dissenting.
I respectfully dissent. This Court by its refusal to take cognizance of the Rules of Civil Procedure governing the trial of civil cases is enabling a private firm, the moving spirit and ally of the Railroad Commission of Texas, to change the status quo as found by the trial court, and to disrupt the orderly trial of the case in the district court. That ally-defendant is the firm of Christie, Mitchell & Mitchell, represented by an attorney of its choice. The result reached by the court enables one aggrieved party by the devious method of perfecting an appeal to the Court of Civil Appeals, instead of exercising the right of direct appeal to this court under Rule 499-a, Texas Rules of Civil Procedure, to defeat the just and legal right of the other party to the litigation to complete the trial of the issues still pending at all pertinent times in the trial court. By choice the appellees gave notice of appeal from an adverse judgment to the Court of Civil Appeals, and, on February 11, 1960. obtained from that court a writ of prohibition restraining' the Honorable Jack Roberts from hearing appellant’s partial motion for new trial and from hearing appellant’s motion for temporary injunction pending appeal. Appellant’s direct appeal to this court is not from the action of the Court of Civil Appeals in granting the writ of prohibition, but is a direct appeal from the erroneous action of the trial court in refusing to grant appellant’s petition for auxiliary injunctive relief to protect its judgment of February 3, 1960, and the status quo as found by the trial court’s judgment. Such action by the trial court was with no deliberate intention to deprive the appellant of his right to a full and complete trial under the Constitution and laws of Texas, but was the only honorable course for any court to pursue in view of the directive orders, even though erroneous, contained in the judgment issued by a superior court.
*475The sequence of events as shown by the record render it clear that the only remedy left to the appellant is by direct appeal to this court under Rule 499-a to correct the error of the court below. This court has jurisdiction. The appellant’s appeal certainly is not relegated to the Court of Civil Appeals, which court, because of the erroneous assumption that in protecting its jurisdiction, it had the authority to issue a writ of prohibition. This action has completely interrupted the orderly procedure of a trial of a cause still pending at the time in the trial court. The appellees are now apnarently with success using the Court of Civil Appeals’ jurisdiction of their appeal as a weapon with which to deprive this court of its jurisdiction of the direct appeal authorized to appellant under Rule 499-a, supra. Appellees should not be permitted to select the forum of review of appellant’s appeal from an adverse decision, especially where it is obvious it would be utterly impossible for appellant to obtain adequate relief in the Court of Civil Appeals.
The correctness of the judgment rendered by Judge Jack Roberts on February 3, 1960, is not for us to determine, but the paramount question is: Shall the appellees, acting for themselver and the firm of Christie, Mitchell & Mitchell, by the unprecedented contention that the mere giving of notice of appeal by the Commission on February 3, 1960, automatically superseded the judgment and suspended the trial?
A complete recitation of the events leading up to the final judgment by the trial court on February 12, 1960 is in order. The court omits any reference to some important phases of this case, and its recitation of the events occurring after February 3, 1960 fails to point up the significance of the result of the erroneous issuance of the writ of prohibition issued largely because of the false premise advanced by the appellees that the notice of appeal given on February 3, 1960 automatically ended the trial court’s jurisdiction and transferred jurisdiction of the entire case to the Court of Civil Appeals, thereby depriving the trial court of jurisdiction to hear and grant auxiliary injunctive relief to maintain the status quo.
The trial of this case began on January 18, 1960, and on February 3, 1960 the trial court found that “the action of the Railroad Commission of Texas in merging the Bruce-Flo (Frio E-3) Field into the Palacios (Frio “E” Sand) Field, Matagorda County, Texas, and in ordering the existing field rules for the Palacios (Frio “E” Sand) Field effective in the Sand Bruce-Flo (Frio E-3) Field was null, void, and illegal, from the beginning, *476and of no force and effect.” The declared void order of the Commission had had the effect of cutting appellant’s production materially. On February 20, 1959 (the original gas well was brought in during December 1958), appellant’s well was classified by the Railroad Commission as a discovery well. It was found to be in a separate reservoir (the Bruce-Flo, Frio E-3) from other gas wells. The well was entitled to flow at 25 per cent of potential for 18 months. The flow was some four million cubic feet per day, bringing an income of approximately $800 per day. The declared void order of the Railroad Commission, issued apparently at the instance of Christi, Mitchell & Mitchell, cut appellant’s production down to about 600,000 cubic feet per day and reduced appellant’s income proportionately. The firm of Christi, Mitchell & Mitchell intervened in this suit alleging it had an interest in the subject matter. Therefore, it is to be assumed that the effect of the orders of December 15, 1959 and December 30, 1959, the declared void orders, which have been given new life and reinstated by merely giving notice of appeal, is to increase the income of Christie, Mitchell & Mitchell and deprive the appellant of an income based on a flow at 25 per cent of potential for 18 months.
The judgment of February 3, 1960 found the status quo to be as follows: “And, it further appearing to the Court that the status quo of the parties, just prior to the Commission action comvlained of and of this time, is one by which nlaintiff was producing his gas well under and by virtue of Statewide Rules 24 and 25 [4,000.000 cubic feet. and not under and bv virtue of the field rules of the Palacios (Frio “E” Sand) Field [600,000 cubic feet], and it also appearing, and the Court finding, that the Commission action seeking to apply said field rules to plaintiff’s gas well, as evidenced by the instruments of December 15, 1959 and December 30, 1959 (herein more specifically described) is illegal, null and void and that a permanent injunction should issue * * *. ”
Pursuant to such findings, the trial court entered its judgment that the defendant-intervenor, Christie, Mitchell & Mitchell Co. take nothing by reason of its intervention, and further ordered:
“(5) The Railroad Commission of Texas, and its members, * * * defendants herein, are permanently enjoined and restrained from placing in effect and enforcing, and from attempting any action to enforce, and from keeping or maintaining in force or effect the action and orders of the Railroad Commission of *477Texas heretofore taken on December 14, 1959, as evidenced by Commission letter of December 15, 1959, and also evidenced by instrument of December 30, 1959, captioned ‘Special Order merging the Bruce-Flo (Frio E-3) Field into the Palacios (Frio “E” Sand) Field, Matagorda County, Texas’; and these defendants are likewise permanently enjoined and restrained from taking any action whatsoever, whether by issuance of directives, proration schedules, proration orders, or allowable orders or schedules, or otherwise, which would have the effect of enforcing the described Commission action of December lJf, 1959, or the described letter order of December 15,1959, or the described instrument or order of December 30, 1959, insofar as plaintiff and his gas well in concerned; which gas well is identified as the Gardner-Lowe No. 1 Beaverson, Bruce-Flo (E-3) Field, Matagorda County, Texas, presently producing by pipe line connection with Tennessee Gas Transmission Company.” (Emphasis added.)
It should be noted that the appellant-Gardner had previously contracted to sell the 4,000,000 cubic feet production to Tennessee Gas. The decree of the Court entered on February 3, 1960, left this contract undisturbed, but the edict issued on February 8, 1960, by the Commission upon the advice of the Attorney General, and approved by the firm of Christie, Mitchell & Mitchell, in effect declared that this firm was entitled to “something” instead of “nothing”, and, at the same time, ignored the judgment of the trial court entered to maintain the status quo. The judgment of February 3, 1960 discharged the appellant and the surety on the bond given by him on the granting of temporary restraining orders from further liability thereon. From the inception of the trial it was agreed that the temporary restraining order issued on January 1, 1960 was to remain in full force and effect until January 22, 1960, at 2:00 p.m., unless sooner dissolved by further order of the court. This agreement means that the temporary restraining order was to remain in effect pending the trial. The judgment entered on February 3, 1960 contained no provisions dissolving the temporary restraining order. On the contrary, the trial court no doubt assumed that the judgment would be respected without the necessity of expressly perpetuating the injunction until the rights of the parties could be determined on appeal. Incidentally, the temporary restraining order contains express provisions that appellant must make up the overproduction of gas produced in the event the court on hearing sustained the validity of the orders relied upon by the Railroad Commission and under attack in the suit brought by appellant.
*478As the matter stood on February 3, 1960, the appellant had obtained full relief and had no cause for the filing of a motion for new trial. However, on February 8, 1960 the Railroad Commission of Texas, acting through its Chief Gas Engineer, addressed a letter to appellant advising that “we are placing this well on the proration schedule for the Palacios (Frio “E” Sand) effective February 3, 1960. This letter was written on the advice of the Attorney General. The advice was contained in a letter addressed to the Railroad Commission advising it among other things that “At the time of signing judgment notice of appeal was given on behalf of the Commission to the Austin Court of Civil Appeals as is shown on the judgment. The giving of notice of appeal had the effect of superseding the judgment of the District Judge. Thereuvon, the restraining order having expired and no temporary injunction having been entered, the Commission was no longer under any restraint preventing enforcement of its order in question.” (Emphasis added.) Both letters were written at a time when the trial court had jurisdiction to entertain motions to grant temporary restraining orders and injunctions and to also enter motions to dissolve any temporary orders or injunctions which might have been granted. In fact, the court had jurisdiction to issue such orders as it should deem necessary to prevent a destruction of the subject matter of the controversy as well as to maintain the status quo. But, in any event, the appellant for the first time on February 8, 1960 was forced with the necessity of filing a motion for new trial to prevent the complete destruction of the judgment he had obtained just five days before. Appellant timely filed such motion setting out that new facts had arisen. It was alleged that the facts “show, and it is true, that the said defendants have begun a course of conduct calculated to force this plaintiff to comply with the orders and action declared by this court to be void and illegal, which course and conduct is wholly illegal and wrongful, usurps the jurisdiction of this Court, destroys the true status quo of the parties, and will result in great and irreparable harm to the plaintiff * * * .” It was alleged that the plaintiff could not sooner discover and present to the court the new evidence made the basis of the motion for a partial new trial for the reason that such facts were not in existence until February 8, 1960. The motion was presented to the court on February 8, 1960, and on that same day the court entered its ancillary temporary restraining order. The order provided that the temporary restraining order was to remain in full force and effect until 10 a.m. on the 15th dav of Febuary 1960, and commanded the appellees to appear on that date and show cause why a temporary injunction should not be granted. Although *479the court signed the traditional form of Temporary Restraining Order, the court contemplated that the hearing to be held on February 15, 1960 was to be one to hear the new evidence and determine whether or not its judgment of February 3, 1960 should be modified to the extent of incorporating a temporary injunction therein. For that matter, although not required, the appellees could have filed a motion for new trial. Appellant addressed a notice of his request for a hearing on his partial motion for new trial to the attorney for the Railroad Commission of Texas, and to the Attorney for Christie, Mitchell & Mitchell. In lieu of awaiting the hearing ordered to be held on February 15, 1960, the Railroad Commission on February 10, 1960, filed its motion to dissolve the temporary restraining order alleging that final judgment had previously been entered and notice of appeal had been given, and that the notice of appeal had the effect of superseding the judgment entered and of vesting exclusive jurisdiction over the subject matter and all issues in this cause in the Court of Civil Appeals at Austin, Texas. The court overruled the motion to dissolve the temporary injunction and held that it had not lost jurisdiction. This left the partial motion for new trial to be heard on February 15, 1960. The writ of prohibition issued on February 11, 1960 stopped the hearing on the motion for new trial, and forced the trial court to in effect sustain the appellees’ motion to dissolve and to not hear the motion for new trial on the ground that the notice of appeal transferred jurisdiction of all matters to the Court of Civil Appeals. No authority was cited either in the letters of February 8, 1960 to the trial court or in this court supporting the contention that under such circumstances as presented by this record that the Railroad Commission can re-assume jurisdiction and by its ex parte orders and the mere giving of notice of appeal stop a court of law from proceeding with the trial of a lawsuit. The trial court expressly stated in its order overruling the motion to Dissolve the Ancillary Temporary Restraining Order of February 8th that “the Court (on February 3, 1960) had no information * * * to the effect that the Commission would attempt to re-assert jurisdiction during the appeal of the case to change the status quo of the parties * * * .”
The action of the trial court in granting the temporary restraining order and in overruling appellees’ motion to dissolve such order, is indicative of the intention of the court to hear the partial motion for new trial on the date previously set and to enter judgment either denying the motion for new trial or grant the motion and enter a new judgment. In that motion for new trial, appellant asked for relief against not only the Febru*480ary 8th Commission order, but also for relief against the December 15th and December 30th orders which had been adjudicated to be void.
On February 12, 1960, the trial court in legal effect denied the injunction and refused to hear appellant’s motion for new trial. This court has jurisdiction of this appeal. Article 1738a (and the Constitution) requires only that the appeal be from “An order * * * denying an interlocutory injunction * * * on the ground * * * of the validity * * * of any administrative order issued by any State * * * Commission.” Rule 499-a requires only that the appeal “present * * * the validity * * * of an administrative order * * * when the same shall have arisen by reason of the order of a trial court * * * denying an interlocutory * * * injunction.”
This appeal is from an order denying a temporary injunction (and denying a right to a trial upon the question of the right thereto), by virtue of which, this appeal “presents” the unconstitutionality of Article 6049c; Vernon’s Annotated Civil Statutes of Texas, when construed as prohibiting the appellant any right to try out the question of a stay during appeal of the effectiveness of the administrative orders declared void in the judgment of February 3, 1960. See Rule 499a, Texas Rules of Civil Procedure.
This is a valid appeal from an order denying a temporary injunction and upholding the validity of the Commission order of February 8, 1960, entered after the jurisdiction of the courts had attached. The directive of February 8, 1960 was a Commission order. This appeal involves the fundamental question of the force and effectiveness of an administrative order adjudged by a court to be void. The Railroad Commission and Christie, Mitchell & Mitchell are still attempting to enforce the Commission’s orders of December 15 and 30, 1959, both of said orders having been declared void. The question arises: Does a void order revive during appeal ? Does the appeal of a judgment declaring an administrative order void authorize the Commission to issue new directives and orders to enforce such a void order? The answer is NO. The Commission has no authority to resume jurisdiction of this controversy and issue new directives attempting to place into effect an order declared void by the trial court. See Article II, Section 1, Constitution of Texas. All attempts to continue to exercise jurisdiction are void. See Stewart v. Smith et al., 126 Texas 292, 83 S.W. 2d 945; Stanolind Oil & Gas Co. v. Railroad Commission, Texas *481Civ. App., 92 S.W. 2d 1057, er. ref. The appellees contend that there are ways for the appellant to obtain an injunction pending appeal. Such assertion may have been true in the cases cited, but I ask how, in the face of the ruling of the Court of Civil Appeals granting a writ of prohibition on the ground that the trial court had lost jurisdiction, could such relief have been obtained in the trial court?
The question of the validity, force, and effectiveness of all the orders issued by the Commission is the entire subject matter of the ancillary controversy involved in this direct appeal. The question of the validity of the orders of the Commission of December 15, 1960, December 30, 1960 and February 8, 1960 is enmeshed inseparably in this appeal, and the trial court has refused to grant a temporary injunction restraining the appellee from reassuming jurisdiction. Appellees state in their brief that they are not to “be enjoined from enjoying the fruits of supersedeas”. The fruits of supersedeas in this case will be the act of taking away from appellant some 3,400,000 cubic feet of gas which under the court judgment of February 3, 1960 belongs to appellant, and delivering it or a portion thereof to Christie, Mitchell & Mitchell, all under and by virtue of the void orders involved.
Appellant is entitled to have full protection of the jurisdiction of the courts to which he has appealed from the orders of the Commission during the entire litigation. The appeal to the courts actually vacated the orders of the Commission, and the appellant is entitled to be free from further administrative action by the Commission. See City of Dallas v. Wright, 120 Texas 190, 36 S.W. 2d 973, 976; Flannery v. State, Texas Civ. App., 85 S.W. 2d 1052, er. ref.; Gulf C. & S. F. Ry. Co. v. American Sugar Refining Company, Texas Civ. App., 130 S.W. 2d 1030, er, ref.
The trial court had jurisdiction over this ancillary controversy even though the main case was appealed to the Court of Civil Appeals. This jurisdiction does not in any manner conflict with or interfere with the jurisdiction of the Court of Civil Appeals. Since this is an entirely separate controversy when considered from the standpoint of maintaining the status quo and granting a right to a stay, this court does not in any degree infringe upon the jurisdiction of the Court of Civil Appeals. The proceeding for a temporary injunction, especially when timely filed in connection with a motion for new trial, pending appeal from a judgment of an administrative order, *482is a proceeding which works free of the main case. See Pacific Tel. & Tel. Co. v. Kuykendall, 265 U.S. 196, 68 L. Ed. 975, 44 Sup. Ct. 553. It follows that the writ of prohibition issued by the Court of Civil Appeals was and is of no force and effect.
Since the judgment of February 12, 1960 was erroneous, this case should be remanded to the trial court with instructions to proceed to trial upon appellant’s prayer for a temporary injunction to continue in force and effect against the Commission restraining it from enforcing its orders and actions taken both before and after the judgment of February 3, 1960, and from taking any action to disturb the status quo pending a decision by the trial court.
Opinion delivered March 23, 1960.