







COURT OF APPEALS








COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
 
THE HOUSING AUTHORITY OF THE
CITY    )
OF EL
PASO,                                                       )              
No.  08-03-00376-CV
                                                                              )
Appellant,                          )                    Appeal from the
                                                                              )
v.                                                                           )             
County Court at Law #7
                                                                              )
CITY OF EL PASO and JOSEPH
WARDY,        )            of El Paso County,
Texas
MAYOR OF THE CITY OF EL
PASO,               )
                                                                              )                   (TC# 2003-3099)
Appellees.                          )
 
 
O
P I N I O N
 
This is an
accelerated, interlocutory appeal from an order denying a temporary
injunction.  Appellant, the Housing
Authority of the City of El Paso (Athe
Housing Authority@), appeals
the trial court=s denial
of a temporary injunction order that would prevent Appellees,
the City of El Paso and Joseph Wardy, Mayor of
the City of El Paso, from increasing the size of the Housing Authority board
from five to eleven.[1]  A party may appeal from a trial court=s interlocutory order denying a temporary
injunction or overruling a motion to dissolve a temporary injunction.  See Tex.Civ.Prac.&Rem.Code Ann. '
51.014(a)(4)(Vernon Supp. 2004).




By three issues,
the Housing Authority asserts the trial court erred in denying its request for
a temporary injunction because:  (1) the
trial court misapplied the law governing the number of commissioners to be appointed
to the governing board of the Housing Authority; (2) the Housing Authority is
an independent body whose governing board of commissioners may be increased in
number only if the board amends its by-laws to authorize such an increase; and
(3) an increase in the number of the Housing Authority board of commissioners
will cause probable, imminent, or irreparable injury to the Housing Authority
if the increase is unauthorized by law.  
We reverse the trial court=s
order denying the Housing Authority=s
request for a temporary injunction and remand the cause to the trial court with
instructions that it grant the temporary injunction.
On January 1,
2003, the Housing Authority entered into a low-income housing tax credit
project agreement with Investment Builders, Inc.  The purpose of the agreement was to develop
low-income housing, which was to be located on El Paso=s
westside.  This
project was to be called Suncrest Townhomes.  Most importantly, the agreement called for
the submission of a joint application between the Housing Authority and
Investment Builders, Inc. for tax credits from the Texas Department of Housing
and Community Affairs (ATDHCA@) for consideration during TDHCA=s July 2003 application round.




On or about June
4, 2003, El Paso City Representative Anthony Cobos
sent a letter to TDHCA protesting the construction of the Suncrest
Townhomes on the grounds that it would result in the A>clustering
of low-income housing=@ and that the Housing Authority had
acted illegally because it failed to follow proper bidding procedures.  Pursuing this issue further, Representative Cobos posted an agenda item on the June 17, 2003 El Paso
city council meeting, requesting the adoption of a resolution opposing the
construction of Suncrest Townhomes.  The resolution was passed.  Despite these efforts, on June 25, 2003,
TDHCA approved the Suncrest Townhomes
application.  On July 30, 2003 at its
final meeting, TDHCA granted Suncrest Townhomes tax credits.
On July 22, 2003,
the City considered and passed the following resolution:
RESOLUTION
AMENDING
THE
RESOLUTION ESTABLISHING THE
HOUSING
AUTHORITY OF THE CITY OF EL PASO, TEXAS
TO
INCREASE THE NUMBER OF COMMISSIONERS
 
WHEREAS, the City
Council of the City of El Paso, Texas in its duly authorized regular meeting of
February 17, 1938, adopted a >A
RESOLUTION FINDING AND DECLARING THAT THERE EXISTS A NEED FOR THE HOUSING
AUTHORITY OF THE CITY OF EL PASO, TEXAS, TO FUNCTION=,
said Resolution is incorporated and referenced herein for all purposes and
hereinafter referred to as the >Establishing
Resolution=; and
 
WHEREAS, on February
17, 1938, pursuant to the Establishing Resolution, the Mayor of the City of El
Paso by Certificate of Appointment, appointed the first (5) persons to serve as
Commissioners of the Housing Authority of the City of El Paso, Texas, and
designated the first Chairman of the Board of Commissioners; and
 
WHEREAS, Section
392.031 of the Texas Local Government Code provides that each municipal housing
authority shall be governed by five, seven, nine or eleven Commissioners and
that the presiding officer of the governing body of a municipality shall
appoint the Commissioners of the authority; and
 
WHEREAS, the City
Council finds that, in its discretion, it is the public interest and
appropriate to increase the number of Commissioners of the Housing Authority of
the City of El Paso, Texas from five (5) to eleven (11) members. 
 
The resolution was passed, and the
Mayor was directed by the Resolution to appoint six additional commissioners
with terms to begin on the effective date of the resolution that being July 22,
2003.




Immediately thereafter,
Investment Builders filed suit against the City of El Paso, alleging inter alia that the number of the board of commissioners of
the Housing Authority could not be increased unilaterally.  Investment Builders sought declaratory
relief, requesting the trial court to declare the resolution adopted by the
City of El Paso as null and void because the City Council had no legal
authority to increase the size of the Housing Authority=s
board and no authority to direct the Mayor to appoint additional members to the
Housing Authority board.
The Housing
Authority filed a plea in intervention on July 31, 2003.  The Housing Authority=s
petition included a request for a temporary restraining order against the City
of El Paso and Joseph Wardy, Mayor of El
Paso.  The trial court granted the
temporary restraining order and set a hearing on this issue for August 5,
2003.  A hearing was held on August 5,
2003 on this issue, but the court extended its injunction until the Wednesday
of the following week.   Thereafter, the
trial court dissolved the temporary restraining order and denied temporary
injunction on August 13, 2003.  In its
order denying injunctive relief, the trial court found that the Housing
Authority had not established a probable right to the relief sought nor a
probable, imminent, or irreparable injury to support its request for temporary
injunction.  The Housing Authority now
brings this appeal.
Standard
of Review




A temporary
injunction is an extraordinary remedy and does not issue as a matter of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204
(Tex. 2002), citing Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.
1993).  A decision to grant or deny a temporary
injunction is within the sound discretion of the trial court and its grant or
denial is subject to reversal only for a clear abuse of that discretion.  Walling, 863 S.W.2d
at 58.  In exercising its
discretion, the only issue before the trial court is whether the status quo
should be preserved pending trial on the merits.  Id.; Davis v.
Huey, 571 S.W.2d 859, 862 (Tex. 1978).  The trial court abuses its discretion when it
acts arbitrarily, unreasonably acts without reference to guiding rules or principles,
or misapplies the law to the established facts of the case.  See Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992)(orig. proceeding); Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241‑42 (Tex. 1985), cert. denied, 476 U.S. 1159,
106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); State v.
Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975).  In our review, we may neither substitute our
judgment for that of the trial court nor resolve the merits of the underlying
case.  See Davis, 571 S.W.2d at
861-62; Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 576 (Tex.App.--Austin 2000, no pet.).  Rather, we review the evidence in light most
favorable to the trial court=s
order, indulging every reasonable inference in its favor.  See Butnaru,
84 S.W.3d at 204; Universal Health Servs., Inc., 24 S.W.3d at 576.
Denial
of Temporary Injunction
The purpose of a
temporary injunction order is to preserve the status quo pending a trial on the
merits.  Walling,
863 S.W.2d at 57.  For a temporary
injunction to issue, the movant must show:  (1) a viable cause of action; (2) a probable
right to recovery; and (3) a probable, imminent, and irreparable injury in the
interim.  Id.  For purposes of a temporary injunction, an
injury is irreparable if the injured party cannot be adequately compensated in
damages or if the damages cannot be measured by any certain pecuniary
standard.  Butnaru,
84 S.W.3d at 204.




As noted in the
preamble of the challenged resolution, the El Paso Housing Authority was
established in 1938, and we presume that then Mayor M.A. Harlan appointed the
first five commissioners.[2]  Sixty-one years later, in May 1999, the Texas
Legislature amended Tex.Loc.Gov=t Code Ann. '
392.031 to provide that the number of commissioners could be increased from
five to seven, or to nine, or to eleven.[3]  What was not noted in the El Paso City
Council Resolution of July 22, 2003, however, was that Section 4 of the law
that provided for the increase in the number of commissioners to be appointed
to the housing authority boards stated:
The presiding officer of the governing
body of a municipality entitled to make appointments to a municipal housing
authority under Section 392.031, Local Government Code, as amended by this Act,
shall make the appropriate appointments as soon as practicable after the
effective date of this Act.  [Emphasis
added].
 
See Tex.Loc.Gov=t Code Ann. '
392.031 historical note (Vernon Supp. 2004)(Act of May
22, 1999, 76th Leg., R.S., ch 436, ' 4, 1999 Tex.Gen.Laws 2814, 2815).
The Housing Authority
argues that the trial court ignored Section 4 and acted contrary to the Code
Construction Act, Tex.Gov=t Code Ann. '
311.001, et. seq., and Texas
case law.  It also believes that the
mandatory phrase Aas soon
as practicable,@ while
not meaning as soon as possible, does mean within a reasonable time.




The City contends
that because there is no specific expiry date in the legislation,
municipalities have the legal authority to expand or contract the number of
commissioners on the housing authority boards at any time.  We disagree.
The Act became
effective September 1, 1999.  Act of May
22, 1999, 76th Leg., R.S., ch. 436, 1999 Tex.Gen.Laws
2814, 2815.  The challenged resolution
was passed by the City Council on July 22, 2003.  Three mayors and three years and nine months
later is not Aas
soon as practicable@ as a
matter of law.  It is self-evident that
while the Legislature provided an opportunity for municipalities to increase
the board size of their housing authorities, it provided only a relatively
brief window of opportunity in which to do so--an implicit protection of the
independence of such boards.
After reviewing
the evidence in a light favorable to the order, we find that the trial court
clearly abused its discretion by misapplying the law to the established facts
in this case.  By uncontroverted
and compelling evidence the Housing Authority established a probable right to
the relief sought.  Moreover, the
probable, imminent, and irreparable harm resulting from an illegally
constituted board of commissioners cannot be adequately compensated for in
damages.   We sustain Issues One, Two,
and Three.
We reverse the
trial court=s order
denying injunctive relief and remand this cause to the trial court with
instructions that it grant the Housing Authority=s
request for a temporary injunction in further proceedings consistent with this
opinion.
 
April
8, 2004
DAVID WELLINGTON
CHEW, Justice
 
Before Panel No. 3
Barajas, C.J., Larsen, and Chew, JJ.




[1]
The Housing Authority is not the original plaintiff in this suit, but rather
entered the suit by filing a plea of intervention.  The original plaintiff in this suit is
Investment Builders, Inc.  Investment
Builders, Inc. is not a party in this appeal, but has filed an
amicus curiae brief in support of the Housing Authority=s contentions.


[2]
El Paso City Directory,
at 13 (Hudspeth Directory Co. 1938).


[3]
Tex.Loc.Gov=t Code Ann. '
392.031 (Vernon Supp. 2004) provides:
 
(a)        Each municipal housing authority shall
be governed by five, seven, nine, or 11 commissioners.  The presiding officer of the governing body
of a municipality shall appoint five, seven, nine, or 11 persons to serve as
commissioners of the authority.  An
appointed commissioner of the authority may not be an officer or employee of
the municipality. Appointments made under this section must comply with the
requirements of Section 392.0331, if applicable.
(b)        A commissioner may not be an officer or
employee of the municipality.  A
commissioner may be a tenant of a public project over which the housing
authority has jurisdiction.
(c)        A certificate of the appointment of a
commissioner shall be filed with the clerk of the municipality.  The certificate is conclusive evidence of the
proper appointment of the commissioner.


