Opinion issued April 9, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00104-CV

———————————

WHITE LION HOLDINGS, L.L.C., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 98th District Court

Travis County, Texas

Trial Court Case No. D-1-GV-13-001068

MEMORANDUM OPINION

The trial court entered summary judgment for the State of Texas that White 

Lion Holdings, L.L.C. violated the terms of a compliance plan issued by the Texas 

Commission on Environmental Quality (TCEQ). White Lion appeals, arguing in 

two issues that the trial court improperly denied its motion for continuance and that 
2

the summary judgment evidence raised questions of material fact sufficient to 

prevent summary judgment. We affirm.

Background

In 2006, the State initiated this lawsuit, alleging that White Lion violated a 

waste-management compliance plan issued by TCEQ. The plan and a 

contemporaneously-issued permit govern the monitoring, treatment, and 

management of surface wastewater impoundments and a plume of contaminated 

groundwater at a facility now owned by White Lion and formerly used for pipe 

manufacturing in Rosenberg, Texas. During its operational life, the facility 

generated hazardous wastewater that was treated on-site in a system that included 

five surface impoundments. The prior owner of the facility, Vision Metals, 

discovered that the impoundments were sources of groundwater contamination, 

including elevated concentrations of cadmium, cobalt, lead, barium, chromium, 

nickel, silver, zinc, iron, sulfate, and acidic compounds.

In 1988, the TCEQ’s predecessor, the Texas Natural Resources 

Conservation Commission, issued Hazardous Waste Permit 50129-001 to Vision 

Metals to govern the management, closure, and long-term care of the wastewater 

impoundments. Contemporaneously, it issued to Vision Metals Compliance Plan

50129. The compliance plan has been modified several times since then.
3

White Lion acquired the facility in a bankruptcy sale in April 2004. At the 

same sale, various third parties purchased machinery and equipment at the 

property. According to White Lion, some of those third parties damaged the 

facility while removing their property in the period from April 2004 through 

August of that year. White Lion estimated the costs of repairs to exceed $1.4 

million and initiated lawsuits to recover damages from the third parties.

Meanwhile, the existing permit and compliance plan were transferred to 

White Lion. White Lion, however, did not provide the State with a required 

“financial assurance” mechanism, such as a bond or irrevocable letter of credit, 

guaranteeing its performance of its obligations under the permit and compliance 

plan. It did, however, request an extension of time to provide such assurance. 

White Lion also discussed with the United States Environmental Protection 

Agency switching the site to a “plume management approach,” which would 

simplify management of the site, but the EPA told White Lion that such an 

approach was not feasible.

TCEQ gave White Lion an extension of time to address outstanding 

compliance issues and submit an amendment to the compliance plan, but did not 

extend the time for White Lion to provide financial assurance. White Lion never 

submitted any application to amend the compliance plan and never provided any 

financial assurance.
4

In 2006, the State sued White Lion for violations of the compliance plan,

seeking civil penalties under the Water Code, unpaid hazardous waste facility fees, 

an injunction to secure White Lion’s performance of its duties under the 

compliance plan, and attorney’s fees. The case was set for trial in 2008, continued, 

set again in 2011, and continued again. In August 2013, the State filed a motion 

for summary judgment. White Lion responded, arguing in part that full 

compliance with the plan was impossible, that it had complied to the extent 

possible, and that injunctive relief was improper in the absence of a showing of a 

risk of irreparable injury. White Lion also moved for a continuance to obtain an 

expert opinion on the costs and feasibility of repairs to the site.

The trial court held a hearing at which it denied White Lion’s motion for 

continuance and then granted the State’s motion for summary judgment. It entered 

judgment that the State recover from White Lion (1) civil penalties of $325,600, 

(2) unpaid hazardous waste facility fees of $129,464.15, (3) pre-judgment interest 

on the unpaid hazardous waste facility fees, (4) attorney’s fees, (5) costs of court, 

and (6) post-judgment interest.1

 It also enjoined White Lion as follows: “White 

 1 The original judgment incorrectly stated, under the heading “Post-Judgment 

Interest,” that “[t]he State shall recover pre-judgment interest on all amounts 

awarded in this judgment at the annual rate of 5.00%.” On the State’s motion, the 

trial court entered judgment nunc pro tunc correcting “pre-judgment” in that 

section to “post-judgment” and making other clerical corrections.
5

Lion shall [immediately] comply with each limitation, requirement, and condition 

of the Compliance Plan.”

In two issues, White Lion appeals, arguing, first, that the trial court erred in 

denying White Lion’s motion for continuance and, second, that the trial court 

improperly granted summary judgment because White Lion raised questions of 

material fact.2

Motion for Continuance

In its first issue, White Lion argues that the trial court erred in denying 

White Lion’s motion for continuance. White Lion requested a continuance on two 

occasions. First, in its response to the State’s motion for summary judgment, it 

requested “that any hearing on [the motion] be reset for at least 90 days to give 

[White Lion] time to consult with experts to determine what remedial action is 

feasible.” In that response, it admitted that the facility’s mitigation and monitoring 

systems had no electrical power and were not operational, arguing that 

“[c]ompliance with the [Compliance] Plan has been rendered impractical and

commercially and economically [i]nfeasible by damages to the facility by third 

parties.” White Lion then filed a motion for continuance, asking “that the court 

 2 On January 7, 2014, the Texas Supreme Court ordered this appeal transferred from 

the Court of Appeals for the Third District of Texas. See TEX. GOV’T CODE ANN.

§ 73.001 (West 2013) (authorizing transfer of cases). We are unaware of any 

conflict between the precedent of the Court of Appeals of the Third District and 

that of this Court on any relevant issues. See TEX. R. APP. P. 41.3.
6

reset the hearing [on] the State’s [motion for summary judgment] for 90 days . . . to 

give [White Lion] time to confer with experts to determine the cost and feasibility 

of restoring the existing remedial system and/or modifying the remedial system.” 

According to White Lion, it “want[ed] to resolve this matter but need[ed] a 

reasonable time to evaluate the situation.” In the motion, it acknowledged that it 

needed “an extension to comply with TCEQ’s requests” and that, as of August 

2013, White Lion “need[ed] to quickly come into full compliance with the existing 

[compliance] plan.” The trial court denied the motion for continuance at the start 

of the hearing on the motion for summary judgment.

A. Standard of review

We review a trial court’s ruling denying a motion for continuance for an 

abuse of discretion. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 

800 (Tex. 2002); Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex. App.—Houston 

[14th Dist.] 2002, pet. denied). A trial court abuses its discretion when it reaches a 

decision so arbitrary and unreasonable as to amount to a clear and prejudicial error 

of law. Marchand, 83 S.W.3d at 800. The trial court may order a continuance of a 

summary judgment hearing if it appears “from the affidavits of a party opposing 

the motion that he cannot for reasons stated present by affidavit facts essential to 

justify his opposition.” TEX. R. CIV. P. 166a(g). In a first motion for continuance 

based on the ground that testimony is needed, the affidavit supporting the motion 
7

must (1) show that the testimony is material and (2) state that due diligence has 

been used to procure the testimony, describing the diligence used and why it failed, 

if known. TEX. R. CIV. P. 252. In determining whether there has been an abuse of 

discretion, we view the evidence in the light most favorable to the trial court and 

indulge every presumption in favor of the judgment. Hatteberg v. Hatteberg, 933 

S.W.2d 522, 526 (Tex. App.—Houston [1st Dist.] 1994, no writ) (citing Parks v. 

U.S. Home, 652 S.W.2d 479, 485 (Tex. App.—Houston [1st Dist.] 1983, writ 

dism’d)).

B. The trial court did not abuse its discretion

White Lion has not shown that the trial court abused its discretion by 

denying the requested continuance. White Lion acquired the property in April 

2004. TCEQ transferred the then-existing permit and compliance plan to White 

Lion and issued a revised permit and compliance plan identifying White Lion as 

the permittee and property owner in July 2004. The State initiated this suit in April

2006. White Lion thus had possession of the property for over nine years and 

notice of the State’s claims for more than seven years before the State filed its 

motion for summary judgment in August 2013. But it admits that it made no 

attempt to retain an environmental consultant during that period of over nine years, 

waiting until just two weeks before the State filed its motion for summary 

judgment to begin its search. White Lion makes no attempt in either its motion for 
8

continuance or its appellate brief to explain why it could not have retained an 

expert and obtained a report before that time.

Further, White Lion did not articulate in its motion for continuance why it 

needed an expert’s opinion before the motion for summary judgment hearing. It 

stated only that it wanted “time to confer with experts to determine the cost and 

feasibility of restoring the existing remedial system and/or modifying the remedial 

system.” But those were not issues before the trial court when it considered the 

motion for summary judgment. That motion addressed only whether White Lion 

had complied with the compliance plan and governing law and, if not, what civil 

penalties, unpaid fees, and injunctive relief should be assessed against it. White 

Lion’s evidence, if obtained, would have pertained to the cost of remediation, not 

White Lion’s liability or the calculation of penalties or fees for its past 

noncompliance. Indeed, White Lion made no attempt to connect the expert 

opinions that it sought to any of the claims on which the State obtained summary 

judgment.

We also note that the affidavit supporting the motion for continuance did 

not describe the evidence that White Lion sought, show that the evidence is 

material, state that due diligence has been used to procure the evidence, or describe 

the diligence and why it failed, if known. TEX. R. CIV. P. 252.
9

Because White Lion failed to demonstrate that it needed a continuance to 

obtain evidence essential to its defense, we hold that the trial court did not abuse its 

discretion in denying the motion for continuance. Accordingly, we overrule White 

Lion’s first issue.

Motion for Summary Judgment

In its second issue, White Lion argues that the trial court erred in granting 

the State’s motion for summary judgment. White Lion contends that it 

demonstrated the existence of genuine issues of material fact in five categories: 

(1) whether its compliance was excused under the compliance plan’s force majeure 

clause; (2) whether the State “misrepresented” to the trial court the financial 

assurance requirements to which White Lion is subject; (3) whether the hazardous 

waste permit fees awarded in the judgment were “legally valid”; (4) whether the 

State provided sufficient evidence to obtain injunctive relief; and (5) whether the 

State improperly sought judgment as to lands owned by White Lion but not subject 

to the permit or compliance plan. We will address each argument in turn.

A. Standard of review

We review a trial court’s grant of summary judgment de novo. Mann 

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 

2009). Rule of Civil Procedure 166a(c) provides that a movant is entitled to 

summary judgment if the summary judgment evidence establishes that “there is no 
10

genuine issue of material fact and the moving party is entitled to judgment as a 

matter of law on the issues expressly set out in the motion or in an answer or any 

other response.” TEX. R. CIV. P. 166a(c); Am. Tobacco Co., Inc. v. Grinnell, 951 

S.W.2d 420, 425 (Tex. 1997). “Issues not expressly presented to the trial court by 

written motion, answer or other response shall not be considered on appeal as 

grounds for reversal.” TEX. R. CIV. P. 166(c).

B. White Lion’s noncompliance was not excused

White Lion first argues that its failure to comply with the compliance plan 

was excused under the plan’s force majeure clause, which provides that “noncompliance with one or more of the provisions of this Compliance Plan may be 

justified only to the extent and for the duration that non-compliance is caused by a 

‘Force Majeure’ event . . . .” The compliance plan defines “Force Majeure” as “an 

event that is caused by an Act of God, labor strike, or work stoppage, or other 

circumstance beyond the Permittee’s control that could not have been prevented by 

due diligence, and that makes substantial compliance with the applicable provision 

or provisions of this Compliance Plan impossible.”

According to White Lion, the evidence that it submitted in response to the 

State’s motion for summary judgment raised a fact issue as to whether the force 

majeure clause applies due to actions taken by third parties that damaged the 

facility. When it purchased the facility, other buyers purchased equipment located 
11

at the facility, and the bankruptcy court required it to give those buyers access to 

the facility to remove the machinery and equipment that they had purchased. 

According to White Lion, some of those buyers caused significant damage to the 

property, resulting in the virtual destruction of the electrical system and 

disconnection of all electrical power. It estimates that repairing the electrical 

system, which is necessary to operate corrective equipment, will cost at least 

$500,000.3

 White Lion has sought to recover damages from certain of the 

equipment buyers and their contractors, with varying success. It argues that, 

without such recoveries, the damages caused by these third parties made its 

“compliance with the Compliance Plan . . . a physical impossibility when it 

acquired the Property.” It also argues that compliance was “impractical and 

commercially and economically infeasible.” Thus, according to White Lion, there 

is a fact issue regarding whether its noncompliance was excused.

The State argues that White Lion did not preserve this argument for appeal 

because it did not mention the force majeure clause or the concept of force majeure 

in its response to the motion for summary judgment. The State is correct. White 

Lion has waived its contractual force majeure argument on appeal. See TEX. R.

CIV. P. 166(c); TEX. R. APP. P. 33.1(a). But White Lion’s response argued that 

 3 In its response to the State’s motion for summary judgment, White Lion cited to 

partial deposition transcripts as evidence for this estimate. Those excerpts are not 

in the record.
12

compliance was “rendered impractical and commercially and economically 

[i]nfeasible by damages to the facility by third parties.” It has therefore preserved 

a common-law excuse-by-impossibility argument.4

 

White Lion did not introduce any evidence that it could not control, mitigate, 

or, after the fact, remediate the actions of third parties at the site, even though it 

acknowledges that such actions ceased by August 2004, more than a decade before 

the trial court entered summary judgment. While it attached to its response to the 

motion for summary judgment pleadings from various lawsuits that it has filed 

against third parties, none of those pleadings was verified or sworn. At most, those 

documents demonstrate the nature of White Lion’s claims against those parties. 

They do not demonstrate that the claims are true, much less that the cost of 

repairing the damage caused by third parties rendered compliance with the 

compliance plan impossible at any point in time. Nor did White Lion demonstrate 

that it was unable to pay the costs of the necessary repairs.

We hold that White Lion failed to raise a fact issue with respect to whether 

its noncompliance with the compliance plan was excused.

 4 The State argues that no such excuse is possible because “White Lion’s defenses 

are limited to those set forth in the Compliance Plan and the Texas Water Code.” 

We need not address this argument because, even assuming that the economic 

impossibility defense is available, White Lion has failed to demonstrate that a fact 

issue exists regarding that defense.
13

C. White Lion admitted that it did not meet its financial assurance 

requirements

White Lion next contends that the State “misrepresented” facts to the trial 

court, specifically that (1) White Lion was required to maintain $574,000 in 

“financial assurance,” guaranteeing its performance of its obligations; (2) White 

Lion never provided any financial assurance to the State; and (3) White Lion was 

required to maintain financial assurance in the amount set by the original 1988 

compliance plan, even though the costs of remaining post-closure work at the 

facility were much lower.

As a threshold matter, we note that the State adduced evidence that White 

Lion violated the compliance plan in numerous ways, not merely by failing to 

provide financial assurance. “When the trial court does not specify the basis for its 

summary judgment, the appealing party must show it is error to base it on any 

ground asserted in the motion.” Star–Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 

(Tex. 1995). For the reasons below, we hold that the evidence supports the State’s 

arguments in its motion for summary judgment regarding White Lion’s financial 

assurance obligations.

TCEQ is required to establish a compliance plan governing “compliance 

monitoring and corrective action for facilities that store, process, or dispose of 

hazardous waste in surface impoundments, waste piles, land treatment units, or 

landfills . . . .” 30 TEX. ADMIN. CODE ANN. § 305.401(a). The owner or operator 
14

of an affected site must perform the duties set forth in the compliance plan. Id.

§ 335.166(2). He also must establish and maintain financial assurance for the 

corrective actions to be taken. Id. § 335.167(d).

The State sent a request for admission under Rule of Civil Procedure 198.1, 

asking White Lion to admit that the compliance plan “requires White Lion to 

provide at least $574,000 in financial assurance for the Facility.” White Lion 

admitted this to be true. White Lion also admitted, in response to another request 

for admission, that it “has never obtained financial assurance for the Facility.” 

White Lion argues, however, that the permit required a lesser amount of financial 

assurance than that required by the compliance plan, the permit is the controlling 

document, and the different amounts therefore raise a fact issue. But the 

Administrative Code requires White Lion to comply with both the permit and the 

compliance plan. E.g., 30 TEX. ADMIN. CODE ANN. §§ 335.166–.167. While the 

permit incorporates the compliance plan as part of its terms, the plan is enforceable 

in its own right. Id. White Lion admits that the compliance plan required 

$574,000 in financial assurance, a requirement that it had not met.

White Lion also argues that the State “misrepresented” to the trial court that 

the amount of financial assurance required by the compliance plan was $574,000, 

the same amount set in the first compliance plan in 1988, when the actual 

requirement is lower. It reasons that the amount required by the Administrative 
15

Code is “an amount no less than the current cost estimate” for closure, post 

closure, or corrective action. 30 TEX. ADMIN. CODE § 37.121. According to White 

Lion, the “current cost estimate” is lower than the original $574,000 figure due to 

changes at the facility over the years. In support, it relies on an EPA report from 

2003 that purportedly concluded, as White Lion summarizes it, that “there was no 

imminent endangerment to public health and the environment.”

But the report in question does not support such a conclusion. Rather, it 

indicated that contamination from the facility was “high unlikely” to impact “the 

drinking and agricultural water supply,” but also concluded that “the plume may 

not be stable” and that the risks of additional exposures “is dependent on actions 

taken to mitigate the plume,” including maintenance of the monitoring and 

recovery wells on-site. The undisputed evidence shows that each such well has 

been closed, destroyed, or abandoned. It also shows that the State correctly 

represented to the trial court the amount of financial assurance required by the 

compliance plan now in effect: $574,000. Moreover, contrary to White Lion’s 

arguments, the “current cost estimate” is not simply the owner or operator’s 

estimate of the costs associated with a waste site. Rather, that term is defined by 

statute as “[t]he most recent estimates prepared in accordance with commission 

requirements for the purpose of demonstrating financial assurance for closure, post 

closure, or corrective action.” 30 TEX. ADMIN. CODE § 37.11(6). The only manner 
16

in which either the amount of financial assurance required or the current cost 

estimate could be decreased is upon a request by White Lion, subject to approval 

by TCEQ. Id. § 37.151. White Lion has never made such a request.

The record thus conclusively shows that the compliance plan requires

financial assurance of $574,000 and that White Lion “has never obtained financial 

assurance for the Facility.” 

White Lion also argues that it raised an issue of material fact regarding the 

calculation of civil penalties for its violation of the financial assurance 

requirements of the compliance plan. Specifically, it argues that Vision Metals 

provided financial assurance, that it assigned that financial assurance to White 

Lion, and that the financial assurance remained in effect until January 11, 2005. 

Thus, it contends that it raised a fact issue as to whether civil penalties could apply 

for any date before January 12, 2005.

We disagree. The evidence shows that Zurich North America, through its 

agent, Steadfast Insurance Company, issued an insurance policy to Vision Metals 

to satisfy the latter’s financial assurance requirements. In April 2004, Vision 

Metals asked Zurich to assign its rights and obligations under that policy to White 

Lion. The record contains no evidence, however, that Zurich or Steadfast accepted 
17

this assignment.

5 Critically, it also contains no evidence that anyone provided 

evidence of such an assignment or attempted assignment to the State. Rather, the 

evidence shows only that White Lion informed the State in August 2004 that “[t]he 

financial assurance provided by [Vision Metals] will remain in effect with Zurich 

North America Insurance (Policy No. PLC3572779-04) until January 11, 2005.” 

TCEQ responded on September 20, 2004, as follows:

We understand that financial assurance for this permit and compliance 

plan currently is in effect through an insurance policy issued by 

Zurich North America Insurance to the previous facility owner, 

Visions Metals, Inc. However, as we stated in our August 27, 2004 

letter to you, White Lion, as the new owner and operator, is required 

to establish financial assurance with[in] six months of the ownership 

change. To date, this has not been done.

There is thus no evidence that White Lion actually established financial 

assurance—whether in the form of the Zurich policy or otherwise—and provided it 

to the State. Rather, White Lion expressly admitted that it never obtained any 

financial assurance for the facility. 

The evidence conclusively established that White Lion assumed 

responsibility under the compliance plan when it became the transferee of that plan 

on July 23, 2004. The evidence also conclusively established that White Lion 

never submitted any required water samples or reports as required by the plan and

 5 The policy provides that it “may not be assigned to a successor owner or operator 

of any ‘waste facility’ without the consent of [Steadfast] which shall not be 

unreasonably withheld, delayed or denied.”
18

failed to prevent the destruction, removal, or abandonment of the recovery and 

monitoring wells or to repair or replace the wells after they were destroyed, 

removed, or abandoned. Thus, White Lion was in continuous violation of the plan 

from that date through the date of the summary-judgment hearing on July 29, 2013, 

a period of 3,294 days. See discussion in Section E, infra. The evidence also 

conclusively showed that White Lion’s deadline for establishing financial 

assurance was October 6, 2004. It had not established financial assurance by the 

summary-judgment hearing, 3,218 days later, resulting in another violation of the 

plan. Under the Water Code, the civil penalty for violations of the compliance 

plan shall be not less than $50 nor more than $25,000 for each violation, and 

“[e]ach day of a continuing violation is a separate violation.” TEX. WATER CODE 

ANN. § 7.102 (West 2008). The State stipulated to the minimum penalty for these 

violations of $50 each. The trial court thus awarded $50 per violation for a total of 

6,512 violations, or $325,600. The evidence raised no question as to the dates for 

which the penalties should be imposed, and the trial court therefore did not err in 

its imposition of penalties.

D. The trial court properly awarded the State unpaid hazardous waste 

facility fees

According to White Lion, it never received a bill from TCEQ for permit fees 

for the years 2009 through 2013, nor did TCEQ make a demand for such fees until 

the State filed its motion for summary judgment. White Lion also argues that the 
19

permit expired in 2009. It concludes that these facts raise “fact questions as to 

whether these hazardous waste permit fees are legally valid, and in particular any 

fees accruing after the Permit expired in 2009.”

White Lion does not attempt to explain why its obligation to pay hazardous 

waste facility permit fees, a statutory obligation imposed by Section 361.135 of the 

Health and Safety Code, could be contingent on receipt of an invoice or bill of any 

kind. See TEX. HEALTH & SAFETY CODE ANN. § 361.135 (West 2010). It did not 

raise this argument in response to the motion for summary judgment, but asserted 

it for the first time in its motion for new trial. Because White Lion did not timely 

make this argument to the trial court in opposing the motion for summary 

judgment, it has waived it. TEX. R. CIV. P. 166(c); see also TEX. R. APP. P. 33.1(a).

White Lion also made no argument related to the permit’s 2009 expiration in 

response to the motion for summary judgment. Rather, it raises those arguments 

for the first time on appeal. We therefore hold that it has waived any argument 

based on the expiration of the permit.

E. The trial court did not abuse its discretion in issuing a permanent 

injunction

White Lion contends that the trial court abused its discretion in entering a 

permanent injunction because it failed to consider all of the summary judgment 

evidence. Although White Lion does not specify which evidence it alleges that the 

trial court ignored, the essence of its argument is that it “never violated or 
20

threatened to violate the Permit or Compliance Plan and, in fact . . . did everything 

in its power to comply, despite other circumstances beyond [its] control that could 

not be prevented by due diligence.” It also argues that the EPA and a contractor 

hired by White Lion both determined that the contamination on the property is 

decreasing; therefore, according to White Lion, the trial court should not have 

granted an injunction.

Texas Water Code Section 7.032 gives TCEQ the right to enforce its rules 

and permits by seeking an “injunction or other appropriate remedy.” TEX. WATER 

CODE ANN. § 7.032(a) (West 2008). When a statute provides for injunctive relief, 

“the statute’s express language supersedes the common law injunctive relief 

elements such as imminent harm or irreparable injury and lack of an adequate 

remedy at law.” West v. State, 212 S.W.3d 513 (Tex. App.—Austin 2006, no pet.); 

see also Rio Grande Oil Co. v. State, 539 S.W.2d 917, 921 (Tex. Civ. App.—

Houston [1st Dist.] 1976, writ ref’d n.r.e.) (State need only meet statutory 

provisions of Securities Act and is not required to otherwise show probable injury); 

Gulf Holding Corp. v. Brazoria Cnty., 497 S.W.2d 614, 619 (Tex. Civ. App.—

Houston [14th Dist.] 1973, writ ref’d n.r.e.) (State need not prove irreparable injury 

to be entitled to injunction under Open Beach Act). Thus, “[w]hen it is determined 

that a statute is being violated, it is the province and duty of the district court to 
21

restrain it, and the doctrine of balancing of equities does not apply.” Gulf Holding 

Corp., 497 S.W.2d at 619.

The record demonstrates conclusively that White Lion never fully complied 

with the compliance plan. In addition to its failure to provide the required financial 

assurance, the evidence demonstrates conclusively other violations. For example, 

the compliance plan required White Lion to install and maintain a groundwater 

monitoring and “corrective action” system with specific components, including 

various types of wells; sample, recover, and treat groundwater; and file various 

reports regarding White Lion’s compliance with the plan and the status of the site. 

But the affidavit of TCEQ employee Elijah Gandee shows that, by July 2013, the 

“corrective action recovery and monitoring wells had been removed from the 

Property without authorization and/or had been improperly abandoned.” The 

groundwater recovery and monitoring system had also been destroyed or removed, 

the wells had been plugged and abandoned without required approvals, and one 

well head had been cut off, leaving an open hole. White Lion failed to submit any 

of the reports required by the plan. It never took any required samples or 

maintained any required records. The evidence thus conclusively disproves that 

White Lion raised any fact issue as to whether it violated the compliance plan.

The EPA report has no bearing on White Lion’s violations of the plan. The 

“post-judgment inspection” report prepared by White Lion’s consultant was not 
22

part of the summary judgment record. Any argument based on that report is 

waived. TEX. R. CIV. P. 166(c).

We hold that the trial court did not err in entering a permanent injunction

requiring White Lion to comply with the compliance plan.

F. The summary judgment order was not overbroad

Finally, White Lion argues that the trial court erred by granting injunctive 

relief affecting land not subject to the compliance plan. This argument is based on 

a faulty premise. 

The trial court’s summary judgment order was a modified form of the 

proposed order submitted by the State. Both the proposed order and the order 

entered by the trial court included a definition of the term “Property” as including a 

total of approximately 172.19 acres. The trial court, however, struck all portions of 

the proposed order that referenced the term “Property,” other than the definition. 

The only injunctive relief that the trial court granted was to require White Lion to 

“comply with each limitation, requirement, and condition of the Compliance Plan.” 

Thus, nothing in the judgment, other than the unused definition of “Property,” 

mentions or affects land not covered by the compliance plan.

Because White Lion has failed to demonstrate that any issue of material fact 

precluded summary judgment, we hold that the trial court did not err in granting 

summary judgment to the State.
23

Conclusion

We affirm the judgment of the trial court.

Harvey Brown

Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.