State v. Cook United, Inc.

• Decision Date: 22 January 1971
• Docket Number: No. 17154,17154
• Citation: 463 S.W.2d 509
• Parties: The STATE of Texas et al., Appellants, v. COOK UNITED, INC., et al., Appellees.
• Court: Texas Court of Appeals

Page 509

463 S.W.2d 509

The STATE of Texas et al., Appellants, v. COOK UNITED, INC., et al., Appellees.

No. 17154.

Court of Civil Appeals of Texas Fort Worth.

Jan. 22, 1971.

Rehearing Denied Feb. 26, 1971.

Frank Coffey, Criminal Dist. Atty., and Don E. Burdette, Asst. Dist. Atty., Fort Worth, for appellants.

Berman, Fichtner & Mitchell, and Linda A Whitley, Dallas, for appellees.

OPINION

BREWSTER, Justice.

This case involves Art. 286a of Vernon's Annotated Texas Penal Code, which is sometimes referred to as the 'Sunday Closing Law.'

It is an appeal from a District Court order that granted a temporary injunction enjoining the State of Texas, its Attorney General, all district and county attorneys, and their agents and employees, and Tarrant and McLennan Counties from filing any new causes of action, suits in law or in equity, or instituting any other litigation against or involving any of the appellees, their agents and employees, the object or purpose of which would be to obtain Injunctive or civil relief provided for or which might arise out of the terms and provisions of Art. 286a, Vernon's Annotated Texas Penal Code and/or the terms and provisions of Chapter 15, Business and Commerce Code of Texas, V.T.C.A., pending final adjudication of all existing and pending litigation by, between and among any or all of the parties to the cause then pending in the 48th District Court. The order also contained the following: '* * * provided however, this Order shall in no way affect the status or prosecution of the current, pending litigation heretofore filed by the State of Texas and County of Tarrant.'

The State of Texas, through the Tarrant County District Attorney, had filed a suit in 48th District Court, Tarrant County, seeking injunctive relief under Art. 286a, Texas Penal Code, against the appellees, alleging that they were operating four business locations in Tarrant County contrary to the provisions of the statute. Prior to that time the State of Texas had in 1968 filed a similar suit in the 17th District Court of Tarrant County alleging that most of the appellees had in 1968 violated the same statute and an injunction was sought against them under the statute. Appellees filed a cross-action in this last referred to case and the State then took a non-suit as to its suit for an injunction in that case, leaving the cross-action pending. The Tarrant County District Attorney, who had filed each of the other two suits on behalf of the State, then brought another suit in the 141st District Court of Tarrant County naming Tarrant County, a political subdivision of the State of Texas, as plaintiff and the appellees as defendants, alleging that appellees were violating Art. 286a, Penal Code of Texas, and asking for the injunction provided for by that statute.

The appellees in the case are Cook United, Inc., M. N. Landau Stores, Inc., Clark's Texas, Inc., Clark's Arlington, Inc., d/b/a Cook's Discount Stores and Cook's Discount Center, Sundaco, Inc., Martin Stryer, Marshall Brinkley, Claude Crawford, Ed Croan, A. Cyr, David DeBoard, Neal Dismukes, Jim Jett, Roy Rickard, J. C. Miller, Jay Fichtner, and Harry Margolis.

In each of the three Tarrant County cases the State's contentions were substantially the same. Contention was that one or more of the corporate defendants was operating a business at one of the locations in Tarrant County and that such corporate entity purported to enter into a contract with the appellee, Sundaco, Inc., by which it sold to Sundaco, Inc. all of its stock of merchandise at that location at 11:59 P.M. on each Saturday night during the period covered by the agreement; then on Sunday night at 12:00 P.M. Sundaco would sell back to the owner of the business that part of the stock that had not been sold on Sunday. The State contended that this arrangement was a mere sham and that it was devised to get around the Sunday closing law. It was contended that on consecutive Saturdays and Sundays the appellees sold articles listed in Art. 286a all in violation of that statute and each suit sought a restraining order, temporary injunction and the permanent injunctive relief provided for by the statute in instances where such merchandise was being sold on both Saturday and Sunday in violation of the statute.

All appellees that are individuals are either managers or employees of the corporate parties, except Jay Fichtner, who was a director, stockholder, and secretary of Sundaco, Inc.

In each of such cases the parties, including Sundaco, answered alleging that Sundaco, Inc. was a Texas corporation, was an entirely separate and distinct legal entity from the corporate entity that owned and operated the particular business at the location involved for six days each week. It was claimed that such corporations (owners) operated the business for six days a week and that Sundaco bought the merchandise of the store on Saturday night, leased the premises for each Sunday, and then ran during Sunday a separate business from this same location on Sunday. In each such case the claim of appellees was that such operation was not a sham, that it was not in violation of Art. 286a, and that in addition to that the statute was unconstitutional.

Prior to the temporary injunction hearing in question all three of the Tarrant County suits had been transferred into the 48th District Court and consolidated into one case for trial.

The appellees in such case filed a crossaction by which they sought the temporary injunctive relief granted to them by the order in question. The grounds urged for seeking the temporary injunction were that the State or its political subdivision (Tarrant or McLennan Counties) had not only filed the three cases against them in the Tarrant County Courts that were referred to above, but had also filed 6 or 7 other cases in District Courts located in other Texas counties against one or more of the appellees and were threatening to file others, and that in each case the parties were substantially the same and the law and fact questions involved were substantially the same and the relief sought (the injunction provided for by Art. 286a) was the same. Appellees alleged that the State had thus subjected them to a multiplicity of suits, subjected them to harassment and vexatious litigation.

After a hearing the trial court granted a temporary injunction substantially as outlined in the second paragraph of this opinion and the State and its subdivision involved here have appealed.

It was not necessary for appellants to file a brief in this case since it is an appeal from an order granting a temporary injunction. This is true because of the provisions of Rule 385(d), Texas Rules of Civil Procedure. Ramos v. Guerra, 311 S.W.2d 869 (San Antonio, Tex.Civ.App., 1958, no writ hist.), and Austin v. Consolidated Casting Co., 246 S.W.2d 273 (Fort Worth, Tex.Civ.App., 1952, no writ hist.).

Appellants did not file briefs herein at the time required by Rule 414, T.R.C.P., but did file briefs in connection with the appeal just a few days prior to submission date.

The law that controls this Court in a determination of this appeal from an order granting a temporary injunction is clearly stated in the Texas Supreme Court opinion in the case of Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460 (1952), as follows: '* * * The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion. * * *'

To the same effect see Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962), and Ben Wheeler Ind. Sch. Dist. v. County School Trustees, 414 S.W.2d 477 (Tyler Civ.App., 1967, ref ., n.r.e.).

On this particular appeal the review of the case therefore does not extend to the merits, but is limited to the question of abuse of discretion. Metropolitan Construction Company v. White, 438 S.W.2d 433 (Fort Worth, Tex.Civ.App., 1969, no writ hist.).

By its first four points the State contends that the trial court erred in granting the temporary injunction because the effect of the order was to enjoin the enforcement of the penal statute, Art. 286a, Penal Code of Texas, and to suspend its operation.

The law in Texas is clear that a civil court has no jurisdiction to enjoin the enforcement of a criminal statute except in instances where (1) such statute is void or unconstitutional, and (2) where the applicant's vested property rights are impinged by the enforcement of such statute. See Spartan Industries, Inc. v. State, 379 S.W.2d 931 (Eastland, Tex.Civ.App., 1964, no writ hist.); City of Fort Worth v. Craik, 411 S.W.2d 541 (Tex.Sup., 1967); and City of Richardson v. Kaplan, 438 S.W.2d 366 (Tex.Sup., 1969).

Texas courts have held the Statute (Art. 286a) to be constitutional. See State v. Spartan's Industries, Inc., 447 S.W.2d 407 (Tex.Sup., 1969), and Spartan Industries v. State, 379 S.W.2d 931 (Eastland, Tex.Civ.App., 1964, no writ hist.). This last case also holds that people in the position of appellees here have no vested property rights entitling them to an injunction against the enforcement of the statute.

The State contends that the case should be reversed for those reasons.

We overrule such contentions.

Article 286a of the Penal Code is unquestionably a criminal statute. Section 3 of the statute provides for punishment of violators by either fine, imprisonment or by both. The trial judge was careful to make the questioned order provide expressly that the injunction granted was against 'filing any new causes of action, * * * the * * * purpose * * * of...