                          In the
                     Court of Appeals
             Second Appellate District of Texas
                      at Fort Worth
                    ___________________________
                         No. 02-18-00392-CV
                    ___________________________

 THE TOWN OF FLOWER MOUND, TEXAS; THE ZONING BOARD OF
ADJUSTMENT FOR THE TOWN OF FLOWER MOUND, TEXAS; AND THE
OIL & GAS BOARD OF APPEALS FOR THE TOWN OF FLOWER MOUND,
                     TEXAS, Appellants

                                   V.

             EAGLERIDGE OPERATING, LLC, Appellee



                 On Appeal from the 431st District Court
                        Denton County, Texas
                     Trial Court No. 18-9622-431


 Concurring and Dissenting Memorandum Opinion by Chief Justice Sudderth
     CONCURRING AND DISSENTING MEMORANDUM OPINION

       Except with regard to the holding as to the applicability of local government

code section 211.010(c) to the facts of this case, I agree with the majority opinion.

But because I am concerned about the majority’s interpretation of section 211.010(c),

I write separately.

       The applicability of section 211.010(c) was not briefed by either party, but one

could argue that the majority’s reading of the text of section 211.010(c)—by reading

the words “restraining order” to include only temporary restraining orders but not

temporary injunctions—would tend to thwart the purpose of a temporary restraining

order. Both temporary restraining orders and temporary injunctions are orders that

operate to restrain behavior. The essential difference between the two is merely

duration.

       A temporary restraining order is a stopgap, placeholding measure—it serves to

preserve the status quo for up to fourteen days, just until a litigant’s application for

temporary injunction can be heard. Tex. R. Civ. P. 680 (providing that the term of a

temporary restraining order shall not exceed fourteen days, and if granted ex parte,

“the application for a temporary injunction shall be set down for hearing at the

earliest possible date . . . and when the application comes on for hearing the party

who obtained the temporary restraining order shall proceed with the application for a

temporary injunction and, if he does not do so, the court shall dissolve the temporary

restraining order”). Because a temporary restraining order can be extended only once

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and only for an additional fourteen days, the maximum amount of time a litigant is

entitled to such relief is twenty-eight days. Id. (providing that a temporary restraining

order “shall expire by its terms within such time after signing, not to exceed fourteen

days” that the trial court may, “for good cause shown, . . . extend[] for a like period,”

and that “[n]o more than one extension may be granted unless subsequent extensions

are unopposed”).

      In the context of section 211.010, an appeal to the board of adjustment stays all

proceedings unless the administrative official from whom the appeal is taken has

certified that “a stay would cause imminent peril to life or property.” If a trial court

disagrees with the administrative official’s assessment of the situation and “due cause”

is shown, the statute authorizes the trial court to override the official’s denial of the

stay. Tex. Loc. Gov’t Code Ann. § 211.010(c).

      But under the majority’s interpretation of section 211.010(c), a trial court could

reinstate the stay of proceedings for only twenty-eight days (absent agreement). On

the twenty-ninth day, proceedings in furtherance of the action under appeal would

arguably resume with impunity. For all practical purposes, such an interpretation

would render the trial court’s ability under section 211.010(c) to enforce the stay

meaningless because of the resulting ephemeral nature of the trial court’s power.

      As to the majority’s interpretation of section 211.010(c), I respectfully dissent,

but I concur in the result reached.



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                                 /s/ Bonnie Sudderth

                                 Bonnie Sudderth
                                 Chief Justice

Delivered: August 22, 2019




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