In re TEXAS NATURAL RESOURCE CONSERVATION COMMISSION, Relator.
No. 02-0450.
Supreme Court of Texas.
Aug. 30, 2002.
85 S.W.3d 201
Justice JEFFERSON delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice ENOCH, Justice OWEN, and Justice RODRIGUEZ joined.
The issue in this original mandamus proceeding is whether a district court may extend a temporary restraining order by forty-two days without the restrained party‘s consent. Because the district court abused its discretion and the relator does not have an adequate remedy by appeal, we conditionally granted the writ on June 13, 2002.
The City of Marshall, Texas, applied to the Texas Natural Resources Conservation Commission to amend the city‘s certificate of adjudication. The certificate previously allowed the city to divert 16,000 acre-feet of water per year from Cypress Creek basin of Lake Caddo for municipal purposes. The city sought an amendment that would allow it to provide water for industrial purposes.
The TNRCC‘s executive director granted the City of Marshall‘s application on March 25, 2002. Under the Commission‘s rules, permits and other approvals are generally effective when the executive director signs them.
While their motion was pending with the TNRCC, the City of Uncertain and the other movants filed the underlying suit in district court on April 15, 2002, seeking a temporary restraining order, a temporary injunction, and permanent relief. The plaintiffs telephonically notified the TNRCC that the trial court had scheduled a hearing on the temporary restraining order. The TNRCC attended the hearing and opposed the plaintiffs’ requests. On April 17, 2002, the district court issued an order barring the TNRCC from giving immediate effect to the City of Marshall‘s amendment until the TNRCC had an opportunity to rule on the plaintiffs’ motion to overturn the executive director‘s decision. The district court‘s order stated that, by agreement of the parties, the restraining order would expire on May 13, 2002. The order did not require a bond and set the hearing on the plaintiffs’ application for a temporary injunction for May 14, 2002.
On May 8, 2002, the TNRCC extended its time to act on the motion to reconsider the City of Marshall‘s amendment to June 14, 2002, and the Commissioners scheduled it for their agenda that day. See
The TNRCC contends that the district court abused its discretion by granting the extension over the TNRCC‘s objection, thereby contravening
Every temporary restraining order granted without notice ... shall expire by its terms within such time after signing, not to exceed fourteen days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. No more than one extension may be granted unless subsequent extensions are unopposed.
The TNRCC argues that when a temporary restraining order is granted, regardless of notice, Rule 680 permits only a single extension of fourteen days absent consent. The TNRCC contends that Rule 680 attempts to distinguish temporary restraining orders from temporary injunctions, not temporary restraining orders with notice from those without. The TNRCC further contends that if the real parties’ interpretation is correct, then many of Rule 680‘s requirements do not
We agree that all temporary restraining orders are subject to Rule 680‘s limitations on duration. We have held that “[e]xtensions of temporary restraining orders, absent some special statutory authority ..., must meet the limitations of
Rule 680 was originally taken almost verbatim from
The text of Rule 65(b) seems to exclude any possibility that a temporary restraining order can remain in force beyond twenty days. Not surprisingly, therefore, some courts have had no difficulty finding that twenty days—the ten days that the original order may stay in effect plus an extension for a like period for good cause shown—is the longest that a temporary restraining order can be operative. Indeed, it has been held that this limitation applies even when the order is not issued ex parte and both notice and a hearing are held.
11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2953, at 279-80 (1995) (footnotes omitted).
Moreover, if a party can obtain unlimited extensions of a temporary restraining order, there would be no reason to ever seek a temporary injunction, which has more stringent proof requirements. See Millwrights Local Union No. 2484 v. Rust Eng‘g Co., 433 S.W.2d 683, 685-87 (Tex.1968) (holding that temporary restraining order may issue on sworn petition while temporary injunction requires evidence). As our Court has explained:
An applicant for a temporary injunction seeks extraordinary equitable relief. He seeks to immobilize the defendant from a course of conduct which it may well be his legal right to pursue. Crowded dockets, infrequent jury trial weeks, or trial tactics can often delay a trial of a case on its merits for many months. The applicant has, and in equity and good conscience ought to have, the burden of offering some evidence which, under applicable rules of law, establishes a probable right of recovery. If not, no purpose is served by the provisions of
Rule 680, Texas Rules of Civil Procedure , limiting the time for which a restraining order granted without a hearing can operate and requiring a hearing before a temporary injunction can issue.
Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961). Here, although the TNRCC had notice, the temporary restraining order issued on sworn pleadings and the trial court has not conducted an evidentiary hearing. We hold that Rule 680 governs an extension of a temporary restraining order, whether issued with or without notice, and permits but one exten-
The TNRCC contends that appeal is inadequate to remedy a temporary restraining order granted for a period longer than Rule 680 allows. The real parties in interest do not disagree, and the issue appears to be one of first impression.2
The initial inquiry is whether the district court‘s order is an appealable order. A temporary restraining order is generally not appealable. See Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex.1992). A temporary injunction, however, is an appealable interlocutory order. See
A temporary restraining order is one entered as part of a motion for a temporary injunction, by which a party is restrained pending the hearing of the motion. A temporary injunction is one which operates until dissolved by an interlocutory order or until the final hearing.
Id. (quoting Brines v. McIlhaney, 596 S.W.2d 519, 523 (Tex.1980)). We observed in Del Valle that an order “which directs the conduct of a party but does not contemplate imminent disposition of a request for a temporary or permanent injunction, cannot be categorized as a non-appealable temporary restraining order.” Del Valle, 845 S.W.2d at 809.
The district court‘s initial order here has the characteristics and function of a temporary restraining order. It restrained the TNRCC from giving immediate effect to the executive director‘s authorization. The order provided for its own dissolution and set a hearing on the temporary injunction motion on dates agreed to by the parties as Rule 680 permits. It does not alter the status quo. See Transport Co. of Tex. v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953) (holding that status quo of the controversy was the status immediately before Commission order granting amendment to certificate). It does not grant all the relief sought for a temporary injunction (injunction until trial on the merits), or a permanent injunction (injunction from granting the amendment here and other requested amendments). The question remains whether the improper extension order converted the temporary restraining order into an appealable temporary injunction.
Our Court has not addressed the effect of Rule 680‘s time limits on the appealability of temporary restraining orders or extensions. The temporary orders in Qwest and Del Valle were not denominated temporary restraining orders, and Rule 680‘s deadlines were not discussed as a factor in the decisions. Three courts of appeals’ opinions have considered whether a temporary restraining order in excess of Rule 680‘s deadlines is effectively an appealable
In Global Natural Resources and Plant Process Equipment, the courts held that an order that does more than protect the status quo for the allowable period under Rule 680 is functionally an appealable temporary injunction. See Global Natural Res., 642 S.W.2d at 854; Plant Process Equip., 579 S.W.2d at 54. However, in both cases the challenged order was held to be a temporary injunction because it altered the status quo, not because of the order‘s duration.
Thus, no court has held that a temporary restraining order was effectively an appealable temporary injunction for the sole reason that it granted a longer period of restraint than Rule 680 allows. But there are a number of cases decided prior to Rule 680 in which a restraining order of inordinate duration was determined to be appealable. See, e.g., Richardson v. Martin, 127 S.W.2d 247 (Tex.Civ.App.-Waco 1939, writ ref‘d); Barkley v. Conklin, 101 S.W.2d 405, 407 (Tex.Civ.App.-Waco 1937, no writ); Terrell v. Alpha Petroleum Co., 54 S.W.2d 821 (Tex. Civ.App.-Beaumont 1932), aff‘d 122 Tex. 257, 59 S.W.2d 364 (1933). Those cases did not have the benefit of Rule 680‘s fixed deadlines; therefore, they do not provide a standard for distinguishing temporary restraining orders from temporary injunctions based on duration alone.3 Moreover, the issue in those cases was whether a purported temporary restraining order could be appealed; the availability of mandamus was not at issue.
The dissenting opinion‘s view—that a temporary restraining order exceeding Rule 680 time periods is an appealable temporary injunction—would require disapproving Zaffirini, the only Rule 680 deadline case appealed to this Court. But such a holding would not answer whether an appeal is an adequate remedy for a temporary restraining order that violates Rule 680 time limits.
The TNRCC argues, and we agree, that if the order is appealable, even an accelerated appeal would be inadequate because of the need for an expeditious decision. The short duration Rule 680 allows for temporary restraining orders is a critical safeguard against the harm occasioned by
Certainly, a court of appeals may expedite an accelerated appeal even further. In its discretion, the court of appeals may grant temporary orders, shorten the briefing schedule, or allow the case to be submitted without briefs.
Justice BAKER filed a dissenting opinion, in which Justice HANKINSON and Justice O‘NEILL joined.
Justice BAKER filed a dissenting opinion, joined by Justice HANKINSON and Justice O‘NEILL.
I agree with the Court‘s conclusion that the trial court abused its discretion when it extended the temporary restraining order for more than fourteen days. However, I do not agree with the Court‘s decision to grant mandamus relief rather than determine that the TNRCC has an adequate appellate remedy under our jurisprudence. I believe the circumstances here are similar to those in which Texas courts have determined that interlocutory appellate review existed because the challenged “temporary restraining order” effectively operated as a temporary injunction. Rather than holding that the order here is likewise appealable, the Court grants mandamus relief without significantly distinguishing these cases. And, in doing so, the Court blurs the abuse of discretion and inadequate appellate remedy prerequisites for granting mandamus relief. Accordingly, I dissent.
I. APPLICABLE LAW
In reviewing complaints about orders that restrain a party‘s action, Texas courts have repeatedly recognized that the order‘s nature and characteristics, rather than its title, control whether it is a nonappealable temporary restraining order or an appealable temporary injunction. See Global Natural Res. v. Bear, Stearns & Co., 642 S.W.2d 852, 854 (Tex.App.-Dallas 1982, no writ); Plant Process Equip., Inc. v. Harris, 579 S.W.2d 53, 54 (Tex. Civ.App.-Houston [14th Dist.] 1979, no writ); Ellis v. Vanderslice, 486 S.W.2d 155, 159 (Tex.Civ.App.-Dallas 1972, no writ). Indeed, this Court recently reiterated its rejection of the notion that ” ‘matters of form control the nature of the order itself—it is the character and function of an order that determine its classification.’ ” Qwest Communications Corp. v. AT & T, 24 S.W.3d 334, 336 (Tex.2000) (quoting Del Valle, 845 S.W.2d at 809). Consequently, in reviewing a complaint against an order denominated as a “temporary restraining order,” Texas courts have held that, if the order has a similar force and effect as a temporary injunction, it is an appealable order. See Global Natural Res., 642 S.W.2d at 854; Plant Process Equip., 579 S.W.2d at 54; Ellis, 486 S.W.2d at 159.
II. ANALYSIS
The Court recognizes that we have consistently held that whether an order is an appealable temporary injunction depends upon the order‘s characteristics and function and not its title. See 85 S.W.3d at 205 (citing Qwest, 24 S.W.3d at 336; Del Valle, 845 S.W.2d at 809); see also Terrell v. Alpha Petroleum Co., 54 S.W.2d 821 (Tex.Civ.App.-Beaumont 1932), aff‘d, Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364 (1933). Then, the Court acknowledges the types of cases in which Texas courts have determined whether they have interlocutory appellate authority to review an order purporting to be a temporary restraining order.
First, there are the cases holding that an order which supposedly grants a temporary restraining order, but either lasts indefinitely or sets an expiration date longer than what Rule 680 permits, is an appealable temporary injunction. See, e.g., Richardson v. Martin, 127 S.W.2d 247 (Tex.Civ.App.-Waco 1939, writ ref‘d); Prewitt v. Smith, 528 S.W.2d 893 (Tex.Civ.App.-Austin 1975, no writ). Second, there are the cases holding that an order granting a “temporary restraining order” but having the effect of a temporary injunction—either by doing more than maintaining the status quo or issuing relief that the trial court may grant only after hearing and notice—is an appealable temporary injunction. See, e.g., Global Natural Res., 642 S.W.2d at 854; Plant Process Equip., 579 S.W.2d at 54; Ellis, 486 S.W.2d at 159.
Notably missing from the Court‘s writing is any discussion of cases in which courts have exercised mandamus jurisdiction to review a complaint about a temporary restraining order. And, the Court identifies only one case issued after Rule 680 incorporated a time limitation for temporary restraining orders which holds that a temporary restraining order extended beyond the rule‘s time limits was not appealable. Laredo Junior College Dist. v. Zaffirini, 590 S.W.2d 535, 536 (Tex.Civ.App.-San Antonio 1979, writ ref‘d n.r.e.).
In Zaffirini, the court of appeals dismissed for lack of jurisdiction the interloc-
The Court asserts that the district court‘s initial temporary restraining order has the characteristics and function of a temporary restraining order, because it did not alter the status quo, set a hearing for the temporary injunction hearing, and set a time for its own dissolution. But the Court asserts, “[t]he question remains whether the improper extension order converted the temporary restraining order into an appealable temporary injunction.” 85 S.W.3d at 205. The answer, under our jurisprudence and the record, is yes. Once the trial court extended the temporary restraining order contrary to Rule 680, the temporary restraining order did something more than what it was supposed to do. The City of Uncertain‘s trial court petition shows that the relief sought and granted in the extended temporary restraining order is exactly the same relief the City of Uncertain requests for the temporary injunction. Specifically, the extended temporary restraining order prevents the TNRCC‘s amendments to the City of Marshall‘s water rights from becoming effective until the trial court conducts the temporary injunction hearing. The City of Uncertain‘s request for a temporary injunction likewise seeks an order preventing the TNRCC‘s amendments from becoming effective. Furthermore, the extended temporary restraining order enjoined the TNRCC‘s amendments from becoming immediately effective until the TNRCC heard the City of Uncertain‘s motion to overrule those amendments. The record shows that the TNRCC was to hear the motion to overrule before the date of the temporary injunction hearing. Though we do not know how the TNRCC ruled, if it granted the City of Uncertain‘s motion to overrule, then the relief in the improperly extended temporary restraining order also had an effect beyond the temporary injunction hearing‘s date. This is because the City of Uncertain would have obtained all the relief it desired before an evidentiary hearing on the temporary injunction took place. Accordingly, once the trial court extended the temporary restraining order‘s effect beyond the Rule 680‘s time limits, this converted the order to an appealable temporary injunction under our law. See Global Natural Res., 642 S.W.2d at 854; Plant Process Equip., 579 S.W.2d at 54; Ellis, 486 S.W.2d at 159.
The Court contends an appeal is inadequate because of the need for an expeditious decision. It bases this determination on problems the Court speculates may happen when pursuing an accelerated appeal. See 85 S.W.3d at 206 (citing various appellate rules). Certainly, the appellate rules about accelerated and interlocutory appeals do not operate to have effects contrary to their intended purpose—that
Finally, the cases the Court relies upon to suggest the interlocutory appeal process is too slow are inapplicable. In Reagan, nothing suggests the process mooted the interlocutory appeal; rather, the parties’ own conduct did so. See Reagan Nat. Adver. v. Vanderhoof Family Trust, 82 S.W.3d 366 (Tex.App.-Austin 2002, no pet. h.). Further, in Salazar, the court of appeals dismissed an election contest on accelerated appeal as moot, specifically pointing out that the court acted diligently but the appellant moved for an extension of time to file the record. Salazar v. Gonzales, 931 S.W.2d 59, 59-60 (Tex.App.-Corpus Christi 1996, no writ). Notably, neither Reagan nor Salazar indicate that the parties urged the courts of appeals to issue orders to move the appeal along faster, as the courts could have done under the appellate rules discussed above.
In sum, the hurdles the Court identifies are not as insurmountable as the Court contends. Indeed, the numerous cases involving interlocutory appeals challenging orders purporting to be temporary restraining orders, along with the dearth of mandamus cases doing the same, demonstrate that the accelerated appellate system works. The Court criticizes this dissent for not citing cases in which courts have considered or rejected mandamus under these circumstances. 85 S.W.3d at 205 n. 2. How random. This dissent‘s entire thrust is that our jurisprudence shows that courts of appeals have resolved the issue in this case on interlocutory appeal and not by mandamus. In any event, until today, no authority existed to cite, as the Court nonsensically asserts I should.
III. CONCLUSION
A temporary restraining order‘s purpose is to restrain a party‘s action only until a full evidentiary hearing occurs. See Del Valle, 845 S.W.2d at 809. And
The Court should have denied mandamus relief because an adequate appellate remedy exists. Because the Court unnecessarily confuses our law on how parties may seek review of a “temporary restraining order” that effectively functions like a temporary injunction, I dissent.
Michael Gregory ROBLES, Appellant, v. The STATE of Texas.
No. 1305-00.
Court of Criminal Appeals of Texas, En Banc.
May 8, 2002.
Notes
No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk‘s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after signing, not to exceed fourteen days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. No more than one extension may be granted unless subsequent extensions are unopposed. In case a temporary restraining order is granted without notice, the application for a temporary injunction shall be set down for hearing at the earliest possible date and takes precedence of all matters except older matters of the same character; and when the application comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
Every restraining order shall include an order setting a certain date for hearing on the temporary or permanent injunction sought.