Some disputes cannot wait for a trial date two years out. Money is moving, a competitor is calling your customers, a contract is about to be terminated, or an asset is about to be sold.
Emergency relief is available in those situations, and it is granted or refused on a record assembled in days. What you have on the morning of the hearing is what you have.
What a court is being asked to do
Texas practice provides three related forms of relief, and they are not interchangeable.
A temporary restraining order preserves the status quo for a short period, may in defined circumstances be obtained without notice to the other side, and is ordinarily limited in duration with the temporary-injunction hearing set when it issues. It is an emergency measure, not a decision on the merits, and it expires.
A temporary injunction holds the status quo until trial. It follows a contested evidentiary hearing with notice, and it is where the real fight happens.
A permanent injunction is relief granted at final judgment, after trial on the merits, and it is governed by a different analysis than the interim forms.
The elements that decide the interim forms. An applicant for a temporary injunction generally must show a cause of action against the defendant, a probable right to the relief sought, and a probable, imminent and irreparable injury in the interim. The word carrying the weight is irreparable: an injury that can be compensated in money, and a defendant able to pay it, ordinarily means there is an adequate remedy at law and no injunction. A great many applications fail on that single point rather than on the merits of the underlying claim.
Status quo means the last actual, peaceable, non-contested status. Not the position the applicant would prefer, and not the position that existed before the dispute began if it had already changed. Identifying it correctly determines what the order can and cannot require.
Mandatory relief is harder than prohibitory relief. An order requiring a party to do something, rather than to stop doing something, alters rather than preserves the status quo and is held to a more demanding standard. Applications that are framed as prohibitory but operate as mandatory tend to be recognized as such.
A bond is ordinarily required. Interim injunctive relief is generally conditioned on security in an amount the court sets, to protect the restrained party against a wrongful injunction. That amount can be substantial, it is argued at the hearing, and a client should know the exposure before the application is filed rather than after relief is granted.
The order itself has formal requirements. An injunction order must ordinarily set out the reasons for its issuance, state its terms specifically, and describe in reasonable detail the acts restrained — without reference to another document. Orders that recite conclusions, incorporate the petition by reference, or restrain conduct in general terms are vulnerable on appeal regardless of how strong the underlying case was. A temporary injunction that fails to set the case for trial is similarly exposed.
Where these cases are won
In the forty-eight hours before the application is filed. The affidavits, the exhibits, the proposed order, the bond position and the witness who will actually testify are prepared together, in advance. There is no version of this practice that is improvised well.
In the proposed order. The most common avoidable failure in emergency practice is handing a judge an order the judge cannot sign. The order must be specific enough that the restrained party knows exactly what is prohibited and a court could enforce it by contempt, and narrow enough that the judge is not being asked to decide the case. Drafting it is the work, not an afterthought.
On the evidence of harm, not the assertion of it. “Irreparable” has to be shown with facts — loss of customer goodwill that cannot be reconstructed, disclosure that cannot be undone, dissipation of an asset that will not be recoverable, a business that will not exist by the trial date. Testimony that the applicant will suffer harm, without more, is what unsuccessful applications sound like.
On speed, which cuts both ways. Delay is the first argument a respondent makes: an applicant who waited three months to file an emergency application has already answered the question of whether the emergency is real. Conversely, where we defend these applications, the timeline is frequently the strongest point available.
On the hearing record, because the appeal is immediate. Orders granting or denying a temporary injunction are subject to accelerated interlocutory appeal. That makes a two-hour evidentiary hearing the entire record of an appellate proceeding. We try those hearings with that in mind, because we are the ones who will argue the appeal. See Appeals & Mandamus.
On what happens after the order issues. An injunction is only worth what it is enforced to be worth. Violation is punishable by contempt, and a contempt proceeding is its own trial with its own requirements — the order must have been clear enough to be obeyed, the violation must be proved, and the relief sought must fit. From the other direction, a party restrained by an order that should not have issued has routes to attack it: a motion to dissolve or modify on changed circumstances, a challenge to the sufficiency of the bond, and the accelerated appeal. We handle both sides of that, and the quality of the original order usually determines which way it goes.
On knowing when not to file. An emergency application that is denied does more than waste the fee. It tells the other side what you have, hands them a ruling to quote for the rest of the case, and can expose the client on the bond. We will say when the honest assessment is that the harm is compensable and the application should not be made.
What we do
We apply for and defend against temporary restraining orders and temporary injunctions, and we try permanent injunction claims. The work arises most often in departing-employee and trade-secret disputes, covenant enforcement, partnership and shareholder disputes where assets are moving, contract terminations, real-property and restrictive-covenant disputes, and disputes over control of an entity.
We also handle the related orders that preserve a dispute while it is litigated — receiverships, accountings, orders freezing or preserving specific assets that are the subject of the suit, post-judgment turnover, and expedited discovery in aid of an application — together with the accelerated appeals that follow. One caution we give clients at the outset: Texas does not allow a court to freeze a defendant’s assets in general just to hold them for a possible money judgment. Reaching assets before judgment takes a claim to specific property, a statute such as the fraudulent-transfer act, or a receivership; a blanket “freeze everything” order is the kind courts routinely refuse.
The civil practice is led by Shawn A. Johnson, a civil trial and appellate lawyer, licensed CPA, and former law clerk at the Supreme Court of Texas. We try and argue our own cases.
Representative results
Injunction barring a competitor formed by former officers from contacting customers
Power Research, Inc. v. Newport Fuel Solutions, Inc., No. CV18-02401, Second Judicial District Court, Washoe County, Nevada (Mar. 11, 2019).
Injunction ordering a political party to place a judge’s name on the primary ballot
Obtained the injunction and defeated challenges in the Fourteenth Court of Appeals and the Supreme Court of Texas.
Powell v. Schechter, No. 2019-88409, 234th District Court, Harris County, Texas (Jan. 8, 2020).
Questions we are asked
How fast can we get into court?
Sometimes the same day, depending on the county, the judge’s availability and whether relief without notice is justified. The constraint is almost never the court’s calendar — it is how quickly the supporting evidence can be assembled in admissible form.
Can we get an order before they know we have filed?
Only in limited circumstances, and the requirements are specific: it must clearly appear from verified facts — an affidavit or a verified petition — that immediate and irreparable injury will result before the other side can be heard, and the order itself must define that injury, state why it is irreparable, and state why it issued without notice. An order granted this way is short-lived by rule and comes with the injunction hearing already set. Courts scrutinize these applications, and an order obtained without notice that should not have been is a liability rather than an advantage.
What will the bond cost?
That depends on what the court believes the restrained party stands to lose if the injunction turns out to have been wrongly granted. It is argued at the hearing and it should be estimated before filing, because it is occasionally the fact that decides whether to seek relief at all.
They got a TRO against us. What happens now?
It is temporary and it expires, and the hearing that follows is where the substance is decided. In the meantime, obey it — the fastest way to convert a defensible position into an indefensible one is to be found in contempt. We frequently take these cases over at exactly this point.
Can we appeal if we lose the hearing?
An order granting or denying a temporary injunction is generally subject to accelerated appeal. An order on a temporary restraining order ordinarily is not, because of its short duration. The distinction matters and it is one of the first things we assess.
Is an injunction the same as winning the case?
No, though it frequently determines what the case is worth. A ruling on a temporary injunction is not a decision on the merits and is not supposed to decide them. In practice, the party that obtains or defeats interim relief usually controls the settlement conversation from that point forward.
Results depend on the facts of each matter. Prior results do not guarantee or predict a similar outcome in any future matter.