          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                          NO. 03-02-00652-CV



                        Marble Falls Independent School District, Appellant

                                                     v.

      Eddie Shell, on behalf of his minor children, Morgan Shell and Alex Shell, Appellee




         FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
             NO. 21904, HONORABLE V. MURRAY JORDAN, JUDGE PRESIDING



                                                     &

                                          NO. 03-02-00693-CV



                           In re Marble Falls Independent School District




                          ORIGINAL PROCEEDING FROM BURNET COUNTY



                               MEMORANDUM OPINION


                Marble Falls Independent School District (Marble Falls), as both relator and appellant, filed

a petition for writ of mandamus and an interlocutory appeal challenging the trial court=s grant of a temporary
injunction in favor of appellee and real party in interest, Eddie Shell, on behalf of his minor children, Morgan

Shell and Alex Shell (AShell@). See Tex. Gov=t Code Ann. ' 22.221(b) (West Supp. 2003); Tex. Civ.

Prac. & Rem. Code Ann. ' 51.014(4) (West Supp. 2003). Shell challenged the Marble Falls mandatory

extracurricular activity drug-testing policy as a violation of the Texas Constitution=s guarantees of religious

freedom, privacy, and due process. See Tex. Const. art. I, '' 6, 9, 19. Because the trial court granted a

temporary injunction before affording Marble Falls an opportunity to present its defense, Marble Falls

petitioned for writ of mandamus. Marble Falls also brought an interlocutory appeal, asserting that Shell

failed to satisfy the requisite burden of proof. See Tex. R. App. P. 28.1. Because Shell failed to prove a

probable right to recover, we will reverse the trial court=s decision and dissolve the temporary injunction.


                                BACKGROUND AND PROCEDURE

                 In August 2002, Marble Falls passed a policy for the 2002-2003 school year requiring the

drug testing of all junior high and high school students who participate in extracurricular activities. The

policy lists a number of substances for which students can be tested, including alcohol, barbiturates, cocaine,

and steroids. Every junior high and high school student participating in extracurricular activities is to be

tested twice a year and will be subject to additional random testing. An independent testing laboratory is to

analyze a urine, hair, or saliva sample submitted by each student. If a sample tests positive, the student will

be suspended from participation in extracurricular activities. The length of the suspensionCvarying from

three weeks to permanent suspensionCwill depend on the number of times a student has tested positive.




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                 Shell, believing that the Marble Falls drug policy violated his children=s rights, filed an

original petition for a temporary restraining order, temporary injunction, permanent injunction, and damages.

Shell sought to enjoin Marble Falls from enforcing its drug-testing policy with respect to Alex and Morgan

Shell, both of whom are students in the Marble Falls Independent School District. Shell argues that the

Marble Falls drug policy, which allows for the testing of alcohol consumption, violates his children=s religious

freedom, privacy rights, and due process rights under the Texas Constitution because his children consume

wine during religious observances of their Jewish faith. See Tex. Const. art. I, '' 6, 9, 19. According to

Shell, the policy would, in effect, make his children=s participation in religious observances a ground for

disallowing their participation in extracurricular activities at school.

                 At the temporary injunction hearing, before Marble Falls cross-examined Shell=s second

witness, the parties agreed to bifurcate the witness=s testimony in order to accommodate each party=s out-

of-town expert witness. Shell then called his expert. During cross-examination of Shell=s expert by Marble

Falls, the trial court judge stated he was going to grant the temporary injunction.

                 In its petition for writ of mandamus, Marble Falls argues that the trial court abused its

discretion when it: (1) failed to allow Marble Falls an opportunity to cross-examine Shell=s witnesses; (2)

issued a temporary injunction before Shell rested his case; and (3) issued a temporary injunction prior to

affording Marble Falls the opportunity to present its case-in-chief. Shell responds that the temporary

injunction was properly granted because: (1) there was a viable cause of action based upon a threat of

imminent and irreparable injury whereby a probable right to recover could be had; and (2) Marble Falls was

allowed proper development of its case.

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                 In this interlocutory appeal, Marble Falls argues that the trial court erred in granting the

temporary injunction because: (1) the trial court abused its discretion in failing to afford Marble Falls the

opportunity to call witnesses, submit evidence, and cross-examine all of Shell=s witnesses; and (2) Shell

failed to demonstrate either a probable right to recover or a probable injury.


                                              DISCUSSION

Standard of Review

                A temporary injunction serves to preserve the status quo between the parties pending a trial

on the merits. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); Synergy Center, Ltd. v. Lone Star

Franchising, Inc., 63 S.W.3d 561, 564 (Tex. App.CAustin 2001, no pet.). In an appeal from an order

granting or denying a request for a temporary injunction, appellate review is confined to the validity of the

order that grants or denies the injunctive relief. Synergy Center, Ltd., 63 S.W.3d at 564; Center for

Econ. Justice v. American Ins. Ass=n, 39 S.W.3d 337, 343 (Tex. App.CAustin 2001, no pet.). The

decision to grant or deny the injunction lies within the sound discretion of the trial court, and we will not

reverse that decision absent a clear abuse of discretion. Synergy Center, Ltd., 63 S.W.3d at 564. When

considering the propriety of a temporary injunction, this Court may neither substitute its judgment for that of

the trial court nor consider the merits of the lawsuit. Synergy Center, Ltd., 63 S.W.3d at 564. Abuse of

discretion exists when the court misapplies the law to established facts or when it concludes that the

applicant has demonstrated a probable injury or a probable right to recover and the conclusion is not

reasonably supported by evidence. Reagan Nat=l Advert. v. Vanderhoof Family Trust, 82 S.W.3d 366,



                                                      4
370 (Tex. App.CAustin 2002, no pet.). If the claimant cannot present a valid legal theory, based on the

claimant=s allegations, to support a probable right to recover, a temporary injunction will be improper. See

Tenet Health Ltd. v. Zamora, 13 S.W.3d 464, 472 (Tex. App.CCorpus Christi 2000, pet. dism=d

w.o.j.).


1.   Probable Right to Recover

                 To establish the right to the issuance of a temporary injunction, the applicant must show a

probable right to recover at final trial and probable injury in the interim; the applicant is not required to

establish that he or she will finally prevail in the litigation. Transport Co. of Tex. v. Robertson Transports,

Inc., 261 S.W.2d 549, 552 (Tex. 1953); Amalgamated Acme Affiliates, Inc. v. Morton, 33 S.W.3d

387, 392 (Tex. App.CAustin 2000, no pet.). Shell=s original petition includes claims brought under the

Texas Constitution for violation of religious freedom, due process, and privacy rights. We will address each

claim in turn.


     A. Religious Freedom

                 Shell argues that the Marble Falls drug policy violates Alex and Morgan Shell=s freedom of

worship under the Texas Constitution. Tex. Const. art. I, ' 6.1 The Shell children, as part of their Jewish



           1
                 Article I, Section 6 of the Texas Constitution states:

           All men have a natural and indefeasible right to worship Almighty God according to the
           dictates of their own consciences. No man shall be compelled to attend, erect or
           support any place of worship, or to maintain any ministry against his consent. No
           human authority ought, in any case whatever, to control or interfere with the rights of

                                                      5
faith, occasionally consume alcohol. Because alcohol is a drug eligible for testing under the Marble Falls

drug-testing policy, Shell claims that his children could be punishedCby way of suspension from

participation in extracurricular activitiesCdue to their religious belief and practice.

                 Shell has presented no authority for the proposition that the Texas Constitution affords

greater protection of religion than does the First Amendment to the United States Constitution. Absent such

a showing, we may assume, without deciding, that the state and federal free exercise guarantees are

coextensive with respect to Shell=s particular claims. See Tilton v. Marshall, 925 S.W.2d 672, 677 n.6

(Tex. 1996).

                 The United States Supreme Court has held that the right of free exercise of religion does not

relieve an individual of the obligation to comply with a neutral law of general applicability on the ground that

the law proscribes, or requires, conduct that is contrary to the individual=s religious practice, so long as the

law does not violate other constitutional provisions. Employment Div., Dep=t of Human Res. v. Smith,

494 U.S. 872, 879 (1990). Interpreting Smith, Texas courts have stated that religious freedoms are not


          conscience in matters of religion, and no preference shall ever be given by law to any
          religious society or mode of worship. But it shall be the duty of the Legislature to pass
          such laws as may be necessary to protect equally every religious denomination in the
          peaceable enjoyment of its own mode of public worship.

Tex. Const. art. I, ' 6.




                                                       6
implicated by neutral laws governing activities the government has the right to regulate merely because some

religious groups may be disproportionately affected. Ramos v. State, 934 S.W.2d 358, 367 (Tex. Crim.

App. 1996); Mauldin v. Texas State Bd. of Plumbing Exam=rs, 94 S.W.3d 867, 872 (Tex.

App.CAustin 2002, no pet.).

                 The Marble Falls drug policy applies to every junior high and high school student

participating in extracurricular activities. Although some religious groups or practices could be affected

disproportionately, the policy is generally applicable and facially neutral with respect to religion. Therefore,

under the standard articulated in Smith, we hold that the Marble Falls drug policy does not constitute a

violation of religious freedom under the Texas Constitution. See Smith, 494 U.S. at 879; Ramos, 934

S.W.2d at 367; Mauldin, 94 S.W.3d at 872. However, we must still determine whether the Marble Falls

drug policy fails a rational relationship analysis or violates other constitutionally protected rights.


     B. Due Process

                 Shell argues that the Marble Falls policy violates his children=s due process rights under

Article I, Section 19 of The Texas Constitution. 2 Under both the federal and Texas due process clauses,3 a

law that does not affect fundamental rights or interests is valid if it bears a rational relationship to a legitimate

state interest. See Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955); Texas Workers= Comp.

Comm=n v. Garcia, 893 S.W.2d 504, 525 (Tex. 1995).



           2
                 Article I, Section 19 of the Texas Constitution states:

           No citizen of this State shall be deprived of life, liberty, property, privileges or

                                                         7
                The Texas Supreme Court has repeatedly held that participation in extracurricular activities

is not a fundamental right. In re University Interscholastic League, 20 S.W.3d 690, 692 (Tex. 2000)



          immunities, or in any manner disfranchised, except by the due course of the law of the
          land.

Tex. Const. art. I, ' 19.
          3
                   Texas courts have not been consistent in articulating a standard of review under the Texas
due course clause. Texas Workers= Comp. Comm=n v. Garcia, 893 S.W.2d 504, 525 (Tex. 1995).
Texas courts have sometimes indicated that section 19 provides an identical guarantee to its federal due
process counterpart. See Mellinger v. City of Houston, 3 S.W. 249, 252-53 (Tex. 1887); Lindsay v.
Papageorgiou, 751 S.W.2d 544, 550 (Tex. App.CHouston [1st Dist.] 1988, writ denied). On other
occasions, however, the Texas Supreme Court has attempted to articulate its own independent due process
standard. E.g., Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140-41 (Tex. 1977); Thompson v.
Calvert, 489 S.W.2d 95, 99 (Tex. 1972); State v. Richards, 301 S.W.2d 597, 602 (Tex. 1957). Some
Texas courts have characterized the approach in these cases as more rigorous than the federal standard.
E.g., Yorko v. State, 681 S.W.2d 633, 636 (Tex. App.CHouston [14th Dist.] 1984), aff=d, 690 S.W.2d
260 (Tex. Crim. App. 1985). In the end, however, a law that does not affect fundamental rights or interests
is valid if it bears a rational relationship to a legitimate state interest. See Garcia, 893 S.W.2d at 525.




                                                     8
(right to participate in extracurricular activities not a fundamental right); Eanes Indep. Sch. Dist. v. Logue,

712 S.W.2d 741, 742 (Tex. 1986) (due process strictures do not apply because right to play baseball not

fundamental right); Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 560 (Tex. 1985)

(student=s right to participate in extracurricular activities per se does not rise to level of fundamental right

under Texas Constitution). Because participation in extracurricular activities is not a fundamental right, the

Marble Falls drug policy is valid if it bears a rational relationship to a legitimate state interest.

                 The United States Supreme Court dealt with a similar drug-testing policy in Board of

Education v. Earls, 536 U.S. 822, 122 S. Ct. 2559 (2002). Like the Marble Falls drug policy, the policy

in Earls required all middle school and high school students to consent to drug testing in order to participate

in any extracurricular activity. Earls, 536 U.S. at *___, 122 S. Ct. at 2562. The court found that the

school district had a legitimate interest in protecting the safety and health of its students, id., 536 U.S. at

*___, 122 S. Ct. at 2569, and that the need to prevent and deter the substantial harm of childhood drug use

provided the necessary immediacy for a school testing policy, even when there was no demonstration of a

drug abuse problem. Id., 536 U.S. at *___, 122 S. Ct. at 2567-68. The court found that testing students

who participate in extracurricular activities was a reasonably effective means of addressing the school

district=s legitimate concerns in preventing, deterring, and detecting drug use. Id., 536 U.S. at *___, 122 S.

Ct. at 2569.

                 The Marble Falls drug policy is substantially similar to the policy in Earls. The three

objectives listed in the Marble Falls policy are: (1) to provide a deterrent to drug use for students who

participate in extracurricular activities; (2) to provide a drug education program for those students who test


                                                        9
positive or are at risk for drug use; and (3) to ensure the health and safety of students who participate in

extracurricular activities. Because the Marble Falls policy allows the student to submit a urine, hair, or saliva

sample, it might even be characterized as less intrusive than the policy in Earls, which mandated that all

students provide a urine sample. See Earls, 536 U.S. at *___, 122 S. Ct. at 2566. The Marble Falls

policy also provides for confidentiality of test results and allows only the student, the student=s parent or

guardian, the sponsor of the extracurricular activity, the campus principal, and the drug program

administrator to know the test results. Furthermore, under the policy, all test results are to be destroyed

when the student no longer has extracurricular eligibility. Not only are the stated objectives of the Marble

Falls policy legitimate, but the drug-testing program, as described in the policy, is rationally related to

achieving the stated objectives. We therefore conclude that Shell has failed to present sufficient evidence

that the Marble Falls policy violates the due process provisions of either the Texas or United States

Constitutions.

     C. Violation of Right to Privacy

                 Shell specifically alleges that the Marble Falls drug policy violates his children=s privacy

rights by subjecting them to an unlawful search and seizure under the Texas Constitution. Tex. Const. art. I,

' 9.4 As with his claim of violation of religious freedom, Shell has presented no authority for the proposition



          4
                 Article I, Section 9 of the Texas Constitution states:

          The people shall be secure in their persons, houses, papers and possessions, from all
          unreasonable seizures or searches, and no warrant to search any place, or to seize any
          person or thing, shall issue without describing them as near as may be, nor without
          probable cause, supported by oath or affirmation.

                                                      10
that Article I, Section 9 of the Texas Constitution affords greater protection than does the Fourth

Amendment to the U.S. Constitution. See Ramos v. State, 934 S.W.2d 358, 362 n.5 (Tex. Crim. App.

1996) (burden on appellant to demonstrate that Texas Constitution Article I, Section 9 offers greater

protection than U.S. Constitution). Accordingly, our analysis is consistent with an analysis of the protections

afforded under the Fourth Amendment to the U.S. ConstitutionCwhich is substantially similar to Article I,

Section 9 of the Texas ConstitutionCas well as consistent with the Texas Supreme Court=s interpretation of

the general right to privacy under the Texas Constitution.

                 Shell generally alleges that the Marble Falls drug policy violates his children=s right to

privacy as granted by the Texas Constitution. The Texas Supreme Court has held that, while the Texas



Tex. Const. art. I, ' 9. This language is substantially the same as that found in the Fourth Amendment to the
U.S. Constitution, which provides:

          The right of the people to be secure in their persons, houses, papers, and effects,
          against unreasonable searches and seizures, shall not be violated, and no Warrants shall
          issue, but upon probable cause, supported by Oath or affirmation, and particularly
          describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.




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Constitution contains no express guarantee of a right to privacy, it contains several provisions similar to

those in the United States Constitution that have been recognized as implicitly creating protected Azones of

privacy.@ Texas State Employees Union v. Texas Dept. of Mental Health and Mental Retardation,

746 S.W.2d 203, 205 (Tex. 1987) (construing Tex. Const., art. I, '' 6, 8, 9, 10, 25). Each of the cited

provisions gives rise to a concomitant zone of privacy. Texas State Employees Union, 746 S.W.2d at

205 (citing Griswold v. Connecticut, 381 U.S. 479, 484 (1965)). The Texas Constitution protects

personal privacy from unreasonable intrusion, and this right to privacy should yield only when the

government can demonstrate that an intrusion is reasonably warranted for the achievement of a compelling

governmental objective that can be achieved by no less intrusive, more reasonable means. Id.

                 We can dispose of Shell=s specific claim under Article I, Section 9 of the Texas Constitution

and his general privacy rights claim through the same analysis. The United States Supreme Court, in Board

of Education v. Earls, 536 U.S. 822, 122 S. Ct. 2559 (2002), addressed the issue of students= privacy

interests in school:


        A student=s privacy interest is limited in a public school environment where the State is
        responsible for maintaining discipline, health, and safety. . . . Securing order in the school
        environment sometimes requires that students be subjected to greater controls than those
        appropriate for adults.


Earls, 536 U.S. at *___, 122 S. Ct. at 2565 (citations omitted). The drug policy in Earls required

students to submit a urine sample. Given the Aminimally intrusive nature of the sample collection and the

limited uses to which the test results [would be] put,@ the Supreme Court concluded that any invasion of



                                                     12
students= privacy was not significant, especially since students who voluntarily choose to participate in

extracurricular activities have a limited expectation of privacy. Id., 536 U.S. at *___, 122 S. Ct. at 2566-

67 (citing Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 657-58 (1995)). Furthermore, the United

States Supreme Court declined to impose a requirement of individualized suspicion on schools desiring to

implement drug policies. Id., 536 U.S. at *___, 122 S. Ct. at 2568. The court also reiterated that

reasonableness under the Fourth Amendment does not require employing the least intrusive means, because

Athe logic of such elaborate less-restrictive alternative arguments could raise insuperable barriers to the

exercise of virtually all search-and-seizure powers.@ Id., 536 U.S. at *___, 122 S. Ct. at 2569 (citations

omitted).

                 We have already held that the Marble Falls drug policy is rationally related to a legitimate

state interest. Because the Marble Falls policy allows for submission of a urine, hair, or saliva sample, limits

the purposes for which test results will be used, and protects the confidentiality of results, we hold that the

policy is only minimally intrusive on students= already reduced expectations of privacy. Therefore, it does

not constitute an unreasonable intrusion on the right to personal privacy. Accordingly, we hold that Shell

has failed to present sufficient evidence that the Marble Falls policy violates either the Texas or United

States Constitutions.


                                              CONCLUSION

                 Because Shell=s allegations are legally insufficient to support his claim of constitutional

infirmities, Shell has failed to establish a probable right to recover. Therefore, it was an abuse of discretion



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for the trial court to grant the temporary injunction. Thus, we reverse the judgment of the district court and

dissolve the temporary injunction. Having rendered judgment in favor of Marble Falls, we dismiss the

petition for writ of mandamus as moot.




                                                  Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Reversed and Rendered

Filed: April 3, 2003




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