                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS

                                                      '
    THE CITY OF EL PASO, TEXAS,                                         No. 08-10-00264-CV
                                                      '
                           Appellant,                                        Appeal from
                                                      '
    v.                                                                   327th District Court
                                                      '
    CAPLES LAND COMPANY, LLC AND                                      of El Paso County, Texas
    WILLIAM D. ABRAHAM,                               '
                                                                          (TC # 2010-1970)
                           Appellees.                 '



                                               OPINION

         The City of El Paso, Texas brings this interlocutory appeal from an order denying its plea

to the jurisdiction and granting a temporary injunction. For the reasons that follow, we reverse.

                                         FACTUAL SUMMARY

         Caples Land Company, LLC owns a building in El Paso, Texas. On March 31, 2010, the

City of El Paso Building and Standards Commission (the Commission) held a hearing and issued

an order finding that: (1) the structure is substandard; (2) the structure is not in substantial

compliance with municipal ordinances regulating fire protection, structural integrity, and

disposal of refuse; (3) the structure can be rehabilitated; and (4) in order to be made safe, certain

violations must be corrected. The order required Appellees1 to take certain actions and make

repairs, including the removal of non-permitted and illegal electrical wiring, the repair of non-

compliant restrooms, the removal of non-permitted partitions and ceilings, the removal of non-

permitted mechanical systems, the removal of all broken window glass, and the removal of all

1
   According to the Commission=s order, Appellee William D. Abraham, appeared at the hearing as a representative
of Caples Land Company.
trash and debris. The order provided that if these requirements were not met within sixty days,

Athe structures [sic] certificate of occupancy be revoked and that the structure be vacated.@ The

order additionally provided that upon the owner=s failure to comply with the order, the City of El

Paso may request a hearing before the Building and Standards Commission to determine the

amount and duration of civil penalties resulting from the noncompliance.

        Appellees made repairs they believed to be feasible and on May 24, 2010, Appellees

appealed the Commission=s order to the district court pursuant to Section 214.0012 of the Texas

Local Government Code. Two months later, Appellees filed an application for an injunction to

prevent the Commission from holding a hearing to determine whether the building had been

brought into compliance with the March 31, 2010 order. The City filed a plea to the jurisdiction

asserting that the district court lacked jurisdiction or authority to enjoin the Commission from

holding any hearings pending the appeal.        The City additionally challenged the merits of

Appellees= request for an injunction. Following a hearing, the district court denied the City=s

plea to the jurisdiction and granted Appellees= request for a temporary injunction. The City filed

notice of interlocutory appeal pursuant to Sections 51.014(a)(4) and (a)(8) of Civil Practice and

Remedies      Code.         TEX.CIV.PRAC.&REM.CODE             ANN.      51.014(a)(4),    (8)(West

2008)(authorizing interlocutory appeal from an order denying a plea to the jurisdiction by a

governmental unit and from an order granting a temporary injunction).

                                  APPEAL FROM DENIAL OF
                                 PLEA TO THE JURISDICTION

        The first portion of this opinion will address the City=s interlocutory appeal from the

denial of its plea to the jurisdiction. The City raises three issues related to the district court=s

ruling on the plea to the jurisdiction.

                                                 2
                                      Jurisdiction vs. Authority

        In its first two issues, the City challenges the district court’s jurisdiction to grant

injunctive relief and to hear live witnesses at the hearing on Appellees= application for injunctive

relief. In Issue One, the City contends, based on the doctrine of governmental immunity, that the

district court lacked jurisdiction to enjoin the Commission from holding any hearings pending

the appeal. The Appellees maintain that the issue raised by the City is not one of jurisdiction but

of the district court=s authority to grant injunctive relief. Appellees further argue that the district

court is authorized to protect its jurisdiction by granting an injunction as authorized by Section

24.011 of the Texas Government Code. In Issue Two, the City asserts that the district court did

not have jurisdiction to hear live witnesses in a judicial review proceeding conducted under

Section 214.0012 of the Texas Local Government Code. The City alternatively argues that even

if the issues are not jurisdictional, the trial court erred by granting injunctive relief because it was

not authorized to do so and by relying on live testimony at the hearing. In this portion of the

opinion, we will restrict our review to the jurisdictional arguments raised by the City and we will

address the City=s alternative non-jurisdictional arguments in our discussion related to Issue Four

which relates to the temporary injunction.

                                         Standard of Review

        The purpose of a plea to the jurisdiction is to dismiss a cause of action without regard to

whether the claim has merit. Bland Independent School District v. Blue, 34 S.W.3d 547, 554

(Tex. 2000). It is a dilatory plea that challenges the court=s power to adjudicate the subject

matter of the controversy. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Bland, 34

S.W.3d at 554; Texas Department of Transportation v. Arzate, 159 S.W.3d 188, 190 (Tex.App.--


                                                   3
El Paso 2004, no pet.). Subject matter jurisdiction is essential to the authority of a court to

decide a case. Bland, 34 S.W.3d at 553-54. Subject matter jurisdiction cannot be conferred by

consent and cannot be waived. Carroll v. Carroll, 304 S.W.3d 366, 367 (Tex. 2010); Continental

Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 448 n.2 (Tex. 1996). Whether a party has

alleged facts that affirmatively demonstrate a trial court=s subject matter jurisdiction and whether

undisputed evidence of jurisdictional facts establishes a trial court=s jurisdiction are questions of

law which we review de novo. Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004); Texas Natural Resource Conservation Commission v. IT-Davy, 74 S.W.3d

849, 855 (Tex. 2002).

                                      Governmental Immunity

       Sovereign immunity protects the State from lawsuits for money damages.                 Reata

Construction Corporation v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). In addition to

protecting the State from liability, it also protects the various divisions of state government,

including agencies, boards, hospitals, and universities. Wichita Falls State Hospital v. Taylor,

106 S.W.3d 692, 694 n.3 (Tex. 2003). Governmental immunity, on the other hand, protects

political subdivisions of the State, including counties, cities, and school districts. Id.

                                   Jurisdiction of a District Court

       A district court is a court of general jurisdiction. Dubai Petroleum Company v. Kazi, 12

S.W.3d 71, 75 (Tex. 2000). The jurisdiction of a district court consists of exclusive, appellate,

and original jurisdiction of all actions, proceedings, and remedies, except in cases where

exclusive, appellate, or original jurisdiction may be conferred by the Texas Constitution or other

law on some other court, tribunal, or administrative body. TEX.CONST. Art. V, ' 8; see


                                                   4
TEX.GOV=T CODE ANN. ' 24.007 (West 2004)(a district court has the jurisdiction provided by

Article V, ' 8). A district court may hear and determine any cause that is cognizable by courts of

law or equity and may grant any relief that could be granted by either courts of law or equity.

TEX.GOV=T CODE ANN. ' 24.008. The instant case involves the district court=s appellate

jurisdiction under Section 214.0012 of the Texas Local Government Code.                TEX.LOCAL

GOV=T CODE ANN. ' 214.0012 (West 2008).

                             Judicial Review Under Section 214.0012

       The Commission issued its March 31, 2010 order pursuant to its authority under Section

214.001 of the Texas Local Government Code which provides a municipality with authority to

regulate substandard buildings. See TEX.LOCAL GOV=T CODE ANN. ' 214.001 (West Supp.

2012). A property owner, lienholder, or mortgagee aggrieved by an order of a municipality

issued under Section 214.001 may appeal the order by filing a verified petition in district court

on the ground of illegality. TEX.LOCAL GOV=T CODE ANN. ' 214.0012 (West 2008). After

the petition is filed, the district court may issue a writ of certiorari directed to the municipality.

TEX.LOCAL GOV=T CODE ANN. ' 214.0012(b). The issuance of the writ does not stay

proceedings on the decision from which the appeal is taken. TEX.LOCAL GOV=T CODE ANN.

' 214.0012(e). Further, appeal in the district court is limited to a hearing under the substantial

evidence rule, and the district court may reverse or affirm, in whole or in part, or may modify the

decision brought up for review. TEX.LOCAL GOV=T CODE ANN. ' 214.0012(f).

       Section 214.0012 waives a municipality=s governmental immunity from suit provided that

the appealing party timely files a petition challenging the decision.         See Bates v. City of

Beaumont, 241 S.W.3d 924, 928 (Tex.App.--Beaumont 2007, no pet.); Teague v. City of


                                                  5
Jacksboro, 190 S.W.3d 813, 819-20 (Tex.App.--Fort Worth 2006, pet. denied). It is undisputed

that the district court had appellate jurisdiction of the case pursuant to Section 214.0012 of the

Local Government Code because Appellees timely filed their petition for review of the

Commission=s March 31, 2010 order. The City nevertheless argues that the district court lacked

jurisdiction to grant injunctive relief because it is not authorized to do so by Section 214.0012 of

the Local Government Code, by Section 24.011 of the Government Code, or by Section

65.011(2) of the Civil Practice and Remedies Code. There is a difference, however, between a

court=s subject matter jurisdiction and its authority to grant a particular type of relief in a case

over which it has jurisdiction. Cf. Davis v. State, 956 S.W.2d 555, 558 (Tex.Crim.App. 1997),

citing Stine v. State, 908 S.W.2d 429, 434 (Tex.Crim.App. 1995)(Meyers, J., concurring)

(drawing distinction between a court=s subject matter jurisdiction and other non-jurisdictional

aspects of litigation in which the court=s conduct is controlled by law; stating that when the

court=s conduct violates one of these laws, especially a law which seems Amandatory@ on its face,

it is common to say that the court did not have authority to act as it did, but it is a mistake to say

that the court was without jurisdiction in the matter). Even if the City is correct that the district

court was not statutorily authorized to grant injunctive relief in the context of the underlying

proceeding, that error did not deprive the district court of jurisdiction and it would not result in

the case being dismissed. Similarly, the City=s argument that the district court lacked jurisdiction

to hear live witnesses at the hearing is addressed to the district court=s alleged violation of a

controlling procedural statute, and does not raise an issue related to its subject matter

jurisdiction.   Accordingly, we find that neither issue is properly raised by a plea to the

jurisdiction.


                                                  6
       We are aware that an interlocutory appeal generally cannot be taken from the denial of a

plea to the jurisdiction that does not raise an issue that can be jurisdictional. Texas Department

of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004). In a case where a party raises

such an issue, the correct disposition is to dismiss the interlocutory appeal for lack of

jurisdiction. Id. In this case, however, the City has raised in Issue Three an argument which can

be jurisdictional. Therefore, we have jurisdiction of the appeal from the order denying the plea

to the jurisdiction.      See TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(a)(4)(West

2008)(authorizing interlocutory appeal from an order denying a plea to the jurisdiction by a

governmental unit and from an order granting a temporary injunction). Issues One and Two are

overruled.

                                             Ripeness

       In Issue Three, the City argues that the district court did not have jurisdiction to enjoin

the Commission from deciding whether it should take future action with respect to the building

because the issue is not ripe as the Commission has not made a final determination regarding

Appellees= compliance with the March 31, 2010 order. Appellees respond that the legality of the

March 31, 2010 order is a ripe controversy between the parties.

       Ripeness Ais a threshold issue that implicates subject matter jurisdiction . . . [and]

emphasizes the need for a concrete injury for a justiciable claim to be presented.@ Robinson v.

Parker, 353 S.W.3d 753, 755 (Tex. 2011), quoting Patterson v. Planned Parenthood of Houston

& Southeast Texas, Inc., 971 S.W.2d 439, 442 (Tex. 1998). In evaluating ripeness, we consider

whether, at the time a lawsuit is filed, the facts are sufficiently developed so that an injury has

occurred or is likely to occur, rather than being contingent or remote. Robinson, 353 S.W.3d at


                                                7
755; Waco Independent School District v. Gibson, 22 S.W.3d 849, 851-52 (Tex. 2000). Although

a claim is not required to be ripe at the time of filing, if a party cannot demonstrate a reasonable

likelihood that the claim will soon ripen, the case must be dismissed. Robinson, 353 S.W.3d at

755.

       In the petition for judicial review, Appellees challenged the legality of the March 31,

2010 order. That order found the structure to be substandard and required Appellees to rectify

certain problems with the building within sixty days and warned that noncompliance would

result in the property=s certificate of occupancy being revoked. Revocation of the certificate of

occupancy would require the four business tenants in the building to vacate and Abraham

believed he would be subjected to suits by the tenants for breach of the leases. By their appeal,

Appellees challenged the legality of this order. The dispute between the parties is ripe for review

and the district court has subject matter jurisdiction. Even if the district court erred by granting

the temporary injunction in the context of the appellate proceeding below, that error would not

deprive the court of subject matter jurisdiction. Issue Three is overruled.

                                APPEAL FROM GRANTING
                               OF TEMPORARY INJUNCTION

       In Issue Four, the City contends the district court abused its discretion by granting

injunctive relief because Appellees failed to prove any of the temporary injunction elements,

including a probable right to relief and a probable and imminent injury. We will also consider

the City=s arguments that the district court lacked authority to grant injunctive relief and it erred

by hearing testimony at the hearing.

                Statutory Authority to Grant Injunctive Relief -- Section 214.0012

       We begin by considering the district court=s statutory authority to grant injunctive relief

                                                 8
in this case. The City first argues that Section 214.0012 does not authorize the district court to

grant injunctive relief. Section 214.0012 provides in relevant part that:

       (b) On the filing of the petition, the court may issue a writ of certiorari directed to
       the municipality . . .

                                              *   *    *

       (e) The issuance of the writ does not stay proceedings on the decision appealed
       from.

TEX.LOCAL GOV=T CODE ANN. ' 214.0012(b), (e). The City maintains that the plain

language of the statute--that an appeal does not stay proceedings--reflects the Legislature=s intent

to enable a building and standards commission to hold hearings while an appeal is proceeding.

In support of its position, the City compares Section 214.0012 with Section 211.011 which

provides for judicial review of a board of adjustment=s decision. See TEX.LOCAL GOV=T

CODE ANN. ' 211.011. Section 211.011 provides in relevant part that:

       (c) On the presentation of the petition, the court may grant a writ of certiorari
       directed to the board to review the board=s decision. . . . Granting of the writ
       does not stay the proceedings on the decision under appeal, but on application and
       after notice to the board the court may grant a restraining order if due cause is
       shown.

The City contends that the absence of similar language in Section 214.0012 indicates the

Legislature=s intent to not permit injunctive relief in appeals under that statute. Appellees, on the

other hand, argue that even though Section 214.0012 does not expressly authorize injunctive

relief, the Legislature did not prohibit injunctive relief based on other statutory authority.

       The parties= respective arguments present a question of statutory construction, which we

review de novo. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003); Emeritus Corporation

v. Blanco, 355 S.W.3d 270 (Tex.App.--El Paso 2011, no pet. h.). Our primary objective in


                                                  9
construing any statute is to determine the Legislature=s intent in enacting the particular provision,

and to give that provision its intended effect. Ramirez, 109 S.W.3d at 745; Emeritus, 355

S.W.3d at 276. We must interpret the statute according to the plain meaning of the language

used, and must read the statute as a whole without giving effect to certain provisions at the

expense of others. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003);

Emeritus, 355 S.W.3d at 276. Each word, phrase, or expression must be read as if it were

deliberately chosen, and we will presume that words excluded from a provision were excluded

purposefully. Emeritus, 355 S.W.3d at 276; Gables Realty Ltd. Partnership v. Travis Central

Appraisal District, 81 S.W.3d 869, 873 (Tex.App.--Austin 2002, pet. denied). Our analysis of

the statutory text is also informed by the presumptions that Athe entire statute is intended to be

effective@ and that Aa just and reasonable result is intended.” In re S.S.A., 319 S.W.3d 796, 799

(Tex.App.--El Paso 2010, no pet.), quoting TEX.GOV=T CODE ANN. ' 311.021(2) & (3)(West

2005). We may also consider Athe object sought to be attained,@ Acircumstances under which the

statute was enacted,@ legislative history, and Aconsequences of a particular construction.@ Id.,

quoting TEX.GOV=T CODE ANN. ' 311.023(1), (2), (3), (5).

       After comparing Sections 211.011 and 214.0012, we conclude that the Legislature did

not intend for a party seeking judicial review under Section 214.0012 to be able to obtain a

restraining order on a showing of due cause. This construction is reasonable given that the

orders being appealed under Section 214.0012 relate to substandard and dangerous structures.

That does not necessarily mean, however, that the Legislature intended to foreclose all injunctive

relief. The Legislature enacted Section 214.0012 with knowledge of the district court=s authority

to grant injunctive relief pursuant to Section 24.011 of the Government Code and Section


                                                 10
65.011(2) of the Civil Practice and Remedies Code yet it did not expressly prohibit all injunctive

relief.

                                           Section 24.011

          We turn now to the issue whether the trial court had authority to grant injunctive relief

under Section 24.011 of the Government Code. Article V, '8 of the Texas Constitution provides

that a district court has the power to issue writs necessary to enforce its jurisdiction.

TEX.CONST. Art. V, ' 8. Likewise, the Government Code authorizes a district court to issue all

writs, including injunction, necessary to the enforcement of its jurisdiction. TEX.GOV=T CODE

ANN. ' 24.011 (West 2004). The City argues that injunctive relief under Section 24.011 is not

available when a district court is exercising appellate jurisdiction pursuant to Section 214.0012

because the district court=s jurisdiction over the matter is not exclusive but rather is shared with

the Commission by virtue of Section 214.0012(e). Citing Teague v. City of Jacksboro, 190

S.W.3d 813 (Tex.App.--Fort Worth 2006, pet. denied) and two other cases, Appellees respond

that Section 24.011 provided the district court with authority to protect its jurisdiction from

interference by the Commission.

          In Teague, the Jacksboro city council approved an order requiring Teague to demolish a

structure located on his property if he did not abate unhealthy and unsafe conditions on the

property within thirty days. Teague, 190 S.W.3d at 815. Teague did not comply with the order

but instead filed suit in district court seeking a declaratory judgment and injunctive relief. Id.

The district court entered a TRO and scheduled a hearing. Id. The city filed a plea to the

jurisdiction alleging that its governmental immunity had not been waived because Teague had

failed to file a verified petition requesting the issuance of a writ of certiorari within thirty days


                                                 11
after receiving a copy of the demolition order as required by Section 214.0012. Id. Teague

subsequently filed amended pleadings which included a request for a writ of certiorari. Id. The

district court granted the city=s plea to the jurisdiction and dismissed the case. Focusing on the

substance of Teague=s original petition, the Fort Worth Court of Appeals found the petition

sufficient to invoke the district court=s appellate jurisdiction under Section 214.0012. Id. at 818-

19. The court additionally determined that a specific request for issuance of a writ of certiorari is

not necessary to invoke the district court=s jurisdiction. Id. at 819. Because Teague does not

address whether Section 24.011 would authorize a district court to grant injunctive relief, we find

it is inapplicable to the issue before us.

        In Bates v. City of Beaumont, 241 S.W.3d 924 (Tex.App.--Beaumont 2007, no pet.), the

city of Beaumont notified Bates by certified mail that it intended to hold a ADilapidated Structure

Public Hearing@ during a city council meeting. Id. at 925. The letter informed Bates he could

attend the hearing to show cause as to why the building should not be demolished.                 Id.

Following the hearing, the city promulgated an ordinance declaring that Bates= property was a

public nuisance and ordering Bates to demolish the building within ten days or execute a work

program, or the building would be demolished without further notice. Id. at 926. Bates began

repairs on the property, but the city found the repairs insufficient when it reinspected the

structure, and it sent Bates notice of its intent to proceed with demolition. Id. at 929. Bates then

filed suit against the city seeking to enjoin the city from demolishing the structure. Id. at 925.

The City responded by filing a plea to the jurisdiction, in which it asserted that the trial court

lacked jurisdiction of the case because Bates did not file suit within thirty days of the date the

City sent him notice of the city council=s decision to demolish the property. The district court


                                                 12
granted the plea to the jurisdiction and dismissed the suit. The Beaumont Court of Appeals

determined that Bates timely filed the suit within Section 214.0012=s thirty-day period after

receiving the notice informing him that the city would proceed with demolition. Id. at 928-29.

The parties apparently did not raise, and the court of appeals did not address, whether Section

24.011 authorized the district court to grant injunctive relief in order to protect its own

jurisdiction. Like Teague, Bates is distinguishable from the case before us.

       Finally, Appellees assert that In re Teague, 2006 WL 302123 (Tex.App.--Fort Worth

2006, orig. proceeding) indirectly supports their position that the district court had authority to

grant injunctive relief. While the appeal in Teague v. City of Jacksboro was pending, the city

informed Teague that demolition would take place within days. In re Teague, 2006 WL 302123.

Teague filed a motion for emergency and injunctive relief in the court of appeals. The court of

appeals enjoined the city from proceeding with the demolition while the appeal was pending

because demolition of the structure would render the appeal moot. In re Teague, 2006 WL

302123 at *2. A court of appeals is authorized to issue writs necessary to protect its jurisdiction.

TEX. CONST. art. V, ' 6; TEX.GOV=T CODE ANN. ' 22.221. In re Teague is distinguishable

because the Fort Worth Court of Appeals, unlike the district court in our case, had exclusive

appellate jurisdiction. See Texas Capital Bank-Westwood v. Johnson, 864 S.W.2d 186, 189

(Tex.App.--Texarkana 1993, no pet.)(where trial court=s plenary power had expired but the trial

court had scheduled a hearing to reconsider its prior ruling, the court of appeals had exclusive

jurisdiction of the case and it was authorized to issue writ of prohibition to protect its jurisdiction

from the trial court=s intrusion). Given that the district court did not have exclusive jurisdiction

of the matter before it, we conclude that Section 24.011 did not authorize the district court to


                                                  13
enjoin the Commission from holding further hearings related to the property.

                                          Section 65.011(2)

       In their application for injunctive relief, Appellees expressly relied on Section 65.011(2)

of the Civil Practice and Remedies Code. It provides that a writ of injunction may be granted if 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. TEX.CIV.PRAC.&REM.CODE

ANN. ' 65.011(2)(West 2008). Citing Wolf v. Young, 275 S.W.2d 741 (Tex.Civ.App.--San

Antonio 1955, no writ) and EMW Manufacturing Company v. Lemons, 724 S.W.2d 425

(Tex.App.--Fort Worth 1987, no writ), the City argues that this type of injunctive relief is not

available to a district court exercising its appellate jurisdiction. Neither case supports the City=s

argument.

       In Wolf v. Young, Wolf and several other property owners were the appellants in an

appeal pending before the San Antonio Court of Appeals. In that appeal, they challenged the

validity of an ordinance annexing territory owned by the property owners. The property owners

filed a motion seeking injunctive relief but the court of appeals treated it as an original

proceeding. The property owners requested that the court of appeals enjoin the City of Corpus

Christi during the pendency of the appeal from exercising jurisdiction over the relators= real

property located within territory which the city sought to annex. Wolf, 275 S.W.2d at 742. The

property owners asserted that the city, unless restrained, would extend its powers of municipal

government over the territory in dispute and attempt to collect taxes and enforce zoning

ordinances which would result in serious inconvenience and damage because they would be


                                                  14
required to dispose of their livestock and poultry, among other things. The court of appeals

denied the relief because its original jurisdiction to issue a writ is limited to preserving the

jurisdiction of the court. Wolf, 275 S.W.2d at 743. It did not have original jurisdiction to issue a

writ of injunction to prevent damage to a litigant pending appeal. Wolf, 275 S.W.2d at 743.

       Wolf does not hold, as the City suggests, that a district court is not authorized to grant

injunctive relief pursuant to Section 65.011(2) when it is exercising its appellate jurisdiction.

Wolf is concerned with the original jurisdiction of a court of appeals to issue writs of injunction.

Its holding cannot be applied to a district court because a district court=s original jurisdiction

differs from that of a court of appeals.

       In EMW Manufacturing v. Lemons, EMW brought an original proceeding in the court of

appeals seeking a temporary injunction to stop the execution of a default judgment while an

appeal from the denial of its petition for bill of review remained pending in the court of appeals.

EMW Manufacturing, 724 S.W.2d 425-26. The court of appeals acknowledged that it did not

have the power to issue a writ of injunction merely to preserve the status quo pending appeal nor

did it have the power to grant a temporary injunction to prevent damage to an appellant. Id. at

426-27. EMW Manufacturing, like Wolf, is concerned with the original jurisdiction of a court of

appeals and its holding is inapplicable to the issues presented by this appeal. We conclude that a

district court exercising its appellate jurisdiction pursuant to Section 214.0012 does have

authority to grant injunctive relief under Section 65.011(2).

                                           Abuse of Discretion

       We will now address whether the district court abused its discretion by enjoining the

Commission from holding any hearings during the pendency of the judicial review proceeding.


                                                   15
A temporary injunction is an extraordinary remedy and does not issue as a matter of right.

Butnaru v. Ford Motor Company, 84 S.W.3d 198, 204 (Tex. 2002). Whether to grant or deny a

temporary injunction is within the trial court=s sound discretion. Id. A reviewing court should

reverse an order granting injunctive relief only if the trial court abused that discretion. Id. The

reviewing court must not substitute its judgment for the trial court=s judgment unless the trial

court=s action was so arbitrary that it exceeded the bounds of reasonable discretion. Id.

       Generally, to be entitled to a temporary injunction, an applicant must prove three

elements: (1) a cause of action against the adverse party; (2) a probable right to the relief sought;

and (3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204.

Section 65.011(2) provides that a writ of injunction may be granted if 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.     TEX.CIV.PRAC.&REM.CODE ANN. ' 65.011(2).

Appellees contend that they were not required to prove any of the three traditional summary

judgment elements because they sought statutory injunctive relief. The Supreme Court held in

Town of Palm Valley v. Johnson, 87 S.W.3d 110, 111 (Tex. 2001) that Section 65.011, which

sets forth grounds for temporary injunction, does not permit injunctive relief without the showing

of irreparable harm otherwise required by equity. We conclude that Appellees were required to

establish both a probable right to recover and irreparable injury in addition to the showing

required by Section 65.011(2).

       An applicant for a temporary injunction need not show that it will prevail at trial in order

to establish the probable right of recovery element. See Butnaru, 84 S.W.3d at 211. Instead, the


                                                 16
applicant must plead a cause of action and present some evidence that tends to sustain it. Camp

v. Shannon, 348 S.W.2d 517, 519 (Tex. 1961); T-N-T Motorsports, Inc. v. Hennessey

Motorsports, Inc., 965 S.W.2d 18, 23-24 (Tex.App.--Houston [1st Dist.] 1998, pet. dism=d). The

case heard by the district court does not involve a Acause of action@ or Atrial@ but rather concerns

a judicial review appeal. Keeping that distinction in mind, the district court was required to

determine whether Appellees had filed a verified petition challenging the March 31, 2010 order

on the ground of illegality. That would satisfy the requirement of pleading a Acause of action.@

Appellees’ petition meets this requirement. The next part of the inquiry is whether Appellees

presented some evidence that tends to sustain it. Appellees presented live testimony at the

hearing in support of their request for injunctive relief but that evidence is irrelevant to the

probable right of recovery element since an appeal in the district court is limited to a hearing

under the substantial evidence rule. TEX.LOCAL GOV=T CODE ANN. ' 214.0012(f). Given

that Appellees failed to request the issuance of a writ of certiorari, the district court would have

no record to review and Appellees could not prevail in their appeal. See Teague, 190 S.W.3d at

820; Nussbaum v. City of Dallas, 948 S.W.2d 305, 308 (Tex.App.--Dallas 1996, no writ).

Consequently, we find that Appellees failed to present any evidence, i.e., the administrative

record, supporting its allegations regarding the illegality of the March 31, 2010 order. For this

reason, the district court abused its discretion by granting injunctive relief.2

        The City also maintains that the district court abused its discretion by granting injunctive

relief pursuant to Section 65.011(2) because the Commission=s decision to hold a hearing related


        2
            Our opinion should not be read as holding that the district court erred by permitting all testimonial
evidence at the hearing on the application for a temporary injunction. The administrative record would likely not
show the existence of irreparable harm.

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to the property was not in violation of Appellees= rights. Given that the appeal did not stay the

proceedings related to the property, the Commission did not violate Appellees= rights by setting

the matter for a hearing during the pendency of the appeal. Furthermore, Appellees did not

establish that the Commission=s action in holding a hearing would tend to render the appeal

ineffectual.   Even if the Commission determined after the hearing that Appellees had not

complied with the March 31, 2010 order, the district court could still determine whether that

order is illegal provided Appellees requested the issuance of a writ of certiorari. Consequently,

we conclude that the district court abused its discretion by enjoining the Commission from

conducting any hearings during the pendency of the judicial review appeal. It is therefore

unnecessary to address the City=s remaining arguments, including those related to Appellees=

asserted failure to prove a probable, imminent, and irreparable injury for which there is no

adequate remedy at law. Issue Four is sustained. We reverse the order granting the temporary

injunction and remand the cause for further proceedings consistent with this opinion.


January 23, 2013                     _______________________________________________
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating




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