Texas Employment Com'n v. Norris

• Decision Date: 03 June 1982
• Docket Number: No. 09-82-056,09-82-056
• Parties: The TEXAS EMPLOYMENT COMMISSION, et al., Appellants, v. Leonce NORRIS, Appellee. CV.
• Court: Texas Court of Appeals

Page 85

634 S.W.2d 85

The TEXAS EMPLOYMENT COMMISSION, et al., Appellants, v. Leonce NORRIS, Appellee.

No. 09-82-056 CV.

Court of Appeals of Texas, Beaumont.

June 3, 1982.

Diane Van Helden, Asst. Atty. Gen., Austin, James Hambright, Beaumont, for appellants.

M. Diane Dwight, Thomas Rugg, Thomas Swearingen, Port Arthur, for appellee.

OPINION AND ORDER STAYING TEMPORARY INJUNCTION

PER CURIAM.

Texaco, Inc., one of the defendants in the court below invoked the jurisdiction of this Court in an appeal from an order granting a temporary injunction. Tex.Rev.Civ.Stat.Ann. Art. 4662 (Supp.1982).

The following day the Attorney General, on behalf of the Commission, perfected an appeal to this Court in compliance with Tex.R.Civ.P. 354, it being exempt from the bond requirement. Tex.Rev.Civ.Stat.Ann. Art. 279a (1973) and Art. 2276 (1971). See also, authorities cited in State ex rel. Tucker v. Sabo, 559 S.W.2d 124 (Tex.Civ.App.-Texarkana 1977, writ ref'd n. r. e.). For the effect of such appeal, see City of San Antonio v. Clark, 554 S.W.2d 732, 733 (Tex.Civ.App.-San Antonio 1977, orig. proceedings).

Simultaneously with the filing of the transcript, Texaco, joined by the Commission, filed its motion to stay the temporary injunction order pending the determination of the appeal. The Attorney General, on behalf of the Commission and pursuant to the provisions of Tex.R.Civ.P. 385(f), has filed a motion to advance submission of the cause and to accelerate the appeal.

We invited plaintiff's counsel to respond to Texaco's motion to suspend the order and have been favored with a memorandum in response thereto. Before addressing the motion to suspend, we note the arguments of plaintiff, the first being that such motion is analagous to one seeking supersedeas under Tex.R.Civ.P. 385(f). We agree with counsel that an order denying supersedeas, such as the one entered by the trial judge in this case, is interlocutory and not appealable. Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684, 689 (Tex.Civ.App.-Dallas 1976, writ ref'd n. r. e.).

We are not impressed with plaintiff's argument that the relief sought by the motion may "more properly be characterized as a Writ of Mandamus compelling the Trial Court to stay its injunctive order."

We have given careful consideration to the arguments presented by the plaintiff but do not find the plaintiff's cited cases, or others contained in the response, to be persuasive or to be in point in our consideration of the record before us. We do not grant supersedeas under Rule 385(f), for that is authority granted exclusively to the trial court; nor do we grant a writ of mandamus compelling trial court action.

Instead, we act upon authority conferred by statute upon this Court by Tex.Rev.Civ.Stat.Ann. art. 1823. This Court is authorized to issue such writs as may be necessary to protect the jurisdiction of this Court and to prevent the case from becoming moot. General Telephone Co. of S. W. v. City of Garland, 522 S.W.2d 732, 734 (Tex.Civ.App.-Dallas 1975, no writ); Nelson v. Blanco Independent School Dist., 386 S.W.2d 636, 637 (Tex.Civ.App.-Austin 1965, writ ref'd n. r. e.); City of San Antonio v. Clark, supra 554 S.W.2d at 733. See also, Madison v. Martinez, 42 S.W.2d 84, 86 (Tex.Civ.App.-Dallas 1931, writ ref'd).

Plaintiff Norris invoked the jurisdiction of the trial court by perfecting his appeal from an order of the Texas Employment Commission denying his claim for unemployment benefits. Tex.Rev.Civ.Stat.Ann. Art. 5221b-4(i) (1971).

The trial court, immediately upon the filing of the statutory pleading, granted an ex parte restraining order against the defendants, Texaco and the Commission. At the time and place appointed for the hearing on the application for the temporary injunction, the parties appeared and testimony was introduced but such is not before this Court at this time.

At the conclusion of the hearing on the application for the temporary injunction, the trial court signed an order which, among other determinations, ordered the Commission to pay plaintiff benefits for the full duration of time and in the full amount. In granting this relief, the trial court also entered an order, mandatory in nature, commanding the Commission to "cease and desist from continuing to apply (Sec.) 5d disqualification in favor of Texaco, Inc., and against the payment of unemployment compensation claims brought pursuant to the stoppage of work at the Texaco Main Plant, Port Arthur, Texas."

The order also commanded the Commission to "cease and desist" and restrained its agents "from taking any action or making any effort to enforce the provisions of (Sec.) 6b (of the Unemployment Compensation Act) regarding the repayment of unemployment compensation benefits ...."

The time for answer by the two defendants had not expired at the time of the entry of the order granting the injunction and there has been no trial of the merits of the appeal from the Commission's order.

We do not reach the merits of the appeal from the order granting the temporary injunction and, of course, express no opinion as to whether the order of the Commission was or was not a lawful order. Such matters are not before us and our action taken today shall not be construed as an expression of an opinion with reference thereto.

The trial court acquired jurisdiction of the appeal from the order of the Commission under the provisions of the statute, Art. 5221b-4(i), but the statute also provides that: "A petition for judicial review shall not act as a supersedeas."

The statute, which clothed the trial court with jurisdiction to hear the appeal from the Commission, did not contain a specific grant of authority authorizing injunctive relief, and our Supreme Court has held that the provisions are exclusive and that such statutory proceedings must be governed strictly by the statute creating the remedy. Texas Employment Commission v. International Union of Electrical, Radio and Machine Workers, 163 Tex. 135, 352 S.W.2d 252, 254 (1961).

In effect, the trial court has granted a writ of mandamus against officers of the executive department of the State when such authority is conferred exclusively upon the Supreme Court of Texas. Tex.Rev.Civ.Stat.Ann. Art. 1735 (1962). See and cf. Chapa v. Betts, 534 S.W.2d 446, 447 (Tex.Civ.App.-Austin 1976, orig. proceedings).

Moreover, said order is in effect a suit against the State without alleging consent to sue. State v. Isbell, 127 Tex. 399, 94 S.W.2d 423 (1936). Further, the domicile of the State is in Travis County, not Jefferson. Gulf Coast Business Forms, Inc. v. Texas Employment Commission, 498 S.W.2d 154 (Tex.1973).

Plaintiff's suit below was strictly an appeal from an administrative decision of the Commission and it involved only his personal cause of action. It was not a class action under Tex.R.Civ.P. 42, nor has there been any attempt to procure a "class certification". See and cf. Smith v. Lewis, 578 S.W.2d 169, 172 (Tex.Civ.App.-Houston (14th Dist.) 1979, writ ref'd n. r. e.). Yet, the temporary injunction order purports to control the action of the Commission as to all persons seeking benefits under the Act "pursuant to the stoppage of work at the Texaco Main Plant, Port Arthur, Texas."

The record before us discloses that the "work stoppage" began on January 7, 1982 and that the bargaining unit of...