civil
(a) and (b) quoted above- and also set a bond amount and Procedure Rule 683, (4) the trial court abused its
a trial date as required by the rules of civil procedure. The discretion in granting the modified temporary injunction
August injunction order further expanded the scope of because there is insufficient evidence of probable,
injunctive relief by enjoining HHSC from engaging in the imminent, and irreparable harm, (5) the trial court abused
following conduct: its discretion in issuing the modified temporary
injunction because Advocates failed to meet its burden of
(c) requiring the use of any particular written establishing a probable right to recovery, and (6) parts (c)
authorization form for MTP transportation services that and (d) of the modified injunction improperly attempt to
was not regularly used before May 3, 2012, which is the control state action, which is precluded by the doctrine of
date of the Court's temporary restraining order; and sovereign immunity. Also at issue on appeal is what
effect the August injunction order has on the merits of the
(d) requiring any person acting on behalf of a pending appeal of the May injunction order. Advocates
Medicaid-eligible child from contends that the trial court was authorized to correct the
procedural defects in the May injunction order and that,
Page 622 when it did so, the modified order superseded the original
order, mooting the appeal from that order. HHSC argues
having to contact any person, prior to the provision of that it is still entitled to a determination that the May
transportation services, in order to designate an injunction order was void ab initio because the trial
authorized adult. court's August injunction order did not expressly dissolve
that order- nor was the court asked to dissolve it. HHSC
The trial court denied all other temporary relief
contends that, without an adjudication on the merits of
requested by Advocates. Although it did not expressly
the appeal from the May injunction order, there remains a
dissolve the prior injunction, the August injunction order
question about whether it was subject to the terms of that
manifested an intent to correct the procedural defects in
injunction between May 17, 2012, and August 31,
the May injunction order, to carry forward the substantive
2012.[3] procedural deficiencies because dissolution gave
appellant all relief he sought on appeal); Ahmed v. Shimi
Page 623 Ventures, L.P., 99 S.W.3d 682, 690 (Tex.App.-Houston
[1st Dist.] 2003, no pet.) (holding that " the fact that the
We will consider the procedural challenges before modified order implicitly supplanted the earlier, appealed
addressing HHSC's challenges to the merits of injunctive order [did not] in itself interfere with [court's]
relief. interlocutory jurisdiction in violation of rule 29.5,"
provisions that were substantively similar presented same
Procedural Challenges
issues on appeal and provided same opportunity for
relief, and new provisions did not adversely affect relief
1. Does the August Injunction Order Violate
that could be granted). There were no substantive
TRAP Rule 29.5 or HHSC's Supersedeas Rights?
challenges to the May injunction order, but even if there
As a threshold matter, HHSC contends that the had been, those issues would remain alive in the appeal
August injunction order is void because it was issued of the August injunction order. As to the addition of a
after the May injunction order was appealed, did not trial setting and a bond requirement, it is difficult to
dissolve or vacate the prior injunction order, and included conceive how those modifications could interfere with
at least some relief that was substantively identical to the our jurisdiction or deprive HHSC of effective relief given
relief granted in the prior injunction order, which was that their absence was the sole basis for the first appeal,
superseded pending resolution of the previously filed and the modification gave HHSC the relief it sought- a
appeal. Under these circumstances, HHSC argues, the bond and a trial setting as required by rules 683 and 684.
August injunction order is void because it violates TRAP Logic and reason preclude us from construing TRAP
Rule 29.5 and HHSC's duly-invoked supersedeas rights Rule 29.5 as hamstringing trial courts from correcting
in the appeal from the May injunction order. procedural defects while an interlocutory appeal is
pending based on those defects. As our sister court said in
TRAP Rule 29.5 affirms the trial court's continuing substantially similar circumstances:
jurisdiction over a case while an appeal from an
interlocutory order is pending. See Tex.R.App. P. 29.5. A trial court should not be allowed to frustrate a party's
The rule expressly authorizes the trial court to make right to appellate review. However, that has not happened
further orders, including one dissolving the order in this case. The amended order merely sets a trial date
complained of on appeal, and to proceed with a trial on for a hearing on the permanent injunction, as required by
the merits, unless otherwise prohibited by law. Id. The Tex.R. Civ. P. 683. The appellant should not be able to
trial court is prohibited, however, from " mak[ing] an complain both that the order is void because no trial date
order that ... interferes with or impairs the jurisdiction of is set and also that a trial date has been set. The reason for
the appellate court or effectiveness of any relief sought or requiring that a temporary injunction set a date for trial
that may be granted on appeal." Id. HHSC argues that the on the merits is to prevent the temporary injunction from
August injunction order violates TRAP Rule 29.5 by becoming effectively permanent, without a trial having
granting at least some of the same relief as the prior order occurred. That purpose was accomplished here by the
and requiring it to challenge the validity of the same setting of the trial date. The trial court's amended order
relief in serial appeals. accomplishes the purpose of rule 683 by preventing the
temporary injunction from becoming " permanent" while
In accordance with TRAP Rule 29.5, the trial court the appellant waits indefinitely for a trial on the merits.
had authority to modify or amend the May injunction Moreover, it does not interfere with our power to grant
order to (1) grant identical substantive relief, (2) grant relief on appeal.
additional substantive relief, and (3) bring the injunction
into compliance with Civil Procedure Rules 683 and 684 It is unnecessary to vacate this injunction in order to
as long as those actions did not interfere with or impair protect either appellant's right to a speedy trial or to
this Court's jurisdiction or the effectiveness of the relief effective appellate review of the temporary injunction.
HHSC seeks on appeal from the May injunction order.
Eastern Energy, Inc. v. SBY P'ship, 750 S.W.2d 5, 6
See id. We conclude that the trial court's August
(Tex.App.-Houston [1st Dist.] 1988, no writ).
injunction order did not violate TRAP Rule 29.5. See
Tanguy v. Laux, 259 S.W.3d 851, 855
We also reject HHSC's suggestion that TRAP Rule
(Tex.App.-Houston [1st Dist.] 2008, no pet.) (trial court's
29.5 categorically prohibits a trial court from issuing an
actions in dissolving prior injunction order and amending
order when a prior order that includes the same
order did not violate TRAP Rule 29.5 because
substantive relief is already on appeal. While the prior
substantive relief was identical so substantive claims
version of TRAP Rule 29.5- former TRAP Rule 43(d)-
remained alive and dissolution of prior order did not
expressly prohibited trial courts from making an order "
granting substantially the same relief as that granted by
Page 624
the order appealed from," see id. (quoting former TRAP
interfere with effectiveness of relief sought for Rule 43(d)), that restriction was not carried forward in the
1997 appellate rules revision and instead was repealed " interferes with HHSC's supersedeas rights in the first
as being too broad." Texas Rules of Court, Tex.R.App. P. appeal. It is undisputed that once HHSC filed its notice of
29.5, Comment to 1997 Rule Change (West 2012). The appeal, the May injunction order was automatically
revision embodied in the current version of TRAP Rule superseded by virtue of section 6.001 of the civil practice
29.5 emphasizes that there is no per se restriction on a and remedies code.[4] See Tex. Civ. Prac. & Rem.Code
trial court's ability to modify or amend orders that have Ann. § 6.001 (relieving state agency of obligation to file
been appealed; rather, the principal concern of Rule 29.5 appeal bond). From HHSC's perspective, the purpose of
is to clarify that the trial court retains jurisdiction to superseding the injunction was to ensure that the
proceed as long as it does not interfere with the injunction was not enforced while the case was on appeal.
jurisdiction of the appellate court or the ability of the HHSC was not deprived of the benefit of any supersedeas
appellate court to grant effective relief in interlocutory rights, however, because the May injunction order has
continuously remained superseded and was not rendered
Page 625 enforceable by the August injunction order. To the extent
the same substantive relief was included in both orders,
appeals. For the reasons previously stated, those we observe two circumstances that refute HHSC's claim
concerns are not implicated in the circumstances of the that it was effectively deprived of its supersedeas rights.
present case. First, the rules of appellate procedure provided HHSC the
opportunity to include the modified order within the
To the extent HHSC is vexed about having to
pending appeal, thus extending the benefits of its
prosecute seriatim appeals from amended or modified
supersedeas protection to that order. See Tex.R.App. P.
orders, we note, parenthetically, that such a scenario
27.3, 29.6. That HHSC chose to prosecute the appeal
appears to be adequately addressed and ameliorated by
separately does not render the August injunction order
two other rules of appellate procedure. TRAP Rule 29.6
violative of its supersedeas rights. Second, in the first
states that " [w]hile an appeal from an interlocutory order
is pending, on a party's motion or on the appellate court's Page 626
own initiative, the appellate court may review ... a further
appealable interlocutory order concerning the same appeal, HHSC did not assert any challenges to the
subject matter." Tex.R.App. P. 29.6(1). The phrase " substantive relief granted in the May injunction order;
same subject matter" is not defined and is probably accordingly, reissuing that relief with the procedural
broader than a modified or amended order, but at the very defects corrected could not reasonably be construed as
least it would appear to apply to such orders. See Tanguy, interfering with its claims for relief in the first appeal. In
259 S.W.3d at 855 (amended temporary injunction was light of the foregoing, we conclude that the August
further appealable interlocutory order that concerned injunction order did not deprive HHSC of any
same subject matter); Ahmed, 99 S.W.3d at 687 supersedeas rights.
(determining that appellate court had authority to review
modified temporary-injunction order entered while HHSC cites two cases to support its claim that the
interlocutory appeal was pending because it concerned August injunction order is void because it impinges on
same subject matter as prior order). Even more on point, duly invoked supersedeas rights- Texas Liquor Control
TRAP Rule 27.3, which expressly applies to appealed Bd. v. Jones, 378 S.W.2d 898 (Tex.Civ.App.-Austin
orders that have been modified while the appeal is 1964, orig. proceeding), and Railroad Comm'n of Tex. v.
pending, provides as follows: Roberts, 332 S.W.2d 745 (Tex.Civ.App.-Austin 1960,
orig. proceeding). Those cases, however, are
After an order or judgment in a civil case has been distinguishable based on their procedural posture and the
appealed, if the trial court modifies the order or judgment relevant law in place. In both cases, the trial courts had
... the appellate court must treat the appeal as from the granted permanent injunctions that were superseded when
subsequent order or judgment and may treat actions appealed, but the trial courts also granted temporary
relating to the appeal of the first order or judgment as injunctions to ensure that the substance of the permanent
relating to the appeal of the subsequent order or injunctions remained enforceable while the appeals were
judgment. The subsequent order or judgment and actions pending. In Jones, this Court relied on the earlier opinion
relating to it may be included in the original or in Roberts and held that " [w]hen final judgment was
supplemental record. Any party may nonetheless appeal entered in this case the interlocutory injunction
from the subsequent order or judgment. previously granted by the Trial Judge ceased to exist by
operation of law, a result the Trial Court was powerless
Tex.R.App. P. 27.3. Thus, although HHSC chose to to prevent or resist. His attempt to do so is utterly void
prosecute its appeals separately, its fears about being and of no force and effect." Jones, 378 S.W.2d at 902-03
unfairly required to do so appear unjustified. (quoting and discussing Roberts extensively); see also
Mote Resources, Inc. v. Railroad Comm'n of Tex., 618
HHSC also contends that the August injunction
S.W.2d 877, 879-80 (Tex.Civ.App.-Austin 1981, orig.
order is void because by issuing the same substantive
proceeding) (explaining holdings in Jones and Roberts as
relief as the May injunction order, the modified order
follows: " [O]nce the district court had rendered a final
judgment, it was powerless, thereafter, to enter ancillary trial setting); cf. Compass Bank, N.A. v. SanJeck, LLP,
orders restraining the agency from acting contrary to the No. 05-11-00913-CV, 2012 WL 601191, at *2
district court's final judgment." ). Given the procedural (Tex.App.-Dallas Feb. 23, 2012, no pet.) (mem. op.)
posture of the present case, this rationale is inapplicable. (holding that appeal from first temporary-injunction order
was rendered moot by amended injunction that afforded
In addition, we note that Jones and Roberts (as well appellant all relief sought on appeal as to first injunction);
as Mote Resources ) were decided before former Civil Tanguy, 259 S.W.3d at 855 (appeal from defective
Procedure Rule 364 (the predecessor to TRAP Rule temporary-injunction order mooted by amended order
24.2(a)(3)) was amended in 1984 to provide that, when a that corrected defects and dissolved prior injunction
judgment is for other than money, property, or because trial court gave appellant all relief he had
foreclosure, a trial court " may decline to permit the requested on appeal); Ahmed, 99 S.W.3d at 688-91
judgment to be suspended on filing by the plaintiff of a (holding that modified temporary injunction that did not
bond or deposit to be fixed by the court in such an expressly dissolve or vacate previous temporary
amount as will secure the defendant in any loss or injunction " implicitly" superseded prior injunction, did
damage occasioned by any relief granted if it is not violate rules of appellate procedure, and could be
determined on final disposition that such relief was considered on its merits in pending appeal from
improper." Texas Rules of Civil Procedure-Rules superseded injunction).
Effective September 1, 1941-: An Historical Project, rule
364(f), http:// www. stcl. edu/ library/ Texas Rules& 1 We need not decide if the first appeal is moot on
FProject/ Main Index. htm (accessed Mar. 11, 2013) that basis, however, because we conclude that the appeal
(current version at Tex.R.App. P. 24.2(a)(3)). is moot due to the absence of a justiciable controversy as
to the validity of the May injunction order. Heckman v.
Based on the foregoing, we conclude that the Williamson Cnty., 369 S.W.3d 137, 166-67 (Tex.2012)
August injunction order does not violate TRAP Rule 29.5 (observing that case is moot if there ceases to be " a
or HHSC's supersedeas rights. justiciable controversy between the parties-that is, if the
issues presented are no longer ' live,' or if the parties lack
2. Is the Appeal from the May Injunction Order a legally cognizable interest in the outcome" ). Because
Moot? Advocates concedes that the May injunction order is
facially invalid, there is no live controversy concerning
Having concluded that the trial court had the
the validity of that order, and there is no claim that the
authority to issue the August injunction order modifying
August injunction order suffers the same procedural
the May injunction order, we now consider whether the
deficiencies. We therefore dismiss HHSC's appeal of the
appeal of the May injunction order is moot. In the appeal
May injunction order for want of jurisdiction.
of that order, HHSC contends the order is void because it
does not comply with the bond and trial-setting 3. Does the August Injunction Order Comply with
requirements in Civil Procedure Rules 683 and 684. It is Rule 683?
well established that these defects render the
noncompliant injunction order void ab initio. See, e.g., Texas Rule of Civil Procedure 683 states in
Qwest Comms. v. AT & T Corp., 24 S.W.3d 334, 337 pertinent part: " Every order granting an injunction and
(Tex.2000). Although Advocates contends that the appeal every restraining order shall set forth the reasons for its
is moot because it was taken from a now-superseded issuance [and] shall be specific in terms; shall describe in
injunction reasonable detail and not by reference to the complaint or
other document, the act or acts sought to be restrained...."
Page 627 Tex.R. Civ. P. 683. The rule's requirements are
mandatory and must be strictly followed. InterFirst Bank
order, HHSC counters that it is entitled to a
San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641
determination that the May injunction order was void ab
(Tex.1986). When a temporary-injunction order does not
initio, because the trial court never dissolved that order.
adhere to Rule 683's requirements, the injunction order is
There is authority for the proposition that a subject to being declared void and dissolved. Id. HHSC
subsequent order bringing a temporary injunction into contends that the August injunction order is void because
compliance with the rules of civil procedure supersedes a it does not specifically set forth the reasons why
prior defective injunction order and moots an appeal Advocates is likely to succeed on the merits of its claims
concerning those defects even if the defective injunction for a declaratory judgment and permanent injunctive
has not been expressly dissolved. See Nexus Fuels, Inc. v. relief. We conclude that the August injunction order is
sufficiently specific as to the reasons for enjoining the
Hall, No. 05-98-02147-CV, 1999 WL 993929, at *2
(Tex.App.-Dallas Nov. 1, 1999, no pet.) (not designated conduct described in parts (a) and (b), but it does
for publication) (noting that original temporary injunction
Page 628
did not comply with civil procedure rules that required
trial setting but concluding that appeal from defective not comply with Rule 683 with regard to the conduct
injunction was mooted by amended order that included
enjoined in parts (c) and (d). Temporary Injunction" (or any other pleading) as a legal
basis for challenging the transportation-authorization
Part (a) of the injunction order enjoins conduct that process referenced in the August injunction order. Even if
is otherwise authorized by section 380.207(4) of the MTP it had been, the sheer number of legal theories asserted
rules. Part (b) of the injunction essentially restates the would leave doubt as to the trial court's basis for
terms of the statute governing the EPSDT program- concluding that Advocates had a probable right to
section 32.024(s)(2) of the human resources code- and recover. In addition to being unclear as to the legal basis
enjoins conduct that would be contrary to the statutory supporting a right to relief, we also note that parts (c) and
language. Although the August injunction order (d) are vague and overly broad with regard to the acts
addresses probable right of recovery only broadly, there restrained and thus do not comply with the requirement
is but a singular legal theory in the pleadings concerning that the injunction " describe in reasonable detail ... the
the validity of the challenged MTP rule- specifically, that act or acts sought to be restrained."
it conflicts with state and federal laws requiring the state
to provide transportation to Medicaid services for eligible Page 629
recipients because it imposes a more stringent
accompaniment requirement than is statutorily required to Tex.R. Civ. P. 683. " An injunction must be definite,
obtain EPSDT services. Likewise, Advocates requested clear, and concise, leaving the person enjoined no doubt
that the trial court enjoin HHSC from applying a narrow about his duties, and should not be such as would call on
interpretation of section 32.024 on the sole basis that such him for interpretations, inferences or conclusions."
an interpretation conflicts with the statute's express Vaughn v. Drennon, 202 S.W.3d 308, 316
language. (Tex.App.-Tyler 2006, pet. denied). Because parts (c) and
(d) of the August injunction order do not comply with
" [T]he obvious purpose of [Rule 683] is to rule 683's requirements, those provisions must be
adequately inform a party of what he is enjoined from vacated.
doing and the reason why he is so enjoined." El Tacaso,
Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 744 Merits of Temporary Injunctive Relief
(Tex.App.-Dallas 2011, no pet.) (quoting Schulz v.
Schulz, 478 S.W.2d 239, 244-45 (Tex.Civ.App.-Dallas A temporary injunction is an extraordinary remedy
1972, no writ)) (alteration in original). That purpose is and does not issue as a matter of right. Walling v.
satisfied with respect to parts (a) and (b) of the August Metcalfe, 863 S.W.2d 56, 57 (Tex.1993). The purpose of
injunction order because (1) there is little doubt as to the a temporary injunction is to preserve the status quo of the
legal basis for granting relief, (2) the court fully litigation's subject matter pending a trial on the merits.
explained the reasons why the applicants will suffer Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204
imminent, irreparable injury, and (3) the conduct (Tex.2002). The status quo is " the last actual, peaceable,
enjoined is stated with specificity. non-contested status which preceded the pending
controversy." In re Newton, 146 S.W.3d 648, 651
On the other hand, the legal basis for the relief (Tex.2004) (quoting Janus Films, Inc. v. City of Fort
provided in parts (c) and (d) of the August injunction Worth, 163 Tex. 616, 358 S.W.2d 589, 589 (1962) (per
order is not readily ascertainable by reference to the curiam)). To obtain a temporary injunction, the applicant
terms of the order, nor from the applications for must ordinarily plead and prove three specific elements:
injunctive and expanded injunctive relief. On appeal, (1) a cause of action against the defendant, (2) a probable
Advocates explains that the authorization process right to the relief sought, and (3) a probable, imminent,
enjoined in the modified order (1) conflicts with the and irreparable injury in the interim. Butnaru, 84 S.W.3d
transportation-authorization processes established by at 204. The applicant is not required to establish that he
HHSC's existing rules 380.203 and 380.205 and was will prevail on final trial; rather, the only question before
employed without formal adoption of an amended rule, the trial court is whether the applicant is entitled to
(2) makes it harder for authorized Medicaid recipients to preservation of the status quo pending trial on the merits.
receive EPSDT services and thus is contrary to section Walling, 863 S.W.2d at 58.
32.024(s)(2) of the Texas Human Resources Code, and
(3) conflicts with section 531.003(2)(B) of the Texas Our review is confined to the validity of the order
Government Code, which states that one of HHSC's goals that grants or denies injunctive relief. Id. The decision to
is to provide prompt, comprehensive, and effective grant or deny a temporary injunction lies in the discretion
services to the people of Texas by " eliminating ... of the trial court, and the court's ruling is subject to
programmatic and transportation barriers." Gov't Code § reversal only for a clear abuse of that discretion. Id. This
531.003; Human Res.Code § 32.024(s)(2); 1 Tex. Admin. Court may neither substitute its judgment for that of the
Code §§ 380.23 (2012) (Tex. Health & Human Res. trial court nor consider the merits of the lawsuit. Id. We
Comm'n, Program Processes), .25 (2012) (Tex. Health & may not reverse a trial court's order if the court was
Human Res. Comm'n, Program Services). However, none presented with conflicting evidence and the record
of this authority or legal argument was presented to the includes evidence that reasonably supports the court's
trial court in Advocates' " Application for Expanded decision. Brammer v. KB Home Lone Star, L.P., 114
S.W.3d 101, 105 (Tex.App.-Austin 2003, no pet.). (circumstantial evidence may be used to establish any
Rather, we view the evidence in the light most favorable material fact if inference is reasonable and more than
to the trial court's order, indulging every reasonable mere suspicion).
inference in its favor, and determine whether the order
was so arbitrary as to exceed the bounds of reasonable At the evidentiary hearing, Mario Garza, an
discretion. Id. We will reverse the order if the trial court administrator for a pediatric rehabilitation company,
misapplies the law to established facts or if it concludes testified that following the March 2012 letter, " as many
that the applicant has demonstrated a probable injury or a as 90 percent of the children were not able to receive
probable right to recover and such conclusion is not their therapeutic services." He also testified that, " [i]f the
reasonably supported by the evidence. Id. at 106. parents are not allowed to authorize the monitor to
transport their kids back and forth and provide
HHSC challenges the August injunction order on supervision of them at the clinic, then the vast majority of
the basis that Advocates failed to establish probable, kids would not receive the therapeutic rehab services that
imminent, and irreparable injury and probable right to the they so desperately require." This, he said, would result
relief sought in the underlying lawsuit. We consider these in regression and deterioration in their medical condition.
matters in turn, but only as they pertain to the relief The regional manager of an MTP service provider
granted in parts (a) and (b) of the August injunction order similarly testified about the drastic impact of the March
because we have already determined that parts (c) and (d) 2012 letter, stating that 7,742 trips had been authorized in
of the order must be vacated on other grounds. February 2012 and 6,121 trips in March 2012, but only
2,515 trips were made in April 2012. Although there is no
1. Probable, Imminent, Irreparable Injury: direct testimony linking the dramatic reduction in
children receiving transportation services to the dramatic
" Probable injury" includes the elements of imminent reduction in the children receiving services at Garza's
harm, irreparable injury, and no adequate remedy at law. facility, the trial court could have reasonably inferred a
Univ. of Tex. Med. School v. Than, 834 S.W.2d 425, 428 connection between the two.
(Tex.App.-Houston [1st Dist.] 1992, no writ). For
purposes of a temporary injunction, an injury is These circumstances were also elaborated on by
irreparable if the injured party cannot be adequately Nayeli Garza with respect to one of the individual
compensated in damages or if the plaintiffs, her son, John Doe B. Garza testified that John
Doe B regularly received speech-therapy services prior to
Page 630 March 2012 and was usually accompanied by a monitor
employed by the speech-therapy provider and authorized
damages cannot be measured by any certain pecuniary
by Garza to accompany him during transportation and
standard. Butnaru, 84 S.W.3d at 204; see also Tex. Indus.
while at therapy. However, sometime in March 2012, the
Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529,
transportation provider contacted her and informed her
533 (Tex.App.-Houston [1st Dist.] 1992, no writ)
that they would not be able to pick her son up and take
(applicant for injunctive relief must establish that
him to his therapy sessions. Although Garza did not
damages are incapable of calculation or party sought to
provide a reason why transportation was denied, the trial
be enjoined is incapable of responding in damages). " The
court could reasonably have inferred from her testimony
general rule at equity is that before injunctive relief can
that it was because she was not available to accompany
be obtained, it must appear that there does not exist an
him. Indeed, she testified that because she was unable to
adequate remedy at law." Butnaru, 84 S.W.3d at 210.
accompany him herself or find relatives to assist her,
HHSC contends that there is no direct evidence there was a period of time during which her son was not
that any child was actually deprived of EPSDT services able to receive speech therapy, and during that time she
due to the threat in the March 2012 letter that section noticed a decline in his condition
380.207(4) would be enforced or that a parent, guardian,
Page 631
or relative was required to be in attendance at the EPSDT
services. While that may be true, there is sufficient and progress. Although he later resumed speech-therapy
evidence from which the trial court could have services, all the evidence taken together is sufficient to
reasonably inferred that at least one of the plaintiff support the trial court's finding that at least one plaintiff
children was deprived of at least some EPSDT services as would probably suffer imminent, irreparable harm if the
a result of the threatened enforcement of the MTP status quo were not maintained. [5]
accompaniment rule, that the child regressed in his
progress due to a lack of therapy, that he would not be 2. Probable Right of Recovery
able to regularly receive EPSDT services if the MTP
accompaniment rule were enforced or section 32.024(s) From an examination of the cited statutes and
were narrowly construed, and that the harm from delayed regulations, we conclude that the statutory scheme may
or denied EPSDT services would be irreparable. See reasonably be subject to a construction that would be
Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex.2001) consistent with Advocates' legal challenge to the MTP
rule's validity and HHSC's narrow construction of the medical services and now includes " another adult
accompaniment requirement in the EPSDT statute. In this authorized by the parent or guardian" as long as that
interlocutory appeal, we cannot fairly conclude that the person is not affiliated with the medical-services
trial court abused its discretion in determining that provider. See 1 Tex. Admin. Code § 380.207(4) (adopted
Advocates met its burden to show a probable right of December 28, 2012) (Tex. Health & Human Servs.
recovery on its claims in the underlying lawsuit. Comm'n, Program Limitations) (citing 1 Tex. Admin.
Code § 354.1133, which also became effective January 1,
CONCLUSION 2013, and governs parental accompaniment for minors
receiving services under state's EPSDT Program).
Because there is no dispute that the May injunction Because the amended rule became effective while these
order does not comply with Civil Procedure Rules 683 appeals were pending-and Advocates subsequently
and 684 and is therefore void, the appeal from that order amended its pleadings to assert claims under the amended
is moot. Furthermore, the procedural defects were rule-HHSC argues that both the May and August
corrected in the August injunction order, and there is no injunctions should be dissolved because they were issued
further complaint of procedural defect in that regard. based on a rule that no longer exists. Advocates contends,
Accordingly, we dismiss the appeal of cause number however, that the appeals are not moot based on the rule
03-12-00354-CV as moot. In cause number change because the injunctions enjoin conduct that would
03-12-00606-CV, we modify the August modified otherwise be permitted even under the amended rules.
temporary-injunction order by vacating parts (c) and (d) Because the injunction orders at issue in the consolidated
due to noncompliance with Rule 683; as so modified, we appeals enjoin HHSC from engaging in conduct that
affirm that order. would be permitted under the amended rules, we agree
with Advocates that the appeals are not moot based on
---------
the rule change. However, the trial court is free to
Notes: reconsider the continued propriety of injunctive relief in
light of the rule change.
[1] Other plaintiffs are John Doe A, by and through his
next friend, Laura Garza; John Doe B, by and through his [4] Advocates made no request to the trial court to avoid
next friend, Nayeli Garza; and Jane Doe A, by and or undo this supersedeas, nor did it offer to post a bond
through her next friend, Isabel Tijerina. for that purpose. See In re Long, 984 S.W.2d 623, 626
(Tex.1999); In re Dallas Area Rapid Transit, 967 S.W.2d
[2] The relevant portion of section 380.207 provided: 358, 360 (Tex.1998).
Recipients are not eligible to receive medical [5] HHSC complains that the findings of fact in the
transportation services under the following August injunction order either exceed the scope of the
circumstances: evidence or are wholly unsupported by the evidence.
While we share HHSC's concerns about the disparity
.... between the evidentiary record and some of the trial
court's fact findings, the unsupported findings are not
(4) The recipient is under 18 years of age and not essential for the injunctive relief granted and there is at
accompanied by a parent or legal guardian, unless one of least some evidence to support the relevant portions of
the following conditions exists: the findings.
(A) the recipient is aged 15 through 17 years of age and ---------
presents the parent's or legal guardian's signed, written
consent for the transportation services to the Regional
MTP office or the transportation contractor; and/or
(B) the treatment to which the minor is being transported
is such that the law extends confidentiality to the minor
for treatment. 1 Tex. Admin. Code § 380.207(4) (2012)
(Tex. Health & Human Servs. Comm'n, Program
Limitations),amended, 37 Tex. Reg. 10192 (Dec. 28,
2012).
[3] An additional mootness issue was raised at oral
argument based on amendments to section 380.207(4)
that became effective January 1, 2013. As of that date,
section 380.207 was amended to expand the categories of
persons who are eligible to accompany children under 15
years of age while they are being transported to receive
Page 60 the statute's constitutionality or unconstitutionality. See
Mitchell v. Purolater Security, Inc., 515 S.W.2d 101
817 S.W.2d 60 (Tex. 1991) (Tex.1974); Gibraltar Sav. Ass'n v. Falkner, 162 Tex.
633, 351 S.W.2d 534 (1961); cf. Martinez v. Rodriguez,
TEXAS WORKERS' COMPENSATION 608 S.W.2d 162, 163-64 (Tex.1980). It is far from clear
COMMISSION, et al., Appellants, in this case that the district court's general denial of
injunctive relief against the private employer was related
v.
to its determination that the Act is unconstitutional.
Assuming that it was, however, that denial may not be
Hector GARCIA, Jr., et al., Appellees.
used to invoke direct appeal jurisdiction when the private
No. D-1516. employer has not perfected its own appeal.
Supreme Court of Texas. Appellants argue that a grant of declaratory relief
against a state agency, which is the relief granted against
October 16, 1991 the Commission in this case, is akin to an injunction.
Whatever the similarities in effect, however, the simple
Page 61 granting of declaratory relief against a state agency is not
sufficient to invoke our direct appeal jurisdiction. Cf.
Joe Pitner, Shannon H. Ratliff, Dan Morales, Delmar Boston v. Garrison, 152 Tex. 253, 256 S.W.2d 67 (1953).
L. Cain, Harry G. Potter, III, Frank Oliver and Scott
Moore, Austin, for appellants. Appellants also argue that appellees orally withdrew
their claims for injunctive relief against the Commission
Robert Serna, Crystal City, Bill Whitehurst, David R. and its director for the purpose of precluding a direct
Richards, Austin, Robert R. Puente, San Antonio, for appeal to this Court. This argument, assuming it is
appellees. correct, is irrelevant. The effect of the trial court's order,
not the parties' litigation strategies, is what determines
PER CURIAM.
Page 62
This is a direct appeal from a judgment of the district
court declaring the Texas Workers' Compensation Act [1] this Court's direct appeal jurisdiction.
void as violative of various provisions of the Texas
Constitution. Appellants have filed a statement of For these reasons, a majority of the Court, without
jurisdiction; appellees have responded. See hearing oral argument, dismisses this appeal for want of
TEX.R.APP.P. 140(c). jurisdiction. TEX.R.APP.P. 140(d), 170.
"An appeal may be taken directly to the supreme ---------
court from an order of a trial court granting or denying an
interlocutory or permanent injunction on the ground of Notes:
the constitutionality of a statute of this state."
TEX.GOV'T CODE § 22.001(c); see TEX. CONST. art. [1] TEX.REV.CIV.STAT.ANN. art. 8308-1.01 et seq.
V, § 3-b. The only injunctive relief sought in this case (Vernon Supp.1991). The judgment refers to "Ch. 1, 1989
was by appellees against three parties: the Texas Workers Tex.Sess.Law.Serv.2d C.S.1", which includes additional
Compensation Commission, its executive director, and a provisions. Act of Dec. 12, 1989, 71st Leg., 2d C.S., ch 1,
private employer. At trial, appellees orally withdrew their 1989 Tex.Gen.Laws 1.
injunctive claims against two of those parties, the
Commission and director. Accordingly, the district court ---------
never granted or denied injunctive relief against the
Commission and its director. Appellees' remaining claim
for injunctive relief against the private employer was not
addressed specifically in the district court's judgment but
effectively disposed of by its general provision "that all
relief requested and not otherwise granted is hereby
DENIED." The private employer has not appealed. Only
the Commission and its director have appealed.
We have strictly construed our direct appeal
jurisdiction, requiring that the trial court's ruling on the
temporary or permanent injunction be "on the ground" of
Page 34 TEXAS RULES OF APPELLATE PROCEDURE
adoption of Rule of Civil Procedure 168, which governs the While an appeal from an interlocutory order is pending,
procedure for obtaining permission to appeal from the trial court. only the appellate court in which the appeal is pending may
enforce the order. But the appellate court may refer any
New Rule 283 applies only to appeals in cases that were enforcement proceeding to the trial court with instructions to:
filed in the trial court on or after September 1, 2011. Rule 28.2
applies only to appeals in cases that were filed in the trial court (a) hear evidence and grant appropriate relief; or
before September 1, 2011.
(b) make findings and recommendations and report them
Rule of Civil Procedure 168 clarifies that the trial court’s to the appellate court.
permission to appeal should be included in the order to be
appealed rather than in a separate order. As stated in Rule 29.5. Further Proceedings in Trial Court
28.3(c), if a prior order containing the trial court’s ruling is
amended to include such permission, the time for appeal runs While an appeal from an interlocutory order is pending,
from the amended order. Rule 28.3(k) further clarifies that if the the trial court retains jurisdiction of the case and unless
petition is granted, appeal is thereby perfected, and the appeal prohibited by statute may make further orders, including one
proceeds as an accelerated appeal, with all deadlines - including dissolving the order complained of on appeal. If permitted by
deadlines and obligations for preparing the record - running from law, the trial court may proceed with a trial on the merits. But
the date the petition was granted. A separate notice of appeal the court must not make an order that:
need not be filed. The petition procedure in Rule 28.3 is
intended to be similar to the Rule 53 procedure governing (a) is inconsistent with any appellate court temporary
petitions for review in the Supreme Court. order; or
Rule 29. Orders Pending Interlocutory (b) interferes with or impairs the jurisdiction of the
Appeal in Civil Cases appellate court or effectiveness of any relief sought
or that may be granted on appeal.
29.1. Effect of Appeal
29.6. Review of Further Orders
Perfecting an appeal from an order granting interlocutory
relief does not suspend the order appealed from unless: (a) Motion to Review Further Orders. While an appeal
from an interlocutory order is pending, on a party's
(a) the order is superseded in accordance with 29.2; or motion or on the appellate court's own initiative, the
appellate court may review the following:
(b) the appellant is entitled to supersede the order
without security by filing a notice of appeal. (1) a further appealable interlocutory order
concerning the same subject matter; and
29.2. Security
(2) any interlocutory order that interferes with or
The trial court may permit an order granting interlocutory impairs the effectiveness of the relief sought or
relief to be superseded pending an appeal from the order, in that may be granted on appeal.
which event the appellant may supersede the order in accordance
with Rule 24. If the trial court refuses to permit the appellant to (b) Record. The party filing the motion may rely on the
supersede the order, the appellant may move the appellate court original record or may file a supplemental record
to review that decision for abuse of discretion. with the motion.
29.3. Temporary Orders of Appellate Court Notes and Comments
When an appeal from an interlocutory order is perfected, Comment to 1997 change: This is former Rule 43. The
the appellate court may make any temporary orders necessary to provision in the former rule that an appeal from an order
preserve the parties' rights until disposition of the appeal and certifying a class suspends the order is repealed. The provision
may require appropriate security. But the appellate court must in the former rule that an order denying interlocutory relief
not suspend the trial court's order if the appellant's rights would cannot be suspended is omitted as unnecessary because the rule
be adequately protected by supersedeas or another order made provides for superseding only orders granting relief. No
under Rule 24. substantive change is intended. The provision in former Rule
43(d) prohibiting the trial court from making an order granting
29.4. Enforcement of Temporary Orders substantially the same relief as the order appealed is repealed as
being too broad. The provisions of former Rule 43(g) regarding
34
TEXAS RULES OF APPELLATE PROCEDURE Page 35
the mandate are moved to Rule 18.6 and 18.7. The provision of to file the record. When the appellate court receives the record,
former Rule 43(h) regarding rehearings is moved to Rule 49.4. the court will — if it desires briefs — set the time for filing
briefs, and will set the appeal for submission.
Comment to 2002 change: Rule 29.5 is amended to
acknowledge that a trial court may be prohibited by law from 31.2. Hearing
proceeding to trial during the pendency of an interlocutory
appeal, as for example by section 51.014(b) of the Texas Civil An appeal in a habeas corpus or bail proceeding will be
Practice and Remedies Code. heard at the earliest practicable time. The applicant need not
personally appear, and the appeal will be heard and determined
Comment to 2008 change: Rule 29.5 is amended to be upon the law and the facts shown by the record. The appellate
consistent with Section 51.014(b) of the Civil Practice and court will not review any incidental question that might have
Remedies Code, as amended in 2003, staying all proceedings in arisen on the hearing of the application before the trial court. The
the trial court pending resolution of interlocutory appeals of class sole purpose of the appeal is to do substantial justice to the
certification orders, denials of summary judgments based on parties.
assertions of immunity by governmental officers or employees,
and orders granting or denying a governmental unit’s plea to the 31.3. Orders on Appeal
jurisdiction.
The appellate court will render whatever judgment and
make whatever orders the law and the nature of the case require.
Rule 30. Restricted Appeals to Court The court may make an appropriate order relating to costs,
of Appeals in Civil Cases whether allowing costs and fixing the amount, or allowing no
costs.
A party who did not participate—either in person or
through counsel—in the hearing that resulted in the judgment 31.4. Stay of Mandate
complained of and who did not timely file a postjudgment
motion or request for findings of fact and conclusions of law, or (a) When Motion for Stay Required. Despite Rule 18 or
a notice of appeal within the time permitted by Rule 26.1(a), may any other of these rules, in the following
file a notice of appeal within the time permitted by Rule 26.1(c). circumstances a party who in good faith intends to
Restricted appeals replace writ of error appeals to the court of seek discretionary review must — within 15 days
appeals. Statutes pertaining to writ of error appeals to the court after the court of appeals renders judgment — file
of appeals apply equally to restricted appeals. with the court of appeals clerk a motion for stay of
mandate, to which is appended the party's petition
Notes and Comments for discretionary review showing reasons why the
Court of Criminal Appeals should review the
Comment to 1997 change: This is former Rule 45. The appellate court judgment:
appeal by writ of error procedure is repealed. A procedure for an
appeal filed within 6 months — called a restricted appeal — is (1) when a court of appeals affirms the judgment
substituted. This rule sets out who may take a restricted appeal. of the trial court in an extradition matter and
Rules 25.1 and 26.1 set out the method of perfection and the time thereby sanctions a defendant's extradition; or
for perfecting the appeal.
(2) when a court of appeals reverses the trial
court’s judgment in a bail matter — including
Rule 31. Appeals in Habeas Corpus, bail pending appeal under Code of Criminal
Bail, and Extradition Proceedings Procedure article 44.04(g) — and thereby
grants or reduces the amount of bail.
in Criminal Cases
(b) Determination of the Motion. The clerk must
31.1. Filing the Record; Submission
promptly submit the motion and appendix to the
court of appeals, or to one or more judges as the
When written notice of appeal from a judgment or order in
court deems appropriate, for immediate
a habeas corpus or bail proceeding is filed, the trial court clerk
consideration and determination.
must prepare and certify the clerk’s record and, if the appellant
requests, the court reporter must prepare and certify a reporter’s
(1) If the motion for stay is granted, the clerk will
record. The clerk must send the clerk’s record and the court
immediately forward the petition for
reporter must send the reporter’s record to the appellate court
discretionary review to the clerk of the Court of
within 15 days after the notice of appeal is filed. On reasonable
Criminal Appeals.
explanation, the appellate court may shorten or extend the time
35
in Re George Green and Garlan Green
Combined Opinion