Williams v. City of Tom Bean

688 S.W.2d 618
CourtCourt of Appeals of Texas
DecidedMarch 13, 1985
Docket05-84-00866-CV
StatusPublished
Cited by9 cases

This text of 688 S.W.2d 618 (Williams v. City of Tom Bean) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. City of Tom Bean, 688 S.W.2d 618 (Tex. Ct. App. 1985).

Opinions

WHITHAM, Justice.

Appellant, Joe Williams, appeals a temporary injunction requiring compliance with an ordinance of appellee, City of Tom Bean. We agree with Williams’ contention that the trial court erred in not requiring bond for security in its order granting the temporary injunction. Accordingly, we instruct the trial court to correct such error and we proceed to consider this appeal as if such error had not occurred. Jeffries v. Evans Division Royal Industries, 510 S.W.2d 579 (Tex.1974). Consequently, we address Williams’ remaining point of error and conclude that the trial court did not err in granting a temporary injunction even though the petition for injunction was not verified. Depending upon further record certified to us by the clerk of the trial court in accordance with our instructions, we will either affirm or reverse the trial court’s judgment granting temporary injunction or dismiss this appeal as moot.

TEX.R.CIV.P. 684 provides that “[i]n the order granting any temporary restraining order or temporary injunction, the court shall fix the amount of security to be given by the applicant.” The order granting temporary injunction provides that the city “is not required to file a bond in this matter.” The use of the word “any” in the first sentence of rule 684 would appear to make it mandatory for all persons and entities to make bond before securing a temporary restraining order or a temporary injunction absent a statute, rule, charter provision or ordinance exempting the person or entity. Cone v. City of Lubbock, 431 S.W.2d 639, 646 (Tex.Civ.App.— Amarillo 1968, writ ref’d n.r.e.). At oral argument, the city conceded that it was not a home rule city. Rather, the trial court found that the city was “an incorporated general law city.” We hold, therefore, that the use of the word “any” in the first sentence of rule 684 makes it mandatory for the city to make bond before securing a temporary injunction absent a statutory or rule provision exempting the city. Thus, we must decide whether the city is exempt.

To establish an exemption, the city relies upon the following cases, statutes and rule of civil procedure: Corpus Christi Gas Co. v. City of Corpus Christi, 46 F.2d 962 (5th Cir.1931), cert. denied, 284 U.S. 636, 52 S.Ct. 19, 76 L.Ed. 541; Cone v. City of Lubbock, 431 S.W.2d 639 (Tex.Civ.App.— Amarillo 1968, writ ref'd n.r.e.); West v. Ellis County, 241 S.W.2d 344 (Tex.Civ. App. — Waco 1951, no writ); Smith v. City of Dallas, 36 S.W.2d 547 (Tex.Civ.App.— Texarkana 1931, writ dism’d); Athens Telephone Co. v. City of Athens, 163 S.W. 371 (Tex.Civ.App. — Dallas 1914, writ ref’d); TEX.REV.CIV.STAT.ANN. arts. 279a (Vernon 1963), 1174 (Vernon 1963), and 2072 (Vernon 1964); TEX.R.CIV.P. 684. With the exception of Athens Telephone Co. and West, the cases cited involve home rule cities with city charter provisions providing the exemption. Consequently, we conclude that eases involving home rule cities are not controlling in the present case. West decided that article 279a exempted counties from giving temporary injunction bond be[620]*620cause the statute exempted counties from giving bonds in securing any extraordinary writs. 241 S.W.2d at 346. Article 279a does not refer to cities. Accordingly, we conclude that West is not controlling in the present case. Athens Telephone Co. involved a city incorporated under the general laws. Tex.Rev.Civ.Stat. art. 768 repealed by Act of 1926, ch. 16, 30, Tex.Gen. Laws, Local & Spec. 23, provided that “[i]t shall not be necessary in any action, suit or proceeding in which the city, accepting the provisions of this title, shall be a party, for any bond, undertaking or security to be executed in behalf of the city.” Based on that statute, Athens Telephone Co. held that the city was exempt from giving a temporary injunction bond. Article 768, however, was replaced by present TEX. REV.CIV.STAT.ANN. art. 2072. As pointed out in Cone:

Art. 2072, Revised Statutes, 1925, superseded Art. 768 and provides only that “security for costs shall not be required of the State or any incorporated city or town in any action, suit or proceeding, * * * ” leaving out the exemption from bond in injunctions.

431 S.W.2d at 645 (emphasis in original). We conclude that Cone properly recognized the distinction between an exemption from giving security for costs and an exemption from giving security to the adverse party before issuance of a temporary injunction. Therefore, inasmuch as the statutory basis for the exemption found for a city incorporated under the general laws no longer exists, we conclude that Athens Telephone Co. is not controlling in the present case. Thus, we conclude that none of the cases relied on by the city exempt the city from giving bond for security before issuance of the temporary injunction.

We turn then to consider the statutory and rule provisions relied upon to exempt the city. The city points to rule 684 and to TEX.REY.CIV.STAT.ANN. arts. 279a, 1174, and 2072 as containing the required exemption. As to rule 684, we find no exemption for the city in our reading of the rule. Moreover, Cone found no exemption for a city in the statute which was the source of rule 684. Tex.Rev.Civ.Stat.Ann. art. 4649 repealed by Act of 1939, ch. 25, 1 Tex.Gen.Laws Local & Spec. 201, was the source of rule 684. In Cone it was held that article 4649 afforded no exemption for a city:

Under title 76 Injunctions, V.T.C.S., Art. 4649 provides, inter alia, “ * * * before the issuance of the writ of injunction, the complainant shall execute and file with the clerk a bond to the adverse party * * conditioned * * * that he will pay all sums of money and costs that may be adjudged against him if the injunction be dissolved in whole or in part.” No exemption is provided for a city in Art. 4649.

431 S.W.2d at 645.

Likewise, as shown in the above quotation, Cone held that article 2072 provided no exemption for a city. Consequently, we conclude that neither rule 684 nor article 2072 afford exemption to the city. As to article 1174, that statute pertains to home rule cities and provides that “[a]ll cities may institute and prosecute suits without giving security for cost and may appeal from judgment without giving supersedeas or cost bond.” Since article 1174 is applicable only to home rule cities, we conclude that article 1174 is not controlling in the present case. Accordingly, we conclude that article 1174 affords no exemption to the city in the present case. Moreover, since article 279a does not refer to cities, we conclude that article 279a affords no exemption to the city in the present case.

It follows, and we so hold, that rule 684 and articles 279a, 1174, and 2072 do not provide exemption from that bond to the adverse party required by rule 684:

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Williams v. City of Tom Bean
688 S.W.2d 618 (Court of Appeals of Texas, 1985)

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Bluebook (online)
688 S.W.2d 618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-city-of-tom-bean-texapp-1985.