Texas Natural Resource Conservation Com'n

• Decision Date: 30 August 2002
• Docket Number: No. 02-0450.,02-0450.
• Citation: Texas Natural Resource Conservation Com'n, 85 S.W.3d 201 (Tex. 2002)
• Parties: In re TEXAS NATURAL RESOURCE CONSERVATION COMMISSION, Relator.
• Court: Texas Supreme Court

Page 201

85 S.W.3d 201

In re TEXAS NATURAL RESOURCE CONSERVATION COMMISSION, Relator.

No. 02-0450.

Supreme Court of Texas.

August 30, 2002.

John Cornyn, Attorney General, Howard G. Baldwin, First Assistant Attorney General, Jeffrey S. Boyd, Karen Watson Kornell, Cynthia Woelk, George Thomas Bohl, Brian E. Berwick, Office of the Attorney General of Texas, Austin, for Relator.

Richard W. Lowerre, Lowerre & Kelly, R. Lambeth Townsend, Lloyd, Gosselink, Fowler, Blevins & Mathews, Kassandra G. McLaughlin, Martin C. Rochelle, Austin, Beth Ann Blackwood, Koledey, Thomas & Blackwood, Tom M. Thomas, Thomas, Sheehan & Culp, LLP, Dallas, for Respondent.

Justice JEFFERSONdelivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice ENOCH, Justice OWEN, and Justice RODRIGUEZ joined.

The issue in this original mandamus proceeding is whether a district court may extend a temporary restraining order by forty-two days without the restrained party's consent.Because the district court abused its discretion and the relator does not have an adequate remedy by appeal, we conditionally granted the writ on June 13, 2002.

The City of Marshall, Texas, applied to the Texas Natural Resources Conservation Commission to amend the city's certificate of adjudication.The certificate previously allowed the city to divert 16,000 acre-feet of water per year from Cypress Creek basin of Lake Caddo for municipal purposes.The city sought an amendment that would allow it to provide water for industrial purposes.

The TNRCC's executive director granted the City of Marshall's application on March 25, 2002.Under the Commission's rules, permits and other approvals are generally effective when the executive director signs them.30 TEX. ADMIN. CODE § 50.135.On April 4, 2002, the City of Uncertain, Texas, the Caddo Lake Area Chamber of Commerce and Tourism, the Greater Caddo Lake Association, the Caddo Lake Institute, John T. Echols, and Barry L. Bennick and others moved the TNRCC to overturn the executive director's decision, seeking a contested case hearing before the three TNRCC Commissioners.

While their motion was pending with the TNRCC, the City of Uncertain and the other movants filed the underlying suit in district court on April 15, 2002, seeking a temporary restraining order, a temporary injunction, and permanent relief.The plaintiffs telephonically notified the TNRCC that the trial court had scheduled a hearing on the temporary restraining order.The TNRCC attended the hearing and opposed the plaintiffs' requests.On April 17, 2002, the district court issued an order barring the TNRCC from giving immediate effect to the City of Marshall's amendment until the TNRCC had an opportunity to rule on the plaintiffs' motion to overturn the executive director's decision.The district court's order stated that, by agreement of the parties, the restraining order would expire on May 13, 2002.The order did not require a bond and set the hearing on the plaintiffs' application for a temporary injunction for May 14, 2002.

On May 8, 2002, the TNRCC extended its time to act on the motion to reconsider the City of Marshall's amendment to June 14, 2002, and the Commissioners scheduled it for their agenda that day.See30 TEX. ADMIN. CODE § 50.139(e), (f)(1)(stating that motion is overruled 45 days after notice of executive director's decision but may be extended up to 90 days).On May 10, 2002, the plaintiffs moved the district court to extend the time period of the temporary restraining order.The district court conducted a hearing that day.The TNRCC argued that the district court should not extend the temporary restraining order for any additional period, and in no event for more than fourteen days.The district court extended the effective period of the temporary restraining order to June 25 2002 and also reset the temporary injunction hearing for June 25.

The TNRCC contends that the district court abused its discretion by granting the extension over the TNRCC's objection, thereby contravening Texas Rules of Civil Procedure 680 and 687.Rule 680 provides in part that:

Every temporary restraining order granted without notice ... shall expire by its terms within such time after signing, not to exceed fourteen days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period.The reasons for the extension shall be entered of record.No more than one extension may be granted unless subsequent extensions are unopposed.

TEX.R. CIV. P. 680.The real parties note that the rule's first, second, and fifth sentences refer to temporary restraining orders "granted without notice."¹They argue that Rule 680's express limitation on extensions of time does not apply here because the TNRCC had notice of the district court's initial temporary restraining order hearing and its hearing on the extension motion.The real parties contend that temporary restraining order requirements are found in the final sentence of Rule 680 and in Rules 682and683, none of which restrict a trial court's discretion to extend its temporary restraining order.

The TNRCC argues that when a temporary restraining order is granted, regardless of notice, Rule 680 permits only a single extension of fourteen days absent consent.The TNRCC contends that Rule 680 attempts to distinguish temporary restraining orders from temporary injunctions, not temporary restraining orders with notice from those without.The TNRCC further contends that if the real parties' interpretation is correct, then many of Rule 680's requirements do not apply to temporary restraining orders granted with notice.

We agree that all temporary restraining orders are subject to Rule 680's limitations on duration.We have held that "[e]xtensions of temporary restraining orders, absent some special statutory authority ..., must meet the limitations of TEX. R. CIV. P. 680...."Ex parte Lesikar,899 S.W.2d 654, 654(Tex.1995)(holding that such extensions must be in writing).Rule 687(e) requires all temporary restraining orders to "state the day and time set for hearing, which shall not exceed fourteen days from the date of the court's order granting such temporary restraining order."TEX.R.APP. P. 687(e).By its plain terms, Rule 687(e) limits any temporary restraining order to fourteen days.Rule 680 provides the only method for extending a temporary restraining order beyond fourteen days.

Rule 680 was originally taken almost verbatim from Rule 65(b) of the Federal Rules of Civil Procedure.The federal rule has retained the ten-day limit on temporary restraining orders that the Texas rule has extended to fourteen days.The fourth sentence of the Texas rule, prohibiting more than one opposed extension, was added in 1984 and is not found in the federal rule.Even without that sentence, the federal courts have construed their rule as we do ours.As a leading commentary summarizes:

The text of Rule 65(b) seems to exclude any possibility that a temporary restraining order can remain in force beyond twenty days.Not surprisingly, therefore, some courts have had no difficulty finding that twenty days-the ten days that the original order may stay in effect plus an extension for a like period for good cause shown-is the longest that a temporary restraining order can be operative.Indeed, it has been held that this limitation applies even when the order is not issued ex parte and both notice and a hearing are held.

11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARYKAY KANE. FEDERAL PRACTICE AND PROCEDURE § 2953, at 279-80(1995)(footnotes omitted).

Moreover, if a party can obtain unlimited extensions of a temporary restraining order, there would be no reason to ever seek a temporary injunction, which has more stringent proof requirements.SeeMillwrights Local UnionNo. 2484v. Rust Eng'g Co.,433 S.W.2d 683, 685-87(Tex.1968)(holding that temporary restraining order may issue on sworn petition while temporary injunction requires evidence).As our Court has explained:

An applicant for a temporary injunction seeks extraordinary equitable relief.He seeks to immobilize the defendant from a course of conduct which it may well be his legal right to pursue.Crowded dockets, infrequent jury trial weeks, or trial tactics can often delay a trial of a case on its merits for many months.The applicant has, and in equity and good conscience ought to have, the burden of offering some evidence which, under applicable rules of law, establishes a probable right of recovery.If not, no purpose is served by the provisions of Rule 680,Texas Rules of Civil Procedure, limiting the time for which a restraining order granted without a hearing can operate and requiring a hearing before a temporary injunction can issue.

Camp v. Shannon,162 Tex. 515, 348 S.W.2d 517, 519(1961).Here, although the TNRCC had notice, the temporary restraining order issued on sworn pleadings and the trial court has not conducted an evidentiary hearing.We hold that Rule 680 governs an extension of a temporary restraining order, whether issued with or without notice, and permits but one extension for no longer than fourteen days unless the restrained party agrees to a longer extension.Therefore, the district court abused its discretion by granting an extension for more than fourteen days.

The TNRCC contends that appeal is inadequate to remedy a temporary restraining order granted for a period longer than Rule 680 allows.The real parties in interest do not disagree, and the issue appears to be one of first impression.²

The initial inquiry is whether the district court's order is an appealable order.A temporary restraining order is generally not appealable.SeeDel Valle Indep. Sch. Dist. v. Lopez,845 S.W.2d 808, 809(Tex.1992).A temporary injunction, however, is an...