TRO Void Because the Order Failed to Comply with Rules 680, 683, 684

In re St. Mark’s School of Texas

Dallas Court of Appeals, No. 05-23-00369-CV (May 3, 2023)

Justices Partida-Kipness, Carlyle, and Garcia (Opinion, linked here)

Ken Carroll

This mandamus from a dispute about a high schooler’s AP statistics grade was marked by a number of procedural oddities—including the plaintiff high schooler, rather than his attorney, putatively signing the certificate of conference for the TRO. In directing the trial court to vacate its order, the Dallas Court of Appeals drove home a number of important reminders for those drafting proposed TROs:

• An order that is functionally a TRO will be treated as one, regardless of its title. Here, the plaintiff filed an “Emergency Ex Parte Motion for Temporary Injunctions [sic]” and the trial court’s order was similarly styled. But because it was issued without notice or a hearing and set a further hearing about the continuation of the injunctive relief pending trial, it was functionally a TRO.
  
  
• “Mandamus relief is available to remedy a void temporary restraining order.”
  
  
• Rule 680 requires a trial court to explain in its TRO why the order was issued ex parte and without notice—i.e., why “immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon.” The order here did not provide an adequate explanation—and in fact plaintiff’s counsel had emailed defendant’s counsel regarding a discovery issue about an hour before the motion for ex parte relief was filed, but did not mention the soon-to-be-filed request for injunctive relief. Failure to comply with this requirement of Rule 680 rendered the order void.
  
  
• “A TRO that does not identify the imminent, irreparable injury necessitating its issuance is void.” Tex. R. Civ. P. 683. The order here failed to explain this with the required specificity; it was therefore void for this reason, as well.
  
  
• Finally, “[a] TRO that fails to set bond is void and unenforceable.” See Tex. R. Civ. P. 684. Here, the order provided for a bond “in the amount of $0.” The appeals court held this was the equivalent of not setting a bond at all, rendering the TRO “void and unenforceable” for a third reason.