in Re County of Hidalgo, Hidalgo County Elections Department, Hilda A. Salinas, Interim Elections Administrator and Everardo Villarreal, in Both His Official Capacity as Hidalgo County Precinct 3 County Commissioner and Individual Capacity ( 2022 )

NUMBER 13-22-00510-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE COUNTY OF HIDALGO, HIDALGO COUNTY ELECTIONS
DEPARTMENT, HILDA A. SALINAS, INTERIM ELECTIONS
ADMINISTRATOR AND EVERARDO VILLARREAL, IN BOTH HIS
OFFICIAL CAPACITY AS HIDALGO COUNTY PRECINCT 3 COUNTY
COMMISSIONER AND INDIVIDUAL CAPACITY
On Petition for Writ of Mandamus.
OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Opinion by Justice Tijerina1
On October 21, 2022, the County of Hidalgo, the Hidalgo County Elections
Department, Hilda A. Salinas as the Interim Elections Administrator, and Everardo
Villarreal in both his official capacity as Hidalgo County Precinct 3 Commissioner and his
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R.
47.4 (distinguishing opinions and memorandum opinions).
individual capacity (relators), filed a petition for writ of mandamus in this Court. Relators
assert through multiple issues that the trial court 2 abused its discretion by issuing a
temporary restraining order 3 requiring relators “to immediately cease and desist from
proceeding with the early voting elections starting on October 24, 2022, and the
November 8, 2022 general election” unless relators open the Peñitas Public Library as
an additional polling location.
“The right to vote is fundamental, as it preserves all other rights.” Andrade v.
NAACP of Austin, 345 S.W.3d 1, 12 (Tex. 2011). We are reluctant to render a decision in
this case which would prevent the citizens of Peñitas from having access to a polling
place within their city limits. Nonetheless, the separation of powers doctrine and the rules
of civil procedure require us to conclude that the trial court’s temporary restraining order
cannot stand. Accordingly, we conditionally grant the petition for writ of mandamus.4
I. BACKGROUND
In January 2022, relators submitted a request to use the John F. Kennedy
Elementary School in Peñitas, Texas, as a polling place for the 2022 election cycle. That
request was denied. On August 18, 2022, relators timely issued the Notice of General
2 This original proceeding arises from trial court cause number C-4049-22-A in the 92nd District
Court of Hidalgo County, Texas, and the respondent is the Honorable Rogelio Valdez, sitting by
assignment. See TEX. R. APP. P. 52.2.
3 The temporary restraining order states that it was heard by the trial court on October 20, 2022,
and it provides that it was “SIGNED and ENTERED on “October, 2022 at 4:30 p.m.” The order thus fails to
be “endorsed with the date and hour of issuance” as required by Texas Rule of Civil Procedure 680. See
TEX. R. CIV. P. 680. We note that the docket sheet for this trial court cause number indicates that the
temporary restraining order was signed on October 21, 2022.
4 As noted by Peñitas, the petition for writ of mandamus failed to include a certification. See TEX.
R. APP. P. 52.3(j). However, relators subsequently filed a certification in accordance with the appellate rules,
and thus Peñitas’s complaint has been addressed.
2
Election for voters in Hidalgo County, in accordance with the August 22, 2022 deadline
to do so, which included a list of polling places for the election as required by the election
code. See, e.g., TEX. ELEC. CODE ANN. § 4.003(a) (prescribing deadlines by which
authorities must provide notice of an election); id. § 4.004(a)(2) (requiring the notice of
election to include “the location of each polling place”). This list did not include a polling
place in Peñitas.
In the middle of the afternoon on August 22, 2022, La Joya Independent School
District (La Joya ISD) submitted a request to relators that Peñitas Public Library serve as
an early voting polling location. On August 25, 2022, Agua Special Utility District (Agua
SUD) provided a similar request. Relators informed these parties that their requests were
not timely.
On Thursday, October 20, 2022, the real parties in interest, the City of Peñitas, a
home-rule municipality located in Hidalgo County, Texas, and Ramiro Loya, in his official
capacity as Mayor of the City of Peñitas and in his individual capacity (collectively
Peñitas), filed suit against relators seeking declaratory relief, a temporary restraining
order, and temporary and permanent injunctive relief. Peñitas alleged that relators’
conduct in refusing the requests to use the Peñitas Public Library as a polling place
violated the Texas Election Code, the Voting Rights Act, and the Texas and United States
Constitutions. Peñitas alleged that it had been “adversely affected and harmed” by
relators’ conduct, “which will disenfranchise eligible Texas citizens, specifically Peñitas
vote[r]s in the upcoming election this November 8, 2022.” Peñitas sought ex parte relief
on the stated grounds that “[t]here is not enough time to serve notice on [relators] and to
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hold a hearing on this application.”
On October 20, 2022, the trial court held a hearing on Peñitas’s request for relief.
Relators were not present. Having heard Peñitas’s claims, the trial court granted ex parte
relief to Peñitas in the form of a temporary restraining order. The trial court therein ordered
relators: (1) “to immediately cease and desist from proceeding with the early voting
elections starting on October 24, 2022, and the November 8, 2022 general election
without opening the Pe[ñ]itas Public Library polling location”; (2) “to immediately post a
Notice of the Election that includes a list of Election Day and [e]arly voting polling locations
to the Hidalgo County Election Department’s website no later than Friday, October 21,
2022[,] at 7:00 a.m. and that list of polling locations shall include the City of Peñitas Public
Library polling location”; and (3) “to open the City of Pe[ñ]itas Public Library polling
location for the entire early voting period and General Election day as [o]rdered by La
Joya ISD and Agua SUD.” The temporary restraining order provided that its terms would
expire on further order of the trial court or fourteen days from the date of its entry.
On Friday, October 21, 2022, relators filed this petition for writ of mandamus.
Through six issues with sub-issues, relators contend that the trial court abused its
discretion by granting the temporary restraining order and that they lack an adequate
remedy at law. We have reorganized and restated relators’ issues for the sake of clarity.
As restated, relators assert that the trial court’s temporary restraining order should be set
aside because: (1) it does not comply with Texas Rules of Civil Procedure 680, 683, and
684; (2) it violates Rule 2.6 of the “Local Rules of Hidalgo County, Texas District Courts”;
(3) it violates Texas law and bypasses election laws; (4) it violates the separation of
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powers doctrine; and (5) the trial court does not have subject matter jurisdiction because
Peñitas lacks standing, and its claims are moot. By a sixth issue, relators further assert
that they lack an adequate remedy by appeal to address these errors. Relators further
filed a motion for emergency stay through which they requested that we stay the
temporary restraining order at issue in this original proceeding.
By order issued on Sunday afternoon, October 23, 2022, we granted the motion
for emergency stay and requested that Peñitas file a response to the petition for writ of
mandamus and relators’ request for emergency relief by 5:00 p.m. on Monday, October
24, 2022. Peñitas filed two motions for extension of time to file its response, its response,
and a motion for leave to late-file its response. We grant Peñitas’s motions and proceed
to consider the merits of this original proceeding.
II. MANDAMUS
Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.
Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,
840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that (1) the trial
court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re
USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re
Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,
839–40 (Tex. 1992) (orig. proceeding). “The relator bears the burden of proving these two
requirements.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig.
proceeding) (per curiam); Walker, 827 S.W.2d at 840.
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III. TIMELINESS
Relators present two issues that generally concern the timeliness of Peñitas’s
claims for relief in the context of the election process. In their fourth issue, relators assert
that the temporary restraining order is invalid because it violates the “separation of
powers” doctrine, and in part of their fifth issue, relators assert that Peñitas’s claims are
moot. With regard to the separation of powers, relators contend that the temporary
restraining order “effectively stops the general election” and assert that the judicial branch
of state government cannot interfere with an election that is in progress. Relators further
argue that Peñitas’s claims are moot because absentee balloting has begun and early
voting began on Monday, October 24, 2022. Relators contend that they “cannot comply
with the applicable statutory and regulatory deadlines to place a polling location at [the
Peñitas Public Library] because said deadlines have long since passed.”
In contrast, Peñitas argues that its causes of action are not moot
since the November 8, 2022 general election [has] yet to occur and the early
voting extends beyond October 24, 2022[,] and runs through November 4,
2022[,] and the [reinstatement] of the temporary restraining order can be
followed by the [r]elators moving voting machines” into the Pe[ñ]itas Public
Library within 24 hours.
Peñitas further asserts that relators’ arguments in fact support the opposite proposition—
that relators’ claims are moot, whereas Peñitas’s claims are not.
The Texas Supreme Court has explained the separation of powers doctrine as
follows:
The principle of separation of powers is foundational for federal and state
governments in this country and firmly embedded in our nation’s history.
The Texas Constitution mandates:
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The powers of the Government of the State of Texas shall be
divided into three distinct departments, each of which shall be
confided to a separate body of magistracy, to wit: Those which
are Legislative to one; those which are Executive to another,
and those which are Judicial to another; and no person, or
collection of persons, being of one of these departments, shall
exercise any power properly attached to either of the others,
except in the instances herein expressly permitted.
Exceptions to the constitutionally mandated separation of powers are never
to be implied in the least; they must be “expressly permitted” by the
Constitution itself.
Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 570 (Tex. 2013) (quoting and
discussing TEX. CONST. art. II, § 1) (footnote omitted). “It is well settled that separation of
powers and the judiciary’s deference to the legislative branch require that judicial power
not be invoked to interfere with the elective process.” Blum v. Lanier, 997 S.W.2d 259,
263 (Tex. 1999); see City of Cleveland v. Keep Cleveland Safe, 500 S.W.3d 438, 455
(Tex. App.—Beaumont 2016, no pet.). Thus, as a fundamental matter, “judicial power
cannot be invoked to interfere with the election process once it has begun.” In re Lopez,
593 S.W.3d 353, 357 (Tex. App.—Tyler 2018, orig. proceeding). In Blum, the supreme
court held that although the voter had “no right to enjoin the scheduled election,” the trial
court had jurisdiction to issue an injunction forbidding the city from using misleading
language on the ballot as long as the injunction did not operate to delay or cancel the
called election. Blum, 997 S.W.3d at 263–64.
The separation of powers doctrine is related to mootness. See Abbott v. Mex. Am.
Leg. Caucus, Tex. House of Representatives, 647 S.W.3d 681, 689 (Tex. 2022). A case
is moot when a justiciable controversy does not exist between the parties or when the
parties do not have a legally cognizable interest in the outcome. See id.; Heckman v.
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Williamson County, 369 S.W.3d 137, 162 (Tex. 2012). Courts lack subject-matter
jurisdiction to decide a moot controversy. Tex. Dep’t of Fam. & Protective Servs. v. N.J.,
644 S.W.3d 189, 192 (Tex. 2022). In general, a challenge to the electoral process will be
considered moot when the validity of the alleged error cannot be finally determined in time
for the error to be corrected or, stated otherwise, for the requested task to be substantially
accomplished by election officials. See, e.g., In re Uresti, 377 S.W.3d 696, 696 (Tex.
2012) (orig. proceeding) (per curiam) (“Once an election begins, a challenge to the
candidacy of an individual becomes moot.”); Polk v. Davidson, 196 S.W.2d 632, 634 (Tex.
1946) (“[W]hen the time comes that the issues cannot be heard and a final judgment
entered adjudging the validity or invalidity of the nominee’s certificate so that absentee
ballots can be printed and available to voters as and when required by statute, the contest
is moot and must be dismissed.”); Skelton v. Yates, 119 S.W.2d 91, 91–92 (Tex. 1938)
(orig. proceeding) (“Under the law absentee balloting has begun,” thus, “[t]he election
therefore is already in progress, and no order which this court might enter could be
effective at this late date to govern such election.”); Sterling v. Ferguson, 53 S.W.2d 753,
761 (Tex. 1932) (per curiam) (“The courts generally follow the rule that where no date
when the authority of a court or other body for exercising a special jurisdiction shall cease,
then that it does cease when any judgment which might be entered by the court would
become moot—that is to say, when any right which might be determined by the judicial
tribunal could not be effectuated in the manner provided by law.”); Salazar v. Gonzales,
931 S.W.2d 59, 60 (Tex. App.—Corpus Christi–Edinburg 1996, no writ) (“An election
contest becomes moot, and the issues no longer justiciable, when a final judgment
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adjudging the validity or invalidity of a candidate’s certificate of nomination is not entered
in time for election officials to comply with the statutory deadlines for preparing and
conducting the general election, or when absentee balloting has begun during the
pendency of the appeal.”); see also Garmon v. Tolbert, 614 S.W.3d 190, 194 (Tex. App.—
Tyler 2020, pet. denied); In re Nat’l Republican Cong. Comm., 608 S.W.3d 544, 547–48
(Tex. App.—Austin 2020, orig. proceeding).
The separation of powers doctrine and mootness considerations thus constrain a
court’s ability to act in certain situations. In this regard, the time constraints that apply to
the election process present challenges for judicial review. The Texas Supreme Court
recently described these challenges as follows:
To begin, the executive and legislative branches of government are the
primary managers of our state’s elections. They, no less than the courts,
are sworn to uphold the Constitution and the laws. Texas courts do not sit
as general overseers of election processes; they sit only to resolve any
concrete and justiciable disputes that may arise. A party with such a dispute
certainly has access to judicial resolution. But for a court to resolve an
election dispute, the court must receive the case early enough to order relief
that would not disrupt the larger election.
This Court, like the U.S. Supreme Court, therefore has repeatedly
explained that invoking judicial authority in the election context requires
unusual dispatch—the sort of speed not reasonably demanded of parties
and lawyers when interests less compelling than our society’s need for
smooth and uninterrupted elections are at stake. Time is particularly of the
essence if a lawsuit seeks judicial action that may prevent the election from
happening on time. Like the courts themselves, all parties must minimize
delays in this context. Avoidable delays, in particular, may be fatal to the
courts’ ability to proceed at all.
Another corollary is likewise true: as the risk of judicial interference
with an election rises, so does the duty of the party invoking judicial power
to explain with precision how any relief will affect that election and the larger
structure of our state’s election machinery. At a bare minimum, a party who
asks a court to take action that could disrupt the election calendar after the
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election process has begun has the duty to explain the practical
consequences of the requested judicial action. That explanation must
contain sufficient detail to allow the Court to weigh the need for the
requested relief against the burdens the relief would impose on the election
process and on the rights of other Texans.
These principles are not novel. Courts at every level, including the
U.S. Supreme Court and this Court, have declined to implement even
“seemingly innocuous” alterations to election laws on the eve of an election,
let alone after one has begun. Democratic Nat’l Comm. v. Wis. State
Legislature, — U.S. —, 141 S. Ct. 28, 31, 208 L.Ed.2d 247 (2020)
(Kavanaugh, J., concurring); see In re Hotze, 627 S.W.3d 642, 646 (2020)
(“[C]ourt changes of election laws close in time to the election are strongly
disfavored.”) (quoting Tex. All. for Retired Ams. v. Hughs, 976 F.3d 564,
567 (5th Cir. 2020)); see also Republican Nat’l Comm. v. Democratic Nat’l
Comm., — U.S. —, 140 S. Ct. 1205, 1207, 206 L.Ed.2d 452 (2020) (per
curiam) (holding that a lower court errs when it changes election laws on
the eve of the election without sufficient showing of constitutional burdens).
All parties must move with maximum expedition so that the courts—which
also must act quickly when properly called upon—do not themselves
contribute to electoral confusion.
In re Khanoyan, 637 S.W.3d 762, 764–65 (Tex. 2022) (orig. proceeding) (footnotes
omitted).
In this case, Peñitas filed its request for relief in the trial court on October 20, 2022,
and the trial court issued the temporary restraining order at issue either that afternoon or
on October 21, 2022. However, the relevant statutory deadlines under the election code
had already passed before these events occurred. The election code states that, “[f]or an
election to be held on a uniform election date, the election shall be ordered not later than
the 78th day before election day.” TEX. ELEC. CODE ANN. § 3.005. For this election cycle,
that date was August 22, 2022. Further, the election code requires the election notice to
include the location of each polling place. See id. §§ 4.004(a)(2), 85.004, 85.067.5 On
5We note that the election code contemplates that the public notice of the branch voting schedule
posted by the early voting clerk “may be amended after the beginning of early voting by personal
10
August 18, 2022, relators issued the Notice of General Election for voters in Hidalgo
County, which included the list of polling places for the election, including the early voting
locations.
Peñitas did not seek relief from the trial court until October 20, 2022, long after the
relevant deadlines in the election code had passed and less than two business days
before early voting was scheduled to begin. At this point, Peñitas’s requested relief and
the trial court’s temporary restraining order interfered with the electoral process. See
Blum, 997 S.W.2d at 263; In re Lopez, 593 S.W.3d at 357; City of Cleveland, 500 S.W.3d
at 455. Stated otherwise, Peñitas did not ask for the Peñitas Public Library to be
designated as a polling place in time for the election officials to comply with their statutory
deadlines for preparing and conducting the general election. See Salazar, 931 S.W.2d at
60.
In this regard, Peñitas did not pursue its requested relief in a timely manner.
Relators posted the required notices identifying the polling places on August 18, 2022,
yet Peñitas waited two months before seeking relief in the trial court, and only requested
relief on the eve of early voting. This avoidable delay is untenable given “our society’s
need for smooth and uninterrupted elections,” and when time is “particularly of the
essence.” In re Khanoyan, 637 S.W.3d at 764. Peñitas failed to act with due diligence in
appearance to include notice of additional temporary branch polling place locations, dates, and hours, but
any amendment must be made not later than the fifth day before the date the voting is scheduled to begin
at the additional temporary branch.” TEX. ELEC. CODE ANN. § 85.067(c). None of the parties here invoked
that provision of the election code, and the trial court’s order did not comply with its terms. Accordingly, we
do not address it in the context of this case and express no opinion regarding its application to these facts.
11
requesting relief from the trial court, and that delay was fatal to the trial court’s ability to
provide the requested relief. See id.
Based on the foregoing, we sustain relators’ fourth issue regarding the separation
of powers and the part of relators’ fifth issue regarding mootness.
IV. FORM AND SUBSTANCE OF THE TEMPORARY RESTRAINING ORDER
We ordinarily would not address relators’ remaining issues that are related to the
merits because they are not necessary to the disposition of this original proceeding. See
TEX. R. APP. P. 47.1, 47.4. However, for the sake of clarity and completeness, and in our
sole discretion, we also address relators’ first issue in which they assert that the temporary
restraining order constitutes an abuse of discretion because the order does not comply
with Texas Rules of Civil Procedure 680, 683, and 684. See TEX. R. CIV. P. 680, 683, 684.
Relators contend that the temporary injunction fails to comply with the rules of civil
procedure because it does not explain why it was issued without notice, and it does not
adequately explain the reasons for its issuance.
A. Introduction
Temporary restraining orders are subject to the requirements of the Texas Rules
of Civil Procedure. See TEX. R. CIV. P. 680, 683, 684. These procedural requirements are
mandatory, and an order granting a temporary restraining order that fails to meet these
requirements is void. See In re Luther, 620 S.W.3d 715, 722 (Tex. 2021) (orig.
proceeding) (per curiam) (discussing Rule 683); In re Office of Att’y Gen., 257 S.W.3d at
697 (discussing Rule 680); Qwest Commc’ns Corp. v. AT & T Corp., 24 S.W.3d 334, 337
(Tex. 2000) (per curiam) (discussing Rules 683 and 684); see also InterFirst Bank San
12
Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986) (per curiam). The Texas
Supreme Court has instructed us that these requirements must be “strictly” followed. In
re Luther, 620 S.W.3d at 722; InterFirst Bank San Felipe, N.A., 715 S.W.2d at 641.
In summary, a trial court issuing a temporary restraining order is required to:
(1) state why the order was granted without notice if it is granted ex parte; (2) state the
reasons for the issuance of the order by defining the injury and describing why it is
irreparable; (3) state the date the order expires and set a hearing on a temporary
injunction; and (4) set a bond. See TEX. R. CIV. P. 680, 683, 684; In re Office of Att’y Gen.,
257 S.W.3d at 697; Nelson v. Vernco Const., Inc., 367 S.W.3d 516, 522 (Tex. App.—El
Paso 2012, no pet.).
B. Requirements for Restraining Order
Relators’ claims concern the form of the temporary restraining order that was
issued by the trial court and arise from the express, mandatory text of two rules. First,
Texas Rule of Civil Procedure 680 provides that:
No temporary restraining order shall be granted without notice to the
adverse party unless it clearly appears from specific facts shown by affidavit
or by the verified complaint that immediate and irreparable injury, loss, or
damage will result to the applicant before notice can be served and a
hearing had thereon. Every temporary restraining order granted without
notice shall be endorsed with the date and hour of issuance; shall be filed
forthwith in the clerk’s office and entered of record; shall define the injury
and state why it is irreparable and why the order was granted without
notice . . . .
TEX. R. CIV. P. 680. And Rule 683 states in part that “every restraining order shall set forth
the reasons for its issuance; shall be specific in terms; [and] shall describe in reasonable
13
detail and not by reference to the complaint or other document, the act or acts sought to
be restrained.” Id. R. 683.
With regard to the “irreparable injury” description required by the rules, the
temporary restraining order was required to “define the injury and state why it is
irreparable and why the order was granted without notice,” id. R. 680, and to be “specific
in terms.” Id. R. 683. The supreme court interprets the rules to require that every
temporary restraining order must “set forth the reasons why the court deems it proper to
issue the writ to prevent injury to the applicant in the interim; that is, the reasons why the
court believes the applicant’s probable right will be endangered if the writ does not issue.”
Transp. Co. of Tex. v. Robertson Transps., Inc., 261 S.W.2d 549, 553 (Tex. 1953); accord
State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex. 1971) (“Under Rule 683 . . . it is
necessary to give the reasons why injury will be suffered if the interlocutory relief is not
ordered.”). This explanation may not be conclusory. See Good Shepherd Hosp., Inc. v.
Select Specialty Hosp.-Longview, Inc., 563 S.W.3d 923, 929 (Tex. App.—Texarkana
2018, no pet.); In re Chaumette, 456 S.W.3d 299, 305 (Tex. App.—Houston [1st Dist.]
2014, orig. proceeding); El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 744 (Tex.
App.—Dallas 2011, no pet.). Further, the temporary restraining order must recite the facts
on which the trial court relied in reaching its conclusion. See Caniglio v. Woods, 593
S.W.3d 856, 858 (Tex. App.—Texarkana 2019, no pet.); El Tacaso, Inc., 356 S.W.3d at
744; see also Conclusory, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “conclusory”
as “[e]xpressing a factual inference without stating the underlying facts on which the
inference is based”).
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Relators contend that the temporary restraining order does not meet the foregoing
requirements. First, relators argue that the temporary restraining order failed to explain or
address “why the order was granted without notice” and thus fails to meet the mandatory
requirement to do so contained in Texas Rule of Civil Procedure 680. See TEX. R. CIV. P.
680. In contrast, Peñitas asserts that relators’ contention “has no basis in fact or law.”
Peñitas contends that it “conferred” with an attorney for the Hidalgo County District
Attorney’s Civil Division by telephone regarding its application for temporary relief on the
date that it was filed and advised that attorney that he “could follow up with the Court if
he wanted to weigh in on the ex parte request before the trial court considered or signed
the temporary restraining order.”
Peñitas offers no authority in support of its position that a telephone call constitutes
adequate notice to a party that a pleading seeking ex parte relief has been filed and will
be heard, and its arguments are not supported by the rules of civil procedure. Rule 21 of
the Texas Rules of Civil Procedure requires pleadings to be “served on all other parties,”
and “[a]n application to the court for an order and notice of any hearing thereon, not
presented during a hearing or trial, must be served upon all other parties not less than
three days before the time specified for the hearing, unless otherwise provided by these
rules or shortened by the court.” Id. R. 21(a), (b). It is undisputed that relators were not
served with Peñitas’s pleadings or provided with the requisite notice for a hearing. See
id. And, even if we were to conclude that the trial court shortened the requisite notice
period, there is no indication in the record that relators were ever served with notice of
that hearing. See id. Instead, Peñitas expressly proceeded with the hearing on an ex
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parte basis. See id. Accordingly, the temporary restraining order was required to contain
the necessary findings regarding notice. See id. R. 21, 680. 6 We conclude that the
temporary restraining order was deficient in this regard.
Second, relators assert that the temporary restraining order does not specifically
define the irreparable injury that Peñitas would suffer in the absence of relief. Here, the
only part of the temporary restraining order that can be construed as setting forth the
reasons for its issuance states that the temporary restraining order is necessary because
otherwise relators “will commit the disenfranchisement of voters before notice and a
hearing on Plaintiffs’ Application for Temporary Injunction,” and “Plaintiffs will suffer
irreparable harm if [relators] are not restrained immediately because Plaintiffs will have
no adequate remedy at law to grant Plaintiffs complete, final[,] and equal relief.” Peñitas
asserts that this recitation of harm is sufficient to meet the requirements of the rules.
6 We note that one of relators’ issues alleges that the temporary restraining order was invalid
because it did not comply with Hidalgo County District Courts Local Rule 2.6. Rule 2.6 provides:
Temporary Orders. Except in emergencies when the clerk’s office is not open for business,
no application for immediate or temporary relief shall be presented to the judge until it has
been filed and assigned to a Court as provided in these rules. If the judge of the court to
which such case is assigned is absent or is occupied with other matters, such application
may be assigned by the Presiding Judge to any other judge, who may sit for the judge of
the court to which the case is pending, and shall make all orders, writs and process
returnable to that court. Hearings or applications for temporary injunctions, temporary
receiverships, and the like shall be set in the court to which the case is assigned and that
court shall be responsible for all proceedings thereafter. All applications for ex-parte relief
shall state whether or not, within the knowledge of the applicant, and his attorney, the
opposing party is represented by counsel, and the name of such counsel.
HIDALGO CNTY. (TEX.) DIST. CT. LOC. R. 2.6 (emphasis added). Peñitas’s arguments regarding notice of the
hearing would suggest that its application for a temporary restraining order could have, but did not, include
this information. See id. Given our resolution of this petition for writ of mandamus, we need not further
address this issue.
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This explanation as to why Peñitas will suffer irreparable harm is conclusory and
does not recite the facts on which the trial court relied in reaching its conclusion, and thus
violates the requirements for a temporary restraining order. See id. R. 680, 683; Good
Shepherd Hosp., Inc., 563 S.W.3d at 929; El Tacaso, Inc., 356 S.W.3d at 744. The
statement that relators “will commit the disenfranchisement of voters” is not “specific in
terms,” does not explain why this alleged injury is irreparable, and is not supported by any
factual allegations supporting this conclusion. See TEX. R. CIV. P. 680, 683. Further, the
general statement that Peñitas will suffer irreparable harm for which it lacks an adequate
remedy is insufficient. See In re Chaumette, 456 S.W.3d at 305 (collecting cases deeming
this general statement insufficient). Thus, the temporary restraining order does not satisfy
the mandatory rules governing the issuance of such an order. See Clark v. Hastings
Equity Partners, LLC, 651 S.W.3d 359, 374 (Tex. App.—Houston [1st Dist.] 2022, no
pet.); In re Chaumette, 456 S.W.3d at 305; El Tacaso, Inc., 356 S.W.3d at 744–45; City
of Corpus Christi v. Friends of Coliseum, 311 S.W.3d 706, 709 (Tex. App.—Corpus
Christi–Edinburg 2010, no pet.).
We conclude that the temporary restraining order fails to meet the mandatory
procedural requirements of the Texas Rules of Civil Procedure, and it is consequently
void. See In re Luther, 620 S.W.3d at 722; In re Office of Att’y Gen., 257 S.W.3d at 697.
We sustain relators’ first issue.
V. ADEQUACY OF A REMEDY BY APPEAL
Finally, in their sixth issue, relators contend that an appeal would be an inadequate
remedy to correct the trial court’s error in issuing the temporary restraining order. In
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contrast, Peñitas asserts that “[r]elators could have sought a stay of the TRO, and/or
requested an emergency hearing, and filed a Motion to Dissolve or Modify the TRO in the
trial court.” It further argues that relators have not shown that mandamus is necessary
because “[r]elators present nothing to suggest that they are at risk of losing important
substantive or procedural rights.” See, e.g., In re Team Rocket, L.P., 256 S.W.3d 257,
262 (Tex. 2008) (orig. proceeding) (“In evaluating benefits and detriments, we consider
whether mandamus will preserve important substantive and procedural rights from
impairment or loss.”).
Mandamus review of a trial court’s temporary restraining order is proper because
such an order cannot be appealed; thus, the party against whom such injunctive relief is
granted lacks an adequate remedy by appeal. See In re Abbott, 601 S.W.3d 802, 813
(Tex. 2020) (orig. proceeding) (per curiam); In re Office of Att’y Gen., 257 S.W.3d 695,
698 (Tex. 2008) (orig. proceeding) (per curiam); see also In re Tex. Nat. Res.
Conservation Comm’n, 85 S.W.3d 201, 207 (Tex. 2002) (orig. proceeding).
Because relators may not appeal the temporary restraining order and this case
involves important matters of public concern which are time-sensitive, we conclude that
an appeal after any temporary injunction is entered would not provide relators with an
adequate remedy. See In re Abbott, 601 S.W.3d at 813; In re Office of Att’y Gen., 257
S.W.3d at 698; In re Turner, 558 S.W.3d 796, 801 (Tex. App.—Houston [14th Dist.] 2018,
orig. proceeding). We sustain relators’ sixth issue. Having done so, we need not reach
relators’ remaining issues.
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VI. CONCLUSION
This Court, having examined and fully considered the petition for writ of
mandamus, the record, the response, and the applicable law, is of the opinion that relators
have met their burden to obtain mandamus relief. Accordingly, we lift the stay previously
imposed in this case. We conditionally grant the petition for writ of mandamus, and we
direct the trial court to vacate the temporary restraining order immediately. It was void
and had no effect. We are confident that the trial court will comply, and the writ will issue
only if the trial court fails to do so.
JAIME TIJERINA
Justice
Delivered and filed on the
26th day of October, 2022.
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