

Opinion issued July 20, 2011

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00536-CV
———————————
Occidental Chemical Corp., Appellant
V.
ETC NGL
Transport, LLC,
Appellee

 

 
On Appeal from the 189th District Court 
Harris County, Texas

Trial Court Case No. 2011-30775
 

 
O P I N I O N
In this interlocutory appeal,[1] appellant, Occidental
Chemical Corporation (“Occidental”), challenges the district court’s order
granting appellee, ETC NGL Transport, LLC (“ETC”), a temporary injunction and
enjoining Occidental from interfering with ETC’s entry onto a pipeline
corridor, which is owned by Occidental, to conduct a preliminary survey and
assessment regarding ETC’s proposed construction of a liquid natural gas
pipeline within the corridor.  In six
issues, [2] Occidental contends that
the district court lacked jurisdiction to grant the temporary injunction and,
alternatively, the district court erred in granting the temporary injunction
and the temporary injunction is “invalid because it fails to meet procedural
requirements.” 
          We
affirm the order of the district court.
Background
In April and May 2011, ETC, a
subsidiary of Energy Transfer Partners, LP, a natural gas transportation
company, requested that Occidental allow ETC to enter onto Occidental’s
pipeline corridor to conduct a preliminary survey and environmental assessment
of the corridor for construction of a liquid natural gas pipeline.  ETC intends to build the pipeline to
transport liquid natural gas for a distance of approximately 55 miles from a
location in Fort Bend County to another location in Mont Belvieu, Texas.  As noted by Occidental, it, as the owner of
the corridor, denied ETC’s requests because it has its own “strategic plans for
the entire corridor,” which ETC’s proposed pipeline would effectively
preclude.  On May 19, 2011, ETC obtained
a “T-4 permit” from the Texas Railroad Commission (“TRRC”) to operate its
proposed pipeline as a “common carrier.” 

After obtaining its TRRC permit and
being denied entry onto Occidental’s corridor, ETC, on May 23, 2011, filed the
instant suit in the district court, seeking declaratory relief and and a
temporary injunction to enjoin Occidental from interfering with ETC’s right, as
a common carrier, to enter upon Occidental’s corridor to conduct its survey
work and assessments.  On June 2, 2011,
the district court, after a hearing, entered its order granting ETC’s
application for a temporary injunction and enjoining Occidental from “taking
any action to interfere” with ETC “entering on [Occidental’s corridor] to
conduct surveys, including locating any survey monuments on [Occidental’s
corridor] needed to determine the existing boundary of [Occidental’s corridor]
and staking the potential easement right-of-way, and to conduct preliminary
environmental assessments on [Occidental’s corridor].” 
Jurisdiction
          In
its first issue, Occidental argues that we must vacate the district court’s
temporary injunction because “ETC’s suit for access is an eminent domain
proceeding” and the Texas Legislature “has expressly granted exclusive
jurisdiction over eminent domain proceedings to the Harris County
[civil] courts at law.”[3]  See
Tex. Gov’t Code Ann. § 25.1032(c)
(Vernon Supp. 2010).  Occidental asserts
that Harris County civil courts at law have
“exclusive jurisdiction over an action brought by a common carrier to enter
land pursuant to its eminent domain power.” 
In response, ETC argues that this is not an “eminent domain proceeding”
as contemplated in section 25.1032(c) because “[t]his is not an eminent domain
or condemnation suit,” rather, it is simply “an injunction suit.”  ETC emphasizes that before an eminent domain
proceeding as contemplated in section 25.1032(c) may  be filed, ETC needs a survey “to obtain metes
and bounds description of the easement” to “have an adequate description of the
property that it intends to take when it files a condemnation petition.”  See
Tex. Prop. Code Ann. § 21.012
(Vernon Supp. 2010).   
We begin our jurisdictional analysis
by noting that there is a constitutional presumption that district courts are
authorized to resolve disputes.  See In re Entergy Corp., 142 S.W.3d 316,
322 (Tex. 2004).
 Pursuant to the Texas Constitution, a
district court’s jurisdiction “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 this
Constitution or other law on some other court, tribunal, or administrative
body.”  Id. (quoting Tex. Const.
art. V, § 8).  And Texas district courts, which are
constitutional courts of general jurisdiction, have jurisdiction to issue writs
of injunction as well as jurisdiction over claims for declaratory relief.  See
Tex. Const. art. V, §§ 1, 8; Tex. Gov’t Code Ann. §§ 24.007, 24.008
(Vernon Supp. 2010).  Thus, our district
courts are courts of general jurisdiction and presumed to have subject matter
jurisdiction absent a showing to the contrary.  Dubai
Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000).  
Accordingly, we must determine
whether the Texas Legislature, in enacting section 25.1032(c), intended for a
suit like the one before us, i.e., a suit brought in Harris County to enforce
the right of a common carrier to enter property to conduct a preliminary survey
prior to the acquisition of easement rights, be brought only in county civil
courts at law.  In construing section
25.1032(c), our primary objective is to ascertain and give effect to the
legislature’s intent as expressed by the language of the statute.  Galbraith
Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009); City of Rockwall v. Hughes, 246 S.W.3d
621, 625 (Tex. 2008).
          Section
25.1032(c) provides in pertinent part:
A county civil court at law
has exclusive jurisdiction in Harris
 County of eminent domain proceedings, both statutory and inverse,
regardless of the amount in controversy. 

 
(Emphasis added.) 
Construing this sentence in its entirety, we conclude that the
legislature did not intend for a suit like the one before us be brought only in
county civil courts at law.  The
legislature’s specific inclusion of the second and third clauses of the above
quoted sentence reveals its intent to confer on Harris County civil courts at
law exclusive jurisdiction only over “statutory and inverse” condemnation
proceedings involving damages for a taking of property.  Tex.
Gov’t Code Ann. § 25.1032(c). 
Thus, in referencing “eminent domain proceedings,” section 25.1032(c) specifically
contemplates the meaning we commonly attribute to such proceedings—either
statutory condemnation proceedings as outlined in Chapter 21 of the Texas
Property Code, which is  entitled
“Eminent Domain,” or inverse condemnation proceedings.  
The provisions in Chapter 21 set
forth the detailed procedures for filing and conducting “statutory” “eminent
domain” proceedings.  See Tex.
Prop. Code Ann. §§ 21.011–.016 (Vernon Supp. 2010).  Texas Property Code section 21.011 provides,
“[e]xercise of the eminent domain authority in
all cases is governed by [s]ections 21.012 through 21.016 of this code.”  (Emphasis added.)  Indeed, an entity “may begin” a statutory
condemnation proceeding only by filing “in the proper court” a petition which
“must,” among other things, “describe the property to be condemned” and “state
that the entity and the property owner are unable to agree on the damages.”  Id. §
21.012.  Thus, ETC is not yet even in a
position to file a “statutory” eminent domain proceeding, as governed by
Chapter 21 of the Property Code and contemplated in Government Code section
25.1032(c), against Occidental. 
Importantly, in regard to Occidental’s arguments, the statutory eminent
domain proceedings detailed in Chapter 21, and the specific procedural
framework set up therein, do not include, or in any way contemplate, any
procedures or remedies for a common carrier to enforce its right to access
property to conduct initial survey work prior to filing a condemnation
petition.  
In regard to the “inverse” “eminent
domain proceedings” referred to in Government Code section 25.1032(c), it is
well known that an “‘inverse condemnation’ proceeding is the avenue of relief
available when property has been taken
or damaged for public use without
compensation or a proper condemnation proceeding, and the property owner wishes
to recover compensation for his loss.”  Taub v.
Aquila Sw. Pipeline Corp., 93 S.W.3d 451, 459, n.11 (Tex. App.—Houston
[14th Dist.] 2002, no pet.) (emphasis added). 
Thus, section 25.1032’s reference to “inverse” proceedings cannot
possibly relate to a common carrier’s right to access property to conduct
initial survey work that must be performed before it “may begin a condemnation
proceeding by filing a petition in the proper court.”    
The legislature’s use, in
Government Code section 25.0132(c), of the term “eminent domain proceedings” synonymously
with the terms statutory or inverse “condemnation proceedings” is consistent
with the use of the terms by Texas courts. 
This Court and our sister court have explained that “eminent domain” is
often understood to refer specifically to a “condemnation” or a “taking,” while
the right of an entity to access another’s property to conduct survey work and
assessments in contemplation of ultimately filing a statutory condemnation
proceeding is often considered ancillary to such a “taking.”  For example, in Taub, our sister court framed the issue there as determining “the
scope of the legislature’s grant of exclusive jurisdiction over eminent domain
proceedings.”  93 S.W.3d at 453.  The court noted that generally “[e]minent
domain” refers to “[t]he power to take private property for public use by the
state, municipalities, and private persons or corporations authorized to exercise
functions of state power.”  Id.
at 456 (citing Black’s Law Dictionary
523 (6th ed. 1990)).  And the court
explained that “[t]he process of exercising the power of eminent domain is
commonly referred to as ‘condemnation’ or ‘expropriation.’”  Id.
(citing Black’s Law Dictionary
523); see also Villarreal v. Harris Cnty., 226 S.W.3d 537, 543–44 (Tex. App.—Houston [1st Dist.] 2006,
no pet.) (explaining that eminent domain refers to power “to take private
property for public use by the state, municipalities, and private persons or
corporations authorized to exercise functions of state power” and that “municipality
exercises its power of eminent domain through the process referred to as
condemnation”); City of Houston v. Boyle,
148 S.W.3d 171, 178 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing Taub, and stating in heading of opinion
that “Eminent Domain and Condemnation Consist of Taking”).  
          In
support of its argument that the district court did not have jurisdiction to
grant the temporary injunction in this case, Occidental relies upon Texas
Natural Resources Code section 111.019, which provides that “[c]ommon carriers
have the right and power of eminent domain” and, “[i]n the exercise of the
power of eminent domain,” “a common carrier may enter on and condemn the land,
rights-of-way, easements, and property of any person or corporation necessary
for the construction, maintenance, or operation of the common carrier pipeline.”  Tex.
Nat. Res. Code Ann. § 111.019(a), (b) (Vernon Supp. 2010).  Occidental argues that because ETC claims to
be a common carrier, and because section 111.019 provides that its “right to
enter onto land” is a right of “eminent domain,” then its suit to enforce that
right is an “eminent domain proceeding” and the Harris County civil courts at
law have exclusive jurisdiction over ETC’s suit.  However, nothing in section 111.019, entitled
“Right of Eminent Domain,” under Chapter 111 of the Natural Resources Code,
entitled “Common Carriers, Public Utilities, and Common Purchasers,” in any way
purports to define what is an “eminent domain proceeding” as the term in used
in Government Code section 25.1032(c). 
In fact, nothing in section 111.019 prescribes remedies or procedures
for common carriers to enforce their right to enter onto land to conduct
preliminary surveys and assessments.  Although
it is apparent that the legislature, in enacting section 111.019, intended to
recognize that common carriers have the “Right of Eminent Domain,” nothing in
section 111.019 evidences a legislative intent to expand the scope of the term
“eminent domain proceedings” as it is used in Government Code section 25.1032(c).
ETC’s suit to enforce its statutory
right to enter Occidental’s corridor to perform its preliminary survey and
assessment is not the type of eminent domain proceeding specifically
contemplated in Government Code section 25.1032(c), i.e., either a statutory
eminent domain proceeding, as detailed in Chapter 21 of the Property Code, or
an inverse condemnation proceeding.  As
previously noted by this Court in affirming a district court’s judgment
enjoining landowners “from interfering with a preliminary survey of a pipeline
right-of-way,” “the authority to enter upon the land to make a preliminary
survey” is considered “[a]ncillary” to the power of eminent domain.  I.P.
Farms v. Exxon Pipeline Co., 646 S.W.2d 544, 545 (Tex. App.—Houston [1st Dist.]
1982, no writ) (citing Tex. Nat. Res.
Code Ann. §§ 111.002, 11.019 (Vernon Supp. 2010)).  In support of this pronouncement, we cited Lewis v. Tex. Power & Light Co., 276
S.W.2d 950, 954–55 (Tex. Civ. App.—Dallas 1955, writ ref’d n.r.e.).  
In Lewis, the Dallas Court of Appeals considered, and rejected,
jurisdictional arguments similar to those presented by Occidental in this
case.  See id.  Lewis involved an appeal from a district
court’s temporary injunction that enjoined landowners from interfering with
public utility survey crews sent upon the owner’s land to obtain an adequate
description of the property prior to instituting a condemnation
proceeding.  Id.  In construing a statute
that provided telegraph and railroad companies “the right and power to enter
upon, condemn and appropriate the lands, . . . of any person,” the court
explained that the statute granted “two separate and distinct powers: (1) to
enter upon, and (2) to condemn and appropriate.”  Id. at
954.  The court concluded that the
legislature “recognized the necessity of preliminary surveys and intended to
grant authority” to “make such surveys.” 
Id.  Thus, the court further concluded that “the
right of entry on property, in good faith, for the purpose of making a
preliminary survey and investigation with the view of condemnation is a
necessary incident of the right to condemn.” 
Id. at 954.
In considering the landowners’ arguments
that the county court had “sole jurisdiction” over the suit because it was a
“condemnation proceeding,” the court explained, 
In our opinion though it is
a type of suit which may often be followed by condemnation proceedings, it is not itself a condemnation proceeding
or suit.  It is a suit to enforce the
right of appellee to go upon the land of appellant for a preliminary survey
prior to the acquisition of easement rights with a view to construction of its
line. The exercise of such right does not
necessarily mean that condemnation proceedings will ever follow.  It is common knowledge that companies with
the right of eminent domain often acquire right-of-way property by agreement
and amicable purchase.  It is even
possible in some instances, as shown by the testimony in this case, that the
survey could reveal obstacles which would compel a change in the planned course
of the line.  In any event the survey takes place before condemnation proceedings are
instituted.  The issue presented in
this case can be adjudicated only in a court of general jurisdiction. The
County Court does indeed have exclusive jurisdiction of condemnation suits as
such.  But its jurisdiction does not
attach and the proceedings do not become judicial causes of action until after
the County Judge in his administrative capacity has
appointed commissioners, the commissioners have made their report, and appeal
has been taken therefrom.
 
Id. at 954–55
(emphasis added).  We recognize that the
statutory language construed in Lewis
is not identical to the language used in section 25.1032(c).  However, we find helpful the court’s explanation
of the significant difference between a “condemnation proceeding” and a suit to
enforce an entity’s right to enter property for a preliminary survey and
assessment.  Moreover, although we did
not in I.P. Farms consider the exact
issue presented in this case, this Court has never held that a suit brought to
enforce an entity’s right to conduct such a preliminary survey and assessment
is an “eminent domain proceeding” as contemplated in section 25.1032(c) that
must be brought in a county civil court at law.
          We
conclude that the Texas Legislature, in enacting Natural Resources Code section
111.019 and recognizing that common carriers have the right of eminent domain,
did not intend to deprive district courts in Harris County of subject matter
jurisdiction over suits brought by common carriers seeking injunctive relief to
enforce their right to enter upon land to conduct preliminary surveys and
assessments with a view to acquiring the land. 
Having previously concluded that the plain language of Government Code
section 25.1032(c) does not deprive the district courts in Harris County
of jurisdiction over such matters, we hold that the district court’s temporary
injunction is not void for lack of jurisdiction.  
We overrule Occidental’s first
issue.
Temporary Injunction
In its second through fifth issues,
Occidental argues that the district court erred in entering the temporary
injunction because ETC failed to demonstrate that it would suffer imminent
harm, the injunction altered the status quo, the injunction granted ETC “the
same relief being sought upon final hearing,” and ETC failed to “prove that it
was a common carrier.”  In its sixth
issue, Occidental argues that the district court erred in entering the
temporary injunction because it “contains no specifics” and includes “bare
recital[s]” that render it “insufficient on its face.”  Occidental also complains that the injunction
does not state that ETC is a common carrier or that it has the right to
exercise its eminent domain power.  
We review the district court’s
order granting the temporary injunction for a clear abuse of discretion.  Tel.
Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex.
App.—Houston [1st Dist.] 2002, no pet.).  Accordingly, we will not reverse the district
court’s order unless it is “so arbitrary as to exceed the bounds of reasonable
discretion.”  Id. at 607.  We note that an
erroneous application of the law to undisputed facts constitutes an abuse of
discretion, and we will draw all legitimate inferences from the evidence in the
light most favorable to the order.  Id.
The purpose of a temporary
injunction is to preserve the status quo of a litigation’s subject matter
pending trial.  Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).  The status quo is defined as the last,
actual, peaceable, non-contested status that preceded the pending
controversy.  In re Newton, 146 S.W.3d 648, 651 (Tex. 2004).  To obtain a temporary injunction, an
applicant must plead and prove (1) a cause of action against a defendant; (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.  A probable right of relief is shown by
alleging a cause of action and presenting evidence that tends to sustain
it.  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).  An irreparable injury is shown if there is no
adequate remedy at law, i.e., the applicant cannot be adequately compensated in
damages or damages cannot be measured by any certain pecuniary standard.  Butnaru,
84 S.W.3d at 204; see also Ahmed v. Shimi
Ventures, L.P., 99 S.W.3d 682, 692 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
Imminent Harm
Occidental first complains that ETC’s
alleged damages are “fabricated” and there is “ample time to determine” ETC’s
rights to enter and condemn Occidental’s property and “still keep [ETC’s]
project on the real schedule.”  In
support of its application for the temporary injunction, ETC presented the
testimony of Mark Bounds, ETC’s pipeline project manager, and Luke Fletcher,
ETC’s vice president of commercial operations. 
Bounds testified that the surveying process would take forty-five days
subject to weather conditions, ETC expected the pipeline to be operating by
February 2012, this operational timeline could be accomplished if construction
started by October 1, 2011, and the surveying work needed to start immediately
in order for ETC to get “product in service.” 
Bounds noted that the surveying work would not involve any excavation of
Occidental’s property.  Fletcher testified
that ETC had already entered into contracts related to the transportation of
product through the proposed pipeline with multiple parties and the contracts contain
a “firm obligation” for ETC to build the proposed pipeline.  
Texas courts have recognized that
“[b]usiness disruptions” may result in irreparable harm for which a temporary
injunction is appropriate.  Liberty Mut. Ins. Co. v. Mustang Tractor
& Equip. Co., 812 S.W.2d 663, 666 (Tex. App.—Houston [14th Dist.] 1991,
no writ).  Texas courts have also
recognized that injunctive relief is appropriate in this specific context,
i.e., to grant relief to an entity with the right to access land to conduct
preliminary survey work before instituting a condemnation proceeding.  See I.P.
Farms, 646 S.W.2d at 545; Lewis, 276
S.W.2d at 954–55.  Thus, ETC presented
evidence from which the district court could have reasonably determined that
ETC would suffer imminent and irreparable harm if not for the entry of the
temporary injunction.  Accordingly, we
hold that district court did not err in entering the temporary injunction on
the ground that ETC had failed to demonstrate imminent and irreparable
harm.  
We overrule Occidental’s second
issue.
Status Quo and Ultimate Relief
Occidental next argues that the
temporary injunction altered the status quo because, before the injunction, it
had “complete control of its pipeline corridor,” it was conducting “ordinary
business activities,” and it was “negotiating a mutually beneficial preliminary
agreement” with another company to build a pipeline along the pipeline
corridor.  And Occidental asserts that
granting ETC its “ultimate relief does not preserve the status quo.”
As noted above, a common carrier
has the right and power of eminent domain and “may enter on and condemn the
land, rights-of-way, easements, and property of any person or corporation
necessary for the construction, maintenance, or operation of the common carrier
pipeline.”  Tex. Nat. Res. Code Ann. § 111.019(a), (b).  Texas courts have consistently recognized
that a common carrier or entity with similar eminent domain powers is entitled
to temporary injunctive relief in order to obtain access to property and conduct
surveying work prior to initiating the condemnation process.  See I.P.
Farms, 646 S.W.2d at 545; Lewis, 276
S.W.2d at 954–55. 
The court in Lewis considered similar arguments to those made by Occidental here
and concluded that, under the facts presented there, the granting of temporary
injunctive relief actually preserved, rather than disturbed, the status
quo.  Id.
at 955.  The court noted,
 If appellee has the right under our statute to
enter onto appellants’ property to make its preliminary survey, and we have
held that it has, the status quo was one of action, not of rest.  Under such circumstances even mandatory
injunctions are upheld.
 
Id.  The court then addressed, and rejected, the specific
complaint that granting the temporary injunctive relief improperly granted the
“ultimate relief” requested.  Id. 
Quoting a prior opinion, the court explained,
[A]ppellant contends that
the trial court erred in issuing the writ in question because its effect is to
award in advance to appellee all relief it could obtain on final trial.  We have heretofore seen that the status quo in
actions of this nature “is a condition not of rest but of action, and the
condition of rest is what will inflict the irreparable injury complained of, in
which circumstances courts of equity may issue mandatory writs before the case
is heard on its merits.”
 
Id. (quoting Tex. Pipe Line Co. v. Burton Drilling Co.,
54 S.W.2d 190, 193 (Tex. Civ. App.—Dallas 1932, no writ)).
We find the reasoning of Lewis persuasive.  The temporary injunction here preserves the
status quo by recognizing the rights of ETC to access and survey Occidental’s pipeline
corridor.  Id.  Accordingly, we hold
that the district court did not err in entering the temporary injunction on the
grounds that it altered the status quo or improperly granted ETC the “ultimate
relief” it was requesting.
We overrule Occidental’s third and
fourth issues.
Common Carrier
          Occidental
next asserts that, at the district court’s temporary injunction hearing, ETC’s
proof demonstrated that it is not engaged as a common carrier, does not own,
operate, or manage a pipeline in Texas, does not have a pipeline to which the
public could connect, and has not offered its proposed pipeline to or for the
public for hire.
The Texas Legislature has delegated
to the TRRC the authority to regulate pipelines that are common carriers.  Tex.
Nat. Res. Code Ann. § 81.051 (Vernon Supp. 2010), § 111.002 (Vernon
Supp. 2010), § 111.019; see also Tex. Bus. Org. Code Ann. § 2.105 (Vernon Supp. 2010); Vardeman v. Mustang Pipeline Co., 51
S.W.3d 308, 312 (Tex. App.—Tyler 2001, pet. denied).  The TRRC has jurisdiction over all persons
owning or operating pipelines in Texas.  Vardeman, 51 S.W.3d at 312 (citing Bullock v. Shell Pipeline Corp., 671
S.W.2d 715, 719 (Tex. App.—Austin 1984, writ ref’d n.r.e.)).  And the TRRC may adopt all necessary rules for
governing and regulating those persons.  Id.
The authority of a pipeline company
to condemn property is to be determined as a matter of law.  Id.
(citing Mercier v. MidTexas Pipeline Co.,
28 S.W.3d 712, 722 (Tex. App.—Corpus Christi 2000, pet. denied)).  When determining whether an entity is a common
carrier under the Texas Natural Resources Code, a court is to give great weight
to the TRRC’s determination of that issue.  Id.
(citing State v. Pub. Utility Comm’n of
Tex., 883 S.W.2d 190, 196 (Tex.1994)); see
also Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas LLC, 296
S.W.3d 877, 879 (Tex. App.—Beaumont 2009, pet. granted).  Thus, when the evidence before a court
indicates that a pipeline carrying petroleum products “has subjected itself to
the authority of the TRRC to regulate its activities, then it is a common
carrier.”  Vardeman, 51 S.W.3d at 312 (citing Anderson v. Teco Pipeline Co., 985 S.W.2d 559, 565 (Tex. App.—San
Antonio 1998, pet. denied)).
Here, ETC presented evidence that
it had applied for a T-4 permit to operate the proposed pipeline as a common
carrier.  In its application, ETC stated
that the pipeline would be operated as a common carrier rather than a private
line and the pipeline would transport product purchased and transported for
others.  ETC also presented evidence that
the TRRC approved its application and granted it a permit to operate the
pipeline as a common carrier.  Additionally,
ETC presented testimony that it has offered “the transportation to be provided
by [the] pipeline” to “the public,” and it has “already executed multiple
contracts” with “multiple shippers,” and it is in “additional negotiations”
with other parties.  Thus, the evidence
presented to the district court demonstrated that ETC was holding itself out as
a common carrier.  We conclude that the district
court was presented with evidence during the hearing on ETC’s application for
temporary injunction from which it could have reasonably found that ETC
qualifies as a common carrier.  Accordingly,
we hold that the district court did not err in entering the temporary
injunction on the ground that ETC is not a common carrier. 
We overrule Occidental’s fifth
issue.
Procedural Complaints
Finally, Occidental argues that the
temporary injunction is “invalid because it fails to meet procedural
requirements.”
An order granting injunctive relief
“shall set forth the reasons for its issuance,” “shall be specific in terms,”
and “shall describe in reasonable detail and not by reference to the complaint
or other document, the act or acts sought to be restrained.”  Tex.
R. Civ. P. 683.  An order granting
a temporary injunction that does not meet these mandatory procedural
requirements is subject to being declared void. 
Qwest Commc’ns Corp. v. AT & T
Corp., 24 S.W.3d 334, 337 (Tex. 2000).
Here, in its order, the district
court found that Occidental denied ETC access to enter Occidental’s corridor
“for purposes of conducting a preliminary survey and preliminary environmental
assessment for its pipeline project”; without injunctive relief granting ETC
access to conduct these activities on Occidental’s corridor, ETC would be “irreparably
injured”; ETC would “probably prevail on the merits at trial”; ETC was
“entitled to injunctive relief to prevent [Occidental] from interfering with
[ETC] entering upon [Occidental’s] property to conduct” the preliminary survey
and assessments; and the injunction was “necessary to maintain the status quo
and to protect [ETC] from irreparable injury.” 
The district court attached to its order a description of the property
at issue.  
The district court granted ETC’s
application for a temporary injunction and enjoined Occidental from interfering
with ETC’s survey work, including locating survey monuments and staking a
potential easement right of way, and environmental assessments.  The district court ordered that ETC’s “survey
and assessment activities” not interfere “with [Occidental’s] ongoing
operations.”  And it further ordered the
parties to “reasonably coordinate with each other regarding safety considerations.”  The district court made multiple additional
orders pertaining to ETC’s access and survey work on Occidental’s land,
including an order requiring ETC to pay for supervision of its surveying and
assessment work.  The parties also
participated in a subsequent hearing in the district court on June 10, 2011, during
which they agreed to certain modifications of the rights specified in the
original temporary injunction.  The
parties agreed to the days of the week in which the surveying work could take
place and the general notice that ETC was required to provide Occidental.
We conclude that the temporary
injunction properly set forth the reasons for its issuance, was sufficiently
specific in terms, and described in reasonable detail the acts sought to be
restrained.  See Tex. R. Civ. P.
683.  The district court, by entering the
temporary injunction, necessarily found that ETC had presented evidence that it
qualified as a common carrier and that it would suffer imminent and irreparable
harm if Occidental continued to deny it its legal right to enter Occidental’s
property to conduct its preliminary survey and environmental assessment.  Moreover, there is nothing in the record to
indicate that Occidental ever objected to the language of the temporary
injunction or requested the inclusion of additional or more specific findings
with regard to harm.  Thus, Occidental
has waived any complaint that the district court failed to expressly find that
ETC qualifies as a common carrier with the right to exercise eminent domain
power.  See Operation Rescue-National
v. Planned Parenthood of Houston and Se. Tex., Inc., 937 S.W.2d 60, 82 (Tex.
App.—Houston [14th Dist.] 1996), modified
and affirmed, 975 S.W.2d 546 (Tex. 1998) (stating that “while every order granting
an injunction must set forth the reasons for its issuance in the order itself,
if the enjoined party wishes additional, detailed findings, the party may make
a request under the rules of procedure governing findings of fact generally”
and “[w]here a party fails to request additional or amended findings after the
court files its original findings, the party waives the right to complain on
appeal that the findings were not full and complete or that the court failed to
enter additional findings of fact”).   
Accordingly, we hold that the
district court did not err in entering the temporary injunction on the ground
that it is insufficiently specific or fails to satisfy other procedural
requirements.
We overrule Occidental’s sixth
issue.
Conclusion
We affirm the order of the district
court.
 
 
                                                                   Terry
Jennings
                                                                   Justice

 
Panel
consists of Justices Jennings, Higley, and Massengale.
 




[1]           See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (Vernon Supp. 2010).


[2]
          In order to expedite our
decision, the parties have agreed to submitting this appeal with oral argument
on the motions, responses, and other documents filed by the parties in this Court.  Accordingly, we suspend the operation of
Texas Rule of Appellate Procedure 38.  See Tex.
R. App. P. 2.  


[3]
          In response to Occidental’s
arguments, ETC initially argues that we may not consider the issue of the
district court’s jurisdiction to grant the temporary injunction because
Occidental is appealing the district court’s granting of the injunction and not
its denial of Occidental’s  plea to the
jurisdiction.   However, in an appeal of
a temporary injunction, we may always consider whether the injunction is void
for lack of subject matter jurisdiction. 
See Hyde v. Ray, 181 S.W.3d 835, 843 (Tex. App.—Fort Worth 2005, no pet.) (stating
that “trial court lacked jurisdiction to order the temporary injunction, and abused
its discretion by doing so”).


