holding that city ordinance is presumed valid and courts have no authority to interfere unless it is arbitrary or unreasonable or otherwise amounts to clear abuse of municipal discretion
How later courts described this case
- holding that city ordinance is presumed valid and courts have no authority to interfere unless it is arbitrary or unreasonable or otherwise amounts to clear abuse of municipal discretion
- holding that courts of appeals may take judicial notice of facts that are notorious, well-known, or easily ascertainable
- taking judicial notice of the circumstances under which statutes were enacted, including 9 historical matters regarding transportation, industrial plants, automobiles, electricity, and oil pipelines
- under the Code Construction Act, "it is presumed that ... the entire statute is intended to be effective"
Written by the judges who cited it.
The opinion
BRISTER J.,
dissenting on denial of rehearing en banc.
I respectfully dissent from the denial of the motion for rehearing en banc.
I believe the panel opinion applies the wrong standard of review. Interlocutory review of a temporary injunction should not be used to issue an advance ruling on the merits. Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208 (Tex.1981). Yet this is exactly what the panel opinion does. See Rad Sallee, Court Gives Green Light to Light Rail, Houston Chron., Mar. 9, 2001, at 1 (quoting Metro’s counsel that panel opinion is “essentially a final judgment”).
The panel says our task is to construe certain state and city laws. In an appeal based on a summary judgment or trial, that would be correct. But in an appeal from a temporary injunction, our task is only to decide whether the trial court abused its discretion in granting the temporary injunction. Iranian Muslim Org., 615 S.W.2d at 208 . To abuse its discretion in applying the law, a trial court must make a gross and prejudicial error of law, not a mere error in judgment. Johnson v. Honorable Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985). If there is some basis in reason and law for the trial court’s order, we cannot disturb it. Id.
The panel reverses the temporary injunction apparently on the basis that ap-pellees Todd and Vogel have no probable right to relief under sections 17 and 18 of article II of the Houston City Charter. “Probable right to relief’ is a term of art that does not imply any final determination that becomes the law of the case. 183/620 Group Joint Venture v. SPF Joint Venture, 765 S.W.2d 901, 904 (Tex.App.— Austin 1989, writ dism’d w.o.j.). When the issuance of a temporary injunction turns *303 on provisions that must be construed rather than on clear language, a trial court does not abuse its discretion in either granting or denying the relief. Id.; see also Davis v. Huey, 571 S.W.2d 859, 862-63 (Tex.1978). A substantial difference of opinion as to the proper construction of documents is alone sufficient to justify a temporary injunction. Simon Prop. Group (Tex.) L.P. v. May Dep’t Stores Co., 943 S.W.2d 64, 74 (Tex.App. — Corpus Christi 1997, no writ).
Unquestionably, the ordinances at issue are subject to different constructions. To its credit, the City admits that its charter provisions are ambiguous. The panel opinion mercifully cuts most of the forest of words used in these provisions to try to clear its view. Yet numerous obstacles remain. For example, in the phrase “private corporation, association or individual” or the phrase “private individual, corporation or association,” it is certainly plausible to hold (as the panel does) that the initial adjective modifies all the following nouns. But it is just as plausible in English usage that it modifies only the first. And the final reference to “any ... association of whatever kind” is an odd way to exclude all public entities. Under an abuse of discretion standard, I believe the ambiguities in these sections are enough to justify the trial court’s ruling. 1
Trial courts have no discretion to misconstrue the law. But they do have discretion to decide whether the status quo should be preserved when the law is not entirely clear. The panel’s premature review of the merits denies appellees their right to trial by jury. It also assumes that the evidence taken át a preliminary hearing will be the same as the evidence developed at a full trial on the merits. 2 This assumption may not be true. See Davis, 571 S.W.2d at 862 .
The panel opinion adopts a simple and straightforward construction of the city charter, one that perhaps we ultimately should adopt. But at this point, we must affirm if the trial court’s order is supported by a plausible legal theory and evidence tending to sustain it. T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 23-24 (Tex.App. — Houston [1st Dist.] 1998, no pet. and mand. dism’d). Because I believe it is, I would grant the motion for rehearing en banc and affirm.
. I concede that on some occasions the courts have issued case-dispositive constructions of law in the course of reviewing a temporary injunction. But generally this has occurred only when there was no other way to review the issue. See, e.g., Republican Party v. Dietz, 940 S.W.2d 86, 93-94 (Tex.1997) (dissolving TI on the day before political party’s state convention began); Iranian Muslim Org., 615 S.W.2d at 209 (mandating TI to permit parade as short-lived nature of public protests rendered the matter capable of repetition yet evading review).
. When the dispositive issue is one of applying the law to undisputed facts, the far better practice is for the parties to use the temporary injunction hearing as a trial on the merits. Iranian Muslim Org., 615 S.W.2d at 208-09 . Then we would review the trial court’s construction of the charter provisions de novo, rather than for abuse of discretion. The record reflects that the trial court suggested this procedure, but it was rejected by METRO and the City.