Holst v. Newsletters, Inc. , 1979 Tex. App. LEXIS 3688 ( 1979 )

COLEMAN, Chief Justice.

This is an application for a writ of prohibition directing the Judge of the 234th Judicial District Court, Harris County, Texas, not to hear a motion to dissolve a temporary injunction. The writ will be granted.

Jack Holst and Newsletter Publications, Inc. have perfected an appeal to this court from a temporary injunction issued by the 234th Judicial District Court in cause no. 78-35583 and bearing the style Newsletters, Inc. vs. Jack Holst, et al. Thereafter, they filed a motion to dissolve the injunction, which has been set for a hearing by the 234th Judicial District Court. While the trial judge has not ruled on the motion nor has she indicated that the motion to dissolve would be sustained, it is our opinion that the motion, if granted, would entrench upon our appellate jurisdiction and should not be heard.

When an appeal from an order granting a temporary injunction is perfected to the Court of Civil Appeals, that court acquires jurisdiction of the matter, and has the right and power to issue all writs necessary to enforce and protect its jurisdiction. Ex Parte Duncan, 127 Texas 507, 95 S.W.2d 675 (1936); Musick v. Hunt, 364 S.W.2d 252 (Tex.Civ.App.-Houston 1963, no writ history).

Since an appeal has been perfected to this court from the order granting the temporary injunction, the trial court is without jurisdiction to hear or dispose of the motion to set aside and dissolve the injunction. Morris v. Rousos, 354 S.W.2d 591 (Tex.Civ.App.-Austin 1962, writ ref. n. r. e.), cert. den. 370 U.S. 959, 82 S.Ct. 1612, 8 L.Ed.2d 825; City of Corpus Christi v. Lone Star Fish and Oyster Company, 325 S.W.2d 621 (Tex.Civ.App.-San Antonio 1960 no writ history); Caldwell v. Myers, 446 S.W.2d 709 (Tex.Civ.App.-Austin 1969, no writ history).

The Judge of the 234th Judicial District Court of Harris County, Texas, is hereby directed to stay the hearing on the motion to dissolve the temporary injunction previously issued in cause no. 78-35583 until this court has finally determined the appeal from the granting of such order.