PERMIAN CHEMICAL CO., INC. v. State

746 S.W.2d 873 (1988)

PERMIAN CHEMICAL COMPANY, INC., Appellant,
v.
The STATE of Texas, Appellee.

No. 08-87-00311-CV.

Court of Appeals of Texas, El Paso.

February 17, 1988. Rehearing Denied March 16, 1988.

Skip Newsom, Booth & Newsom, Austin, for appellant.

Jim Mattox, Atty. Gen., David Preister, Asst. Atty. Gen., Austin, for appellee.

Before OSBORN, C.J., and SCHULTE and FULLER, JJ.

OPINION

FULLER, Justice

This is an accelerated appeal from an order of the trial court in modifying a temporary injunction. We reverse the decision of the trial court that granted the order modifying the temporary injunction and remand the case with instructions to the trial court to dissolve that order.

The underlying suit involves various allegations for violation of the Texas Clean Air Act, Article 4477-5, Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1988), and violations of Title 31 of the Texas Administrative Code. The trial court granted a temporary injunction and set the trial on the merits for October 12, 1987. On the day of the hearing on the merits, the trial court granted a continuance and by order of October 13, 1987, modified the temporary injunction previously granted. However, the order modifying the temporary injunction failed to set the case for trial on the merits. Rule 683, Tex.R.Civ.P., provides "[e]very order granting a temporary injunction shall include an order setting the cause for trial on the merits...." Failure of the order to meet the requirements of this rule renders it fatally defective and void, whether specifically raised by point of error or not. Arrechea v. Plantowsky, 705 S.W.2d 186, 189 (Tex.App.—Houston [14th Dist.] 1985, no writ); University Interscholastic League v. Torres, 616 S.W.2d 355, 358 (Tex.Civ.App.—San Antonio 1981, no writ).

Where a temporary injunction is issued and does not conform to Rule 683, the nonconformity constitutes an abuse of discretion and mandates reversal. Interfirst Bank San Felipe v. Paz Construction Company, 715 S.W.2d 640 (Tex.1986); University supra, at 358.

We reverse the decision of the trial court that granted the order modifying the temporary injunction and remand the case with instructions to the trial court to dissolve that order.