Document Info

DocketNumber: 02-18-00392-CV

Filed Date: 8/22/2019

Status: Precedential

Modified Date: 8/24/2019

  •                           In the
    Court of Appeals
    Second Appellate District of Texas
    at Fort Worth
    ___________________________
    No. 02-18-00392-CV
    ___________________________
    THE TOWN OF FLOWER MOUND, TEXAS; THE ZONING BOARD OF
    ADJUSTMENT FOR THE TOWN OF FLOWER MOUND, TEXAS; AND THE
    OIL & GAS BOARD OF APPEALS FOR THE TOWN OF FLOWER MOUND,
    TEXAS, Appellants
    V.
    EAGLERIDGE OPERATING, LLC, Appellee
    On Appeal from the 431st District Court
    Denton County, Texas
    Trial Court No. 18-9622-431
    Concurring and Dissenting Memorandum Opinion by Chief Justice Sudderth
    CONCURRING AND DISSENTING MEMORANDUM OPINION
    Except with regard to the holding as to the applicability of local government
    code section 211.010(c) to the facts of this case, I agree with the majority opinion.
    But because I am concerned about the majority’s interpretation of section 211.010(c),
    I write separately.
    The applicability of section 211.010(c) was not briefed by either party, but one
    could argue that the majority’s reading of the text of section 211.010(c)—by reading
    the words “restraining order” to include only temporary restraining orders but not
    temporary injunctions—would tend to thwart the purpose of a temporary restraining
    order. Both temporary restraining orders and temporary injunctions are orders that
    operate to restrain behavior. The essential difference between the two is merely
    duration.
    A temporary restraining order is a stopgap, placeholding measure—it serves to
    preserve the status quo for up to fourteen days, just until a litigant’s application for
    temporary injunction can be heard. Tex. R. Civ. P. 680 (providing that the term of a
    temporary restraining order shall not exceed fourteen days, and if granted ex parte,
    “the application for a temporary injunction shall be set down for hearing at the
    earliest possible date . . . and when the application comes on for hearing the party
    who obtained the temporary restraining order shall proceed with the application for a
    temporary injunction and, if he does not do so, the court shall dissolve the temporary
    restraining order”). Because a temporary restraining order can be extended only once
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    and only for an additional fourteen days, the maximum amount of time a litigant is
    entitled to such relief is twenty-eight days. 
    Id. (providing that
    a temporary restraining
    order “shall expire by its terms within such time after signing, not to exceed fourteen
    days” that the trial court may, “for good cause shown, . . . extend[] for a like period,”
    and that “[n]o more than one extension may be granted unless subsequent extensions
    are unopposed”).
    In the context of section 211.010, an appeal to the board of adjustment stays all
    proceedings unless the administrative official from whom the appeal is taken has
    certified that “a stay would cause imminent peril to life or property.” If a trial court
    disagrees with the administrative official’s assessment of the situation and “due cause”
    is shown, the statute authorizes the trial court to override the official’s denial of the
    stay. Tex. Loc. Gov’t Code Ann. § 211.010(c).
    But under the majority’s interpretation of section 211.010(c), a trial court could
    reinstate the stay of proceedings for only twenty-eight days (absent agreement). On
    the twenty-ninth day, proceedings in furtherance of the action under appeal would
    arguably resume with impunity. For all practical purposes, such an interpretation
    would render the trial court’s ability under section 211.010(c) to enforce the stay
    meaningless because of the resulting ephemeral nature of the trial court’s power.
    As to the majority’s interpretation of section 211.010(c), I respectfully dissent,
    but I concur in the result reached.
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    /s/ Bonnie Sudderth
    Bonnie Sudderth
    Chief Justice
    Delivered: August 22, 2019
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