in Re George Green and Garlan Green

Opinion

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 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

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