Friday, June 27, 2008

Void TRO against OAG set aside by mandamus

Texas Supreme Court Court vacates trial court orders against Office of Attorney General in Dallas child support collection dispute; says the orders were procedurally defective.

In re OAG,
No. 08-0165 (Tex. 2008) (per curiam)
(temporary restraining order TRO declared void and set aside by mandamus)
IN RE OFFICE OF THE ATTORNEY GENERAL; from Dallas County; 5th district (05-08-00208-CV, ___
SW3d ___, 02-28-08)
stay order issued February 29, 2008, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants the petition for writ of mandamus.
Per Curiam Opinion [ pdf ]

Texas Rules of Civil Procedure 680 and 684 require a trial court issuing a temporary restraining order to: (1) state why the order was granted without notice if it is granted ex parte, Tex. R. Civ. P. 680; (2) state the reasons for the issuance of the order by defining the injury and describing why it is irreparable, id.; (3) state the date the order expires and set a hearing on a temporary injunction, id.; and (4) set a bond, Tex. R. Civ. P. 684.

Orders that fail to fulfill these requirements are void. Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986); Lancaster v. Lancaster, 291 S.W.2d 303, 308 (Tex. 1956).

The temporary restraining order and amended orders issued by the trial court violate these rules. The original and first amended orders were granted ex parte but fail to explain why they were granted without notice, see Tex. R. Civ. P. 680; they do not define the injury they were designed to prevent or explain why such injury would be irreparable, see id.; and they were issued without meeting the bond requirement, see Tex. R. Civ. P. 684.

The second amended order purports to carry forth the original temporary restraining order as a temporary injunction, but the trial court issued it without a hearing; thus, it is not properly considered a temporary injunction but, rather, a continuation of the temporary restraining order. See Tex. R. Civ. P. 680; Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992). This second amended order, although it does set a bond, again fails to explain the reason for granting the order without notice or to define the injury to be suffered. See Tex. R. Civ. P. 680, 684.

Because temporary restraining orders are not appealable, the Attorney General has no remedy by appeal. In re Tex. Natural Res. Conservation Commn, 85 S.W.3d 201, 205 (Tex. 2002); In re Newton, 146 S.W.3d 648, 652–53 (Tex. 2004). Furthermore, the Attorney General has presented evidence that Texas could lose federal funding if he is forced to comply with the orders pending the outcome of proceedings to amend the underlying child-support orders. See 42 U.S.C. § 602 (2000).

Given the unavailability of appeal and the gravity of interests at issue in this case, we accordingly—without hearing oral argument, pursuant to Texas Rule of Appellate Procedure 52.8(c)—conditionally grant relief and direct the court to withdraw all three of its temporary orders. We are confident that the trial court will comply, and the writ will issue only if the trial court fails to do so.

Links: Other
OAG child support enforcement cases | Family law decisions of the Texas Supreme Court |
Mandamus Opinions of the Texas Supreme Court |

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