Iranian Muslim Organization v. City of San Antonio

OPINION

MURRAY, Justice.

This is an appeal from the denial of the appellants’ application for a temporary mandatory injunction.

On December 2, 1979, approximately four weeks after the seizure of the American hostages in Tehran, Iran, Rezi Pahlavi, the former Shah of Iran, was flown from New York to Lackland Air Force Base in San Antonio, Texas. The next day the appellants filed two applications for parade permits for separate demonstrations to be held on December 7, 1979. One parade was to be held adjacent to Lackland Air Force Base at 11:00 a. m. The other demonstration was to occur in downtown San Antonio at 2:00 p. m.

The appellants desired to peacefully demonstrate against the Shah in the hope of convincing the American people that our government’s support of the Shah is wrong. On December 4, 1979, the day after the *380appellants filed their applications, an application for a parade permit was made on behalf of the Ku Klux Klan. The Klan sought to hold a demonstration at the same time and place as the appellants. That evening the City Manager announced at a news conference that the appellants’ applications had been denied because the City had decided not to issue permits to any persons desiring to speak to the Iranian issue. The City Manager testified that the decision to deny the applications had been made only after consulting with numerous persons, including representatives of various law enforcement agencies, a staff person with the National Security Council, a diplomat with experience in Iranian affairs, and an employee of the Department of Justice. Although several reasons were given for the denial of the applications, the decision not to issue the permits was based entirely on a concern for the safety of the hostages. In other words, the City felt that there was a very real possibility that a demonstration would result in physical injury to the appellants, which in turn could have an adverse effect on the American hostages in Iran. The Acting Chief of Police of the City of San Antonio testified that had there been no hostages in Iran, the permits would have been issued.

On December 10, appellant, Ali, and four of his friends began a hunger strike on the steps of City Hall. The demonstration lasted until December 12 when the five Iranians were arrested and taken to jail. At the time of the arrest a mob of approximately 300 persons had gathered at City Hall at the urging of two radio personalities. The mob had been taunting the demonstrators and were threatening to use force to remove them from the steps of City Hall. The Acting Chief of Police testified that the demonstrators were arrested because it was the only means of protecting them from the unruly mob.

On December 11, the San Antonio City Council heard the appellants’ appeal of the City Manager’s decision. At the conclusion of the hearing a motion was passed which states in pertinent part, “I move the Council uphold the Manager’s decision and that permits be denied for public parades and or demonstrations to the Iranian Muslim Student Association and others who encompass the cause either pro or con in the Iranian question.”

Subsequently, the appellants filed this suit to permanently enjoin the City from interfering with their rights of free speech and assembly. The appellants also sought a temporary injunction ordering the appellees to grant a parade permit for a demonstration to be held within three days of the issuance of the preliminary order. From an order denying the appellants’ application for a temporary injunction, an appeal has been perfected.

When reviewing a trial court’s order granting or denying a temporary injunction, the only question before the appellate court is whether the action of the trial judge in granting or denying the temporary injunction constitutes a clear abuse of discretion. In making its determination, the court may not assume that the evidence developed at the preliminary hearing will be the same as that adduced at a full trial on the merits. See Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex.1978). Moreover, the issuance of a preliminary mandatory injunction is proper only if a mandatory order is necessary to prevent irreparable injury or extreme hardship. See Gunnels v. North Woodland Hills Community Association, 563 S.W.2d 334, 337 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ); City Council of Fort Worth v. Fort Worth Associated Master Plumbers & Heating Contractors, Inc., 8 S.W.2d 730, 734 (Tex.Civ.App.—Fort Worth 1928, writ ref’d). The appellants allege that the Shah’s stay in San Antonio is a temporary one, and that the purpose of having a demonstration is to protest the presence of the Shah in this country and, specifically, in San Antonio, Texas. Thus, it is contended that immediate relief is necessary to avoid the irreparable injury that would occur if the appellants were not allowed to demonstrate while the Shah was in San Antonio. At the time of the hearing on the application for a tempo*381rary injunction, however, the Shah had departed the United States and was residing in Panama. Since no findings of fact or conclusions of law were requested or filed, the trial court’s judgment must be upheld on any legal theory supported by the record. See Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978). We conclude that there is some basis upon which the trial court could have properly held that a mandatory order was not necessary to prevent irreparable injury. Accordingly, we hold that the trial court did not abuse its discretion in determining that the appellants were not entitled to a temporary mandatory injunction pending the final hearing.

The judgment of the trial court is affirmed.