Smith & Carlson, P.C. and Craig Carlson v. Ted Smith, Jr.

• Court: Court of Appeals of Texas
• Decided: February 22, 2005
• Docket: 03-05-00002-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-05-00002-CV

Smith & Carlson, P.C. and Craig Carlson, Appellants

v.

Ted Smith, Jr., Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 207702B, HONORABLE ROBERT DOHONEY, JUDGE PRESIDING

MEMORANDUM OPINION

The underlying appeal in this cause is from a temporary injunction. Appellee has

filed a motion to enforce the temporary injunction and for referral of that motion to the trial court.

Appellants oppose that motion and have filed a motion to stay the temporary injunction. It appears

that the circumstances giving rise to the temporary injunction may have changed and that the trial

court is the appropriate body to enforce and/or modify the temporary injunction. The appellate court,

in which an appeal from an interlocutory order is pending, may refer any enforcement proceeding

to the trial court with instructions to hear evidence and grant appropriate relief. See Tex. R. App.

P. 29.4(a); Jano v. State, 795 S.W.2d 47, 48 (Tex. App.—Austin 1990, order) (referring case to trial

court to hear evidence and grant appropriate relief).

Accordingly, we grant appellee’s motion to refer the motion to enforce to the trial

court. Appellee should, if necessary, re-file the motion to enforce in the trial court. Appellants may file a motion to modify the injunction in the trial court if they deem it necessary. We further direct

that the district court may proceed to hear evidence in regard to such motions and may grant such

relief as may be appropriate. The motion to stay the temporary injunction is overruled. This appeal

is abated pending the trial court’s action. The parties should apprise this Court of the status of the

case by April 8, 2005.

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Filed: February 22, 2005