Elizondo v. Williams

• Decision Date: 20 October 1982
• Docket Number: No. 04-82-00439-CV,04-82-00439-CV
• Citation: 643 S.W.2d 765
• Parties: 8 Ed. Law Rep. 881 Dr. William R. ELIZONDO, President of the San Antonio Independent School District Board of Trustees, and Oscar Cisneros, Board Trustee, Relators, v. The Honorable Eugene WILLIAMS, Frances Mabry, Pat Clayworth, The San Antonio Teachers Council, and Phil Hardberger, Respondents.
• Court: Texas Court of Appeals

Page 765

643 S.W.2d 765

8 Ed. Law Rep. 881

Dr. William R. ELIZONDO, President of the San Antonio Independent School District Board of Trustees, and Oscar Cisneros, Board Trustee, Relators, v. The Honorable Eugene WILLIAMS, Frances Mabry, Pat Clayworth The San Antonio Teachers Council, and Phil Hardberger, Respondents.

No. 04-82-00439-CV.

Court of Appeals of Texas San Antonio.

Oct. 20, 1982.

Rehearing Denied Oct. 27, 1982.

Roy R. Barrera, Nicholas & Barrera, Inc., San Antonio, for relators.

Phillip D. Hardberger, San Antonio, for respondents.

Before CADENA, C.J., and BUTTS and REEVES, JJ.

OPINION

BUTTS, Justice.

Relators Dr. William Elizondo and Oscar Cisneros, president and member of the Board of Trustees of the San Antonio Independent School District, respectively, seek a writ of prohibition to prevent action on a motion for contempt arising from their alleged failure to abide by the judgment in a previous lawsuit. Relators contend that the trial court lacked jurisdiction to act on the motion for contempt. We disagree and deny the application for writ of prohibition.

Respondents Frances Mabry, Pat Clayworth, and the San Antonio Teachers Council obtained a permanent injunction on May 14, 1982, restraining Elizondo, Cisneros and various other officers and agents of the San Antonio Independent School District Board of Trustees from conducting meetings and public business by private telephone conversations in violation of the Texas Open Meetings Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17 (Vernon Supp.1982). The injunction also prohibits the use of district funds for disseminating political information not related to district matters.

On June 10, 1982, relators perfected appeal of the permanent injunction to this court by filing a cost bond and a notice of appeal. Mabry and the Teachers Council, filed a motion for contempt in the trial court on September 9, 1982, alleging that Elizondo and Cisneros violated both provisions of the permanent injunction: conducting telephone conferences on school district matters and using the district's teacher and employee mailing list for political purposes. Relators in turn filed a motion for leave to file a writ of prohibition with the appellate court on September 15, 1982. We granted that motion and prohibited respondents from proceeding further pending oral argument before this court. Relators' sole contention is that the trial court lost jurisdiction to enforce its judgment through a contempt action because appeal had been perfected to this court.

All final judgments, absent a statutory prohibition, may be superseded pending appeal by the filing of a proper supersedeas bond. Ex parte Kimbrough, 135 Tex. 624, 146 S.W.2d 371, 372 (1941). A judgment is final when it disposes of all the issues and parties, and renders unnecessary any further action by the court except the execution on the judgment. Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945, 948 (1960); Northeast Independent School District v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). A permanent injunction constitutes a final judgment when it explicitly describes a prohibited act without need for any further hearing. Fort Worth Acid Works v. City of Fort Worth, 248 S.W. 822, 824 (Tex.Civ.App.--Fort Worth 1923), affirmed, 259 S.W. 919 (1924).

This court determines the characterization of an injunction as temporary or permanent substantively by examining its characteristics and function. Owens v. Coker, 368 S.W.2d 777, 778 (Tex.Civ.App.--Beaumont 1963, no writ). The purpose of a temporary injunction is preservation of the status quo pending trial on the merits. Iranian Muslim Organization v. City of San Antonio, 615 S.W.2d 202, 208 (Tex.1981). A permanent injunction is not dependent upon any future action by the court and is characterized by the fact that it grants all the relief which the court intends to grant in that case. Gensco, Inc. v. Thomas, 609 S.W.2d 650, 651 (Tex.Civ.App.--San Antonio 1980, no writ). The judgment in this case explicitly delineates the prohibited acts; there is no suggestion that the court contemplates further hearings as to the duration of the injunctive relief. Nor will the passing of time or an act by relators end the injunction. We, therefore, find the judgment to be a permanent injunction.

Whether an injunction is temporary or permanent is determinative of the extent of a party's right to suspend the court's order during appeal. An appellant in a temporary injunction case has two potential protections from the enforcement of the trial court's judgment. The appellant may initially seek to supersede the trial court's judgment under Tex.R.Civ.P. 385(f), but the grant of supersedeas is within the discretion of the court. Caldwell v. Kingsberry, 451 S.W.2d 247, 252 (Tex.Civ.App.--Austin 1970, writ ref'd n.r.e.). Should the trial court refuse the request, the appellant has the additional recourse of filing a proper cost bond and perfecting his appeal. Once an appeal has been perfected, the appellate court may protect its jurisdiction by issuance of a writ of prohibition if the trial court attempts to enforce its judgment through a contempt proceeding. Tex.Rev.Civ.Stat.Ann. art. 1823 (Vernon 1964). On appeal from a judgment granting a permanent injunction, as distinguished from a temporary injunction pending final trial, the appellant has the absolute right under Rule 364(e) to supersede and suspend the judgment. Ex parte Kimbrough, supra; Burgher v. Chrisman, 604 S.W.2d 536, 537 (Tex.Civ.App.--Dallas 1980, no writ). The trial court has no discretion to refuse to fix the amount of such a bond and may be compelled to do so by writ of mandamus. Amalgamated Transit Union, Local Division 1338 v. Dallas Public Transit Board, 430 S.W.2d 107, 120 (Tex.Civ.App.--Dallas 1968, writ ref'd n.r.e.), cert. denied, 396 U.S. 838, 90 S.Ct. 99, 24 L.Ed.2d 89 (1969). We hold that relators' failure to exercise their absolute right to supersede the judgment subjects them to the trial court's contempt jurisdiction and, accordingly, deny the application for writ of prohibition on the 24th day of September, 1982.

CADENA, Chief Justice, dissenting.

Although I agree that the injunction involved in this case is a permanent injunction, I cannot agree with the conclusion that the trial court has the power to punish Relators for contempt for acts committed by them after they had perfected their appeal from the judgment granting the injunction by filing an appeal bond and filing the record in this court.

There are several cases holding that after the jurisdiction of the appellate court has attached only that court may punish for violation of the injunction. Ex parte Werblud, 536 S.W.2d 542, 544 (Tex.1976); Ex parte Duncan, 127 Tex. 507, 95 S.W.2d 675 (1936). Although all of such cases involve temporary injunctions, there is no acceptable basis for holding that the same rule does not apply where the alleged contempt consists of a violation of a permanent injunction.

The basis for the rule applied in such cases as Werblud and Duncan is that once the appellate jurisdiction has attached, any attempt by the trial court to compel obedience would interfere with the jurisdiction of the appellate court. This is particularly true where the appellate court is a court of appeals since, with a few exceptions not here applicable, the original jurisdiction of the courts of appeals is limited to the issuance of such writs as may be necessary to protect the jurisdiction of that court.

In Gordon v. Rhodes & Daniels, 104 S.W. 786, 787 (Tex.Civ.App.--Texarkana 1907, no writ), the Court said: "After the appeal is thus perfected, ... then the trial court loses its power in respect to those things which might trench in the appellate functions, and the jurisdiction of the (appellate court) attaches." While Gordon did not involve the question of power to punish for contempt, Justice Greenwood described the above statement as a correct pronouncement and made it the...