Robert M. Moore, lawyers in Galveston, TX, Texas

A Member of the Texas Stare Bar Association, Houston Bar Association, Galveston County Bar Association, Texas Trial Lawyers Association, American Trial Lawyers Association; Texas A&M, B.A. in Economics (1956); South Texas College of Law (1963); author of "Release or Covenant: Word or Intent," 7 S. Tex. L.J. 134, which received the annual award of the Leading Student Article in the Filed of Contracts; specializes in the field of civil and criminal trial procedure. Assisted by Rex Shaver, student at South Texas College of Law.

The humdrum pace of a trial lawyer's life quickens to that of a blitzkrieg when he becomes involved in securing injunctive relief for his client, or is asked to defend a client who is being used for injunctive relief. His life style alters radically, as long hours and days without sleep become routine, for injunctive relief, or a defense against the same, is most often a race against time. Success in the use of this unique legal tool, or the defense against possible injunctive orders, requires not only the best elements of an advocate's temperament, but the ability to move with lighting speed through the complex factual and legal maze whish ever threatens to thwart the objective. Full knowledge of the broad spectrum of the law concerning this hybrid legal tool is the first step on a long road which one must journey in order to win the relief sought. It is with the thought of assisting fellow advocates in this process that this article is presented.

An injunction is a from of equitable relief granted by a court of chancery to prevent irreparable injury as the consequence of an unlawful act for with the common law courts offer no relief, or at least no adequate relief.¹ The injunction has also been defined as an equitable remedy, designed primarily to grant relief against a threatened violation of a legal right when legal remedies are inadequate, which may be granted either by express provision of a statute or by the application of general equitable principles.² Courts may also issue an injunction as a remedial writ for the purpose of enforcing their equitable jurisdiction.³

Whether or not to grant injunctive relief (and the scope of any injunction granted) is, for the greatest part, within the broad discretion of the trial court.⁴ The decision of the trial court to grant or deny an injunction and the scope of any injunction issued will not be disturbed on appeal absent a showing of a clear abuse of discretion.⁵ However, where the facts and the law are undisputed in the trial court, the trial court does not have the option to exercise its discretion and must apply the law to the facts.⁶ But when there is only a question of law for the trail court, the Supreme Court has indicated that the trial court may enter an injunction at its discretion regardless of whether the rule of law so applied was correct.⁷ However, the trial court may not enter a temporary injunction solely on a finding of law that a particular statute or ordinance is unconstitutional.⁸

The remedy of injunction acts not in rem, i.e., against the defendant's property, as does a judgment, but rather it acts in personam, i.e., against the person of the defendant.⁹

temporary restraining orders (TRO)
temporary injunctions, also called interlocutory injunctions,
permanent injunctions, also called perpetual injunctions.

While the three types of injunctions often appear to be quite similar in application and effect, they each serve a separate function and have different requirements for hearing, issuance, and dissolution.¹⁰ Temporary restraining orders only operate pending a hearing on an application for a temporary injunction and expire automatically on the date set for such hearing. Temporary injunctions operate until final judgement unless dissolved by a further order. Permanent injunctions are the restraining provisions of a final judgement, and when granted, become part of the final judgment sought by the suit.¹¹

While there is a distinction between a temporary injunction and a temporary restraining order as to when the particular order expires, the effect of the two orders is otherwise identical in that each restrains the defendant under the time frame set out in the Fiat or Order. The two terms are often used interchangeably or synonymously to denote an injunction for only a short period of time.¹²

The temporary restraining order is issued without notice to maintain the status quo of the subject matter of the suit until notice and a preliminary hearing may be had upon the application for temporary injunction. Then, if the temporary injunction is granted after the hearing, the status quo is continued until a final hearing on the merits.¹³

Rule 680 sets out the requirements that must be complied with in order to obtain a Temporary Restraining Order.¹⁴ You may or may not want to apply for the TRO depending on the facts of your particular case. If you apply for a TRO, and the trial judge should deny your request, you may unnecessarily tip your hand to the opposition. Your case must be clear and obvious to the judge in your pleadings and affidavits, as courts are jealous in protecting the defendant who has no lawyer and no notice. But if you can, you should press for the TRO, provided the facts, the law, and your client's needs are all clearly favorable for you to do so.

On two days' notice to the party who obtained the temporary restraining order without notice or on a shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

This provision of Rule 680 is too often overlooked by even the most skillful trial lawyer. It is a delaying technique that affords him more time for the preparation of his case for the hearing on the temporary injunction. When a court grants a TRO, it must set the hearing on the temporary injunction within a ten-day period. Can you imagine the extreme pressure immediately placed on an active trial lawyer when hired to prepare a defense with no more than ten days' notice?¹⁵

By consenting to an extension of the TRO or by attempting to modify the TRO to such a degree that the client will not be harmed by consenting to such an extension, the lawyer defending an action at the hearing on the Temporary Injunction may obtain the crucial time needed to prepare a much better defense. Conversely, the plaintiff's attorney should continually press for the hearing at the time first set by the Court, and against any such extension of the TRO, in order to take advantage of the time "jump" that he has on his opponent.¹⁶

Rule 680 must be substantially complied with: when a trial court grants a TRO which does not conform to the requirements of Rule 680, there is an "abuse of discretion," and such action will be reversed.¹⁷ An application for a TRO is addressed to the good judgment and discretion of the court.¹⁸

While a TRO may be granted without notice to the defendants, Rule 681 specifically provides that "no temporary injunction shall be issued without notice to the adverse party." The courts have held that the rule requiring that no temporary injunction be issued without notice to the adverse parties implies that an adequate opportunity to be heard must be given to the adverse party.¹⁹ Thus, a trial court is not authorized to enter an order of temporary injunction against a party before that party has had an opportunity to present its defenses and has rested its case.²⁰

The proper function of a temporary injunction is to preserve the status quo pending final adjudication.²¹ Such a provisional remedy prevents the doing of an allegedly unlawful or wrongful act during the pendency of proceedings seeking permanent relief, and if allowed by the court, should preserve the subject matter in controversy as it existed at the time the suit was instituted.²² The status quo which is preserved is the last actual, peaceful, and noncontested status which preceded the pending controversy.²³ The temporary injunction should not be granted when the effect of doing so would be to determine the rights of the parties without trial.²⁴ The rights of the parties are not concluded by the granting of a temporary injunction, but remain for determination at a final hearing.²⁵ If the effect of granting the temporary injunction does more than preserve the status quo and accomplishes the whole object of the suit, it is improper for a court to grant the injunction.²⁶

The temporary injunction may be issued in a suit where the final relief sought is a perpetual injunction, but use of the temporary injunction is not restricted to such injunctive suits.²⁷

It is generally held that the prerequisites for the granting of a temporary injunction are:

a substantial likelihood that the plaintiff will prevail on the merits²⁸ (this is not as great a "burden of proof" as "by a preponderance of the evidence");
a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted;²⁹
a determination that the threatened injury to the plaintiff outweighs the threatened harm to the defendant by the injunction:³⁰ and
a determination that granting the temporary injunction will not disserve the public interest.³¹

Once these prerequisites have been established, the trial court has broad discretion in determining whether to issue a temporary injunction, and its judgment will not be overturned unless there is a finding of a clear abuse of discretion.³²

Injunctions may also be classified as to the conduct required of the defendant. An injunction may be prohibitory or mandatory. The prohibitory injunction forbids certain conduct by the defendant, while the mandatory injunction requires some affirmative conduct on the part of the defendant.

A prohibitory injunction may be issued without a final hearing on the merits, but only in situations of pressing necessity to prevent serious damages which would follow the denial of such a writ, or when necessary to effectuate a decree.³³ Before a mandatory injunction may issue, however, the case must be shown to be very strong and urgent, and the plaintiff must be without an adequate remedy by law.³⁴ In addition, there must be a showing of a clear right, and a case of necessity or extreme hardship.³⁵ When such an order is issued, it must be shown to prevent a serious injury which is not compensable by money damages.³⁶

As a general rule, a mandatory injunction will not be granted before a final hearing. However, the trial court has the power to make an exception to this rule when the circumstances justify issuing a temporary mandatory injunction.³⁷ It has been held that the justification for such an exception exists where the status quo is a condition of rest, and not of action, and the continuation of the condition of rest would cause irreparable injury.³⁸ For example, an ex parte temporary mandatory injunction requiring a pipe line company to receive and transport oil tendered by the plaintiff has been upheld.³⁹ Under the same exception, telephone companies have been required by ex parte temporary mandatory injunctions to give telephone service to those offering to pay the contract price.⁴⁰ A mandatory injunction will not be granted where a prohibitory writ is sufficient or where the applicant could have obtained a writ of prohibition but neglected to do so.⁴¹ Thus, the courts view relief by way of mandatory injunction as a harsh remedy that is used only in special circumstances.⁴²

The statutory requirements for jurisdiction are found in Tex. Rev. Civ. Stat. Ann. Art. 4656.⁴³ This article reads in part: "writs of injunction---shall be returnable to and tried in the district or county court---according as the amount or matter in controversy comes within the jurisdiction of either of said courts." (emphasis added) Ex parte Bryant⁴⁴ held that the matter in controversy and the amount in controversy are not separate categories for determining jurisdiction but are in fact used interchangeably.⁴⁵ This decision of the Texas Supreme Court seems difficult, if not impossible to reconcile with previous holdings of the Court. In Coughran v. Nunez,⁴⁶ the Court held that if injunctive relief involves title to land, the county court has no jurisdiction regardless of the amount of controversy. Under the Texas Constitution in ar. V, � 8, the district court would have exclusive jurisdiction to grant a writ of injunction in "all suits for trial of title to land and for enforcement of lien thereon."⁴⁷ The Court has also held that, even when the amount in controversy is within its jurisdiction, a justice of the peace court may not issue an injunction.⁴⁸

Generally, then, the jurisdiction to issue writs of injunction will depend on the amount in controversy. Under the Texas Constitution, the county courts have "exclusive jurisdiction in all cases when the matter in controversy shall exceed in value $200, and not exceed $500, exclusive of internal and concurrent jurisdiction with the district court when the matter in controversy shall exceed $500 and not exceed $1,000, exclusive of interest."⁴⁹ Where the amount in controversy is within the exclusive jurisdiction of the county court, it has exclusive jurisdiction to issue writs of injunction.⁵⁰ County Courts at Law also have jurisdiction to issue writs of injunction.⁵¹

The district court has exclusive jurisdiction where the amount in controversy exceeds $5,000 in counties where county courts at law have been established and $1,000 in counties where only county courts exist. Where there is no amount in controversy and exclusive jurisdiction over the matter in controversy has not been given to another court, the district court would have exclusive jurisdiction to issue writs of injunction.⁵²

The statutory requirements for venue in suits for injunction are contained in Tex. Rev. Civ. Stat. Ann. Art. 4656. This article provides that:

writs of injunction granted to stay proceedings in a suit, or execution on a judgement shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered;
writs of injunction for other causes, if the defendant resides in Texas, shall be tried in the county in which the defendant has been domiciled; i
f there is more than one party against whom a writ is granted, it may be tried in the proper court of the county where either may have his domicile.⁵³

The sections of this article which provide that writs of injunction shall be returnable to and tried in the district or county court of the county in which the party sought to be enjoined has his domicile ware mandatory venue provision; when injunctive relief is the principal relief sought, such provisions take precedence over usual venue exceptions.⁵⁴ Where a plaintiff alleges that he has no adequate remedy as his primary relief, and that venue statute applies.⁵⁵ The statute-placing venue for an injunction suit in the county in which the defendant has his domicile may not be varied by means of a private contract of the parties. Thus, in a covenant not to compete which provides that in the event of breach, the defendant can be sued in plaintiff's county, the venue provision is void and Art. 4656 applies.⁵⁶

Articles 4656 is applicable only where the suit is solely one for injunctive relief.⁵⁷ Where the injunctive relief sought is merely ancillary or incidental to the main purpose of the suit, it is not an injunctive suit within the scope of Art. 4656; therefore the court having jurisdiction over the main suit has exclusive jurisdiction over the ancillary action.⁵⁸ Venue is determined by Tex. Rev. Civ. Stat. Ann. Art. 1995 where the main suit is for relief other than injunction and where injunction is ancillary, incidental, or adjunctive.⁵⁹ Generally, Art. 4656 will not be controlling when recovery of monetary damages is sought as the primary purpose of the suit and some type of injunctive relief is sought incidental to that relief.⁶⁰

Under Art. 4656, a writ of injunction granted to stay execution of a judgement or to stay a proceeding must be returnable to and tried in the court where that suit is pending or the judgement was rendered, and such requirement is jurisdictional.⁶¹ As long as a judgment is valid on its face, this Article controls both jurisdiction and venue of injunctive proceedings in regard to stay of execution of judgement.⁶² This Article applies only when suit is brought to restrain execution of a judgment because some infirmity exists in the judgement or some equity has arisen since the judgment which should prevent its enforcement.⁶³ The Article does not apply where the injunction sought is solely to prevent sale of exempt property, in which case suit may be properly brought in any court having jurisdiction of the subject matter in the county in which any defendant resides or in which the property, if realty, is situated.⁶⁴

There are two broad categories into which grounds for injunctive relief may be placed---statutory or equitable. The number of statutes is too numerous to enumerate except by reference. (65) An example is Tex. Rev. Civ. Stat. Art. 4642 which sets forth the following grounds for injunctive relief:

Where the applicant is entitled to the relief demanded and such relief or any part thereof requires the restraint of some act prejudicial to him.
Where a party does some act respecting the subject of pending litigation or threatens or is about to so dome act or is procuring or suffering the same to be done in violation of the rights of the applicant when said act would ten to render judgment ineffectual.
Where the applicant shows himself entitled thereto under the principles of equity and the provisions of the statutes of this state relating to the granting of injunctions.
Where a cloud would be put on the title of real estate being sold under an execution against a party having no interest in such real estate subject to the execution at the time of the sale, or irreparable injury to real estate or personal property is threatened, irrespective of any legal remedy at law.⁶⁶

Subdivision 1 and 3 of Art. 4642 were held in Hill v. Brown⁶⁷ not to authorize injunctive relief regardless of the remedy at law. The court did not think that it was the intent of the legislature to provide a choice of remedies, but rather to provide a remedy where there was not a "clear, full, and adequate relief at law."⁶⁸ This rule applies to subdivision 2 of Art. 4642 as well.⁶⁹ Subdivision 4 of Art. 4642, authorizing injunction where irreparable injury to realty or personality is threatened, has been held to be subject to the same rule.⁷⁰

The most important of the statutory grounds for injunctive relief is subdivision 3 of Art. 4642 which authorizes the issuance of an injunction where the applicant is entitled to such under the principles of equity and the provisions of a statute relating to the granting of injunctions. It has been held that Art. 4642 has no relation and is not referable to principles of equity, but merely provides additional grounds for relief.⁷¹

An irreparable injury is one which cannot be fully compensated by damages or cannot be measured by any certain pecuniary standards.⁷² An irreparable injury must be imminently threatened and may not be speculative or conjectural.⁷³ Mere uncertainty or apprehension of injury is not sufficient as a matter of law to constitute irreparable injury.⁷⁴ Some Substantial injury to plaintiff must be shown to be reasonably certain to result if the writ of injunction does not issue.⁷⁵

Irrespective of the nature of the right threatened, the granting of an injunction depends on the absence of an adequate remedy at law.⁷⁶ The presence of an adequate remedy at law will not, however, act as a bar to the granting of injunctive relief where there is specific statutory authority to the contrary.⁷⁷ Because a suit for injunction is an action for an equitable remedy, it cannot be resorted to when there is a full and complete remedy at law available to the plaintiff.⁷⁸ The granting of such relief in the face of an adequate remedy at law constitutes an abuse of discretion by the trial court.⁷⁹

When the legal remedy available falls into one of the following categories, it will generally be held to be an adequate remedy at law. These categories are:

Resort to administrative agencies;
Appeal;
Defense of a pending suit;
Damages;
Garnishment and attachment;
Mandamus;
Sequestration;
Trespass to try title; and
Trial of right to property.⁸⁰

However, for the legal remedy to be adequate, it must be prompt,⁸¹ practical and efficient⁸² as well as complete.⁸³

It is generally held that no injunction will issue if adequate relief may result from an award of damages.⁸⁴ Where the act complained of has already caused injury and is fully completed, the award of damages is an adequate remedy at law and would seem to be the only remedy available.⁸⁵ However, when the damages are not such as may be measured with exactness⁸⁶ or "some precision"⁸⁷ the remedy of damages is deemed inadequate. The impossibility of proof of damages is also recognized as bearing on the adequacy of the legal remedy for purposes of determining the propriety of granting a temporary injunction.⁸⁸ The difficulty of finding a responsible source from which recovery could be had after injury⁸⁹ or insolvency and resulting inability to respond to damages⁹⁰ has been recognized as bearing on the adequacy of the legal remedy. The remedy of injunction will not be denied merely because the defendant is able to respond in damages where the remedy at law is doubtful⁹¹ or where the wrongful acts are recurrent or continuous.⁹²

If the remedy at law will result in a multiplicity of lawsuits, that remedy is inadequate.⁹³ A court may therefore issue an injunction to prevent such a multiplicity of suits.⁹⁴ A plaintiff, then, may seek an injunction to stop an offending act rather than permit it to continue and rely upon a series of future lawsuits.⁹⁵ For example, in Alexander v. Edewards-Northcutt-Lacke,⁹⁶ the court held that the remedy of damages was to adequate and a remedy of injunction was proper where the seller's continuing breach of the contract for the sale of an insurance business would require the buyer to keep bringing suit after suit for damages.⁹⁷

In injunctive cases, the court must consider the comparative inconveniences and damages that will result to the defendant, as well as the benefits accruing to the plaintiff.⁹⁸ The court should not grant to one party an injunctive remedy that is unjust, illegal or oppressive to the other party.⁹⁹ In Electronic Data Systems Corp. v. Powell,¹⁰⁰ the court held that the mere fact that the injunction would require a former employee to work in a different area of electronic data processing was insufficent to prevent enforcement of a covenant not to compete on the theory that the restraint would cause undue hardship.¹⁰¹ It is not sufficient for one who violates a restrictive covenant to show merely that his harm from the injunction will outweigh the harm to the plaintiffs if such injunction does not issue.¹⁰² In some cases the courts will attempt to balance the equities as was done in Chambridge Shores Homeowners Association v. Spring Valley Lodge Co.¹⁰³ In this case, the court determined that the benefit to the plaintiff would be quite small, while the harm ensuring from enjoining the completion of a half finished $75,000 building would be very great.¹⁰⁴ However, the court will not attempt to balance the equities in suits involving covenants not to compete, personal service contracts, or the sales of businesses including goodwill.¹⁰⁵

Rule 682 provides that "no writ of injunction shall be granted unless the applicant therefor shall present his petition to the judge verified by his affidavit and containing a plain and intelligible statement of the grounds for such relief."

An absolute prerequisite for the issuance of an injunction is that the petition be properly filed.¹⁰⁶ The petition must set forth the grounds for such relief in clear, definite, and certain language. A party may, however, plead a number of separate grounds for relief, each on being in itself sufficient; he need only prove up on eof these grounds to be entitled to the relief sought.¹⁰⁷ Since an injunction is a type of equitable relief, the party seeking such relief must plead irreparable injury and the lack of an adequate remedy at law.¹⁰⁸ The party seeking an injunction must plead the necessary facts, not legal conclusions.¹⁰⁹ A mere statement that the plaintiff has no adequate remedy at law is a conclusion which will be vulnerable to special exception.¹¹⁰ For example, in a suit seeking injunctive relief to a breach of contract, an allegation that the plaintiff had no adequate remedy at law was held to be a mere conclusion which would not support the granting of injunctive relief.¹¹¹ Not only must the complainant show that he has no adequate remedy at law, but in addition his petition must negate every fact from which it could be inferred that he has a legal remedy.¹¹² It has also been held that although the pleading fails to state in precise language that irreparable harm is imminent and no adequate remedy at law is available, the petition may still be sufficient if facts are alleged which establish these propositions.¹¹³

An injunction may only be granted pursuant to relief prayed for in a petition containing a plain and intelligent statement of the grounds for such relief and requesting, with reasonable certainty, the relief sought and the particular type of decree desired. A general prayer for relief is not sufficient.¹¹⁴

Under Rule 680, an affidavit on information or belief is insufficient. The petition must be supported by affidavit or be verified.¹¹⁵ An affidavit stating that the affiant read the petition and each and every page thereof and that the statements contained in it are true complies with the requirement of Rule 680 in regard to verification of the pleadings in injunctive suits.¹¹⁶

In regard to the defendant's answer, Rule 680 provides that "The defendant to an injunction proceeding may answer as in other civil actions; but no injunction shall be dissolved before final hearing because of the denial of the material allegations of the plaintiff's petition, unless the answer denying the same is verified by the oath of the defendant."

The defendant's answer need not be verified, and the failure to file a verified answer or any answer at all does not justify granting an injunction by default. The writ of injunction is an extraordinary remedy and, therefore, may not be granted without actual proof even in the absence of an answer.¹¹⁷

The complaining party must be shown to have a "justiciable interest" or suffer a particular injury not shared by the public in general. For example, while a taxpayer has a "justiciable interest" in seeking to prevent the wrongful expenditure of public funds, only a public official would have standing to undo the illegal act once the expenditure has been made.¹¹⁸

All necessary parties must be joined in the suit before an injunction may be granted. The requirements for necessary parties are found in rule 39. Generally, the following parties have been held to be necessary parties to an injunction proceeding:

those whose rights will be directly affected by the decree;¹¹⁹
all parties to a contract, the enforcement of which is sought to be restrained;¹²⁰
a judgment creditor in a suit to restrain the levy of an execution:¹²¹ and
any state, county, or city where an injunction is sought to restrain public officials acting in its behalf.¹²²

It has been held that defect for want of all necessary parties goes to the trial court's discretion as a court of equity to entertain the suit, not to the court's jurisdiction to entertain the suit.¹²³ While all necessary parties must be joined in granting a permanent injunction, this is not true in such interim orders as temporary restraining orders and temporary injunctions which purport to preserve rights pending a final trial.¹²⁴

Rule 682 requires a petition, verified by affidavit, containing a plain and intelligible statement of the grounds for such relief. The better practice is to verify the petition and have the parties plaintiff each execute affidavits to be attached to the petition. Incorporation of the affidavits into the petition by reference as well as incorporation of the petition into the affidavits by reference, would further lessen the likelihood of an attack on the petition because of the failure to plead the necessary facts. The allegations must be direct, certain, and particular and must allege a basis for equitable relief. They must not amount to mere legal conclusions.¹²⁵

Merely to state in the affidavit that the plaintiff seeking an injunction has not adequate remedy at law is to allege a conclusion which ordinarily will be vulnerable to special exception.¹²⁶ However, a motion to dismiss will not constitute a sufficient attack on the pleadings since the Supreme Court has abolished the practice of allowing general demurrers, and the only method of successfully attacking the sufficiency of the pleadings is by special exceptions.¹²⁷

Under Rule 680, affidavits on information or belief are insufficient.¹²⁸ Further, an affidavit signed only by the attorney is not properly verified if it does not set out his authority to sing under the provision of Rule 14.¹²⁹

Since at the hearing on an application for temporary injunction neither party may demand a jury trial,¹³⁰ the skillful practitioner will use great care to be as persuasive in the preparation of his pleadings and affidavits as possible, consistent with the provable facts, in order to obtain the necessary relief being sought from the trial judge. As the hearing progresses, free and liberal use of Rule 66 relating to trial amendments can further insure that the pleadings meet the burdens imposed by the various interpretations of Rule 680.

If a case appears to be of such a magnitude that a large amount of time would be required to hear it, the trial judge may ask the parties to agree that the hearing shall be on the merits for final injunctive relief. Before stipulating such a proposal, careful consideration should be given to the difference in the burden of proof required for a temporary injunction as compared to that of a permanent injunction: to justify the granting of a temporary injunction, the applicant need only plead a cause of action and present testimony showing probable right to relief and probable harm if the defendant is not restrained.¹³¹ (emphasis supplied)

The amount of the bond shall be at the discretion of the trial court but shall be subject to review.
The order granting a temporary restraining order or temporary injunction shall fix the amount of the bond.
Prior to the issuance of the temporary restraining order or temporary injunction the applicant shall execute and file with the clerk a bond to the adverse party, with two good and sufficient sureties.

The bond requirement is mandatory in the issuance of a temporary restraining order or temporary injunction.¹³² There are, however, exceptions to the mandatory bond rule in the following situations:

In an ancillary injunction arising out of a divorce case on behalf of one spouse against the other, where the trial court may at its discretion dispense with bond requirements;
Where the court granting the injunction does so to protect its own jurisdiction;¹³³ and
Where the prevailing party is exempt from bond requirements.¹³⁴

The amount of the bond required for issuance of a temporary injunction is addressed to the sound discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion. In Coastal Bend Milk Producers Association v. Garcia,¹³⁵ for example, a milk producers association was holding $24,000 in assets belonging to members in connection with payments by a buyer directly to the association. The trial court did not abuse its discretion by requiring only a $5,000 bond in connection with a temporary injunction restraining the milk buyer from making payments directly to the association.¹³⁶

In the event that the amount of the bond is found to be insufficient, that fact alone does not affect the validity of the temporary injunction.¹³⁷ A bond found to be insufficient may be made sufficient by the posting of another bond in the required amount or by an amended bond.¹³⁸

Rule 683 sets forth the requirements in regard to the form and scope of temporary injunctions and temporary restraining orders. The rule requires that the order:

Set forth the reasons for its issuance;
Must be specific in its terms;
Describe in detail and not by reference to any other document or complaint, the act or acts which the order restrains; and
Bind only the parties to the action, their officers, agents, servants, employees, and attorneys, and those who receive actual notice of the order who are in active concert of participation with them.

Compliance with that portion of Rule 683 requiring that reasons for issuance be set forth is mandatory, and failure of the court to do so is reversible error and an abuse of discretion.¹³⁹ It has been held to be an abuse of discretion for a trial court to grant a temporary injunction where the order did not state why and where the plaintiff would be injured if the order were not granted.¹⁴⁰ Where a statute authorizing injunctive relief has been shown to be violated, this rule has been held applicable where the statute itself declares the injury.¹⁴¹ The Supreme Court of Texas has held that "an injunction decree must be as definite, clear and precise as possible and when practicable it should inform the defendant of the acts he is restrained from doing, without calling on him for inferences or conclusions about which persons might differ and without leaving anything for further hearing."¹⁴²

Imagination and resourcefulness play a large part in successfully instituting and obtaining a temporary restraining order. Utilizing the element of surprise, the applicant's lawyer must not lose the initiative in successfully winning the hearing on the temporary injunction. There are many pitfalls between the decision to bring the action and having the temporary injunction order signed. Only a highlight of these problems has been presented in this article.

In making the decision to use this legal tool care must be taken not only to protect the client from a cross-action for wrongful injunction but to protect him from the economic consequences of the legal fees which are normally an incident to obtaining injunctive relief.

Hamilton v. Davis, 217 S.W. 431 (Tex. Civ. App - Austin 1920, writ ref'd).
Garland v. Shepard, 445 S.W.2d 602 (Tex. Civ. App. - Dallas 1969, no writ).
Ex parte Hughes, 113 Tex. 505, 129 S.W.2d 270 (1939).
Electronic Data Systems Corp. v. Powell, 508 S.W.2d 137 (Tex. Civ. App. - Dallas 1974, no writ).
City of Spring Valley v. southwestern Bell Tel. Co., 484 S.W.2d 579 (Tex. 1972).
Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (1935); Spence v. Fenchler, 107 Tex. 443, 180 S.W. 597 (1915).
Anderson v. Tall timbers Corp., 162 Tex. 450, 347 S.W.2d 592 (1961).
State v. Markle, 363 S.W.2d 332 (Tex. Civ. App. - Houston [1st Dist.] 1963, no writ); see also Sobel v. City of Lacy Lakeview, 465 S.W.2d 794 (Tex. Civ. App. - Waco 1971, no writ). If in fact there is a claim constitutional defect in either a statute or ordinance, care should be used in drafting the fiat or order for temporary injunction. The fiat or order may be saved by sue of the words "probable" or "probably," see appendix.
Ex parte Davis. 470 S.W.2d 647 (Tex. 1971).
City of Fort Worth v. Tarlton, 151 S.W.2d 268 (Tex. Civ. App. - Fort Worth 1941, no writ); Smith v. Coleman, 127 S.W.2d 928 (Tex. Civ. App. - Waco 1939, no writ); Mickle v. Garrett, 110 S.W.2d 1235 (Tex. Civ. App. - Eastland 1938, no writ).
Id.
Speed v. Keys, 110 S.W.2d 1245 (Tex. Civ. App. - Waco 1938, no writ); Barkley v. Conklin, 101 S.W.2d 405 (Tex. Civ. App. - Waco 1937, no writ).
Daniel v. Kittrell, 188 S.W.2d 871 (Tex. Civ. App. - Waco 1945, no writ). Appendix A is an example of a petition requesting in the same action a TRO and a temporary injunction.
Tex. R. Civ. P. 680 [hereinafter cited as Rules].
Crouch v. Crouch, 164 S.W.2d 35 (Tex. Civ. App. - Waco 1942, no writ).
Assuming the trial judge has granted your TRO, the defense lawyer will look very carefully at the wording of the Court's fiat to see just how much his client will be affected by the enforcement of its terms. Since the plaintiff is entitled to no more relief than the fiat gives in very specific terms, you may not have put the pressure on the defendant that you had anticipated. In such a case, a good defense will probably file a motion "consenting" to an extension of the TRO for a definite time in the future. This will give him the time that he needs to work on the weakest point of the plaintiff's suit, and that most likely will be a question of the legal rights which the plaintiff claims should be protected by the injunction. The longer that he can put off the hearing on the temporary injunction, the better his chances will be in researching his case and presenting the best defense possible at the hearing on the temporary injunction.
In some instances, the defendant may be able to consent to the majority of the fiat, but may want to ask the Court to modify certain of the provisions. But the "two day notice" provision of Rule 680 will probably be denied if the defense lawyer waits until the day of the hearing on the temporary injunction to ask for his modification.
In the event that the Court does deny the modification, the defense lawyer may then attempt to "defuse" whatever conduct his client has done which precipitated the suit by withdrawing the defendant's claimed offending actions. Hew would then be in a position to file a plea in abatement to discontinue the hearing and dissolve the TRO, so that he could then have sufficient time to prepare a plan before reinitiating the wrongful conduct.
A good example of such an effort is in the instance where a notice for eviction has been sent to the plaintiff giving the plaintiff only a limited period of time to react before certain threatened activity or conduct is to take place. If it appears that the temporary hearing is about to proceed, and the other tactics mentioned above have failed, the good defense lawyer will probably make an effort to withdraw the notice of eviction, and then point out to the Court that there is no present and immediate threat of danger or irreparable harm to the plaintiff. Such conduct was recently attempted against the writer in Fugger (see appendix A) when the Galveston Wharves Board of Trustees, in a public meeting of the Board, attempted to temporarily withdraw an eviction notice. In that instance, the writer employed a court reporter to take down a verbatim transcription of the meeting which included an affirmative statement by the Chairman of the Board to the effect that the eviction notices could be issued again at any time in the future. When defense counsel attempted to convince the court that his peal in abatement was proper, after presenting evidence that the eviction notices had been officially withdrawn, the writer submitted the court reporter's statement which clearly demonstrated to the court that the only reason that the threat was being removed was to abate the proceedings; and arguing the possibility of multiplicity of actions (fn.93 infra), the court saw through the attempted delaying tactic, overruled the plea in abatement, and allowed the hearing on the temporary injunction to proceed.
Holman v. Holman, 189 S.W.2d 76 (Tex. Civ. App. - Eastland 1945, no writ).
Ex parte Pierce, 161 Tex. 524, 342 S.W.2d 424, cert. denied 366 U.S. 928 (1961).
City of Houston v. Houston Lighting & Power Co., 530 S.W.2d 866 (Tex. Civ. App. - Houston [14th Dist.] 1975, writ ref'd n.r.e.);
City of Austin v. Texas Public Employee's Ass'n, 528 S.W.2d 637 (Tex. Civ. App. - Austin 1975, no writ).
Id.
West v. Pennyrich Int'l, Inc., 447 S.W.2d 771 (Tex. Civ. App. - Waco 1969, no writ); Nelms v Electro-Bale Co., 157 S.W.2d 681 (Tex. Civ. App. - Dallas 1941, writ ref'd); McMurrey Ref. Co. v. State, 149 S.W.2d 276 (Tex. Civ. App. - Austin 1941, writ ref'd).
Saenz v. Lackey, 522 S.W.2d 237 (Tex. Civ. App. - Corpus Christi 1975, writ ref'd n.r.e.); Bedford v. Plum, 497 S.W.2d 534 (Tex. Civ. App. - Tyler 1973, writ ref'd n.r.e.); Sarris v. Christie, 217 S.W.2d 99 (Tex. Civ. App. - Dallas 1949, writ ref'd n.r.e.). S
tate v. Southwestern Bell Tel. Co., 526 S.W.2d 526 (Tex. 1975); Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d (1962); Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953).
McGee v. McKaskle, 499 S.W.2d 755 (Tex. Civ. App. - Houston [1st Dist.] 1973, no writ).
Wizig v. Jefferson, 74 S.W.2d 428 (Tex. Civ. App. - Waco 1934, no writ).
Williamson v. Dallas County, 519 S.W.2d 495 (Tex. Civ. App. - Waco 1975, writ ref'd n.r.e.).
Turcotte v. Alice Nat'l Bank, 402 S.W.2d 894 (Tex. 1966).
State v. Southwestern Bell Tel. Co., 526 S.W.2d at 528. "To warrant issuance of a temporary injunction, the applicant need only show a probably right and a probable injury; the applicant is not required to establish that he will prevail in the litigation."
Morgan v. Fletcher, 518 F.2d 236, (5th Cir. 1975).
Id.
Id.
City of Spring Valley v. Southwestern Bell Tel. Co., 484 S.W.2d 579 (Tex. 1972).
Southwestern Telegraph & Telephone Co. v. Smithdeal, 104 Tex. 258, 136 S.W. 1049 (1911); White v. State, 122 S.W.2d 714 (Tex. Civ. App. - Fort Worth 1938, no writ).
Dallas Joint Stock Land Bank v. Dallas County Levee Improvement Dist. 263 S.W.1103 (Tex. Civ. App. - Dallas 1924, no writ).
Ort v. Bowden, 148 S.W. 1145 (Tex. Civ. App. - Galveston 1912, no writ).
Lawyers Sur. Co. v. Rankin, 500 S.W.2d 181 (Tex. Civ. App. - Houston [14th Dist.] 1973, writ ref'd n.r.e.); Old River Rice Irr. Co. v. Stubbs, 133 S.W. 494 (Tex. Civ. App. 1911, writ ref'd).
Rhodia, Inc. v. Harris County, 470 S.W.2d 415 (Tex. Civ. App. - Houston [1st Dist] 1971, no writ). D
iamond v. Texas Int'l Suphur Co., 354 S.W.2d 595 (Tex. Civ. App. - Eastland 1961, no writ).
Texas Pipe Line Co. v. Burton Drilling Co., 54 S.W.2d 190 (Tex. Civ. App. - Dallas 1932, no writ).
Athens Tel. Co. v. Athens, 163 S.W. 371 (Tex. Civ. App. - Dallas 1914, writ ref'd).
White v. State, 122 S.W.2d 714 (Tex. Civ. App. - Fort Worth 1939, no writ).
Atchison, T. & S.F.R.R. v. Parmer, 496 S.W.2d 241 (Tex. Civ. App. - Austin 1973, no writ).
Tex. Rev. Civ. Stat. Ann art. 4656 (1952).
Ex parte Bryant, 155 Tex. 219, 285 S.W.2d 719 (1956).
Id.
Coughran v. Nunez, 133 Tex. 303, 127 S.W.2d 885 (1939).
Tex. Const. Art. V, � 8.
Poe v. Ferguson, 168 S.W. 459 (Tex. Civ. App. - Fort Worth 1914, no writ).
Tex. Const. Art. V, � 16.
Smith v. Brown, 32 S.W.2d 388 (Tex. Civ. App. - Eastland 1930, no writ).
Carter v. City of Houston, 255 S.W.2d 336 (Tex. Civ. App. - Houston 1953, no writ).
Repka v. American National Ins. Co. 143 Tex 542,186 S.W.2d 977 (1945).
Tex. Rev. Civ. Stat. Ann. Art. 4656 (1952).
Burton v. Rogers, 504 S.W.2d 404 (Tex. 1973); Flewellen v. Brownfield State Bank & Trust Co., 517 S.W.2d 384 (Tex. Civ. App. - Amarillo 1974, no writ); Herman J. Smith Gen. Contractors Inc. v. Riverdrive Mall, Inc., 513 S.W.2d 951 (Tex. Civ. App. - Waco 1974, no writ).
Micbalski v. Mutual Bldg. & Loan Ass'n. 449 S.W.2d (Tex. Civ. App. - Fort Worth 1970, no writ). F
idelity Union Life Ins. Co. v. Evans, 477 S.W.2d 535 (Tex. 1972); McCullough v. Fidelity Union Life Ins. Co., 470 S.W.2d 209 (Tex. Civ. App. - Waco 1971, writ ref'd n.r.e.).
Ex parte Coffee, 160 Tex. 224, 328 S.W.2d 283 (1959).
Flewellen v. Brownfield State Bank & Trust Co., 517 S.W.2d 386.
Sims v. White, 292 S.w.2d 648 (Tex. Civ. App. - Dallas 1956, no writ).
Guion v. Gibson, 439 S.W.2d 715 (Tex. Civ. App. - Houston [14th Dist.] 1969, no writ).
Nutt v. Curles, 418 S.W.2d 327 (Tex. Civ. App. - Austin 1967, writ ref'd n.r.e.).
International Sec. Life Ins. Co. v. Riley, 467 S.W.2d 213 (Tex. Civ. App. - Amarillo 1971, writ ref'd n.r.e.). 63. Parson v. McKinney, 133 S.W. 1084 (Tex. Civ. App. - Galveston 1911, writ ref'd).
Id.
A good beginning for research of statutory grounds would be TEX. REV. CIV. STAT. ANN. Arts. 4642-4667. In addition, the General Index to TEX. REV. CIV.STAT. ANN. And the Index to TEX. R. CIV. P. Ann. Vol. 6 will provide an exhaustive list of grounds for injunctive relief. Also see L. Lowe, 6 TEXAS PRACTICE REMEDIES 2d, � 291 (1973).
TEX. REV. CIV.STAT. ANN. Art 4642 (1952).
237 S.W. 252 (Tex. Comm'n App. 1922, jdgmt adopted).
Id. at 255.
Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d (1935).
Story v. Central Hide & Rendering co., 148 Tex. 509, 226 S.W.2d 615 (1950); Speedman Oil Co. v. Rural County Ranch Co., Inc. 504 S.W.2d 923 (Tex. Civ. App. - San Antonio 1974, writ ref'd n.r.e.).
Hawks v. Yancey, 265 S.W. 233 (Tex. Civ. App. - Dallas 1924, no writ).
Southwestern Chem. & Gas Co., v. Southeastern Pipeline Co., 369 S.W.2d 489 (Tex. Civ. App. - Houston 1963, no writ); Birchfield v. Bourland, 187 S.W. 422 (Tex. Civ. App. - Fort Worth 1916, no writ).
Thomas v. Hale County, 531 S.W.2d 213 (Tex. Civ. App. - Amarillo 1975, no writ).
Kostoff v. Harris, 266 S.W.2d 204 (Tex. Civ. App. - Dallas 1954, writ ref'd n.r.e.).
Watrous v. Rodgers, 16 Tex. 410 (1856); Moon v. Thomas, 261 S.W. 476 (Tex. Civ. App. - Fort Worth 1924, no writ).
Covarrubia v. Butler, 502 S.W.2d 229 (Tex. Civ. App. - San Antonio 1973, writ ref'd n.r.e.).
Raine v. Searles, 302 S.W.2d 486 (Tex. Civ. App. - El Paso 1967, no writ).
Story v. Story, 142 Tex. 212, 176 S.W.2d 926 (1944); Duck v. Peeler, 74 Tex. 268, 11 S.W. 1111 (1889): Windsch v. Gussett, 30 Tex. 744 (1868).
Bagley v. Higginbotham, 350 S.W.2d 868 (Tex. Civ. App. - Beaumont 1961, writ ref'd n.r.e.); Hancock v. Bradshaw, 350 S.W.2d 955 (Tex. Civ. App. - Amarillo 1961, no writ).
L. Lowe, supra note 65, at � 113.
West v. Humble Oil & Ref. Co., 496 S.W.2d 212 (Tex. Civ. App. - Waco 1973), rev'd on other grounds, 508 S.W.2d 812 (Tex. 1974); Hunt v. Merchandise Mart, Inc., 391 S.W.2d 141. (Tex. Civ. App. - Dallas 1965, writ ref'd n.r.e.).
West v. Humble Oil & Ref. Co., 496 S.W.2d 212 (Tex. Civ. App. - Waco 1973), rev'd on other grounds, 508 S.W.2d 812 (Tex. 1974); Hunt v. Merchandise Mart, Inc., 391 S.W.2d 141. (Tex. Civ. App. - Dallas 1965, writ ref'd n.r.e.).
Southwestern Chem. & Gas Corp. v. Southeastern Pipeline Co., 369 S.W.2d 489 (Tex. Civ. App. - Houston 1963, no writ); King v. Miller, 280 S.W.2d 331 (Tex. Civ. App. - Eastland 1955, writ ref'd n.r.e.).
Krenek v. South Texas Electric Co-op, Inc., 502 S.W.2d 605 (Tex. Civ. App. - Corpus Christi 1973, no writ).
Id. at 610
Houston & North Texas Motor Freight Lines v. Elliott, 63 F. Supp. 577 (S.D. Tex. 1946).
West v. Humble Oil & Ref. Co., 496 S.W.2d 212 (Tex. Civ. App. - Waco 1973), rev'd on other grounds, 508 S.W.2 812 (Tex. 1974).
Texas v. Seatrain Int'l, 518 F.2d 175 (5th Cir. 1975).
Houston & North Texas Motor Freight Lines v. Elliot 63 F. Supp. 577 (S.D. Tex. 1946).
Humble Oil & Ref. Co. v. Luckel, 154 S.W.2d 155 (Tex. Civ. App. - Beaumont 1941, writ ref'd w.o.m.).
Tomlin v. Clay, 167 S.W. 204 (Tex. Civ. App. - Dallas 1914, no writ).
Sinclair Ref. Co. v. McElree, 52 S.W.2d 679 (Tex. Civ. App. - Dallas 1932, no writ).
H. Rouw Co. v. Texas N.O.R.R., 260 S.W.2d 69 (Tex. Civ. App. - San Antonio 1953, no writ); Steger & Sons Piano Mfg. Co. v. MacMaster, 113 S.W. 337 (Tex. Civ. App. - Fort Worth 1908, writ ref'd).
Hamner v. Garrett, 133 S.W. 1058 (Tex. Civ. App. - Fort Worth 1910, no writ).
City of Wichita Falls v. Bruner, 191 S.w.2d 912 (Tex. Civ. App. - Fort Worth 1945, no writ).
329 S.W.2d 304 (Tex. Civ. App. - Dallas 1959, no writ).
Id. at 308.
Fields Sewerage Co. v. Bishop, 30 S.W.2d 412 (Tex. Civ. App. - Dallas 1930, writ ref'd); Smiley v. City of Graham, 37 S.W.2d 289 (Tex. Civ. App. - Fort Worth 1931, writ dism'd).
King's Estate v. School Trustees, 33 S.w.2d 783 (Tex. Civ. App. - San Antonio 1930, writ ref'd.).
524 S.W.2d 393 (Tex. Civ. App. - Dallas 1975, writ ref'd n.r.e.).
Id. at 399
Collum v. Neuhoff, 507 S.W.2d 920 (Tex. Civ. App. - Dallas 1974, no writ).
Chambridge Shares Homeowners Ass'n v. Spring Valley Lodge Co., 422 S.W.2d 10 (Tex. Civ. App. - Dallas 1967, no writ).
Id. at 14.
Lewis v. Krueger, Hutchinson & Overton Clinic, 153 Tex. 363, 269 S.W.2d 798 (1954); McAnally v. Pearson, 57 S.W.2d 945 (Tex. Civ. App. - Galveston 1933, writ ref'd.).
Seber v. Glass, 258 S.W.2d 122 (Tex. Civ. App. - Fort Worth 1953, no writ).
Red Devil Club v. State, 307 S.W.2d 627 (Tex. Civ. App. - Amarillo 1957, no writ); Bales v. Jones, 288 S.W.2d 266 (Tex. Civ. App. - Fort Worth, writ ref'd n.r.e.).
Gulf Oil Corp. v. Walton, 317 S.W.2d 260 (Tex. Civ. App. - El Paso 1958, no writ).
Texas State Board of Med. Examiners v. McKinney, 315 S.W.2d 387 (Tex. Civ. App. - Waco 1958, no writ).
Hunt v. Merchandise Mart, Inc., 391 S.W.2d 141 (Tex. Civ. App. - Dallas 1965, writ ref'd n.r.e.).
Grayson Enterprises, Inc. v. Texas Key Broadcasters, Inc., 388 S.W.2d 204 (Tex. Civ. App. - Eastland 1965, no writ).
Maryland Gas Co. v. Culpepper, 369 S.W.2d 533 (Tex. Civ. App. - El Paso 1963, no writ).
Gonzalez v. Sociedad Mutualista Protecora Benito Juarez, 211 S.W.2d 245 (Tex. Civ. App. - San Antonio 1945, no writ).
Colorado River Valley Co. v. Schiarone, 476 S.W.2d 368 (Tex. Civ. App. - Austin 1972, writ ref'd n.r.e.); Fletcher v. King, 75 S.W.2d 980 (Tex. Civ. App. - Amarillo 1934, writ ref'd).
Texas Dept. of Public Safety v. Marris, 411 S.W.2d 620 (Tex. Civ. App. - Houston 1967, no writ); Durrett v. Boger, 234 S.W.2d 898 (Tex. Civ. App. - Texarkana 1951, no writ).
Arrow Chem. Corp. v. Anderson, 386 S.W.2d 309 (Tex. Civ. App. - Dallas 1965, writ ref'd n.r.e.).
Harding v. W.L. Pearson & Co., 48 S.W.2d 964 (Tex. Comm'n App. 1932, jdgmt adopted).
Hulett v. West Lamar Rural High School Dist., 149 Tex. 289, 232 S.W.2d 669 (1950); City of Austin v. McCall, 95 Tex. 565, 68 S.W. 791 (1902).
Pendleton v. Ferguson, 99 Tex. 296, 89 S.W. 758 (1905).
City of Dallas v. Couchman, 249 S.W. 234, (Tex. Civ. App. - Dallas 1923, writ ref'd).
Scruggs v. McCart, 119 Tex. 464, 32 S.W.2d 823 (1930).
Davis v. Wildenthal, 241 S.W.2d 620 (Tex. Civ. App. - El Paso 1951, writ ref'd n.r.e.).
Road v. Goodman, 83 F.2d 28 (5th Cir. 1936), cert. denied, 299 U.S. 551 (1936).
Crain v. Firemen's & Policemen's Civil Serv. Comm'n, 495 S.W.2d 20 (Tex. Civ. App. - Waco 1958, no writ).
Texas State Board of Med. Examiners v. McKinney, 315 S.W.2d 387 (Tex. Civ. App. - Waco 1958, no writ).
Hunt v. Merchandise Mart, Inc., 391 S.W.2d 141 (Tex. Civ. App. - Dallas 1965, writ ref'd n.r.e.).
Graef v. City of Galveston, 538 S.W.2d 816 (Tex. Civ. App. - Houston [14th Dist.] 1976, no writ).
Durrett v. Bogen, 234 S.w.2d 898 (Tex. Civ. App. - Texarkana 1951, no writ).
Kern v. Treeline Golf Club, Inc., 433 S.W. 2d 215 (Tex. Civ. App. - Houston [14th Dist.] 1968, no writ).
Ex parte Allison, 99 Tex. 455, 90 S.W. 870 (1906).
Speedman Oil Co. v. Duval County Ranch Co., Inc., 504 S.W.2d 923 (Tex. Civ. App. - San Antonio 1973, writ ref'd n.r.e.).
Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303 (1956).
Ex parte Lee, 127 Tex. 256, 93 W.W.2d 720, (1936).
TEX. REV. CIV. STAT. ANN. art. 279a (1973).
Coastal Bend Milk Producers Ass'n v. Garcia, 368 S.W.2d 260 (Tex. Civ. App. - San Antonio 1963, no writ).
Id. at 264.
Speedman Oil Co. v. Duval County Ranch Co., Inc., 504 S.W.2d 923 (Tex. Civ. App. - San Antonio 1973, writ ref'd n.r.e.).
Downs v. Monroe, 42 Tex. 307 (1875). See generally in Lowe, supra note 65, at � 222.
Board of Equalization v. Wells, 473 S.W.2d 88 (Tex. Civ. App. - Dallas 1971, no writ).
McGinn v. Fidelity Union Life Ins. Co., 474 S.W.2d 320 (Tex. Civ. App. - Texarkana 1971, writ ref'd n.r.e.).
State v. cook United, Inc., 464 S.w.2d 105 (Tex. 1971).
Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871 (1948).

PLAINTIFF'S ORIGINAL PETITION (IN THE DISTRICT COURT OF GALVESTON COUNTY, TEXAS, 56TH JUDICIAL DISTRICT

COMES NOW, REITA FUGGER, individually and as the Executive Officer on behalf of THE GALVESTON COUNTY HISTORICAL COMMISSION, RALPH B. WOOD, EDNA FULLER, and BILL H. FULLEN all hereinafter referred to as "Plaintiff" or Plaintiffs", suing for themselves as individuals, complaining of THE CITY OF GALVESTON, hereinafter referred to as the "CITY", its public utility known as the GALVESTON WHARVES, hereinafter referred to as the "WHARVES", THE WHARVES BOARD OF TRUSTEES, hereinafter referred to as the "BOARD" and C. S. DEVOY, Director of the "WHARVES", and who is a resident of Galveston County, Texas, all sometimes referred to herein as "Defendant" or "Defendants", and for their cause of action would show this Honorable Court the following:

Each Plaintiff is a resident property owner, qualified voter, and a citizen of the CITY, Galveston, Texas. Each of their Affidavits, which are attached hereto, are incorporated at this place word for word. The CITY is a body politic operating under a Home rule Charter according to the provisions of the Constitution, Art. 11, Sec. 5 and Article 1165, et seq., Vernon's Annotated Civil Status. Certain portions of the Wharves and terminal facilities of Galveston harbor are owned by the CITY and have been set apart by the CITY as a separate utility known as the "Galveston Wharves." Pursuant to Art. 12 of the CITY's Home Rule Charter, and Art. 1187f, Sec. 7, Vernon's Texas Revised Civil Statutes Annotated, the management and control of the WHARVES have been vested in the its Board of Trustees. The CITY may be served by serving its manager, Mr. Jack Nichols.

The WHARVES and the BOARD may both be individually served by serving the Chairman of the Board, Mr. Sam G. Tramonte; C. S. Devoy may be served individually either at the main offices of the WHARVES or at his residence address.

At all times material to this lawsuit, the Defendants owned, controlled, operated, and utilized, in the conduct of their governmental as well as their proprietary functions, the Historic Site commonly known and referred to as Piers 18 and 19 of the Port of Galveston and also known and designated by the Texas Historical Commission as "Pier 19-Mosquito Fleet Berth"; and also known and designated on the National Register of Historic Places Inventory as "Galveston Marine Site", and also "Mosquito Fleet Berth, Pier 19". This area shall at all times be referred to within this Petition as "Historic Site.", and such Historic Site is a historic site contemplated under the provisions of Art. 5421q., V.A.T.S.

At all times material to this lawsuit, C. S. Devoy, the WHARVES and the Board of Trustees, were all acting as agents of or employees of the CITY and its WHARVES.

At all times material to this lawsuit, the Defendants, the City of Galveston and the Galveston Wharves, were "governmental bodies" as defined under Sec. 1(c) of Art. 6252-17, V.A.T.S., entitled "PROHIBITION ON GOVERNMENTAL BODIES FROM HOLDING MEETINGS WHICH ARE CLOSED TO THE PUBLIC," and more commonly referred to as THE TEXAS OPEN MEETINGS ACT. Additionally, at all times material to this lawsuit, the Defendants, the City of Galveston and the Galveston Wharves, operating by and through its Executive Director and the Wharves Board of Trustees, were operating as or on behalf of a department, agency, political subdivision, and municipality of this State within the meaning of Art. 5421q. of V.A.T.S., entitled "TAKING PARK, RECREATIONAL, ETC., LAND FOR OTHER PUBLIC USE; NOTICE; HEARING."

On or about March 24, 1976, the Defendant WHARVES made an application for a Department of the Army Permit to the U.S. Army Engineer District of the Corps of Engineers, Galveston, Texas, for the demolition of the Historic Site referred to herein and for construction of a new and different facility which requires the total use and taking of the Historic Site. A copy of the letter submitting such application, dated March 24, 1976, and a copy of the original application are attached hereto as Exhibit "A" (consisting of five pages) and are incorporated by reference at this point, word for word. Then, on or about March 31, 1976, the WHARVES also sent notices to the persons whose vessels and businesses are the very essence of this Historic Site notifying them that they must vacate and remove their vessels from the Historic Site on the 30th day following the receipt of their respective notices. One or more of the persons who utilize the Historic Site for the purposes for which it has been previously designated has in fact received such notice on April 1, 1976. Attached hereto and incorporated at this place, word for word, are Plaintiffs' Exhibits "B" and "C", representative of these notices referred to herein. The eviction of these people from their present location is in effect, the immediate destruction of the essence and the quality of the Historic Site which has caused the Historic Site to be designated.

On April 1, 1976, Mr. O. L. SELIG, Deputy Executive Director of the Defendant WHARVES, personally represented to the Plaintiff herein, Ralph Wood and the undersigned counsel for all of the Plaintiffs herein, that said application and notices, referred to herein as Plaintiffs "A", "B", and "C", were partially authorized by the BOARD on or about February 24, 1976 in an "Executive Session" held outside of the sight and hearing of the public and without notice to the Plaintiffs or the citizens of this County, as is required by law, and all in violation of all of Art. 6252017, V.A.T.S. Then in the same secretive manner, and without fulfilling the requirements of Art. 6252-17, V.A.T.S. said actions approving the application and notices referred to herein as Exhibits "A", "B" and "C" were modified according to Mr. Selig, into their present form by authority of the BOARD on or about March 23, 1976, also in an "Executive Meeting" which was held without any notice to the public or these Plaintiffs. These attempted actions of the BOARD are in violation of all the provisions of Art. 6252-17,V.A.T. S. Your Plaintiffs attach hereto and incorporated at this place, word for word, their Exhibits "D" and "E" Notice of Meeting posted by the Wharves Board on the above respective dates shown.

Your Plaintiffs would show that at all times material hereto and prior to the actions and conduct specified herein of the Defendants, the Historic Site of the CITY had previously been designated and utilized as a historic site under the meanings contemplated in Art.5421q, V.A.T.S.

Your Plaintiffs would show that the first announcement and notice that they received which indicated that the WHARVES, acting by and through its BOARD, had formally approved any program or project that required the use or taking of this public land, which had been designated and utilized to the arrangement of their program or project as a Historic Site, was when they received or learned of the Public Notice dated March 31, 1976 from the U.S. Army, which is referred to herein as Exhibit "F" (and which consists of four pages), all of which are incorporated at this place, word for word. Further, your Plaintiffs would show that such purported actions or conduct of the BOARD, either on or about February 24, 1975, or on or about March 23, 1976, or at any other times, were all without the proper notice and were in violation of all of the provisions required under Art. 6252-17 or Art.5421q, and such attempted approvals of their program or project which requires the use or taking of the Historic Site should be judicially invalidated under the provisions of Art. 6252-17, V.A.T.S. and Art. 5421q, V.A.T.S. and such attempted conduct on the part of the Defendants should be held by this Court to be void.

The Plaintiffs would further show that the Defendants have completely and totally failed to follow any of the requirements of Art. 5421q, V.A.T.S. in attempting to approve their program or project that requires the use or taking of the Historic Site and that none of its prerequisites of said Art. 5421q, V.A.T.S., have been complied with as required by law; and further, that if any argument should be raised or presented by any of the Defendants or their agents or employees to the contrary, then any such attempted compliance with any of the provisions should be likewise judicially invalidated because of the failure of such Defendants, their agents or employees, to properly follow the prescribed procedures required in either Art. 6252-17 or Art. 5421q, V.A.T.S.

In addition to the foregoing, your Plaintiffs, now asserting as a separate and distinct legal basis for the relief sought herein, would show the Court that the attempted delegation of all powers to the BOARD, as are contained in Article XII of the City Charter, are too great a delegation, and as such, defy Art. 11, Sec. 5 of the constitution of the State of Texas. Any attempted act on the part of the BOARD to make any decision which requires the expenditure of funds either for the demolition of the Historic Site or for the construction of a new facility in the place of the Present Historic Site, should be judicially invalidated and declared to be void. In support of this statement your Plaintiffs would show that Art. 11, Sec. 5 V.A.T.S. of the Constitution of the State of Texas provides as follows:

"and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, OR OF THE GENERAL LAWS ENACTED BY THE LEGISLATURE OF THIS STATE" (Emphasis Supplied)

Your Plaintiffs would show that Arts. 689a-13, 189a-14 and 689a-15, V.A.T.S. are such general laws as are referred to in Art. 11, Sec. 5 of the Constitution of the State of Texas, and as such these general laws place a limitation on the power of the City of Galveston and its people from attempting to delegate to the BOARD those functions and responsibilities set forth in those laws, and the powers and duties prescribed in those laws cannot be delegated to the BOARD. Further, Art. 1187F, V.A.T.S., the enabling statute which allows the CITY to delegate certain administrative and non-legislative functions to the BOARD, does not specifically allow any exceptions to be made to these general laws.

The budget of the CITY for 1975-1976 does not provide for any such activities as are being attempted by the Defendants with reference to the Historic Site, and the procedures prescribed by these general laws have not been followed, and neither have the provisions of Article VII of the CITY's Charter been followed by the CITY as far as allocating any expenditures for these contemplated projects which require the destruction the Historic Site.

Your Plaintiffs would further show that Sec. 15, of Article XII, of the City Charter attempts to provide that:

"Section 15. Construction of Article. The provisions of this article shall be construed as setting forth the provisions for the management, control, maintenance and operation of the Galveston Wharves AND THE INCOME AND REVENUES THEREFROM and shall constitute exceptions to the other provisions of this Charter in these respects." (Emphasis Supplied)

This section is totally contrary to the general laws of the State, in its attempt to avert the provision of Article XII of the City Charter, and such is likewise repugnant to and contrary to the provisions of the general laws, Arts. 689a-13, 689a-14, and 689a-15, and such Section should likewise be judicially invalidated and held void.

Any eviction of the present users of the Historic Site from their present location is in effect, the immediate destruction of the essence and quality of the Historic Site for which the Historic Site has been so designated.

Therefore, any provisions contained in Article XII of the CITY's Charter which attempts to vest in the Board the power of any approval of a plan which requires the enormous expenditure of funds for destroying the Historic Site and the construction of any new and different facility in its place should be judicially invalidated and declared void.

Your Plaintiffs would further show that they have not adequate remedy at law other than as afforded to them under Arts. 6252017, 5421q, V.A.T.S., and as is additionally set out in paragraph VIII of this petition, and if the Defendants and their agents or employees are allowed to proceed as they have announced in Plaintiffs' Exhibits "A", "B", "C" and "D" herein, your Plaintiffs will all suffer irreparable harm and damage due to the loss and destruction of this Historic Site. Under these circumstances, the individual Plaintiffs each request the Court to Order the Defendants to immediately reinstate its service to the present users of the Historic Site; that they immediately withdraw their request for eviction and their request for a Department of the Army permit and that A Temporary Restraining Order be granted by this Court to temporarily restrain the Defendants from:

Discontinuing in any manner or for any reason except for the nonpayment of the existing rates of rent, the service to any users of the Historic Site;
Digging on, destroying, blocking, filling in or otherwise impeding the present utilization of the Historic Site either by the present users of the public;
Either initiating or continuing the expenditures of any funds or doing any act that would cause or bring about the destruction of the Historic Site;
Holding any closed meeting or session of any kind to discuss or to take any formal action pertaining to the Historic Site, nor allowing any deliberation between a quorum of the Board, regardless of where they may be, without such deliberations being open to the public and then, only after allowing all of the prescribed procedures as set forth in Art. 6252.17, V.A.T.S.;
Threatening to move, intimidating, or in any way making any direct, individual, or public statements designed to coerce any of the persons utilizing the Historic Site to relinquish their present utilization at the Historic Site;
Changing, altering or destroying any portion of the Historic Site for any reasons other than to repair the facilities so that they will be functional and safe both for the uses of the Historic Site and the public who visits the Historic Site;
Making any contracts with any federal, state or local government, or any individual enterprise, for any use of any of the facilities in the Historic Site which would in any way operate to diminish or act as a detriment or a handicap to the present uses of the Historic Site;
Closing portions of or all of any streets leading into, through, or out of the Historic Site;
Fencing, blocking or in any such manner impairing or interfering with the public's free and convenient access to any of the present locations utilizing the Historic Site.

WHEREFOR, PREMISES CONSIDERED, your Plaintiffs pray that the Defendants be cited to appear and answer herein, and that the Plaintiffs be granted the relief as prayed for herein, that the Court issue a Temporary Restraining Order, and its Mandatory Order restraining Defendants in conformity with the allegations of this Petition from the acts as set forth above and requiring the Defendants to take the action ORDERED, and that the Temporary Restraining Order requested herein shall, upon proper notice, and after hearing, be made into a Temporary Injunction, and that upon final hearing hereof, Plaintiffs have a Permanent Injunction and a judicial ORDER invalidating the several acts complained of herein and holding any such acts as being void, and for such other relief, both general and special, at law and in equity to which they may show themselves justly entitled and will forever pray.

Respectfully submitted,
MOORE & LAURENCE
By ROBERT M. MOORE
Pennzoil Place, Zapata Tower
711 Louisiana, Suite 800
Houston, Texas 77002
713/223-1377

n this the 6th day of April, 1976, the Plaintiffs' Original Petition of REITA FUGGER, ET AL VS THE CITY OF GALVESTON, ET AL, having been submitted to the Court, containing an application for a Temporary Restraining Order and Mandatory Order and a Temporary Injunction as is therein alleged and prayed: and

APPEARING that the Defendants therein named should be cited to appear and SHOW CAUSE why such requested relief should not be granted; and

The Court, having examined the Plaintiffs' verified Petition and Affidavits, finds that the Plaintiffs' petition and their sworn statements attached there to and incorporated therein show that immediate and irreparable injury will result to the public's Historic Site unless the Defendants are forthwith restrained and required to act as requested. Plaintiffs have no other adequate remedy at law.

IT IS THEREFORE ORDERED that the Clerk of this Court issue A Temporary Restraining Order and a Mandatory Order immediately restraining the Defendants, their agents or employees immediately from:

Discontinuing in any manner or for any reason, except for the nonpayment of the existing rates of rent, the service to any of the present users of the Historic Site;
Digging, on, destroying, blocking, filing in or otherwise impeding the present utilization of the Historic Site either by the present users or the public;
Either initiating or continuing the expenditures of any funds or doing any similar act that would cause or brig about the destruction of the Historic Site.
Holding any closed meeting or session of any kind to discuss or to take any formal action pertaining to the Historic Site, nor allowing any deliberation between a quorum of the Board, regardless of where they may be, without such deliberations being open to the public and then, only after allowing all of the prescribed procedures set forth in Art. 6252-17, V.A.T.S.;
Threatening to move, intimidating, or in any way making any direct, individual, or public statements designed to coerce any of the persons utilizing the Historic Site to relinquish their present utilization at the Historic Site.
Changing, altering or destroying any portion of the Historic Site for any reasons other than to repair the facilities so that they will be functional and safe both for the users of the Historic Site and the public who visits the Historic Site.
Making any contracts with any federal, state, or local government, or any individual enterprise, for any use of any of the facilities on the Historic Site which would in any way operate to diminish or act as a detriment or a handicap to the present uses of the Historic Site.
Closing 20th Street leading into, through, or out of the Historic Site:

Fencing or in any such way impairing or interfering with the public's right to free and convenient access to Pier 19.

ORDERING the Defendants to completely reinstate service to the present users of the Historic Site; all until further Orders of this Court; and it is further

ORDERED that the Defendants and each of them, be and each are hereby Ordered and Directed to appear before the 56th District Court, in its courtroom, Galveston County Courthouse, in Galveston, Texas, at 9:30 o'clock A.M. on the 13th day of April, 1976, and then and there to show just cause if any each has why the Temporary Restraining Order and Mandatory Order issued herein should not be continued as A Temporary Injunction. It is further ORDERED that this Fiat, together with Plaintiffs' Original Petition be served upon the Defendants in the manner prescribe by law, conditioned upon the Plaintiffs properly filing their bond with the clerk in the form and as required by law, in the cumulative or total amount of $500.00.

WHEREAS, in the above entitled and numbered cause, the Judge of the 10th Judicial District Court of Galveston County, Texas did on the 6th day of April, 1976, make and enter his Order in the above styled and numbered cause granting a Temporary Restraining Order pending a hearing on a Temporary Injunction and requiring Mandatory action against the Defendants named in said application and requiring Plaintiffs, REITA FUGGER, RALPH B. WOOD, EDNA FULLER and BILL H. FULLEN -----------------to Make and execute and file their bond in the amount of ___five hundred & no/100 dollars ($500.00) payable to defendants as required by the Rules of Civil Procedure of the State of Texas before the issuance of said Temporary Restraining Order and Mandatory Order pending a hearing on a Temporary Injunction;

KNOW ALL MEN BY THESE PRESENTS, that we, REITA FUGGER, RALPH B. WOOD, EDNA FULLER and BILL H FULLEN-------as principal and the other subscribers hereto as surety do hereby acknowledge ourselves, jointly and severally, bound to pay to Defendants the sum of five hundred & no/100 dollars ($500.00); conditioned that Plaintiffs shall abide by the decision which may be made in the above styled cause and they will pay all sums of money in damages that may be adjudged against them if such Temporary Restraining Order and Injunction so granted by said Judge is dissolved in whole or in part.

IN TESTIMONY WHEREOF, the principal and surety have herein set their hand on this the 6th day of April, A. D. 1976.

COMES NOT, REITA FUGGER, individually and as the Executive Officer on behalf of THE GALVESTON COUNTY HISTORICAL COMMISSION, RALPH B. WOOD, EDNA FULLER, and BILL H. FULLEN all hereinafter referred to as "Plaintiff" or Plaintiffs", with leave of Court having been first had an obtained, file this, their Second Trail Amendment to their Plaintiffs' Original Petition and would respectfully show the Court as follows:

There is hereby added, following paragraph VIII E. of Plaintiffs' Original Petition, the following paragraphs VIII D., as follows:

In addition to the above, your Plaintiffs would show that they each individually, and in their respective representative capacity, request the injunctive relief under the provision of ART. 6145-9, V.A.T.S., more commonly referred to as THE ANTIQUITIES CODE OF TEXAS and seek all injunctive relief prayed for under said Act, in addition to the other basis of their suit herein.

Your Plaintiffs' Original Petition and Plaintiff's First Trial Amendment are hereby adopted.

WHEREFORE, Plaintiffs pray, as in their Original Petition, and as in their First Trial Amendment, all as hereby amended, that upon termination of this hearing for Temporary Injunction that the Court enter its Temporary Injunction as previously ordered in its Temporary Restraining Order and that the relief prayed for by the Defendants be denied, and that upon final hearing herein a Permanent Injunction issue, that Plaintiffs go hence without day and recover their costs and that the Plaintiffs have such other relief or in equity to which they may be justly entitled.

MOORE & LAURENCE
BY ROBERT M. MOORE
Pennzoil Place, Zapata Tower
711 Louisiana, Suite 800
Houston, Texas 77002
713/233-1377

BEFORE ME, the undersigned authority, on this day personally appeared ROBERT M. MOORE, TEITA FUGGER, acting individually, and on behalf of the GALVESTON COUNTY HISTORICAL COMMISSION, RALPH B. WOOD, EDNA FULLER, and BILL H. FULLEN, who each, bring by me first duly sown, upon his or her oath stated that they were each on of the Plaintiffs in the above cause, and they had also been duly authorized to act in any representative capacity shown herein, and that each has read the foregoing trial amendment and each state individually, and in their representative capacity that the facts and allegations stated herein are true and correct.

ROBERT M MOORE
REITA FUGGER, Individually
GALVESTON COUNTY HISTORICAL COMMISSION
BY REITA FUGGER, Chairman
RALPH B WOOD
EDNA FULLER
BILL H. FULLEN

BE IT REMEMBERED that on the 13th day of April 1976, after due notice as required by law, came on to be heard the above cause and came all of the parties, in person or through their authorized representative, and their respective attorneys of record also appeared, whereupon the attorney for the Defendants, THE GALVESTON WHARVES BOARD OF TRUSTEES and its Director, C. S. DEVOY, presented said Defendants' Motion for Modification of the Temporary Restraining Order (which the Court overruled because timely notice had not been given) and their Motion for Continuance; and the Court, after hearing argument and considering said Motion for Continuance overruled same because Answers were on file and the parties and their respective representatives were all before the Court, and the Court proceeded to hear evidence from day to day until the 15th day of April at 2:10 P. M. when it recessed until 2:00 P.M. on April 19, 1976 continuing all the while its Temporary Restraining Order. On April 19, 1976 the hearing resumed and the Defendants, THE GALVESTON WHARVES BOARD OF TRUSTEES and its Director C. S. DEVOY, through their attorney of record, after certain stipulations and exhibits had been offered and accepted into evidence, made their Motion to Dismiss into the record; and the Plaintiffs, having first obtained leave of Court, filed their Plaintiffs' First Trial Amendment, and the Court, after having heard argument of counsel, and having considered the evidence and the pleadings in the record at that point, overruled Motion, and proceeded and continued to hear evidence, all the while continuing to full force and effect its Temporary Restraining Order. When the Plaintiffs rested their case, the Defendant, THE CITY OF GALVESTON, having its Motion to Dismiss the action on file, and joined by the other Defendants, urged their Motions to Dismiss to the Court, and the Court, after considering the evidence and the pleadings in the record at that time, and after hearing argument, overruled said Motions, to which the Defendants excepted and objected.

After all parties rested their case, the Plaintiff's offered their Second Trial Amendment, the Court, granting leave to file the same, but excluding only paragraph VIII G thereof, and having examined the pleadings of all of the parties of record, exhibits introduced in this cause, and having considered all of the evidence presented in the cause and the arguments of counsel, is of the opinion that the material allegations of Plaintiffs' Original Petition and Plaintiffs' First and Second Trial Amendments are probably true and correct and that the Plaintiffs have standing to bring this action, and that unless the Defendants are restrained as prayed for, the Court hereby finds that probable harm will result to the Plaintiffs for one or more of the following reasons:

The area of the wharves property of THE CITY OF GALVESTON known as "Pier 19---Mosquito Fleet Berth" (which has been specifically described by maps and testimony in the record) has been legally and properly designated as a "Historic Site" by the State of Texas and has also been accepted and placed on the National Register of Historic Places by the Federal Government; that this area has significant historical value to the Plaintiffs as well as other citizens of Galveston County; that the necessary permit required by the State of Texas under Act. 6145-9, V.A.T.S. before any alteration or destruction of the area can take place has not been obtained and the Defendants are presently without legal authority to destroy or alter this Historic Site; that the Defendants have not complied with Art. 5421q of V.A.T.S., and are likewise without proper authority at this time to approve any such plan which requires the use or taking of this Historic Site because the general budgetary laws of the State of Texas (Arts. 689(a)-14, and 689(a)-15, V.A.T.S.) which control the Defendants, THE CITY OF GALVESTON, have not been followed by the Defendant, THE CITY OF GALVESTON, and this Defendant has no authority to spend any funds of THE CITY OF GALVESTON, and this Defendant has no authority to spend any funds of THE CITY OF GALVESTON for any efforts required to implement any plan for the destruction or alteration of this Historic Site; that the Defendant, THE GALVESTON WHARVES BOARD OF TRUSTEES in all probability does not have proper authority to allocate the funds of THE CITY OF GALVESTON for the alteration or destruction of this Historic Site absent approval of THE CITY OF GALVESTON; that the eviction of the present tenants from the Historic Site of Pier 19 will be such a destruction or alteration of the Historic Site or such a use or taking of the Historic Site as is prohibited by the applicable statutes of this State, Art. 6145-9 and Art. 5421q, V.A.T.S.; evidence in the record clearly reflects that the Defendants will probably proceed with various steps to so alter, destroy, or use and take the Historic Site of Pier 19 for purposes other than that for which it has been so designated unless restrained by Order of this Court; that the Defendant, GALVESTON WHARVES BOARD OF TRUSTEES, has violated various provisions of the Texas Open Meeting Law, Art. 6252-17, V.A.T.S. and has denied that it is subject to any provisions of such law; the Court finds that such agent of the CITY, in conducting the affair of the CITY, is subject to all of the provisions of such law, and unless so enjoined as herein provided, irreparable harm and injury to these Plaintiffs and the other citizens of the community will result if this Defendant is not restrained and enjoined from holding certain of its meetings in full compliance with such law; that unless the Court enters its restraining Order herein, irreparable harm and damage will in all probability result in this Historic Site hand have a resulting probable harm and injury to these Plaintiffs as well as to the other interested citizens of THE CITY OF GALVESTON because of loss of an area of this Community which is important to them and in which, as citizens, they have a justiciable interest; that any expenditure of funds by Defendants to accomplish the objective of the destruction of the Historic Site will necessitate the expenditure of the funds of THE CITY OF GALVESTON and may, to significant degree, add to the expense of the CITY and have a corresponding burden on all taxpayers of THE CITY OF GALVESTON by increasing their tax burdens, including the Plaintiffs; that in the instance of the Plaintiff, BILL H FULLEN, the destruction of the Historic Site of Pier 19 will probably harm, to some degree, the business of this particular Plaintiff; that the Galveston County Historical Commission has an interest in protecting the Historic Site for the benefit of the citizens of Galveston County, and such interest will be irreparably damaged and harmed by any alteration and/or destruction of the Historic Site of Pier 19. It has estimated that the destruction of the Historic Site will cost approximately Seventy Five Thousand Dollars ($75,000.00) to One Hundred Thousand Dollars ($100,000.00).

Plaintiffs have each shown a probable injury to themselves, and in the event that the Court does not enter its Temporary Injunction,

THE INGENIOUS USE OF INJUNCTIVE REMEDIES IN TEXAS