State v. Texas Pet Foods, Inc.
| Decision Date | 14 November 1979 |
| Docket Number | No. B-8449,B-8449 |
| Citation | 591 S.W.2d 800 |
| Court | Texas Supreme Court |
| Parties | The STATE of Texas v. TEXAS PET FOODS, INC. |
Mark White, Atty. Gen., David J. Preister, Asst. Atty. Gen., Austin, for petitioner.
Dunnam, Dunnam & Dunnam, Vance Dunnam, Waco, for respondent.
The primary question presented is the determination of the existence of a present or threatened violation of the Texas Clean Air Act, Texas Water Quality Act, or Texas Renderers' Licensing Act, that will support the issuance of a permanent injunction. 1 A second question is whether there is any evidence to support one of the violations of the Clean Air Act found by the jury operating a cooker without a permit.
The State of Texas filed suit for civil penalties and injunctive relief against Texas Pet Foods, Inc. for violations of the above statutes. After trial to a jury, the trial court rendered judgment in favor of the State, assessing civil penalties for past violations and granting injunctive relief to prevent future violations. The court of civil appeals modified the judgment, vacating the injunction and reducing the civil penalties, and affirmed. 578 S.W.2d 814. We reverse that part of the judgment of the court of civil appeals that set aside the injunction and affirm the trial court's permanent injunction. We affirm the judgment of the court of civil appeals modifying the civil penalties assessed.
Texas Pet Foods, Inc. operates a poultry rendering plant in McLennan County near the City of Waco on a site adjacent to the Brazos River. The plant converts chicken and poultry offal into a protein supplement for animal feeds by a cooking process that is fully and ably described in the opinion of the court of civil appeals. The jury found, in thirty-eight special issues, a total of 581 violations of eight different kinds between April 11, 1975 and the date trial began, August 2, 1976. In special issue No. 33, the jury found that 478 of the 581 violations consisted of operating the sixth cooker without the required air pollution control operating permit during this time period. The jury findings are summarized in the court of civil appeals opinion.
Both parties filed applications for writ of error. In its application, the State asserts in a single point of error that the court of civil appeals erred in setting aside the injunction. Texas Pet Foods in its application asserts that there is no evidence to support the jury finding that the sixth cooker operated every day for the entire period of 478 days. In the trial court Texas Pet Foods had urged in a motion to disregard the jury's answer to special issue No. 33 that the only testimony adduced was of violations on three specific days during the period and that therefore, the finding in excess of three days was without evidence to support it. The motion also urged that the figure of 478 days was excessive by 138 days since the plant did not operate on Saturdays and Sundays. The court of civil appeals agreed with Texas Pet Foods' contention that the trial court's assessment of penalties for the operation of the cooker on Sundays was without probative evidence and accordingly, modified the penalties by reducing them for the 69 Sundays during the period.
We first address the propriety of the injunction. All three of the applicable statutes require a finding of a present or threatened violation of the act. The pertinent sections are:
Upon application for injunctive relief and a finding that a person is violating or threatening to violate any provision of this Act or of any rule, regulation, variance or other order of the board, the district court shall grant the injunctive relief the facts may warrant.
Texas Clean Air Act, § 4.02(a).
Upon application for injunctive relief and a finding that a person is violating or threatening to violate any provision of this chapter or any rule, permit, or other order of the board, the district court shall grant the injunctive relief the facts may warrant.
Texas Water Quality Act, § 21.253(b) (now § 26.123).
(T)he Health Authority may bring an injunction suit in any district court of this state having jurisdiction and venue to compel compliance with any provision of this Act or restrain any actual or threatened violation thereof.
Texas Renderers' Licensing Act, § 19(b).
The time frame during which the violations in question occurred began on August 11, 1975 and ended on the day the trial began, August 2, 1976. The court of civil appeals viewed the findings as those of past violations and held that there were no findings of present or threatened violations. The court reasoned that because the State failed to request that issues be submitted to the jury inquiring about present or threatened violations, the State waived its right to an injunction since there was no legal basis for the injunction without such a finding by the jury. The court further concluded that the evidence did not conclusively establish present or threatened violations and that the finding could not be deemed as found by the court in support of the judgment as provided in Tex.R.Civ.P. 279. We believe that the court of civil appeals was in error.
Rule 693 provides: "The principles, practice and procedure governing courts of equity shall govern proceedings in injunctions when the same are not in conflict with these rules or the provisions of the statutes." Although a litigant has the right to a trial by jury in an equitable action, only ultimate issues of fact are submitted for jury determination. The jury does not determine the expediency, necessity, or propriety of equitable relief. Alamo Title Co. v. San Antonio Bar Assn., 360 S.W.2d 814, 816 (Tex.Civ.App. Waco 1962, writ ref'd n. r. e.). The determination of whether to grant an injunction based upon the ultimate issues of fact found by the jury is for the trial court, exercising chancery powers, and not the jury. Jones v. English, 268 S.W.2d 686, 690 (Tex.Civ.App. San Antonio 1954), Aff'd 154 Tex. 132, 274 S.W.2d 666 (1955). As the court in Alamo Title correctly observed:
We do not consider the question of likelihood of (defendant's) resumption or continuation of the acts enjoined as being an ultimate issue of fact for the jury. . . . Although in Texas the findings on issues of fact are binding, equitable principles and the relief afforded by equity continue to be applied by the court itself, . . . Rule 693, Texas Rules of Civil Procedure . . . . A jury in equity, even under a blended system, does not decide the issue of expediency, necessity or propriety of equitable relief. If submitted, the issue would evoke only a conjectural and speculative surmise which, in our opinion, would not control the processes of equity. It was an element deducible from the circumstances for the court to consider in determining whether wrong or injury might be anticipated and whether chancery powers should be exercised. It constituted here, in effect, a mixed question of law and fact at most. Such questions are not for the jury in injunction cases.
Texas Pet Foods and the court of civil appeals reason that the violations found were past violations extending over a period of some fourteen months and ending the day trial began. They reason that those findings will not support a trial court determination that Texas Pet Foods is violating or is threatening to violate the acts involved. We disagree. If we accept their definition of a "present" violation, it would be necessary to find violations occurring after the trial had commenced, or even while the jury was returning its verdict. When the jury finds violations occurring and continuing up to or near the date of the trial, the trial court may, in equity, determine that the defendant has engaged in a settled course of conduct and may assume that it will continue, absent clear proof to the contrary. Texas Pet Foods, Inc. v. State of Texas, 529 S.W.2d 820, 827 (Tex.Civ.App. Waco 1975, writ ref'd n. r. e.). The probability of the continuation of the prohibited practices is not a matter which is susceptible of direct proof, and injunctive relief is proper when the trial court finds it justified under the rules of equity, notwithstanding a defendant's cessation of the activity or solemn promises to cease the activity. Alamo Title Co. v. San Antonio Bar Assn., supra, at 817; Magnolia Petroleum Co. v. State, ...
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