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Temporary Injunctions

Temporary injunctions are only one challenging part of divorce and custody cases. For legal counsel to help you do what’s best for your family, contact Evans Family Law Group in Austin today.

(Tex. Fam. Code 6.502, 6.709, 105.001 and 109.001).

Temporary Injunctions essentially serve the same purpose as those of the TRO.  Like TRO’s, temporary injunctions are available for the purpose of preservation of property, the protection of a party, or the protection of a child who is the subject of the case.  A difference here, when a temporary injunction is granted, it is deemed that the party is “enjoined” (or prohibited) from the actions enumerated in the Order.

The primary difference between a TRO and a Temporary is that temporary injunctions cannot be granted “ex parte”.  Meaning, notice is required to the other party and a hearing held before a Judge. Unlike the TRO, because notice and a hearing is required, the relief available through temporary injunction can be much broader than that in the TRO.

Hearing Required to Be Held

If a TRO is granted, a hearing on the temporary injunction is required to be held within 14 days, after the TRO is signed by the Court.  If no TRO is granted the application only requests the court enter a temporary injunction, the Court can set a hearing in accordance with the court’s discretion.  A respondent is entitled only to a minimum of three days’ notice, unless this time frame is shortened by the Court or waived by the other party.

Duration of Temporary Injunctions

Temporary injunctions last for a specified duration or until the case is finally resolved.  Whereas, TRO’s dissolve upon the expiration of 14 days, unless extended by agreement of the parties or an Order of the Court.  This is why usually a request in a notice for a hearing on temporary orders will include a request to the court to make the terms of the TRO be the same as that for the temporary injunction.  Clients ask me all the time about how long temporary orders, like temporary injunctions, last.  The answer is that temporary injunctions last until the date specified in the Order, until it is dissolved by agreement of the parties or other Order of the Court, or until a final Order is rendered in your divorce or custody case.

Binding upon Third Parties

Unlike TRO’s, temporary injunctions can also be binding upon third parties, such as banks, business partners, or other “agents, servants, employees, or attorneys” of the party seeking the temporary injunction.  For the temporary injunction to be valid against third parties, the injunction must comply as the requirements for injunctions in civil cases pursuant to Tex. R. Civ. Proc. 680 et al.  For example, the injunction must require an adequate bond (or waive the bond requirement) and state the date for the trial.  See Lancaster v. Lancaster 291 S.W.2d 303 (Tex. 1956).  See also Harmon v. Schoelpple, 730 S.W.2d 376 (Tex. App. – Houston [14th Dist.] 1987, no writ.

Defending Temporary Injunction Not A Waiver of Jurisdiction Defense

Because of the nature and speed of which these hearings can be held, Texas law does not force a party to waive any jurisdictional or defenses to venue by filing responsive documents with the court or appearing and defending a hearing on a temporary injunction.  Defending or appearing at a hearing on a temporary injunction is not considered a “general appearance” by the Courts.  Thus, if you believe the Court does not have jurisdiction over you or some aspect of the case, you should seriously consider making an appearance at the hearing – telephonically or otherwise.  See Valsangiacomo v. Americana Juice Imp., Inc., 35 S.W.3d 201(Tex. App. – Corpus Christi 2000, no pet).

What happens if a temporary injunction is granted in your absence?

Normally, the courts can enter a default judgment in your absence.  However, a party seeking the temporary injunction is not entitled to a default judgment and is still required to put on evidence sufficient to justify the temporary injunction.  See Millwrights Local Un. No. 2484 v. Rust Eng’g Co., 433 S.W.2d 683 (Tex. 1968). Thus, if you find out a temporary injunction was issued in your absence, you should discuss this with your attorney and there are certain steps that may be taken to set the injunction aside, modify it, or have it dissolved altogether.  On the other hand, make sure if the responding party does not appear that you have the evidence necessary to convince the court that the temporary injunction should be granted.

Not Effective Until Signed by Judge

Parties can, of course, always reach agreement on temporary injunctions and other aspects to their case and avoid the Court.  However, whether agreement is reached by the parties or a Judge decided the issue, a temporary injunction is not effective, until it is reduced to writing and actually signed by the Judge.  Just because the parties reach an agreement in writing or a Judge has “said so” by rending the Order orally from the bench, it is not enforceable by contempt until signed by the Judge.

What if the circumstances have changed?

The law allows a party to seek to modify the temporary injunction based on “changed circumstances”, meaning that the circumstances have changed altering the status quo since the temporary injunction was granted by the Court which now makes the original Order unnecessary or improper.  See Universal Health Servs v. Thompson, 24 S.W.2d 570 (Tex. App. – Austin 2000, no pet.)

A party can also seek to dissolve the temporary injunction because the original orders is “void” by law or the court committed “fundamental error” in rendering the Order originally.  “Void”, meaning that the order did not meet the statutory requirements.  “Fundamental error”, meaning the court did not have proper jurisdiction or the public interest is directly and adversely affected.

As you might imagine, challenging the temporary injunction, after the fact, can be very difficult and costly.  It’s always best to be at the hearing if you can.  The Courts understand that things are happening fast and they are making decisions on minimal information available to the parties and their attorneys at the time.   Your appearance and testimony could make the difference.

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