                             NUMBER 13-10-00609-CV

                                COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


CITY OF MCALLEN,                                                               Appellant,

                                             v.

MCALLEN POLICE OFFICERS’ UNION
AND JOSE ANGEL GARCIA, PRESIDENT,                                             Appellees.


                     On appeal from the 93rd District Court
                          of Hidalgo County, Texas.


                               MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Perkes
            Memorandum Opinion by Chief Justice Valdez
       Appellant, the City of McAllen (the ―City‖), challenges the trial court’s order

implicitly denying the City’s plea to the jurisdiction and granting a temporary injunction in

favor of appellees, the McAllen Police Officers’ Union and Jose Angel Garcia, President

(collectively the ―MPOU‖). By two issues, the City argues that the temporary injunction

is void. By a third issue, the City argues that the trial court abused its discretion in
issuing the temporary injunction because there is no or insufficient evidence to support

the essential elements of the MPOU’s request for a temporary injunction. We reverse

the order of the trial court, dissolve the temporary injunction, and remand for

proceedings consistent with this opinion.

                                           I.       BACKGROUND

        This dispute pertains to a Collective Bargaining Agreement (―CBA‖) between the

City and the MPOU. The CBA at issue covered fiscal years 2006-2007 through 2009-

2010, and was set to expire on September 30, 2010. Prior to the expiration of the CBA,

representatives from the City and the MPOU began to negotiate for a new CBA. The

negotiations commenced when the MPOU provided written notice to the City, in January

2010, of its wish to enter into collective bargaining for a new CBA. The City retained

―Ray Cowley, an Attorney with Cox & Smith‖ to serve as its negotiator. The parties

were allegedly unable to agree upon a set of bargaining rules. Nevertheless, the parties

agreed to proceed with the negotiation process.1

        In its original petition, the MPOU alleged that, at this point, Cowley insisted on

scheduling bargaining sessions around the schedule and availability of City of McAllen

Police Chief Victor Rodriguez, even though Chief Rodriguez was not a member of the

City’s bargaining team.           The MPOU acknowledged that Cowley attended every

scheduled bargaining session, but alleged that he did not have any authority to agree to

any terms. The MPOU complained that the City never attended a single bargaining

session with its full bargaining team. The City Manager, City Attorney, City Human

Resource Manager, and the City Commissioners allegedly never attended a single

        1
         With respect to the beginning of the collective bargaining process at issue in this case, MPOU
President Garcia testified the MPOU notified the City of its desire to collectively bargain on January 23 or
25, 2010, but that the first meeting between the parties did not occur until May 4, 2010.

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bargaining session. MPOU President Garcia, also a Sergeant for the McAllen Police

Department, described the City’s approach to the bargaining sessions as a ―meet,

discuss[,] and I’ll get back to [you] type of approach.‖

       According to its original petition, the MPOU made several proposals to the City

for inclusion in the new CBA, including ―Non-financial Articles and Financial Articles.‖

Among the ―Financial Articles‖ proposed by the MPOU was a ―previously agreed salary

increase.‖ The MPOU asserted that more than a year before September 29, 2010, the

City promised City police officers a 3.5% salary increase, in accordance with the CBA.

When the salary increase was due to be implemented, the City ―approached [the]

MPOU with cries of financial dire straits.‖ In response to the City’s information, the

MPOU agreed to accept a 1% salary increase effective immediately and to defer the

remaining 2.5% salary increase for one year—which then should have been

implemented during the last pay period of the 2010 fiscal year. At the time of filing of

the MPOU’s original petition, the 2.5% salary increase had not been paid, even though

the time for implementation had passed. The City allegedly told the MPOU that ―it will

not pay the remaining 2.5% salary increase in accordance with the terms of the CBA

and the subsequent agreement.‖

       Other proposals made by the MPOU apparently were rejected outright by the

City, or the City made substantial revisions to the proposals, which included provisions

for retirement, hospitalization, and medical insurance for retired police officers and their

families. As a result, the parties were unable to agree on a new CBA.




                                              3
        The MPOU alleges that on September 28, 2010, the City notified the MPOU that

it intended to continue negotiating with the MPOU once the CBA expired on September

30, 2010. The MPOU, however, alleged that further negotiations

        would serve no purpose and should the City decide to impose any new
        terms and conditions unilaterally, [the] MPOU would be given at least 72-
        hour written notice before any unilateral action is taken. It should be noted
        that under the terms of the CBA[,] the City is required to meet and confer
        and otherwise collectively bargain in good faith with [the] MPOU. It will be
        under no such mandatory obligation to do so beginning on October 1,
        2010.

        As a result of the above-mentioned perceived slights, the MPOU filed its original

petition on September 29, 2010, seeking a declaration of the parties’ rights under

various provisions of chapter 174 of the local government code, asserting that the City

breached its duty to collectively bargain in good faith, and requesting injunctive relief to

allow for the expiring CBA to remain in effect or, in other words, maintain the status

quo.2       See TEX. LOCAL GOV’T CODE ANN. §§ 174.102, 174.105 (West 2008).                                On

September 30, 2010, the trial court signed an order granting the MPOU’s request for a

temporary restraining order (―TRO‖), which, as the City points out, required ―the City to

keep in effect the CBA’s terms following its September 30, 2010 expiration.‖ 3 The trial



        2
            In its original petition, the MPOU also noted that:

        As of the filing of this petition and application for temporary restraining order[,] there is no
        written agreement between [the] MPOU and the City on any of the articles of the current
        CBA as is required by Local Government Code 174.152. Therefore[,] a dispute exists as
        to each any [sic] every article contained therein. Plaintiff considers the parties to have
        reached an impasse in the collective bargaining process.

See TEX. LOCAL GOV’T CODE ANN. § 174.152. Also on September 29, 2010, counsel for the MPOU sent
the City a letter explicitly declaring an impasse in negotiations.
        3
          The trial court stated in open court that it was granting the MPOU’s request for a TRO, in part,
because the police officers are barred from engaging in a strike or slowdown, unlike employees in the
private sector. See id. § 174.202 (West 2008).


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court set the hearing for the MPOU’s request for a temporary injunction for October 7,

2010.

        Prior to the scheduled October 7, 2010 hearing on its request for a temporary

injunction, the MPOU filed a motion to extend the TRO for good cause through October

21, 2010.       Thereafter, the City filed a plea to the jurisdiction, challenging the

constitutionality of section 174.252 of the local government code, arguing that the trial

court could not enforce ―good faith‖ bargaining, and asserting that the trial court lacked

subject-matter jurisdiction to compel through injunction the continuance of the expired

CBA based upon the mootness doctrine.                    See id. § 174.252 (West 2008).             At the

conclusion of the first day of the hearing on the MPOU’s request for a temporary

injunction, the trial court entered an order for mediation, which ordered (1) the parties to

attend mediation at some point before October 15, 2010, and (2) several members of

City government, including the City Manager or his authorized Deputy, the Mayor or

Mayor Pro Tem, and at least one City Commissioner, to attend the mediation.4

        On October 12, 2010, the City filed its original answer denying the allegations

made by the MPOU in its original petition. Subsequently, on October 14, 2010, the City

filed objections to and a motion for reconsideration of the trial court’s mediation order.

On October 21, 2010, the hearing on the MPOU’s temporary injunction request

resumed.5 At the conclusion of the hearing, the trial court granted the MPOU’s request

for a temporary injunction, which ordered the City to bargain in good faith with the


        4
          At the subsequent October 21, 2010 hearing, the trial court stated in open court that the City did
not comply with the trial court’s mediation order; specifically, the City did not ensure that the listed
individuals in the mediation order attend the mediation.
        5
           During the October 21, 2010 hearing, the parties informed the trial court that they had agreed to
federal arbitration for the following day.


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MPOU and restrained the City from ―interfering with, restraining, or coercing its

employees in the exercise of their rights.‖ The temporary injunction order did not set the

matter for a trial on the merits, and the order specifically noted that the parties waived

the bond associated with the temporary injunction. See TEX. R. CIV. P. 684 (―In the

order granting any temporary restraining order or temporary injunction, the court shall fix

the amount of security to be given by the applicant.‖).

        This accelerated, interlocutory appeal followed.                See TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(a)(4), (8) (West 2008)6; see also TEX. R. APP. P. 28.1.

                                               II.     ANALYSIS

        By its second issue, the City argues that the trial court’s temporary injunction

order is void for failing to set the matter for trial on the merits and for failing to require

the MPOU to provide a bond. See TEX. R. CIV. P. 683, 684. The MPOU concedes that

the temporary injunction order is void for failing to set the matter for trial on the merits.

        Texas Rules of Civil Procedure 683 requires that ―[e]very order granting a

temporary injunction shall include an order setting the cause for trial on the merits with

respect to the ultimate relief sought.‖ TEX. R. CIV. P. 683. The temporary injunction

order at issue here does not include an order setting the cause for trial on the merits as

required by rule 683. See id.; see also EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50, 52

(Tex. App.–San Antonio 2002, no pet.) (providing that the reason for requiring an

injunction order to include a trial date is to prevent the temporary injunction from

effectively becoming a permanent injunction without a trial). The requirements of rule


        6
          The parties agree that the City is a governmental unit, as defined in section 101.001 of the civil
practice and remedies code, and that the City is authorized to appeal the trial court’s implicit denial of its
plea to the jurisdiction pursuant to section 51.014(a)(8) of the civil practice and remedies code. See TEX.
CIV. PRAC. & REM. CODE ANN. §§ 51.014(a)(8), 101.001(3) (West 2008 & 2011)

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683 are mandatory and must be strictly followed. Qwest Commc’ns Corp. v. AT&T

Corp., 24 S.W.3d 334, 337 (Tex. 2000) (per curiam); InterFirst Bank San Felipe, N.A. v.

Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986) (per curiam). When a temporary

injunction order does not meet the mandatory requirements of rule 683, it must be

declared void and dissolved.          InterFirst Bank San Felipe, N.A., 715 S.W.2d at 641

(holding that a temporary injunction that does not set a cause for trial on the merits is

void and must be dissolved); Bay Fin. Sav. Bank, FSB v. Brown, 142 S.W.3d 586, 591

(Tex. App.–Texarkana 2004, no pet.) (concluding that, although error concerning the

mandatory requirements of rule 683 was not raised in the brief on appeal, the temporary

injunction was void because it did not include an order setting the cause for trial on the

merits); EOG Res., Inc., 75 S.W.3d at 53 (same); Greathouse Ins. Agency, Inc. v.

Tropical Invs., Inc., 718 S.W.2d 821, 822 (Tex. App.–Houston [14th Dist.] 1986, no writ)

(same). A void order has no force or effect and confers no right; it is a nullity. See In re

Garza, 126 S.W.3d 268, 271 (Tex. App.–San Antonio 2003, orig. proceeding).

        Because the temporary injunction order does not set this matter for trial on the

merits and the MPOU concedes as much, we conclude that the trial court’s temporary

injunction order violates Texas Rule of Civil Procedure 683. See TEX. R. CIV. P. 683;

see also EOG Res., Inc., 75 S.W.3d at 52.                 As such, we hold that the temporary

injunction order is void and must be dissolved.7                See Qwest Commc’ns Corp., 24


        7
           At oral argument, counsel for the MPOU represented to the Court that a motion nunc pro tunc is
pending in the trial court to amend the temporary injunction order to comply with rule 683 by including a
trial date. See TEX. R. CIV. P. 683 The resolution of that motion is not currently before this Court, and
regardless of how or whether the trial court rules on the MPOU’s motion, we note that the temporary
injunction order violates the bond provision of Texas Rule of Civil Procedure 684. See id. at R. 684. At
the temporary injunction hearing, counsel for the MPOU moved for the trial court to indicate in the order
that the parties waived rule 684’s bond provision. When the trial court asked counsel for the City whether
this was indeed true, counsel responded, ―I haven’t researched it, Your Honor. I just got served with this
last night.‖ Clearly, the record does not indicate that the parties expressly waived rule 684’s bond

                                                    7
S.W.3d at 337; see also InterFirst Bank San Felipe, N.A., 715 S.W.2d at 641; Brown,

142 S.W.3d at 591; EOG Res., Inc., 75 S.W.3d at 53; Greathouse Ins. Agency, Inc., 718

S.W.2d at 822. Accordingly, we sustain the City’s second issue.8

                                             III.     CONCLUSION

        Having sustained the City’s second issue, we reverse the order of the trial court,

dissolve the temporary injunction, and remand for proceedings consistent with this

opinion.

                                                                    __________________
                                                                    ROGELIO VALDEZ
                                                                    Chief Justice

Delivered and filed the
2nd day of June, 2011.




provision. Nonetheless, whether the City agreed to the waiver is immaterial because the failure of the
temporary injunction order to comply with rule 684 renders the order void, and ―a party who agrees to a
void order has agreed to nothing.‖ In re Garza, 126 S.W.3d 268, 271 (Tex. App.–San Antonio 2003, orig.
proceeding). Moreover, the trial court was not authorized to sua sponte waive the requirements of rule
684; thus, we conclude that the temporary injunction order is void and must be dissolved for failing to
comply with rule 684. See Ex parte Lesher, 651 S.W.2d 734, 736 (Tex. 1983) (concluding that the district
court erred in waiving rule 684’s bond provision prior to issuing a temporary restraining order); Goodwin v.
Goodwin, 456 S.W.2d 885, 885 (Tex. 1970) (holding that the failure of the applicant to file a bond before
issuance of the temporary injunction renders the injunction void ab initio); Lancaster v. Lancaster, 291
S.W.2d 303, 308 (Tex. 1956) (holding that the bond provisions of rule 684 are mandatory and that an
injunction issued without a bond is void); Chambers v. Rosenberg, 916 S.W.2d 633, 634-35 (Tex. App.–
Austin 1996, no writ); see also River Oaks Prop. Owners, Inc. v. Jamail, No. 14-96-0173-CV, 1996 Tex.
App. LEXIS 1066, at *6 (Tex. App.–Houston [14th Dist.] Mar. 12, 1996, no writ) (mem. op.) (―A temporary
injunction that does not fix a bond is fatally defective on its face and void ab initio, requiring reversal.‖).
        8
           Because we have concluded that the trial court’s temporary injunction order is void and should
be dissolved, we need not address the City’s third issue, as it pertains to the essential elements of the
MPOU’s entitlement to the temporary injunction. See TEX. R. APP. P. 47.1. In addition, because the
City’s jurisdictional arguments attack the trial court’s temporary injunction order, and because we have
concluded that the temporary injunction order is void, we need not address the City’s first issue. See id.

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