in Re: Javier De Los Santos and Tina G. De Los Santos

                                                         NUMBER 13-01-549-CV

                                            COURT OF APPEALS

                                 THIRTEENTH DISTRICT OF TEXAS

                                               CORPUS CHRISTI

                                                  IN RE: JAVIER DE LOS SANTOS

                                          AND TINA G. DE LOS SANTOS, Relators.

                                                On Petition for Writ of Mandamus

                                                                   O P I N I O N

                      Before Chief Justice Valdez and Justices Hinojosa and Castillo

Opinion by Chief Justice Valdez

This is an original proceeding brought by Javier and Tina De Los Santos, Relators, seeking mandamus relief in connection with a Temporary Restraining Order (TRO) issued on August 7, 2001, by the Respondent, the Honorable Rose Reyna[1], sitting as the presiding judge for the 92nd District Court of Hidalgo County.

The underlying case deals with the execution of a 1997 judgment awarding money damages of $242,997.29 to the Relators.  On July 24, 2001, Texas Property and Casualty Insurance Guaranty Association (TPCIGA), the Real Parties in Interest, filed an application for their first TRO, and presented same to the Honorable Homer Salinas, sitting as the presiding judge for the 92nd District Court of Hidalgo County[2].  In that first request for TRO they sought to enjoin the enforcement of the 1997 trial judgment.  The TRO was granted, and was later extended by a subsequent ex parte order.  On August 7, 2001, the Relators and TPCIGA appeared for the purpose of considering TPCIGA=s application for injunctive relief and for hearing the De Los Santos= motion to dissolve the TRO.  Thereupon, Judge Salinas granted the Relator=s motion to dissolve the TRO (including the ex parte extension) and denied TPCIGA=s application for injunctive relief.  Immediately, upon dissolution of the TRO, a Travis County Constable executed the judgment by levying on funds in the possession of TPCIGA.  Later that same day at 5:03 p.m., TPCIGA sought another TRO from the Respondent, enjoining enforcement of the same 1997 judgment and directing the return of Aall funds and property previously levied.@

We stayed the TRO before it expired by its own terms.  Even if the TRO=s expiration were not stayed, this mandamus proceeding would not be moot. A TRO=s expiration usually renders its challenge moot.  See Hermann Hosp. v. Tran, 730 S.W.2d 56, 57 (Tex. App.BHouston[14th Dist.] 1987, no writ).  However, we have jurisdiction to review a challenged act that is of such short duration that review cannot be obtained before the issue becomes moot.  E.g., Blum v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999).  There must be a reasonable expectation that the same complaining party would be subjected to the same action again.  Id.; see also Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16, 18 (Tex. App.BHouston [1st Dist.] 1988, no writ). Here, this second TRO amounts to the third extension (in light of first TRO and subsequent ex parte extension) of time staying execution of the 1997 judgment.  Furthermore, a TRO=s very nature leaves the opposing party Alittle time to seek mandamus relief before either complying or being held in contempt.@ In re Cornyn, 27 S.W.3d 327, 331 (Tex. App.BHouston [1st Dist.] 1999, no pet.).  Accordingly, we conclude that the issues before us are not moot and we should address the petition=s merits.  Cf. In re Cummings, 13 S.W.3d 472, 475 (Tex. App.BCorpus Christi 2000, no pet.) (holding appeal of expired, one-year protective order not moot under Acapable of repetition yet evading review@ and another mootness exception).

In this original mandamus proceeding we are requested to set aside the district court=s TRO which prohibits the levying of money damages secured from a final judgment, and orders the return of funds previously levied.  Mandamus is intended to be an extraordinary remedy available only in limited circumstances.  Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).  It may, however, be issued to set aside a lower court order that is void.  Lord v. Clayton, 163 Tex. 62, 352 S.W.2d 718, 719 (Tex. 1961) (orig. proceeding). As such, we will grant relator=s petition for mandamus only if we find that the TRO is void.

                                                              Review of the TRO

It is well established that the Aissuance of a temporary restraining order, like the issuance of a temporary injunction, is to maintain the status quo between the parties.@  Cannan v. Green Oaks Apts., 758 S.W.2d 753, 755 (Tex. 1988); Transport Co. of Texas v. Robertson Transports, Inc., 261 S.W.2d 549, 552 (Tex. 1953).  As such, a trial judge exceeds his authority in a TRO if he grants affirmative relief which alters the status quo.

The standards for granting a TRO are similar to those for granting a temporary injunction.  Compare Tex. R. Civ. P. 680 with Sun Oil co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968).  We therefore borrow from the standards set forth in reviewing temporary injunctions.  See Williams v. Bagley, 875 S.W.2d 808, 810 (Tex. App.BBeaumont 1994, no pet.) (holding that Aa temporary restraining order is basically a writ of injunction@).  In Perry v. Stringfellow, the court held that:

AIf the effect of the granting of a temporary injunction does more than preserve the status of the property as it had therefore existed, and accomplishes the whole object of the suit, it would be improper for the court to grant same, as the legitimate purpose of the temporary injunction is merely to preserve the existing condition until a final hearing can be had on the merits.  The court is without authority to divest a party of property rights without a trial, and any attempt to do so is void.@

Perry v. Stringfellow, 134 Tex. 328, 331, 134 S.W.2d 1031, 1032 (Tex. 1940) (emphasis added).

In the present TRO, the order contained language ordering the Areturn [of] all funds and property previously levied.@[3] This language does more than preserve the status quo, it purports to order an affirmative action from a public official to return funds back to the real party in interest. The court was without authority to grant a TRO that goes beyond Amerely . . . preserv[ing] the existing condition@. Id.  Accordingly, this TRO does more than Apreserve the status of the property@ and is void.  Id.

We conditionally grant relator=s petition for writ of mandamus and direct the respondent to vacate the temporary restraining order issued August 7, 2001.  The writ will only issue if respondent does not vacate the TRO.

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 20th day of September, 2001. 

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[1]Judge Reyna is the duly elected judge for the 206th District Court of Hidalgo County.

[2]Judge Salinas is a retired judge and the former elected  judge of the 92nd District Court of Hidalgo County.

[3]Real Party in Interest argues that this handwritten insertion was his own Amute testimony@ concerning a fear of Areversed collection@ and cannot be a part of the order because it was not initialed nor was it included in the typewritten form.  However, a trial court=s order may contain handwritten interlineations and still have the full force and effect of an order.  Hart v. Calkins Mfg. Co., 623 S.W.2d 451, 453 (Tex. App.BTexarkana 1981, no pet.) (stating that the Amere fact that the instrument evidencing the judgment contains erasures or corrections does not impugn its verity@).