                                   NO. 07-06-0467-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                  JULY 24, 2007
                         ______________________________

                               THE CITY OF AMARILLO,

                                                              Appellant

                                            v.

                         PREMIUM STANDARD FARMS, INC.,

                                                     Appellee
                       _________________________________

             FROM THE 69TH DISTRICT COURT OF HARTLEY COUNTY;

                      NO. 4376H; HON. RON ENNS, PRESIDING
                        _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      The issue before us concerns the trial court’s denial of a temporary injunction. The

latter was sought by the City of Amarillo to enjoin Premium Standard Farms, Inc. from

allegedly producing excessive amounts of water from realty adjoining that in which the City

had an interest. The trial court denied the preliminary injunction. On appeal, Amarillo

would have us hold that denying the injunction evinced an instance of abused discretion.
This is purportedly so because the statute at issue did create a private right of action. We

have no choice but to affirm the order given the record before us.

       Whether to grant a temporary injunction lies within the trial court’s discretion. Alert

Synteks, Inc. v. Jerry Spencer, L.P., 151 S.W.3d 246, 253 (Tex. App.–Tyler 2004, no pet.).

But, before we can say that such an abuse occurred, the applicant must first plead a viable

cause of action and illustrate to the trial court that he has a probable right of recovery and

faces probable imminent and irreparable injury if interim relief is not granted. Butnaru v.

Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Miller Paper Co. v. Roberts Paper Co.,

901 S.W.2d 593, 598 (Tex. App.–Amarillo 1995, no writ). In other words, the applicant

must do more than simply contend that he has a cause of action against his opponent.

       Establishing a probable right of recovery implicitly mandates the presentation of

some evidence satisfying the elements of the cause of action. For instance, because our

common law recognizes a cause of action for breached contract, that does not ipso facto

mean that anyone who merely asserts that his opponent breached the agreement is

entitled to relief, preliminary or otherwise. Some evidence of a contract and its breach

resulting in injury must be given the trial court before it can legitimately say that there

indeed exists any probability that the complainant may recover upon the allegation. And,

therein lies the problem here.

       Irrespective of whether §36.119 of the Water Code created a private cause of

action, no evidence was presented to the trial court to satisfy the elements of what the City

believed to be its cause of action. This may be because no evidentiary hearing was

conducted. Nevertheless, without that evidence, we have no basis to assess whether a



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probable right of recovery existed or whether the City faced probable injury if relief was not

granted. In other words, the void precludes us from assessing the accuracy of the trial

court’s ultimate decision to deny the request for a temporary injunction. Again, even if we

were to say that §36.119(a) created a private cause of action, we could not say that the

circumstances contemplated by the parties warranted a preliminary injunction since neither

we nor the trial court have or had evidence of what those circumstances were. See Alert

Synteks, Inc. v. Jerry Spencer, L.P., 151 S.W.3d at 253 (stating that it is an abuse of

discretion to issue a temporary injunction where no evidence that would support it was

presented to the trial court).

       Being unable to determine that the trial court abused its discretion in denying the

City’s request for a preliminary injunction, we affirm the order doing so.



                                                  Brian Quinn
                                                  Chief Justice




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