*2 constituted a clear HOWELL, the action whether Before THOMAS Films Inc. v. OVARD, of discretion. Janus abuse JJ. Worth, 616, 617, City Fort hearing 163 Tex. 358 to a full on the merits real 589, (1962) (temporary injunc fact, S.W.2d patently to eliminate un- issue but tion); Mejerle v. Brookhollow Prod meritorious claims and untenable defenses. Office ucts, 192, (Tex.App.—Dal Penn, Gulbenkian v. 151 Tex. writ) (temporary injunction); las *3 929, (1952). 252 931 Under rule S.W.2d Powell, Sys. Corp. Electronic Data v. 508 Procedure, 166a of the Texas Rules of Civil 137, (Tex.Civ.App.—Dallas S.W.2d 139 summary judgment may only be rendered 1974, writ) no (temporary injunction, but admissions, pleadings, depositions, if the suggesting that abuse of discretion stan answers, interrogatory and affidavits show applies Lee v. injunctions); dard to all 1) genuine any that there is no issue as to Bowles, 923, (Tex.Civ.App. 397 S.W.2d 926 2) material fact and moving party 1965, writ) (permanent —San Antonio no is entitled to as a matter of law. injunction). conclusively Where the facts 166a(c). TEX.R.CIV.P. party violating a show the substantive applicable reviewing The standards a duty law it becomes the of the court summary judment may summarized as enjoin the violation and in such case there follows:- City is no discretion to be exercised. of 1. The movant for Co., Houston v. Memorial Bend Util. 331 has the of that there is burden 418, (Tex.Civ.App.—Houston S.W.2d 422 genuine issue of material and fact 1960, n.r.e.). writ ref’d judment that it is entitled to as a matter Although litigant right a has the of law. action, by jury injunction a trial in only an deciding 2. there is a dis- whether ultimate of issues fact are submitted for puted precluding material fact issue sum- jury determination. State v. Texas Pet mary judgment, evidence favorable to Foods, Inc., 800, (Tex.1979). 591 S.W.2d 803 taken nonmovant will be as true. jury expedien does not determine the Every 3. reasonable inference must be cy, necessity propriety equitable or of re indulged in favor of the nonmovant and Id.; Alamo Co. v. San Antonio lief. Title in Ass’n, doubts resolved its favor. Bar 814, (Tex.Civ. 360 S.W.2d 816 1962, n.r.e.). App.—Waco writ ref d As the Co., Property Management Nixon v. Mr. supreme court has noted: 546, (Tex.1985); Mont- 690 548-49 S.W.2d question We do not consider the of likeli- 309, gomery Kennedy, 310- resumption hood of or con- [defendant’s] (Tex.1984). With the standards of re- enjoined being tinuation of acts an summary judg- view for and for jury.... ultimate issue of fact for the A mind, in ment we turn to the jury equity, sys- even under a blended judgment proof support offered in of tem, expedi- does not decide the issue of Agriculture Priest’s violations of the Texas ency, necessity propriety equitable or Code. It relief.... was an element deducible from the circumstances for the court to FAILURE TO KEEP PROPER determining wrong consider in whether RECORDS injury might anticipated or and wheth- Agriculture Texas Code re chancery powers er should be exercised. quires that auction commis each livestock here, effect, It constituted a mixed transporta keep sion merchant a record of question of and fact at most. Such law place tion of livestock to and from the injunc- questions jury are not for the sale, including the name and address tion cases. original purchaser owner and the Foods, 803, quot- Texas Pet 591 S.W.2d at ANN. livestock. TEX.AGRIC.CODE Co., ing Alamo Title S.W.2d at 816. (Vernon 1982). pro 147.042 The statute § Summary Judgment B. merchant shall vides that the commission year the records for at least one summary judg
The function of a retain 147.042(d). Id. deprive litigant right after the date of sale. ment is not to a his § cer- Company, Inc. Zandt Commission points [a also to section The Commission be- of sales were The dates Agriculture Texas tain 147.041of the date].” December 85.2(e) January Brucel- 1986 and of the Texas Bovine to rule tween interrogato- to the Regulations promulgated answers losis 1986. Priest’s to sections 161.046 and on June pursuant mission on counsel ries were served Code, as Texas responses 163.061 of the to a number Priest’s 1988. keep name, Priest records requiring address included interrogatories pur- and addresses of sellers names number number and box including route requires Section 147.041 chasers of cattle. state, zip code. address, city and street sold. keep records of all livestock Priest to included interrogatory answers Several 147.041(a). It TEX.AGRIC.CODEANN. state, number, city and but and route name *4 that Priest must explicitly does not state zip code. and not include a box number did keep including records the name and ad- state, name, city a and included Others purchasers sellers and of live- dress of inter- merely response In to one a name. stock, although requires him to the statute and address rogatory asking for the name quar- a file with the commissioners court tag seller/original of back owner terly report containing this information. through Van Zandt Commis- #74 493 sold 147.041(c). ANN. TEX.AGRIC.CODE § 22, 1986, Company on November sion specifically Because the statute does not not avail- responded, “Information Priest require keep Priest to the information postmaster and The affidavit of the able.” keep, he failed to we Commission contends Manual excerpts from the Government provision that violation of this will conclude proper of a ad- concerning the elements 35.2(e) support injunction. not Rule the infor- offered to show that dress were provides supply that the market will cer- not, many provided by Priest did mation making tain information the veterinarian full and address- respects, constitute names cattle, including the full a market test of es. address, code, including zip name and theory summary Commission’s the cattle at the time the the owner of inability pro- judgment that Priest’s was Again, cattle delivered to the market. are respons- addresses for his duce names and although certainly implies the rule a re- that, interrogatories proof to the es quirement keep sup- records in order to law, keep the Priest did not a matter veterinarian, ply the information to the by Agriculture Code. required records explicit requirement there is no that Priest compelling, except for hypothesis is records. The Commission has keep such required failing. The one alleged give the not that Priest failed to only records from sales for Priest to retain required information to the veterinarian. ANN. year. TEX.AGRIC.CODE one 35.2(e) sup- of rule will not violation 147.042(d). Priest could The fact that port injunction. 1988, 17, produce information on June not keep proof that Priest failed to As concerning constitutes sales including the name and address of records keep the records Priest failed to proof that original purchaser, and the owner required by the year as of sale for one attached to its motion for sum- Commission fact, stated in his affidavit Priest Code. inter- mary judgment Priest’s answers to proper always maintained that he has Rogers, a Wayne rogatories, an affidavit nonmov- statements of the records. Such excerpts from the United postmaster, Nixon, 690 taken as true. ant must be pertaining to Manual States Government at 548. S.W.2d on Priest The Commission served mail. Priest did not recognize that We sixty interrogatories. The sets of two response argument in his precise raise this each asked Priest in the two sets questions in his summary judgment, nor brief name, including full address to: “Provide however, point note, this appeal. We for sell- county telephone number Priest is deficiency proof identi- concerns cattle er/original owner of [certain complaining first to raise without entitled by tag sold Van fied back number] 878 response summary argues his to the motion for Priest that Hanson’s affidavit
judgment.
response
summary
No
from the nonmov-
support
will not
be-
required
ant is
when the movant’s summa-
cause Hanson is an interested witness.
ry judgment proof
legally
insufficient. Rule 166a of the Texas Rules of Civil Pro-
Investments,
Cove
Manges,
Inc. v.
602
provides
cedure
that a
(Tex.1980). Further,
S.W.2d
may
based on uncontroverted evidence
points
Priest’s
of error aver generally that
of an interested
if the evidence is
witness
granting
the trial court erred in
the sum-
clear,
direct,
positive
credi-
otherwise
mary judgment because the Commission
and free from contradictions and incon-
ble
prove
judg-
failed to
its entitlement to such
sistencies,
readily
and could have been
con-
points
ment. These
embrace all reasons
166a(c); Repub-
troverted. TEX.R.CIV.P.
proof
for the failure of
which rendered the
Schindler,
Corp.
Leasing
lic Nat’l
granting
summary judgment improp-
(Tex.1986).
S.W.2d
We conclude
er.
at
517. We hold that the
Id.
that the statements in Hanson’s affidavit
judgment proof failed to
establish
that on several listed dates he was refused
summary judg-
mission’s entitlement
by
access to records
Priest and his wife are
ment on the
of a
basis
failure
Priest to clear, positive, direct and could have been
proper
proof
maintain
records. Without
Further,
readily controverted.
this evi-
*5
proof
unlawful conduct or
of intent to com-
by
dence was not
Priest.
controverted
conduct, injunctive
mit such
relief
im-
the
judgment could be
proper. Frey,
ies of all or thereof referred HOWELL, J., dissents. thereto an affidavit shall be attached HOWELL, Justice, dissenting. Priest does not con- served therewith. to Na- majority opinion tend that the documents attached I The not dissent. will together bors’s affidavit were not served up analysis. stand to close with Ptaeek’s affidavit when Commis- (1) majority by affirming concludes sion’s motion for grounds that “the trial court did not served. wrong test has abuse its discretion.” Summary judgment Having parts applied. determined what will not been summary judgment proof may con lie unless the movant shows his entitlement sidered, sufficiency we turn now to the thereto matter law. It is error to as a ani proof. Nabors stated two award an positive judgment process mals from the Malouf herd tested unless the movant’s brucellosis, con proof wholly and were therefore is such that the trial court is Only The test results show the sum- sidered reactors. without discretion. where *7 mary judgment that the test conducted at Priest’s fa evidence is such that it Further, per Ptacek stated that he that the denial of relief cility. demonstrates observed, sonally may at the Van Zandt Com of discretion would be a clear abuse Company, suspect permanent injunction cattle that were entered in re- mission being sponse summary judgment. moved without first branded “S”. to a motion for Otherwise, hand, as in the case at the mov- summary judgment that the We conclude his to show that he ant has not met burden sus- proof showed that Priest had moved recover, entitled to as a matter of law. branding the cattle pect cattle without first required by (2) outset, the Tex- majority the letter “S” as the recites a with At the Regulations promul- satisfy Brucellosis must as Bovine four-fold test that the movant gated by injunction. the the Com- permanent Commission. in order to obtain a being entitlement to sum- mission established its assume for the time This dissent will ground as a matter mary judgment sufficiently proved on this the exist- that the State However, the of law. ence of unlawful conduct. any showing upon the record is bereft of SUMMARY harm, elements, ir- imminent other three adequate remedy reparable injury, and properly the trial court We hold that declaring firmly After that such a judgment concluding at law. granted the required, majority the has no showing is to allow Commis- that Priest had refused failure to make a comment on the State’s representatives to examine records sion three latter elements the suspect cattle that Priest had allowed requirements of law as (and so) the same correctly subject to to which it has held very should be necessary. private individuals. We question statutes in to read into the slow (3) majority injunction declares that in favor of the Com- any special provisions discretionary remedy is a that declares mission. appellate question review is “limited to the whether the action constituted a clear is, by the statutes invoked The first of However, all of the abuse discretion.” far, application. specific in its the most cases cited involved the issuance of an in- of the Texas Section 161.131 junction following a trial on the merits. As may provides “any that citizen” sue stated, already in order to fulfill the sum- chapter.” “this enjoin to violations of Tex. requirement mary judgment that the mov- Agric.Code 161.131(a) (Vernon Ann. ant show himself entitled to “as However, 1982). if that stat- it is doubtful law,” the movant must a matter have express- it any application ute has because to the trial it demonstrated court that was G, ly exempts subchapter being sections deny injunction.1 without discretion to the “Regula- through 161.116 161.111 entitled plaintiff by It is rare that a motion appears It tion of Livestock Markets.” meet, as a is able to majority found the violations law, rigorous matter of demands injunction fall within the simply do not equity must an which be satisfied before provision of the code. may Equitable issue. relief is Seemingly, the Commission would side- discretionary relief. The trial court must step problem by arguing this that it seeks engage balancing equities. in a (which enjoin rules do violations its ordinary instance, applicant must nothing parrot provi- little or more than plead prove adequate that he has no statutes) sions of the rather than violations not, remedy Equity at law. will pertaining of the statute to “Livestock instance, ordinary engage in the enforce- How- Markets.” Id. 161.111-161.116. §§ ment of criminal It law. is further well ever, that an administra- it well settled equity that he established who seeks must agency power adopt tive has no rules equity, equity vigilant, do aids the meaning plain that defeat the of statutes. equity thing, not do a will vain useless restitution, equity only and that exacts nev- rule-making When search for the au- we vengeance. er Commission, thority of the we find that grants statutes contain several plaintiff appears rely Commission authority promulgate rules. mission exemption on two statutes for from the all, subchapter exempted First of con- principles equity ordinarily applicable authority. 161.- rule-making tains Id. §§ ex- cases such as this. Neither statute However, if there is no au- 111—161.116. pressly entitles state officials or state *8 by injunction, thority to enforce the statute equitable except in agencies to relief com- authority by enforce there can be no to pliance general applica- with the rules of injunction rule-making authority con- the principle tion. It is a established well all, state, in the same statute. After wa- agencies, and its officials en- tained the its higher and ter can rise no than its source. litigate ter court and on the same basis charging majority con its unlawful rates unless restrained.' The states that "where the facts 1. valid, court, violating clusively party finding the appellate show a is substan ordinance The the duty to tive law it becomes the enjoin of the court a clear abuse held that the trial court committed violation,” citing City Houston v. injunction. refusing temporary a of discretion in Co., Util. Memorial Bend only Laying the fact the Memorial Bend aside (Tex.Civ.App. writ [1st Dist.] injunction, — Houston temporary are a there involved However, n.r.e.). reading a of Memorial refd hand, partic many from the case at differences too Bend reveals that its declaration was far ularly respect proof to that the defendant's with case, utility company a unilater broad. ally unless en would continue unlawful conduct monthly rates in violation of a increased its irreparable joined a and the lack of utility gave city ordinance. The defendant valid injury. every intended to continue indication that it parts general application Other of the and that we must chapter same describe broad Commission, powers any special import and duties of the indeed to into it be slow State, provisions part and contain additional authoriz- its prerogatives on the ing entry granting making power. officials, agencies injunc- rule and its to obtain provisions There are also outside of the this latter tive relief. We must hold that exempted subchapter relating inspec- to the general more a state- statute is no than tion, treatment, quarantine, and sale or State, agen- principle that the its ment of marketing of diseased animals. cies, injunc- employees may and its obtain equity usages relief tive wherever Code, chapter Another entitled forged injunc- out the centuries make over Merchants,” “Livestock Commission con- appropriate. relief available and tive tains, among things, record-keeping other Id. §§ inspection provisions. 147.001- cannot, analysis by any foregoing The (Vernon Supp.1989). 147.065 1982 & Vernon means, interpreted holding be as a chapter Still another entitled “Brucellosis preclude the just statutes discussed Areas,” through Control sections 163.001 injunctive mission from relief. Sections 163.087, provisions contains further relat- through the Texas 65.001 65.031 of Civil ing rule-making, entry, reports, testing, generally reg- Practice and Remedies Code branding, handling of diseased ani- availability injunction for all ulate the (Vernon Id. mals. 163.001-163.087 §§ litigants. Tex.Civ.PRAC. & Rem.Code Ann. Supp.1989). & Vernon (Vernon 1986); see also 65.001-65.031 §§ apparently argue analysis of the in- Commission would Tex.R.Civ.P. 693. This junction point that the rules which it relies were not statutes returns to the from No, promulgated authority under of section departed. which it this defendant and 161.112, chapter” portion a of “this operations its as a livestock commission provision expressly which the is wholly exempt being market are not from Presumably, argument inapplicable. injunc- through forced the issuance of an adopted that the rules were under authori- comply tion to with the Code. zations found elsewhere sections 161.- Yes, from by the writ is available on suit 111 through 161.116 and that the rules are However, Commission. the Commission no-injunction therefore not affected enters the courts of this State on the same 161.131(a). proviso of section any litigant, being other neither basis injunctive more entitled nor less entitled to easy argument answer to this is that than other citizen. relief specific general. controls over the In- statutory expressly scheme asmuch as the made to the One reservation must be injunction provision inapplicable makes the foregoing A state official or statement. rule to “Livestock Markets” and to the agency exacting cannot held to the stan making authority pertaining “Livestock irreparable injury pri dard of which Markets,” we must hold that the Commis- litigant generally held. Where a vate statutory may the clear sion not subvert charged public expressly official is with the adoption of rules command scheme, regulatory if we enforcement of a Markets” on the pertaining to “Livestock irreparable he show were to hold that must authority generalized rule-making basis of himself, property to state or to injury to Any in the Code. oth- contained elsewhere treasury, obviously we would state operates nullify a clear er construction State, denying the and those effectively *9 Tex.Agric. legislative intent. declaration of act, injunctive through it must of whom 161.131(a) (Vernon 1982). § Ann. virtually irrepara all The relief in cases. satisfied on be injury requirement in- statutory authorization for ble The other shows the threat of the State when it upon the Commission half junctive relief which clear, injury, immediate and substantial in Administra- of rely is contained would nature, protected to the irreparable Register Texas Act. of an Procedure and tive 6252-13a, group through viola specific or to a 19A class art. Tex.Rev.Civ.Stat.Ann. regulatory provision which tion of the (Vernon This statute has such Supp.1989). unlikely, did the tri- were charged by law future violations agency officer or State discretion, after the irreparable injury possess to enforce. er of fact in the case of requirement injunctive was satisfied relief hearing, deny plenary Comm’n, Animal Health course, By Gluck v. Texas he did. Of the Commission? (Tex.Civ.App. measure, enter a it error to same was — San In that n.r.e.). Antonio writ ref’d It is not in this case. case, his refused to allow the landowner summary judgment to substi- of the office The cattle to be tested for brucellosis. upon for trial by affidavit tute trial injunction via motion trial court issued an sides. for both merits live witnesses with summary judgment. appellate judgment is limited The office of “[Irreparable harm would court affirmed: patently unmeritorious of to the elimination Frio industry threatened to the cattle of claims. appellant compelled to County if cannot be against defen- found The other violation comply An of with the statute.” outbreak containing two dis- that a herd dant was then manifest in the area the disease was through defendant’s passed animals eased being mandatorily and all herds were test in being branded accord- premises without spread In of the ed. order to control and statutes. How- ance with the rules infection, widespread test immediate and ever, Gluck, question in unlike the cattle imperative. irreparable injury ing was premises gone from defendant’s requirement was satisfied. Id. had far summary judgment was rendered. when Having principles upon outlined the naught enjoin Our trial court could do but decided, this case should be this dis- which of a similar nature. How- future conduct specifics. majority sent turns to the Our ever, any no claim of continued there was found that the defendant committed has activity, defendant pattern of no claim that of the On two violations Code. sold routinely allowed diseased cattle occasions, al- several defendant refused to defen- through premises, his or even that inspection by of his records low Commis- authority personnel. anyone sion Proof that the infraction dant or in at defendant’s repeated question occurred and that it was does not premises knew that the cattle necessarily prove irreparable injury. subject to the disease or were either showing fact there was no that defendant suspects. they had not been branded attempting to hide the fact that he was that the statute It is not to be doubted dealing in engaged practice in the dis- duties on a livestock imposes affirmative cattle, if real eased such be the contention operator. He has the affirmative market By plaintiff Commission. his affida- duty it that diseased cattle are not to see to vit, following defendant has offered the premises his violation sold explanation of his conduct: However, in the absence some the law. previously I understood from other have showing duty, in the ab- of dereliction they livestock owners that were barn threat of of some sence revealing sued animal owners sort, the trial future of the same violations producing records. I now understand hearing in full court after the evidence public in nature that such records are upon this count. deny injunctive must relief produced at all times and must be prima not made facie The Commission has request_ I no intention of vio- have entitlement to an proof of its of Texas in lating the laws of the State single past proving one incident simply by the future. culpability and offering no evidence of summary judgment, the trial court By its of recurrence. likelihood no evidence opportunity deprived defendant of the has remedy and must be Injunction is a harsh testimony person to the present his proper carefully regulated and confined of fact believed trier of fact. Had trier Searles, 302 S.W.2d cases. Raine credible, sincere and that defendant was 1957, writ). (Tex.Civ.App. Paso that no harm the trier of fact decided *10 had — El prevent im only issued to done, Injunctions are the trier of fact decided that had
884 Worldwide, Lloyd v. Alaska doing adequate minent harm. reasons so. Without an Inc., 343, injunction (Tex.Civ.App.— explanation, 550 S.W.2d 348 must be denied. 1977, writ). In Dallas no the absence of a Again, objective equity of restitu- showing complained proba that the acts of tion, vengeance. not For the refusal bly again, occurring prior occur will acts inspection upon allow the of records re- injunc- the suit will not furnish a basis for law, quest, required by singu- a fine is a relief. Edgar v. Turner Glenn W. tive larly appropriate remedy. Why did the Enterprises, 487 S.W.2d 847, (Tex.Civ. forgo plain appar- Commission such a Knopf 1972, writ); see v. App. no — Austin ently adequate remedy? The record is en- Co., 504, Standard Fixtures 581 S.W.2d Likewise, tirely silent. isolated instances 1979, writ); (Tex.Civ.App. no — Dallas misbranding of can be addressed Hackett, v. 389, Burklund 575 S.W.2d 392 criminal and unless the law. Until 1978, writ). (Tex.Civ.App. Tyler no — explains adequately mission its failure to purpose injunctive of relief is to halt remedies, injunction seek these must be wrongful acts that are threatened or in the denied. accomplishment, course of rather than to giv- I therefore dissent. For the reasons grant against past wrongs relief actionable en, this case must be reversed remand- prevent wrongs or to the commission of not upon ed for trial its merits. Employ Texas imminently threatened. Martinez, ment Comm’n v. (Tex.Civ.App. Paso — El
writ). merits,
At the trial the Commis- present
sion will further be burdened to adequate remedy
evidence that it has no at corollary provides A law. to this rule REYNOSA, al., Relators, Alfredo et remedy is not available prevent violations of the criminal law. Each of the infractions which defendant SEGALL, Hon. Scott Jail enjoined punishable has been as a misde- Magistrate, Respondent. addition, meanor. sections 147.021 No. 08-89-00329-CR. 147.029 of the Texas, require provide Appeals defendant a bond. Suit Court El on the is an recourse with Paso. bond available some, all, respect if of the infrac- not Nov. 1989. Tex.AgRic.Code alleged. tions here Ann. (Vernon 1982). 147.021-147.029
§§ and received in-
Commission has asked for
junctive it relief without sought statutory remedies or
ever these they not effectual. Without
why would showing, not
such a the Commission is injunctive
entitled to relief. contrary.
Gluck does not hold to the
The real thrust of Gluck is that the imme- ongoing spread
diacy of the situation —the epidemic required an relief that — expeditiously pro-
criminal could not law ruling, Gluck made If broader it
vide. If the
should be disavowed. Commission bypass the remedies set forth on
desires to statute, explain its face it must