A PRIMER ON INJUNCTIVE RELIEF IN

FEDERAL AND STATE COURT

BY WILLIAM FRANK CARROLL AND RICHARD M. HUNT

NJUNCTIVE RELIEF IS AN EQUITABLE REMEDY
finding its genesis in the power of the English chancellor to
relieve litigants from the strictures of the law as applied by
the law courts. The remedial power was so undefined and
unlimited that it was said to be determined by the length
of the chancellors foot.
Today injunctive relief in the federal and state courts is
much more strictly circumscribed by statute, rule, and
governing case law. Nevertheless, injunctive relief retains
its ability to do that which is beyond the strict limitations of
the law.
A suit for injunctive relief is one of the most effective tools
available to a litigator, especially when a request for
immediate relief is included. At the same time, suits
seeking injunctive relief are almost always extraordinarily
expensive, and make unusual demands on the lawyers and
clients on both sides. This paper will discuss the mechanics
of obtaining injunctive relief as well as the strategic
considerations that must inform the decision to seek such
relief.
I. Injunctive Relief in Federal Court
A. Introduction
Two primary forms of preliminary injunctive relief are
available in federal court, temporary restraining orders and
preliminary injunctions.
1
Federal Rule of Civil Procedure
65 outlines the general standards for obtaining injunctive
relief; however one must look to other federal rules, local
court rules, and case law for the procedural and substantive
law applicable to injunctive relief.
2
B. Temporary Restraining Orders
1. Generally
Most courts, and particularly the federal courts, are
reluctant to issue temporary restraining orders because they
have substantial impact on the case but are determined on
an incomplete record, without oral testimony and often on
an ex parte basis.
3
2. Pleading and Notice Requirements
The complaint seeking the temporary restraining order
must be verified or supported by affidavit testimony.
4
In
addition, the complaint must demonstrate by specific
facts that immediate and irreparable injury, loss or
damage will result to the applicant before the adverse
party can be heard in opposition.
5
It is most important that
the complaint establish facts through persons with personal
knowledge, of irreparable harm. Unlike some courts,
federal courts do not generally grant temporary restraining
orders based upon conclusions (the foreclosure would be
wrongful) or questionable testimony.
The applicants attorney must also certify to the court in
writing as to the efforts which have been made to give
notice to the opposing party and the reasons supporting
why such notice should not be required.
6
3. Substantive Showing
The Fifth Circuit Court of Appeals has delineated a
generally accepted four prong test which must be satisfied
in order to obtain a temporary restraining order. The
applicant must establish each of the following: (1) a
substantial likelihood of success on the merits; (2) a
substantial threat that failure to grant the injunction will
result in irreparable injury; (3) that the threatened injury
outweighs any damage that the injunction may cause the
opposing party; and (4) that the injunction will not disserve
the public interest.
7
Thus the federal test requires a balancing of the injury to be
suffered by both parties, not just by applicant. Also, the
court is required to consider the impact the injunction will
have on the public interest, even in suits between private
parties.
8
4. Duration
A temporary restraining order issued without notice may
not exceed 10 days in duration unless for good cause
shown the order is extended for a like period or unless
the party against whom the order is entered consents that it
may be extended for a longer period.
9
If the temporary
restraining order is extended, the reasons for any extension
of time must be entered of record.
10
5. Terms of the Order and Filing
Because of the extraordinary nature of injunctive relief, the
temporary restraining order must contain specified findings
and information. The temporary restraining order must: (1)
be endorsed with the date and hour of issuance; (2) define
the injury and state why it is irreparable; (3) state why it
was issued without notice; (4) specify that it expires within
10 days after entry; and (5) be filed forthwith in the
clerks office and entered of record.
11
In addition the temporary restraining order must (1) set
forth the reasons for its issuance; (2) be specific in terms;
and (3) shall describe in reasonable detail, without
reference to the complaint or other document, the act or
acts sought to be restrained.
12
6. Security
The party obtaining the temporary restraining order must
give security in whatever sum the court deems proper for
the payment of costs and damages as may be incurred or
I

MHDocs 1742655_1 990001.101
suffered by a party who is found to have been wrongfully
enjoined or restrained.
13
7. Conference With Court
In Texas state court practice the applicants attorney
generally has the opportunity to present the temporary
restraining order request to the judge on an ex parte basis.
This almost universal state court practice is not prevalent in
federal court. Depending upon the predilections of the
particular judge, the applicants request may be decided on
the papers, or at best, after the attorney has had a brief
conference with the judges law clerk.
14
Consequently, it is
especially important when seeking a temporary restraining
order in federal court that the papers clearly demonstrate
the need for and entitlement to relief without benefit of
counsels presentation.
8. Service of Temporary Restraining Order
A temporary restraining order must be formally served,
which is traditionally done with the service of the
complaint. Any person who is not a party and is of 18 years
of age may serve the temporary restraining order, including
someone appointed by the court for that purpose.
15
The
person serving the temporary restraining order is then
required to file a proof of service with the court.
16
9. Persons Bound by Temporary Restraining Order
The person or entity named as the defendant is bound by
the terms of the temporary restraining order. However,
additional actors are also subject to the restraints of the
temporary restraining order. It binds the parties and their
officers, agents, servants, employees and attorneys.
17

Further, it is binding upon those persons in active concert
or participation with them who receive actual notice of the
order by personal service or otherwise.
18
Therefore, if
service is for any reason delayed, it is important to give
notice of the issuance of the temporary restraining order-
including a copy of the same-to the opposing party and
those acting in concert with that party.
10. Hearing on Preliminary Injunction if Temporary
Restraining Order Granted
If a temporary restraining order is granted without notice,
the court must set a hearing on the preliminary injunction at
the earliest possible time, which may not exceed 10 days
with one extension for good cause shown.
19
A party against
whom a temporary restraining order is granted without
notice may move on 2 days notice for a hearing to dissolve
or modify the order and the court will hear such motion as
expeditiously as the ends of justice require.
20
11. Strategy on Temporary Restraining Orders in
Federal Court
Given the general reluctance of the federal courts to grant
ex parte temporary restraining orders, it is imperative that
careful consideration be given to whether a temporary
restraining order should even be requested. If the basis for
liability is less than clear or the nature of the irreparable
injury suspect, caution should be exercised in seeking a
temporary restraining order. Consideration should rather be
given to requesting an expedited hearing on a preliminary
injunction.
The second factor to consider is whether the client can post
the required bond. Unlike some courts, the federal courts
rarely permit posting of nominal bonds to secure
substantive injunctions ($500.00 bond to present
foreclosure on $l million home).
The third factor to consider is whether there is any real
advantage to filing suit in federal court for such temporary
relief. Of course, in some instances the federal courts have
exclusive jurisdiction and the application must be filed in
that forum.
21
Absent such limitation, it will often be easier
to obtain ex parte injunctive relief in the state court system.
Finally, make sure that the federal court has an independent
basis for federal subject matter jurisdiction
22
and that venue
is proper in the district in which the suit will be filed.
23
12. Checklist for Federal Court Temporary Restraining
Orders
a) Determine jurisdiction and venue.
b) Decide whether standards are satisfied for temporary
restraining order.
c) Prepare complaint and application for temporary
restraining order.
d) Select witness(es) to verify complaint or provide
affidavit testimony supporting the temporary
restraining order application.
e) Prepare brief in support of your application. Although
this is not required, generally it will be very helpful in
those cases where there is any legal issue as to
entitlement to relief or where there is no opportunity
to visit with the judge to supplement the written
presentation.
f) Arrange for bond or posting of cash security with the
district clerk once the temporary restraining order has
been signed. If a bond is to be utilized, arrangements
should be made in advance.
g) Arrange for service/notice to all impacted parties. This
might include filing an application and order for
appointment of someone to serve process and the
temporary restraining order at the time the complaint
is filed.
h) Consider filing a motion for expedited discovery-but
be reasonable. Asking the court to order the
production of 40 categories of documents in 5 days
and to present 10 witnesses for deposition is not only
unlikely to be granted, but is also unlikely to enhance
your credibility with the court.

MHDocs 1742655_1 990001.101
i) Review the local rules to determine any special
procedures or requirements for obtaining a temporary
restraining order.
j) Check with the district cleric (if you do not practice in
the district or in federal court generally) to determine
how such filings are handled and what is done if the
judge to whom the matter is assigned is not available.
Unlike some courts, it would be the most unusual of
cases if you were allowed to pick up your file and
wander from court to court until you could find a
judge who was available to consider the application.
k) Prepare a detailed order granting the relief requested-
but be reasonable. Requesting to enjoin a national
bank from disposing of all documents relating to its
check cashing policies since 1980 is not likely to find
favor with most federal judges.
l) Determine if the district clerk expects you to prepare
the writ of injunction or whether they have a form
available.
m) Be sure you have checks for all applicable filing fees.
n) The attorney should hand walk the filing through the
district clerks office and then take the file marked
judges copies to the judges secretary or
administrative assistant.
o) If the temporary restraining order is granted, promptly
post the bond and effect service/notice as applicable.
C. Preliminary Injunctions
1. Generally
The purpose of a preliminary injunction is to preserve the
status quo pending a final decision on the merits of the
case.
24
The status quo is the last peaceable uncontested
status prior to the parties present disagreement.
25
2. Pleading and Notice Requirements
A complaint seeking a preliminary injunction is subject to
the same pleading requirements generally applicable in
federal court.
26
There is no requirement that the complaint
be verified. However, sworn proof establishing entitlement
to relief must be submitted before a preliminary injunction
will be granted. The normal procedure for seeking a
preliminary injunction is by motion or by an order to show
cause, the former being preferred.
Unlike a temporary restraining order, a preliminary
injunction may not be granted without notice to the adverse
party.
27
3. Substantive Showing
The substantive requirements for obtaining a preliminary
injunction are the same as for obtaining a temporary
restraining order.
28
The court will again perform a
balancing of interests test assessing the impact of granting
the requested relief on the respective parties and on the
public interest.
29
4. Duration
The preliminary injunction remains in effect, unless
dissolved or modified, during the pendency of the
litigation. When the case is decided on the merits the
preliminary injunction may be dissolved or may be made
permanent depending upon the form and scope of relief
required by the final judgment.
5. Terms of the Preliminary Injunction
A preliminary injunction must set forth the reasons for its
issuance.
30
The order must be specific in its terms and must
describe in reasonable detail (and not by reference to the
complaint or other document) the act(s) to be restrained.
31

Although Rule 65(d) does not so require, it is advisable for
the order to set forth the specific equitable findings which
justify the issuance of a common law injunction.
32
Thus the
order should clearly describe why the injunction is
necessary to prevent irreparable harm, the reasons the
applicant is likely to prevail on the merits, and a balancing
of the parties and the publics interest in having the
injunction granted.
33
6. Security
The successful applicant for a preliminary injunction is
required to post security in the same manner as for a
temporary restraining order.
34
7. Persons Bound By Preliminary Injunction
The same broad category of persons are bound by a
preliminary injunction as are those subject to a temporary
restraining order. The same procedure discussed previously
with respect to service and notice of a temporary
restraining order should be followed with respect to a
preliminary injunction.
35
8. Hearing on Preliminary Injunction
Before granting a preliminary injunction the opposing party
must be given notice and an opportunity to be heard.
36

However, it is not necessary for the court to hold an
evidentiary hearing where the parties are allowed to present
testimony.
37
A hearing may be required if there is a
material factual dispute;
38
however, some courts have
upheld the denial of a hearing even when the facts are
controverted.
39
In fact it is the standard practice of some
federal judges to resolve all preliminary injunction
applications without an oral hearing.
40
Evidence at a hearing on a preliminary injunction may
include verified pleadings, affidavits, deposition testimony,
documentary evidence and oral testimony. Because the
function of a preliminary injunction is to maintain the
status quo rather than adjudicate the matter on the merits,
the federal courts are more lenient in demanding strict
compliance with the rules of evidence. Consequently,
affidavits are not held to the strict requirements of those
supporting summary judgment
41
and hearsay evidence may
be considered by the court.
42
It should be noted that the court may, before or after
commencement of any hearing on a preliminary injunction,
order that the hearing be consolidated with the trial on the

MHDocs 1742655_1 990001.101
merits.
43
Even if a consolidation is not ordered, any
evidence introduced at the preliminary injunction hearing
becomes a part of the final trial record if it would have been
admissible in a trial on the merits.
44
Counsel should,
however, be cautious in relying on this rule if essential
testimony is included in affidavits or depositions, if it
would be inadmissible at trial because it is not based on
personal knowledge, is conclusory, or is hearsay.
9. Checklist for Preliminary Injunctions
In addition to the items suggested with respect to a
temporary restraining order, several additional matters are
worth considering, particularly if no oral hearing is
permitted.
a) Prepare a brief in support of your motion. Although this
may not always be required by local rules generally it will
be very helpful in those cases where there is any legal issue
as to entitlement to relief or where there is no opportunity
to supplement the written presentation with testimony and
arguments.
b) Carefully filter the evidence to be presented in support of
the application. To the extent possible the affidavits should
comply with Fed.R.Civ.P.56(e). Also, limit the amount of
deposition testimony-highlighted-submitted to the court.
Also, limit the amount of documentary evidence-
highlighted-submitted to the court.
c) Include all of the evidence in a clearly organized,
readable appendix.
d) If the case justifies it, and the client can afford it, provide
the court with a CD-ROM of your brief with links to case
citations, statutes, affidavits, documents and evidentiary
testimony. On critical factual issues, video taped excerpts
should also be included. This allows the court to consider
the demeanor of the witness without an oral hearing.
e) Prepare a detailed order making all of the findings of fact
and conclusions of law necessary to support injunctive
relief. If possible, provide the same to the court in a CD-
ROM as well as a hard copy.
f) Arrange for a new bond to be posted since the terms of
the old bond will probably be confined to the temporary
restraining order.
D. Equitable Defenses
The party opposing an application for a temporary
restraining order or a preliminary injunction has the full
range of legal defenses available to the asserted claim for
relief, even if injunctive relief is also requested, These
defenses are considered under the first prong of the four
prong test for granting injunctive relief-is the applicant
likely to succeed on the merits. Consequently, it is a
defense to injunctive relief if the applicants claim is barred
by limitations, the contract sued on is void on its face, or
the applicant has no standing to bring suit.
However, because the relief being sought is equitable and
discretionary, there are other defenses to an application for
injunctive relief which are based on a fairness concept.
45

Examples of such equitable defenses include:
1. Applicant acted in bad faith;
46

2. Applicant has unclean hands;
47

3. Applicant has failed to do equity;
48

4. Laches;
49
and
5. Waiver.
50
E. Limitations on Federal Jurisdiction to Grant
Injunctions
Although federal courts have the power to grant injunctions
in cases in which they have subject matter jurisdiction,
Congress has circumscribed that power in three specific
areas.
The Federal Anti-Injunction Act prohibits a federal court
from enjoining pending state court proceedings unless 1) it
is specifically authorized by an Act of Congress; 2) where
necessary in aid of its jurisdiction; or 3) to protect or
effectuate its judgments.
51
The first exception is for those Acts of Congress which
authorize issuance of an injunction. Examples include the
Federal Interpleader Statute which specifically authorizes
the issuance of an injunction to restrain the institution of
any proceeding in any state...court.
52
Likewise, in a
habeus corpus action the court may enjoin any proceeding
against the person detained in any state court,
53
Other
examples include the removal statute
54
and the Bankruptcy
Act.
55
The second exception is where the injunction is necessary
in aid of the courts jurisdiction. Although of limited
application, this exception is most often invoked to enjoin a
subsequent state court suit involving property which is in
the custody of the federal court.
56
The final exception permits the federal court to enjoin a
state court proceeding in order to protect or effectuate its
judgments. This exception is often referred to as the
relitigation exception. It is founded on the doctrines of
res judicata and collateral estoppel and insulates from
litigation in state proceedings those matters which
actually have been decided by the federal court.
57
Two other statutes also limit a federal courts power to
issue injunctions. The Tax Injunction Act prohibits the
federal court from enjoining the assessment, levy or
collection of any tax under state law; if a plain, speedy
and efficient remedy is available in the state courts.
58
The
J ohnson Act prohibits the enjoining of rates charged by a
public utility if such rates are established by a state
administrative or rate-making body, if the case is based on
diversity jurisdiction, and if other requirements are
satisfied.
59

MHDocs 1742655_1 990001.101
F. Appellate Review of Orders Granting Injunctive
Relief
Congress has by statute authorized immediate review of
interlocutory orders of the district courts...granting,
continuing, modifying, refusing or dissolving an injunction
or refusing to dissolve or modify an injunction, except
where direct review may be had in the Supreme Court;...
60
Appeals may be taken both from orders granting
preliminary as well as permanent injunctions
.61
The appeal
is as of right, and is not subject to the discretion of either
the trial or appellate court.
62
Temporary restraining orders, however, are not
appealable.
63
The fact that the order is titled a temporary
restraining order will not preclude an appeal if it is in fact
more than a temporary restraining order.
64
Likewise, an order need not specifically deny an injunction
to be appealable. If the practical effect of the order is a
denial of injunctive relief, then it is appealable.
65
Finally, a
refusal to act on an application for injunctive relief will not
preclude appellate review. The refusal to rule will be
deemed to be a denial of the injunction thereby permitting
the order to be appealed.
66
II. Injunctive Relief in Texas State Courts
A. Introduction
In most cases, a suit for injunctive relief begins with a
request for a Temporary Restraining Order, followed by a
request for a Temporary Injunction, followed by a
permanent injunction that is part of the final judgment in a
case. The Temporary Restraining Order may be issued with
or without notice to the opposing party but can remain in
effect only a short time.
67
The Temporary Injunction is
issued after an evidentiary hearing that amounts to a mini-
trial of the case. It remains in effect until the entry of a final
judgment. The permanent injunction is issued after trial.
The two preliminary steps to permanent relief temporary
restraining order and temporary injunction build on the
standard for granting a permanent injunction, with the first
two steps requiring additional evidence to justify the
demand for relief before trial. A permanent injunction can
issue after trial if the claim is one for which injunctive
relief is appropriate. A temporary injunction can issue after
an evidentiary hearing if the claim is one for which
injunctive relief is appropriate and the moving party has
shown that it is substantially likely to prevail at trial and
that it will suffer irreparable harm before trial unless the
injunction is granted.
68
A temporary restraining order can
be issued only if all the requirements for a temporary
injunction are satisfied and the threat of harm is so
immediate that it will occur before the Court even has time
to conduct an evidentiary hearing. In addition, most state
courts require evidence that the party moving for a
temporary restraining order have attempted to contact
opposing counsel so that there is at least a non-evidentiary
hearing before the temporary restraining order is granted.
In general, the more immediate the relief sought, the
greater the burden on the party seeking relief to
demonstrate that there is a real risk of immediate harm and
that it will prevail in the end.
B. Substantive Requirements for Granting Injunctive
Relief Before and at Trial
Consideration of a claim for injunctive relief must begin
with the substantive requirements for such relief.
Injunctions are not available to stop every kind of harm,
and every claim for such relief requires pleading an
appropriate cause of action.
1. Claims for Which Permanent Injunctive Relief is
Available
Injunctive relief, like every other form of equitable relief, is
generally available when there is no adequate remedy at
law; that is, when money damages are not adequate. This
requirement has been codified in Section 65.011 of the
Texas Civil Practice & Remedies Code, which provides:
A writ of injunction may be granted if:
(a) the applicant is entitled to the relief demanded and all
or part of the relief requires the restraint of some act
prejudicial to the applicant;

(b) a party performs or is about to perform or is procuring
or allowing the performance of an act relating to the
subject of pending litigation, in violation of the rights
of the applicant, and the act would tend to render the
judgment in that litigation ineffectual;

(c) the applicant is entitled to a writ of injunction under
the principles of equity and the statutes of this state
relating to injunctions;

(d) a cloud would be placed on the title of real property
being sold under an execution against a party having
no interest in the real property subject to execution at
the time of sale, irrespective of any remedy at law; or

(e) irreparable injury to real or personal property is
threatened, irrespective of any remedy at law.
Various other statutes may expand or qualify the general
provisions of Section 65.011, and one of the first steps in
analyzing a possible claim for injunctive relief is to review
possibly applicable statutes to see if they grant a right to or
limit injunctive relief. Creative lawyers should not,
however, consider themselves limited to specific statutes or
even circumstances considered by courts in the past. If an
award of money damages will not adequately compensate
the anticipated future harm then injunctive relief should be
available.
2. Additional Substantive Requirements for the
Granting of a Temporary Injunction
The purpose of a temporary injunction is to preserve the
status quo of the litigations subject matter pending a trial
on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198,
204 (Tex. 2002). Status quo is defined by the Texas
Supreme Court as the last, actual, peaceable, non-

MHDocs 1742655_1 990001.101
contested status that preceded the pending controversy.
69

In almost every case where permanent injunctive relief is
available, a temporary injunction will also be available in
theory, because the acts that are sought to be enjoined will
usually cause harm a change in the status quo before
there can be a final trial. However, the requirement of
imminent harm is not trivial, and regardless of the validity
of the claim proof of imminent harm will be required for a
temporary injunction.
a) There must be an imminent threat of harm. Because a
temporary injunction is issued before there is an
opportunity for complete discovery and development of the
case, its issuance requires more than a theoretical risk of
harm before trial. The Texas Supreme Court requires proof
of a probable, imminent, and irreparable injury in the
period before trial. Butnaru, supra. In EMSL Analytical,
Inc. v. Younker, 154 S.W.2d 693 (Tex.App. Houston
2004, no writ) the Houston Court of Appeals affirmed the
denial of a temporary injunction because the plaintiff had
only shown a theoretical possibility of future harm. It
wrote that: At most, the testimony of EMSLs regional
manager established only a fear of possible injury, and that
contingency is not sufficient to support issuance of a
temporary injunction. Id. at 697. A party seeking a
temporary injunction should develop evidence of actual, as
opposed to theoretical harm, and a party resisting an
injunction may find that denying any intent to engage in
forbidden conduct is an effective defense.
b) The movant must show a probable right to final relief
after trial. A party seeking a temporary injunction must not
only plead a cause of action justifying injunctive relief; it
must also prove a a probable right to the relief sought.
70

This does not mean proof that would result in victory at a
final trial, but is something more than presentation of a
prima facie case.
71
Appellate review of the grant or denial
of a temporary injunction is based on an abuse of discretion
standard, and so as a practical matter the trial courts
decision to grant or deny an injunction will be affirmed if
there is evidence from which a reasonable person would
reach the same conclusion as the trial court.
72
3. The Additional Requirement of Immediate Harm for
Issuance of a Temporary Restraining Order
Temporary restraining orders are governed by Texas Rule
of Civil Procedure 680, which requires a showing that:
immediate and irreparable injury, loss or damage will
result to the applicant before notice can be served and a
hearing had thereon.
73
A temporary restraining order can
remain in effect for an initial period of only 14 days, and
can be extended for only an additional 14 days,
74
which
means that any hearing on the follow up request for a
temporary injunction must take place within 28 days. Thus,
the requirement of immediate injury means injury within
that 28 day period. To justify relief without notice the
injury must be even more immediate, and occur before
notice can be served.
C. The Process for Obtaining Injunctive Relief
The process of obtaining injunctive relief begins with the
filing of a Petition, application for a Temporary Restraining
Order (if desired) and application for a Temporary
Injunction (if desired). If a temporary restraining order is
requested, the motion will be presented to the Court at the
time of filing, or within a short time thereafter. It may be
presented ex parte and without notice, subject to limits
imposed by local rules or the Court, When the application
for temporary restraining order is presented the Court will
either grant or deny the temporary restraining order and set
a date for a hearing on the application for temporary
injunction. That hearing, which is evidentiary, ordinarily
takes place within 28 days, and will result in the grant or
denial of the temporary injunction. After the temporary
injunction hearing the case proceeds to trial in the ordinary
fashion. This broad outline of the injunction process is
subject to a number of qualifications, which are discussed
in detail in the sections below.
1. The Initial Papers Seeking Injunctive Relief
Like any other lawsuit, a suit requesting injunctive relief is
commenced by filing a petition.
75
If a temporary restraining
order or temporary injunction is sought they are ordinarily
included as part of the same document, although this is not
required by Rule 680, which specifically governs
temporary restraining orders, or by Rule 682; which
governs all pleadings and motions seeking injunctive relief.
The petition must be verified and contain a plain and
intelligible statement of the grounds for such relief.
76
If a
temporary restraining order is requested the pleading must
go further and include sworn specific facts showing that
immediate and irreparable injury, loss or damage will
result to the applicant before notice can be served and a
hearing had thereon.
77
A request for a temporary
restraining order must be accompanied by a request for a
temporary injunction, because Rule 680 requires that if a
temporary restraining order is granted a hearing on the
request for temporary injunction must be set as well.
Most Courts require, as part of the request for temporary
restraining order, a certificate to the effect that the attorney
presenting the motion has made a reasonable effort to
notify the opposing party that the request is being filed.
78

Individual judges often have very different views of the
benefits and desirability of notice for a temporary
restraining order, and before filing a request for a
temporary restraining order the attorney filing it should
determine what the judge requires. Because every
temporary restraining order is followed in a very short time
by an evidentiary hearing on the temporary injunction,
requests for temporary restraining orders are usually
accompanied by an Emergency Motion for Expedited
Discovery under Rule 191.1 that asks the Court to order
document production, depositions, and written discovery on
an expedited basis.
2. What Happens at the Courthouse When a TRO is
Requested
Rule 685 anticipates that a request for a temporary
restraining order or temporary injunction will be presented
to the Court before they are filed with the clerk of the
Court; however, the usual practice if the request is
presented during business hours is to first file the Petition

MHDocs 1742655_1 990001.101
with the clerk and then present to the Court along with a
proposed form of Order. In some counties all temporary
restraining orders are assigned to a single judge.
79
In most
counties the temporary restraining order will be considered
by the judge to whose court the case is assigned; however,
if the judge of the assigned Court is not available, the
request may be presented to a non-resident judge under the
circumstances described in Section 65.022 of the Texas
Civil Practice & Remedies Code. In larger counties, the
procedure for approaching other courts other than, the
assigned court will probably be subject to local rules
specifying the procedure.
80
Whether the petition is filed before or after presentation to
the Court, once the temporary restraining order is signed,
the Order and file are turned over to the clerk of the court,
who prepares a citation to the defendant along with a writ
of injunction that repeats the contents of the order signed
by the judge. The citation and writ may be served like other
citations under the provisions of Rules 103 and 106. The
duties of the officer serving a writ of injunction are slightly
different
81
from those of an officer serving an ordinary
citation, but as a practical matter the party seeking relief
will want to take whatever steps are needed to insure that
the restrained party gets notice of the Order as soon as
possible so that violations of the order can be punished by
contempt.
82
3. Contents of the Order Granting a Temporary or
Permanent Injunction and the Parallel Writ of
Injunction
All orders granting an injunction, whether permanent or
temporary, must:
set forth the reasons for its issuance,
be specific in terms, and
describe in reasonable detail and not by reference
to the complaint or other document the act or acts
sought to be restrained.
83

In addition, an order granting a temporary injunction must:
include an order setting the cause for trial on the
merits with respect to the ultimate relief
sought
84
, and
fix the amount of security (i.e., a bond) to be
given by the party applying for the temporary
injunction.
85

An order granting a temporary restraining order has the
same requirements as an order granting a temporary
injunction except that instead of a trial date it must state the
date of the hearing on temporary injunction. In addition, if
it is granted without notice, the order granting temporary
restraining order must:
be endorsed with the date and hour of issuance,
define the injury and state why it is irreparable,
state why the order was granted without notice,
and
expire by its terms within such time as the court
fixes, not to exceed fourteen days.
86

The writ of injunction issued by the clerk and served on the
enjoined party generally contains the same information as
the order granting the injunction except that there is no
requirement that the writ include the various findings
justifying issuance of the injunction that must be in the
order itself.
87
4. The Requirement of a Bond
Every order granting a temporary restraining order or
temporary injunction must include a requirement that the
party seeking the injunction provide a bond, and that bond
must be filed with the clerk before the writ of injunction
will be issued.
88
The amount of the bond is fixed by the
Court, and should be sufficient to compensate the enjoined
party for any damage it will suffer as a result of the
injunction.
89
The bond secures payment of those damages
in case it is found that the injunction should not have been
issued.
5. The Defendants Answer
The defendants deadline to file an answer is the same as in
any other case; however, because the defendant will
ordinarily seek other relief related to the temporary
restraining order, the answer will usually be filed very
shortly after the temporary restraining order is issued.
Defendants who wish to challenge personal jurisdiction by
making a special appearance under Rule 120a may find it
difficult to avoid unintentionally making a general
appearance given the levels of activity between the
issuance of a temporary restraining order and a hearing on
the request for a temporary injunction. Some decisions
indicate that very limited participation in such proceedings
does not constitute a general appearance;
90
however, as a
practical matter the discovery and other battles that
immediately follow the entry of a temporary restraining
order may be difficult to manage without taking some
affirmative action by the defendant which impliedly
recognizes the trial courts personal jurisdiction over the
defendant.
91
A defendant subject to a temporary
restraining order who wishes to make a special appearance
should, therefore, seek the early ruling required by Rule
120a in order to avoid waiver during the run up to the
temporary injunction hearing.
6. After the Temporary Restraining Order and Before
the Temporary Injunction Hearing Request for
Dissolution, Mandamus, Discovery, and Mediation
After a temporary restraining order is entered and served
the lawsuit proceeds on several fronts simultaneously. The
party enjoined may, on two days notice, seek to have the
temporary restraining order dissolved or modified.
92
A
temporary restraining order cannot ordinarily be
appealed
93
, but mandamus relief is available and may be
applied for.
94
While fighting over the continued existence
of the temporary restraining order, the parties will also
likely be engaged in disputes about the scope and timing of
expedited discovery, and will be doing the discovery as

MHDocs 1742655_1 990001.101
well. Many courts will order the parties to mediation under
Chapter 154 of the Texas Civil Practice & Remedies Code,
and, of course, all the parties must prepare witnesses and
exhibits for the temporary injunction hearing itself. In
short, the period between the granting of a temporary
restraining order and the hearing on the application for
temporary injunction is the entire pre-trial process
compressed to a period of no more than 28 days.
7. The Temporary Injunction Hearing
Rule 680 requires that if a temporary restraining order is
granted without notice, the request for temporary injunction
must be heard at the earliest possible date and takes
precedence of all matters except older matters of the same
character.
95
In practice different judges interpret this
requirement in different ways. Some actually give the
hearing the highest priority while others merely try to set
the hearing within the 28 day period representing the
maximum time before a temporary restraining order
expires. Rule 680 does not require that the Court grant any
particular amount of time for the hearing, and some judges
may simply refuse to set aside adequate time as a means to
force the parties to negotiate an agreed extension or
complete settlement. The only remedy for this kind of
behavior is mandamus.
At the injunction hearing the applicant for a temporary
injunction must establish through competent evidence that
he or she has a probable right to the requested relief and
that he or she will probably suffer injury in the absence of
such relief.
96
Texas courts have held that this does not
mean that the applicant must establish that he or she will
prevail at trial on the merits,
97
but it does require more than
presentation of a mere prima facie cases.
98
This means that
the decision to grant or deny a temporary injunction will be
affirmed if there is sufficient evidence for a rational person
to reach the same conclusion as the trial court.
99
Although
the burden of proof is on the movant to establish its case, a
respondent relying on affirmative defenses has the burden
of establishing those defenses.
100
8. Appeals from Orders Granting or Denying a
Temporary Injunction
Section 51.014 provides for an interlocutory appeal of an
order granting or denying a temporary injunction. Like
other interlocutory appeals, the appeal of a temporary
injunction is accelerated.
101
This means that the deadlines
to file a notice of appeal,
102
the record on appeal,
103
and
briefs
104
are all shortened. In addition, the Court of Appeals
may decide the case based on a sworn and uncontroverted
record provided by the trial court or parties, and may
dispense with the requirement of briefs.
105
If it chooses, the
Court of Appeals may act on the appeal within days by
using Rule 28.3.
The filing of a notice of appeal does not suspend a
temporary injunction, but the injunction order can be
superseded by filing a bond at the discretion of the trial
court.
106
A trial courts refusal to provide for a supersedeas
bond can be reviewed by the Court of Appeals, which can
also make other temporary orders to protect the parties
during the appeal.
107
Only the Court of Appeals can enforce
the underlying order during the appeal; however, the trial
court retains jurisdiction of the rest of the case, which can
proceed subject to limits on the authority of the trial court
to make orders that might be inconsistent with the
proceedings on appeal.
108
If the appeal is from denial of a temporary injunction the
appellant may apply for injunctive relief to the Court of
Appeals on the basis that it is necessary to protect its
jurisdiction or keep the pending appeal from becoming
moot. The application for an injunction during an appeal is
governed by Rule 52 of the Texas Rules of Civil procedure,
which requires the filing of new original proceeding in the
Court of Appeals.
9. Enforcing Orders Granting Temporary Restraining
Orders, Temporary Injunctions and Permanent
Injunctions
Refusal to obey an injunction of any kind is punishable by
contempt.
109
The detailed procedures for filing or opposing
motions for contempt are beyond the scope of this paper,
but are outlined in Rule 692 itself.
III. Conclusion
To obtain the extraordinary remedy of injunction, the wise
practitioner will insure that the pleadings, proof and relief
requested conform exactly to what the statutes, rules and
case law require. In few other areas is such careful
preparation and attention to detail met with a more
effective reward than in the arena of injunctive relief.
1
Fed. R. Civ. P. 65. Numerous federal statutes, however,
contain provisions authorizing injunctive relief in specific
areas. See e.g. 15 U.S.C. 4 (1994) (Sherman Act); 15
U.S.C. 25 (1994) (Clayton Act).
2
For example, Rule 65 does not provide an independent
basis for federal jurisdiction. See White v. National
Football League, 41 F. 3d 402, 409 (8
th
Cir. 1994).
3
See generally, Granny Goose Foods, Inc. v. Brotherhood
of Teamsters, Local No. 70, 415 U.S. 423 (1976).
4
Fed. R. Civ. P. 65(b).
5
Id.
6
Id.
7
Allied Mktg Group, Inc. v. CDL Mktg., Inc., 878 F.2d 806,
809 (5
th
Cir. 1989).
8
Mississippi Power &Light Co. v. United Gas Pipeline,
760 F. 2d 618, 625 (5
th
Cir. 1985).
9
Fed. R. Civ. P. 65(b).
10
Id.
11
Id.
12
Fed. R. Civ. P. 65(d).
13
Fed. R. Civ. P. 65(c).
14
See W. Carroll, The Local Rules and The Local, Local
Rules, Federal Bar Association 19
th
Annual Federal Civil
Practice Seminar (Feb. 25, 2005) at Tab 3, App.1.
15
Fed. R. Civ. P 4(c)(2).
16
Fed. R. Civ. P. 4(1).
17
Fed. R. Civ. P. 65(d).
18
Id.
19
Fed. R. Civ. P. 65(b).

MHDocs 1742655_1 990001.101
20
Id.
21
See e.g. 15 U.S.C. 1 (Sherman Act).
22
28 U.S.C. 1331 et seq. There are innumerable other
federal statutes which confer jurisdiction on the federal
courts in specific instances. 15 U.S.C.1 (Sherman Act); 15
U.S.C. 78aa (Securities Exchange Act of 1934).
23
28 U.S. 1391. Many federal statutes also contain their
own specialized venue provisions. See e.g. 15 U.S.C. 22
(Clayton Act).
24
Hollon v. Mathis Indep. Sch. Dist., 491 F.2d 92 (5
th
Cir.
1974).
25
Stemple v. Board of Educ. of Princes County, 523 F. 2d
893, 898 (4
th
Cir. 1980), cert denied 450 U.S. 911 (1981).
26
See Fed. R. Civ. P. 7-11.
27
Fed. R. Civ. P. 65(a)(1).
28
See supra at notes 7-8 and accompanying text.
29
Id.
30
Fed. R. Civ. P. 65(d).
31
Id.
32
See C. Wright and A. Miller, Federal Practice and
Procedure 2941 at p. 31.
33
See supra at n. 11 and accompanying text.
34
See supra at n. 13 and accompanying text.
35
See supra at notes 17-18 and accompanying text.
36
Fed. R. Civ. P. 65(a)(1).
37
See Campbell Soup Co. v. Giles, 47 F. 3d 467 (1
st
Cir.
1995); FSLIC v. Dixon, 835 F. 2d 554 (5
th
Cir. 1987).
38
Four Seasons Hotels &, Resorts, B.V. v. Consorico Bark,
S.A., 320 F. 3d 1205 (11
th
Cir. 2003).
39
See, Stanley v. University of So. California, 13 F. 3d
1313 (9
th
Cir. 1994).
40
See, W. Carroll, supra, n. 14, at Tab 3, App. 1.
41
Fed. R. Civ. P. 56(f). FSLIC v. Dixon, 835 F. 2d 554 (5
th

Cir. 1987); Welker v. Cicerone, 174 F. Supp, 2d 1055 (C.D.
Cal. 2001).
42
Sierra Club v. FDIC, 992 F. 2d 545 (5
th
Cir. 1993).
43
Fed. R. Civ. P. 65(a)(2).
44
Id.
45
See generally, C. Wright and A. Miller, Federal Practice
and Procedure 2946.
46
Original Great Am. Chocolate Chip Cookie Co. v. River
Valley Cookies, Ltd., 970 F. 2d 273 (7
th
Cir. 1992).
47
Kentucky Fried Chicken Corp. v. Diversified Packaging
Comp., 549 F. 2d 368, 372 (5
th
Cir. 1977) (the bizarre
element is the facially implausible-some might say
unappetizing-contention that the man whose chicken is
finger-licking good has unclean hands).
48
C. Wright and A. Miller, Federal Practice and
Procedure 2946 at 14.
49
Kay v. Austin, 621 F. 2d 809 (6
th
Cir. 1980).
50
Henry I. Siegel Co. v. Koratron Co., 311 F. Supp. 697
(S.D.N.Y. 1970).
51
28 U.S.C. 2283.
52
28 U.S.C. 2361.
53
28 U.S.C. 2251.
54
28 U.S.C. 1446(d); Maseda v. Honda Motor Co., 861 F.
2d 1248 (11
th
Cir. 1988).
55
11 U.S.C. 362.
56
Green v. Green, 259 F. 2d 229 (7
th
Cir. 1958).
57
Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 148
(1998).
58
28 U.S.C. 1341.
59
28 U.S.C. 1342.
60
28 U.S.C. 1292(a)(1).
61
Sherri A.D. v. Kirby, 975 F. 2d 193, 202 (5
th
Cir. 1992).
62
Compare 28 U.S.C. 1292(b).
63
In Re Champion, 895 P. 2d 490, 492 (5
th
Cir. 1990); Belo
Broadcasting Corp. v. Clark, 654 F. 2d 423, 426 (5
th
Cir.
1981).
64
Sampson v. Murray, 415 U.S. 61, 86-87 (1994); United
States v. Bayshore Assoc., Inc., 934 F. 2d 1391 .(6
th
Cir.
1991).
65
Carson v. American Brands, 450 U.S. 79 (1981).
66
Rolo v. General Dev. Corp., 949 F. 2d 695, 703 (3
rd
Cir.
1991).
67
No more than 20 days in federal court (FRCP 65(b)) and
28 days in Texas state courts (TRCP 680).
68
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.
2002).
69
State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528
(Tex. 1975).
70
Butnaru, supra n. 68.
71
Infra ns. 92 - 94.
72
See e.g., Tri-Star Petroleum Co. v. Tipperary Corp., 101
S.W.3d 583 (Tex.App. - El Paso 2003, no writ). In that case
the trial courts issuance of a temporary injunction was
affirmed because the trial court could have rationally
determined that the evidence supported the movants
claims, and the court of appeals was obligated to Mew the
evidence in light most favorable to the trial courts order,
indulging every reasonable inference in its favor. Id. at
587, 590. In Associated General Contractors of Texas, Inc.
v. City of El Paso, 932 SW.2d 124, 126 (Tex.App. - El Paso
1996, no writ) the denial of a writ was affirmed because the
evidence was conflicting, and If conflicting evidence is
presented, the appellate court must conclude that the trial
court did not abuse its discretion in entering its order.
73
TEX. R. CIV. P. 680.
74
Id.
75
TEX. R. CIV. P. 22.
76
TEX. R. CIV. P. 682.
77
TEX. R. CIV. P. 680.
78
See, e.g., Dallas County District Courts Local Rule 2.02.
79
See, e.g., Harris County District Courts Local Rule 3.5
and Bexar County District Courts Local Rule (C).
80
See, e.g., Tarrant County Local Rule 3.30(b).
81
Compare TEX. R. CIV.P. 103 and 107 to 689.
82
TEX. R. CIV. P. 683.
83
Id.
84
Id.
85
TEX. R. CIV. P. 684.
86
TEX. R. CIV. P. 680.
87
See, TEX. R. CIV. P. 687.
88
TEX. R. CIV. P. 684.
89
TEX. R. CIV. P. 684.
90
Crystalix Group Intern. Inc. v. Vitro Laser Group USA,
Inc., 127 S.W.3d 425 (Tex.App. - Dallas 2004, no writ),
Redwood Group, LLC v. Louiseau, 113 S.W.3d 866
(Tex.App. - Austin 2003, no writ), Turner v. Turner, 1999
WL 33659 (Tex.App. - Houston [14
th
Dist.] 1999).
91
Redwood Group, supra n. 90.
92
TEX. R. CIV. P. 680.
93
When the TRO acts as a temporary injunction that is, it
does not set its own expiration date or provide for a later

MHDocs 1742655_1 990001.101
hearing, it will be treated as an appealable temporary
injunction. In re Texas Natural Resource Conservation
Commn, 85 S.W.3d 201 (Tex. 2002).
94
Id. The procedures for mandamus relief are beyond the
scope of this article.
95
TEX. R. CIV. P. 680.
96
See Camp v. Shannon, 348 S.W.2d 517 (Tex. 1961);
Diesel Injection Sales & Serv., Inc. v. Renfro, 619 S.W.2d
20 (Tex. Civ. App.Corpus Christi 1981, writ refd n.r.e.).
97
The Texas Supreme Court has stated: We have also said
that to warrant issuance of a temporary injunction, the
applicant need only show a probable right and probable
injury; that the applicant is not required to establish that he
will finally prevail in the litigation. Sun Oil Co. v.
Whitaker, 424 S.W.2d 216 (Tex. 1968).
98
See Deer Valley Ranch, Inc. v. Adair, 574 S.W.2d 592
(Tex. Civ. App.San Antonio 1978, no writ).
99
See cases cited infra at n. 100.
100
Michelle Corp. v. El Paso Retailers Assn, Inc., 626
S.W.2d 615 (Tex.App. El Paso 1981, no writ), Lund v.
Leibl, 1999 WL 546996 (Tex.App. - Austin 1999, no writ)
(unpublished opinion).
101
TEX. R. APP. P. P. 28.1.
102
TEX. R. APP. P. 26.1(b).
103
TEX. R. APP. P. 35.1(b).
104
TEX. R. APP. P. 38.6(a).
105
TEX. R. APP. P. 28.3.
106
TEX. R. APP. P. 29.1.
107
TEX. R. APP. P 29.2, 29.3.
l08
TEX. R. APP. P. 29.4, 29.5.
109
TEX. R. APP. P. 69.2.

MHDocs 1742655_1 990001.101