                                     In The

                               Court of Appeals

                   Ninth District of Texas at Beaumont

                             ___________________

                              NO. 09-16-00073-CV
                             ___________________


    LESLIE E. BARRAS AND HISTORIC ORANGE PRESERVATION
               EMPOWERMENT, INC., APPELLANTS

                                       V.

          THE CITY OF ORANGE, TEXAS, ET AL., APPELLEES

__________________________________________________________________

                On Appeal from the 260th District Court
                        Orange County, Texas
                     Trial Cause No. D-160,030-C
__________________________________________________________________

                         MEMORANDUM OPINION

      Leslie E. Barras and Historic Orange Preservation Empowerment, Inc. 1

appeal from the trial court’s order denying their request seeking temporary

injunctive relief against the City of Orange, the Mayor of Orange, the Orange City

      1
         The appellants filed a joint brief, and in the opinion, we refer to the
appellants Leslie E. Barras and Historic Orange Preservation Empowerment, Inc.
collectively as HOPE.
                                        1
Council, and the Orange City Manager. 2 According to HOPE, the trial court

abused its discretion by denying HOPE’s request to enjoin the CITY from moving

its principal administrative offices from an area outside the area the parties

describe as the Old Town Center, or generally downtown Orange. We conclude the

trial court did not abuse its discretion by denying HOPE’s request for temporary

injunctive relief; therefore, we affirm the trial court’s order.

                                      Background

      In 1996, by motion, the City of Orange approved a Comprehensive Master

Plan, a document that the City approved as “a guide to the physical development of

Orange[.]” 3 The Plan provided that City Hall, along with other governmental

offices, should be centralized in the Old Town Center.



      2
        The appellees filed a joint brief. In the opinion, the appellees are referred to
collectively as the CITY.
      3
         The document evidencing the City’s adoption of the Comprehensive
Master Plan is entitled “Motion.” However, there is no difference in a resolution,
order, and motion in a court’s determination regarding the validity of a municipal
enactment. See Hicks v. City of Houston, 524 S.W.2d 539, 544 (Tex. Civ.
App.―Houston [1st Dist.] 1975, writ ref’d n.r.e.). In this case, it is undisputed that
the City did not follow the procedures required to adopt the entirety of the
Comprehensive Master Plan by ordinance, and the language in the Motion
adopting the resolution to approve the Comprehensive Master Plan does not
indicate that the council members voting on that resolution intended to enact the
entire Comprehensive Master Plan as an ordinance. Article III, Section 3.11, Home
Rule Charter for the City of Orange, Texas, available at https://www.
                                        2
      In 2016, Orange’s City Council authorized the City to purchase a building

on 16th Street, which the City planned to remodel and then use to house City Hall

and other City offices. The evidence from the hearing shows that 16th Street lies

outside the Old Town Center. Subsequently, HOPE sued the CITY, and alleged

that by authorizing the relocation of the City’s offices in another area of the City,

the CITY had failed to follow the procedures required by the City’s

Comprehensive Master Plan and the City’s Charter to relocate the offices away

from the Old Town Center.

      In March 2016, the trial court conducted a hearing on HOPE’s request

seeking to temporarily enjoin the CITY from moving forward with its plans to

relocate the City’s offices. During the hearing, three witnesses testified: Jimmy

Sims, Orange’s Mayor; Shawn Oubre, Orange’s City Manager; and Leslie E.

Barras, an attorney who testified that she has experience with laws that govern

historic preservation. Following the hearing, the trial court, by letter, advised the

parties the Comprehensive Master Plan merely guided Council’s decisions

regarding the location of the City’s offices, and indicated that the directions in the




municode.com/library/tx/orange/codes/code_of_ordinances?nodeId=HORUCH
(last visited November 2, 2016).
                                       3
Plan on locating the offices in the Old Town Center were not mandatory. 4

Subsequently, HOPE filed a timely interlocutory appeal in which it seeks to

overturn the trial court’s ruling on its request for a temporary injunction. See Tex.

Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (West Supp. 2016) (authorizing an

interlocutory appeal from a decision on a temporary injunction).

                                 Standard of Review

      At the outset, we note that the trial court had jurisdiction over HOPE’s claim

that various city officials acted without any authority when Orange City Council

authorized the City of Orange to move its administrative offices outside the Old

Town Center.5 See City of El Paso v. Heinrich, 284 S.W.3d 366, 371-72 (Tex.

2009). And, we further note that the Legislature authorized appeals courts to
      4
         The trial court’s letter reflects the reasons that the trial court decided to
deny HOPE’s request. However, on appeal, letter rulings, unlike findings that
result from requests filed under Rule 296 of the Texas Rules of Civil Procedure,
are not treated with the same deference. See Cherokee Water Co. v. Gregg Cty.
Appraisal Dist., 801 S.W.2d 872, 878 (Tex. 1990). In this case, the record shows
that neither party asked the trial court to make findings to explain the reasons the
trial court reached its ruling under Rule 296. See Tex. R. Civ. P. 296.
      5
         None of the defendants filed pleas to the jurisdiction, but the City may
challenge whether the trial court has jurisdiction over it at any time. Waco Indep.
Sch. Dist. v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000). Therefore, because the issue
was not raised and it has not been briefed, we do not imply by our ruling that the
trial court possesses subject matter jurisdiction over the City of Orange with
respect to HOPE’s ultra vires claims. Nonetheless, generally, a city is not a proper
party to a suit when the suit is based solely on the plaintiff’s ultra vires claim. See
City of El Paso v. Heinrich, 284 S.W.3d 366, 371-72 (Tex. 2009).
                                          4
consider interlocutory appeals that challenge a trial court’s ruling on a request

seeking temporary injunctive relief. See Tex. Civ. Prac. & Rem. Code Ann. §

51.014(a)(4).

      On appeal, appeals courts use an abuse-of-discretion standard to review

rulings by trial courts on requests that parties have made seeking a temporary

injunction. Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978). Under that

standard, an appeals court can find that an abuse of discretion occurred if the

record shows that the trial court acted in an unreasonable or arbitrary manner. See

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

However, an abuse of discretion does not exist where the trial court based its

decision on conflicting evidence. Davis, 571 S.W.2d at 862. We note that when a

trial court rules on the motion seeking temporary injunctive relief, the trial court

has not made a final decision on any of the disputed facts. Butnaru v. Ford Motor

Co., 84 S.W.3d 198, 204 (Tex. 2002). Instead, the question the trial court addresses

in the hearing on such requests is whether a temporary injunction is necessary “to

preserve the status quo of the litigation’s subject matter pending a trial on the

merits.” Id. In reviewing the trial court’s ruling resolving a request seeking a

temporary injunction, the merits of the underlying case are not presented for

appellate review, and our review is “strictly limited to determination of whether

                                         5
there has been a clear abuse of discretion by the trial court in granting or denying

the interlocutory order.” Davis, 571 S.W.2d at 861-62. Moreover, where the record

contains some evidence that reasonably supports the trial court’s decision on the

request, the trial court does not abuse its discretion if it has ruled on the request in

a manner that is consistent with evidence in the record that supports its ruling. See

Butnaru, 84 S.W.3d at 211 (citing Davis, 571 S.W.2d at 862).

      In deciding whether to grant or deny an application for a temporary

injunction, trial courts must decide whether the party seeking the injunction has

established the elements required to prevail on a request seeking temporary

injunctive relief. Id. at 204 (citing Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.

1993)). To prevail on a claim seeking a temporary injunction, the applicant must

plead and prove: “(1) a cause of action against the defendant; (2) a probable right

to the relief sought; and (3) a probable, imminent, and irreparable injury in the

interim.” Id. In an appeal from the trial court’s ruling, unless the trial court’s action

on the request for injunctive relief was so arbitrary that it exceeded the bounds of

reasonable discretion, the reviewing court may not substitute its judgment for the

judgment made by the trial court. Id.




                                           6
                               Temporary Injunction

      In one issue, HOPE argues that the trial court abused its discretion when it

refused to enjoin the CITY from relocating Orange’s City Hall and the City’s

principal administrative offices to an area of Orange that lies outside the

boundaries of the Old Town Center. According to HOPE, the decision the CITY

has made to relocate Orange’s City Hall and other offices to 16th Street conflicts

with mandatory requirements that are in the City’s Comprehensive Master Plan

and Charter that they argue mandate these offices be located in the Old Town

Center. HOPE argues that that the CITY was required to amend the City Charter to

move the offices to 16th Street because the City Charter requires that “[n]o

subdivision, street, park, or any public way, ground or space, public building or

structure or public utility, whether publicly or privately owned which is in conflict

with the comprehensive plan shall be constructed or authorized by the City.”

Article VIII, Section 8.04, Home Rule Charter for the City of Orange, Texas, supra

website note 3. Additionally, HOPE contends the trial court abused its discretion

by failing to follow the requirements of the Comprehensive Master Plan by

considering the Plan merely as a guide regarding where the City’s principal

administrative offices are to be located.



                                            7
      In response to HOPE’s arguments, the CITY contends that the trial court

properly concluded that with respect to the location of the City’s offices, the

Comprehensive Master Plan served only to guide the decision and that the Plan,

with respect to the location of the offices, was not mandatory. Additionally, the

CITY contends that the Plan’s provisions addressing the location of the City’s

offices were never adopted by ordinance, and the CITY suggests that city councils

elected after 1996 were not prohibited by the Plan from relocating the City’s

offices without first amending the Plan or the City Charter.

      We take judicial notice that the City of Orange is a home rule city, and that it

derives its power from article XI, section 5 of the Texas Constitution. 6 Tex. Const.

art. XI, § 5; see Article II, Section 2.01, Home Rule Charter for the City of Orange,

Texas, supra website note 3. We further recognize that a municipality, such as the

City of Orange, was authorized to create and adopt a comprehensive plan that

provided for the City’s long-term development. Tex. Loc. Gov’t Code Ann. §

213.002 (West 2016).

      6
         The City of Orange’s status as a home rule city is a legislative fact.
Compare Emerson v. State, 880 S.W.2d 759, 765 (Tex. Crim. App. 1994)
(“Judicial notice, both of adjudicative and legislative facts, may be taken on
appeal.”), and Gonzales v. State, 723 S.W.2d 746 (Tex. Crim. App. 1987) (noting
that courts may take judicial notice that home rule city has been incorporated), with
Tex. R. Evid. 201(a) (authorizing courts to take judicial notice of adjudicative
facts).
                                           8
      The trial court focused on the language of the Comprehensive Master Plan in

reaching its conclusion that HOPE was not entitled to the temporary injunction that

it was seeking to prevent the CITY from moving forward with its plan to relocate

the City’s offices to 16th Street. The Plan provides that it is “a guide to the

physical development of Orange[,]” and it states that it is “a tool for elected and

appointed officials and city staff to guide decision making for growth and

development issues.” The Plan also contains language that the Plan “serves as the

guiding document, directing the City toward the attainment of its dreams and

desires.” We find no language in the Plan mandating that future city councils were

required to amend the Plan before they could relocate the City’s offices to another

area of the City.

      Although HOPE argues that the strategies described in the Plan that address

the location of the City’s offices made leaving the offices in the Old Town Center a

mandatory requirement of the Plan, the Plan describes the implementation

strategies as ideas “suggested to meet the [o]bjectives” of the Plan. While some of

the provisions found in the Comprehensive Master Plan were subsequently

incorporated by the City into its zoning ordinances, those provisions are not at

issue here. Additionally, the provisions in the Plan suggesting that the City’s

offices should remain in the Old Town Center were not shown to have been

                                         9
incorporated into the City’s ordinances during the hearing the trial court conducted

on HOPE’s motion.

      We also address HOPE’s argument that the City’s Charter prohibits the

CITY from relocating the City’s offices to 16th Street without first amending the

City’s Charter. It is undisputed that the City did not amend its Charter prior to

adopting the resolution authorizing the City’s purchase of the building on 16th

Street. According to HOPE, section 8.04 of the City’s Charter needed to be

amended before Orange’s City Council could adopt a resolution authorizing the

City to move its offices to the building on 16th Street. Section 8.04 of the Charter

provides:

      No subdivision, street, park, or any public way, ground or space,
      public building or structure or public utility, whether publicly or
      privately owned which is in conflict with the comprehensive plan
      shall be constructed or authorized by the City.

Article VIII, Section 8.04, Home Rule Charter for the City of Orange, Texas, supra

website note 3.

      In response to HOPE’s argument, the CITY argues that because the parts of

the Plan relating to the location of the City’s administrative offices were never

adopted by ordinance, the resolution passed by City Council to move its facilities

to 16th Street is not in conflict with the Comprehensive Master Plan. According to

the CITY, the City of Orange’s Charter provides that the City Council “shall
                                   10
legislate by ordinance only,” and the provisions of the Plan concerning the location

of the City’s offices were never adopted by ordinance. The CITY concludes that

because the provisions of the Plan that are at issue in this appeal were never

adopted by ordinance, that part of the Plan imposed no legal obligation on later

Orange city councils. Article III, Section 3.11, Home Rule Charter for the City of

Orange, Texas, supra website note 3.

      It is well settled that a resolution is not an ordinance. 7 See Hutchins v.

Prasifka, 450 S.W.2d 829, 832 (Tex. 1970) (explaining that a resolution is not a

law but is used to express an opinion and cannot be used as a procedure to create

laws when the legislative body has been mandated to legislate in a different form).

In reviewing the record, we agree with the CITY that evidence admitted in the

hearing failed to establish that the Comprehensive Master Plan provisions

addressing the location of the City’s offices were ever adopted by ordinance.

Therefore, the trial court could reasonably view section 8.04 of the City’s Charter

as limited to those sections of the Plan that the City subsequently adopted through




      7
       We note that some of the provisions of the Plan that are not at issue in the
appeal are referred to in the City Zoning Ordinances, but none of the City’s
ordinances reference Section IV of the Plan, the part of the Plan that covers the Old
Town Center.

                                         11
ordinances that are not at issue here. Article III, Section 3.11, Home Rule Charter

for the City of Orange, Texas, supra website note 3.

      In the appeal, HOPE does not dispute the CITY’s assertion that the

Comprehensive Master Plan was adopted by resolution and not by ordinance. The

record that was before the trial court also shows that the City adopted some of the

provisions found in the Plan into its ordinances, although not the provisions that

are at issue in this appeal. See City of Orange Code of Ordinances § 12.102.8

Therefore, the trial court’s view that section 8.04 of the City’s Charter addressed

only those sections of the Comprehensive Master Plan that were subsequently

adopted by the City by ordinance 9 was not unreasonable.

      We hold that the trial court’s construction of the Comprehensive Master Plan

regarding the relocation of the City’s principal administrative offices was not

unreasonable. See Fernandez v. City of San Antonio, 158 S.W.3d 532, 534-35

(Tex. App.―San Antonio 2004, no pet.) (concluding that the language used in a

neighborhood plan was advisory). We further conclude that the trial court’s
      8
        Available at https://www.municode.com/library/tx/orange/codes/code_of_
ordinances?nodeId=COOR_CH12PLZO (last visited November 2, 2016).
      9
        Various zoning provisions in the Comprehensive Master Plan were adopted
by ordinance, but in this case, the parties’ dispute does not concern any zoning
laws. See City of Orange Code of Ordinances §§ 12.101, 12.102, 12.304, 12.401,
12.402, available at https://www.municode.com/library/tx/orange/codes/code_of_
ordinances?nodeId=COOR_CH12PLZO (last visited November 2, 2016).
                                        12
decision that City Council was not required to amend the City Charter in order to

lawfully pass the resolution that authorized the City to relocate its offices to 16th

Street was also not shown in the hearing to have been unreasonable. Therefore, we

hold that the trial court’s decision denying HOPE’s request for injunctive relief did

not constitute an abuse of discretion. See Butnaru, 84 S.W.3d at 204. We overrule

HOPE’s issue arguing the trial court abused its discretion, and we affirm the trial

court’s order.

      AFFIRMED.



                                              ______________________________
                                                     HOLLIS HORTON
                                                          Justice

Submitted on June 1, 2016
Opinion Delivered November 17, 2016

Before McKeithen, C.J., Horton and Johnson, JJ.




                                         13
