1

In The

Court of Appeals

Ninth District of Texas at Beaumont

___________________

NO. 09-16-00073-CV

___________________

LESLIE E. BARRAS AND HISTORIC ORANGE PRESERVATION

EMPOWERMENT, INC., APPELLANTS

V.

THE CITY OF ORANGE, TEXAS, ET AL., APPELLEES

__________________________________________________________________

On Appeal from the 260th District Court

Orange County, Texas

Trial Cause No. D-160,030-C

__________________________________________________________________

MEMORANDUM OPINION

Leslie E. Barras and Historic Orange Preservation Empowerment, Inc.1

appeal from the trial court’s order denying their request seeking temporary 

injunctive relief against the City of Orange, the Mayor of Orange, the Orange City 

 1 The appellants filed a joint brief, and in the opinion, we refer to the

appellants Leslie E. Barras and Historic Orange Preservation Empowerment, Inc.

collectively as HOPE.
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Council, and the Orange City Manager.

2 According to HOPE, the trial court

abused its discretion by denying HOPE’s request to enjoin the CITY from moving 

its principal administrative offices from an area outside the area the parties 

describe as the Old Town Center, or generally downtown Orange. We conclude the 

trial court did not abuse its discretion by denying HOPE’s request for temporary 

injunctive relief; therefore, we affirm the trial court’s order.

Background

In 1996, by motion, the City of Orange approved a Comprehensive Master 

Plan, a document that the City approved as “a guide to the physical development of 

Orange[.]”3 The Plan provided that City Hall, along with other governmental 

offices, should be centralized in the Old Town Center. 

 2 The appellees filed a joint brief. In the opinion, the appellees are referred to 

collectively as the CITY.

3 The document evidencing the City’s adoption of the Comprehensive 

Master Plan is entitled “Motion.” However, there is no difference in a resolution, 

order, and motion in a court’s determination regarding the validity of a municipal 

enactment. See Hicks v. City of Houston, 524 S.W.2d 539, 544 (Tex. Civ. 

App.―Houston [1st Dist.] 1975, writ ref’d n.r.e.). In this case, it is undisputed that 

the City did not follow the procedures required to adopt the entirety of the 

Comprehensive Master Plan by ordinance, and the language in the Motion 

adopting the resolution to approve the Comprehensive Master Plan does not 

indicate that the council members voting on that resolution intended to enact the 

entire Comprehensive Master Plan as an ordinance. Article III, Section 3.11, Home 

Rule Charter for the City of Orange, Texas, available at https://www. 
3

In 2016, Orange’s City Council authorized the City to purchase a building

on 16th Street, which the City planned to remodel and then use to house City Hall 

and other City offices. The evidence from the hearing shows that 16th Street lies

outside the Old Town Center. Subsequently, HOPE sued the CITY, and alleged 

that by authorizing the relocation of the City’s offices in another area of the City, 

the CITY had failed to follow the procedures required by the City’s 

Comprehensive Master Plan and the City’s Charter to relocate the offices away 

from the Old Town Center.

In March 2016, the trial court conducted a hearing on HOPE’s request 

seeking to temporarily enjoin the CITY from moving forward with its plans to 

relocate the City’s offices. During the hearing, three witnesses testified: Jimmy 

Sims, Orange’s Mayor; Shawn Oubre, Orange’s City Manager; and Leslie E. 

Barras, an attorney who testified that she has experience with laws that govern 

historic preservation. Following the hearing, the trial court, by letter, advised the 

parties the Comprehensive Master Plan merely guided Council’s decisions 

regarding the location of the City’s offices, and indicated that the directions in the 

 

municode.com/library/tx/orange/codes/code_of_ordinances?nodeId=HORUCH

(last visited November 2, 2016).
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Plan on locating the offices in the Old Town Center were not mandatory.4

Subsequently, HOPE filed a timely interlocutory appeal in which it seeks to 

overturn the trial court’s ruling on its request for a temporary injunction. See Tex. 

Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (West Supp. 2016) (authorizing an 

interlocutory appeal from a decision on a temporary injunction). 

Standard of Review

At the outset, we note that the trial court had jurisdiction over HOPE’s claim 

that various city officials acted without any authority when Orange City Council 

authorized the City of Orange to move its administrative offices outside the Old 

Town Center.

5 See City of El Paso v. Heinrich, 284 S.W.3d 366, 371-72 (Tex. 

2009). And, we further note that the Legislature authorized appeals courts to 

 4 The trial court’s letter reflects the reasons that the trial court decided to 

deny HOPE’s request. However, on appeal, letter rulings, unlike findings that 

result from requests filed under Rule 296 of the Texas Rules of Civil Procedure, 

are not treated with the same deference. See Cherokee Water Co. v. Gregg Cty.

Appraisal Dist., 801 S.W.2d 872, 878 (Tex. 1990). In this case, the record shows 

that neither party asked the trial court to make findings to explain the reasons the 

trial court reached its ruling under Rule 296. See Tex. R. Civ. P. 296. 

5 None of the defendants filed pleas to the jurisdiction, but the City may 

challenge whether the trial court has jurisdiction over it at any time. Waco Indep. 

Sch. Dist. v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000). Therefore, because the issue 

was not raised and it has not been briefed, we do not imply by our ruling that the 

trial court possesses subject matter jurisdiction over the City of Orange with 

respect to HOPE’s ultra vires claims. Nonetheless, generally, a city is not a proper 

party to a suit when the suit is based solely on the plaintiff’s ultra vires claim. See

City of El Paso v. Heinrich, 284 S.W.3d 366, 371-72 (Tex. 2009).
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consider interlocutory appeals that challenge a trial court’s ruling on a request 

seeking temporary injunctive relief. See Tex. Civ. Prac. & Rem. Code Ann. § 

51.014(a)(4).

On appeal, appeals courts use an abuse-of-discretion standard to review 

rulings by trial courts on requests that parties have made seeking a temporary 

injunction. Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978). Under that 

standard, an appeals court can find that an abuse of discretion occurred if the 

record shows that the trial court acted in an unreasonable or arbitrary manner. See 

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). 

However, an abuse of discretion does not exist where the trial court based its 

decision on conflicting evidence. Davis, 571 S.W.2d at 862. We note that when a

trial court rules on the motion seeking temporary injunctive relief, the trial court 

has not made a final decision on any of the disputed facts. Butnaru v. Ford Motor 

Co., 84 S.W.3d 198, 204 (Tex. 2002). Instead, the question the trial court addresses

in the hearing on such requests is whether a temporary injunction is necessary “to 

preserve the status quo of the litigation’s subject matter pending a trial on the 

merits.” Id. In reviewing the trial court’s ruling resolving a request seeking a 

temporary injunction, the merits of the underlying case are not presented for 

appellate review, and our review is “strictly limited to determination of whether 
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there has been a clear abuse of discretion by the trial court in granting or denying 

the interlocutory order.” Davis, 571 S.W.2d at 861-62. Moreover, where the record 

contains some evidence that reasonably supports the trial court’s decision on the 

request, the trial court does not abuse its discretion if it has ruled on the request in 

a manner that is consistent with evidence in the record that supports its ruling. See

Butnaru, 84 S.W.3d at 211 (citing Davis, 571 S.W.2d at 862).

In deciding whether to grant or deny an application for a temporary 

injunction, trial courts must decide whether the party seeking the injunction has 

established the elements required to prevail on a request seeking temporary 

injunctive relief. Id. at 204 (citing Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 

1993)). To prevail on a claim seeking a temporary injunction, the applicant must

plead and prove: “(1) a cause of action against the defendant; (2) a probable right 

to the relief sought; and (3) a probable, imminent, and irreparable injury in the 

interim.” Id. In an appeal from the trial court’s ruling, unless the trial court’s action 

on the request for injunctive relief was so arbitrary that it exceeded the bounds of 

reasonable discretion, the reviewing court may not substitute its judgment for the 

judgment made by the trial court. Id.
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Temporary Injunction

In one issue, HOPE argues that the trial court abused its discretion when it 

refused to enjoin the CITY from relocating Orange’s City Hall and the City’s 

principal administrative offices to an area of Orange that lies outside the 

boundaries of the Old Town Center. According to HOPE, the decision the CITY 

has made to relocate Orange’s City Hall and other offices to 16th Street conflicts

with mandatory requirements that are in the City’s Comprehensive Master Plan

and Charter that they argue mandate these offices be located in the Old Town 

Center. HOPE argues that that the CITY was required to amend the City Charter to 

move the offices to 16th Street because the City Charter requires that “[n]o 

subdivision, street, park, or any public way, ground or space, public building or 

structure or public utility, whether publicly or privately owned which is in conflict 

with the comprehensive plan shall be constructed or authorized by the City.”

Article VIII, Section 8.04, Home Rule Charter for the City of Orange, Texas, supra

website note 3. Additionally, HOPE contends the trial court abused its discretion 

by failing to follow the requirements of the Comprehensive Master Plan by 

considering the Plan merely as a guide regarding where the City’s principal 

administrative offices are to be located. 
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In response to HOPE’s arguments, the CITY contends that the trial court 

properly concluded that with respect to the location of the City’s offices, the 

Comprehensive Master Plan served only to guide the decision and that the Plan, 

with respect to the location of the offices, was not mandatory. Additionally, the 

CITY contends that the Plan’s provisions addressing the location of the City’s 

offices were never adopted by ordinance, and the CITY suggests that city councils 

elected after 1996 were not prohibited by the Plan from relocating the City’s 

offices without first amending the Plan or the City Charter. 

We take judicial notice that the City of Orange is a home rule city, and that it 

derives its power from article XI, section 5 of the Texas Constitution.6 Tex. Const. 

art. XI, § 5; see Article II, Section 2.01, Home Rule Charter for the City of Orange, 

Texas, supra website note 3. We further recognize that a municipality, such as the 

City of Orange, was authorized to create and adopt a comprehensive plan that 

provided for the City’s long-term development. Tex. Loc. Gov’t Code Ann. § 

213.002 (West 2016).

 6 The City of Orange’s status as a home rule city is a legislative fact. 

Compare Emerson v. State, 880 S.W.2d 759, 765 (Tex. Crim. App. 1994) 

(“Judicial notice, both of adjudicative and legislative facts, may be taken on 

appeal.”), and Gonzales v. State, 723 S.W.2d 746 (Tex. Crim. App. 1987) (noting 

that courts may take judicial notice that home rule city has been incorporated), with 

Tex. R. Evid. 201(a) (authorizing courts to take judicial notice of adjudicative 

facts). 
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The trial court focused on the language of the Comprehensive Master Plan in 

reaching its conclusion that HOPE was not entitled to the temporary injunction that 

it was seeking to prevent the CITY from moving forward with its plan to relocate 

the City’s offices to 16th Street. The Plan provides that it is “a guide to the 

physical development of Orange[,]” and it states that it is “a tool for elected and 

appointed officials and city staff to guide decision making for growth and 

development issues.” The Plan also contains language that the Plan “serves as the

guiding document, directing the City toward the attainment of its dreams and 

desires.” We find no language in the Plan mandating that future city councils were 

required to amend the Plan before they could relocate the City’s offices to another 

area of the City. 

Although HOPE argues that the strategies described in the Plan that address 

the location of the City’s offices made leaving the offices in the Old Town Center a 

mandatory requirement of the Plan, the Plan describes the implementation 

strategies as ideas “suggested to meet the [o]bjectives” of the Plan. While some of 

the provisions found in the Comprehensive Master Plan were subsequently 

incorporated by the City into its zoning ordinances, those provisions are not at 

issue here. Additionally, the provisions in the Plan suggesting that the City’s 

offices should remain in the Old Town Center were not shown to have been 
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incorporated into the City’s ordinances during the hearing the trial court conducted 

on HOPE’s motion. 

We also address HOPE’s argument that the City’s Charter prohibits the 

CITY from relocating the City’s offices to 16th Street without first amending the 

City’s Charter. It is undisputed that the City did not amend its Charter prior to 

adopting the resolution authorizing the City’s purchase of the building on 16th 

Street. According to HOPE, section 8.04 of the City’s Charter needed to be 

amended before Orange’s City Council could adopt a resolution authorizing the 

City to move its offices to the building on 16th Street. Section 8.04 of the Charter 

provides:

No subdivision, street, park, or any public way, ground or space, 

public building or structure or public utility, whether publicly or 

privately owned which is in conflict with the comprehensive plan 

shall be constructed or authorized by the City.

Article VIII, Section 8.04, Home Rule Charter for the City of Orange, Texas, supra

website note 3.

In response to HOPE’s argument, the CITY argues that because the parts of 

the Plan relating to the location of the City’s administrative offices were never 

adopted by ordinance, the resolution passed by City Council to move its facilities 

to 16th Street is not in conflict with the Comprehensive Master Plan. According to 

the CITY, the City of Orange’s Charter provides that the City Council “shall 
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legislate by ordinance only,” and the provisions of the Plan concerning the location 

of the City’s offices were never adopted by ordinance. The CITY concludes that 

because the provisions of the Plan that are at issue in this appeal were never 

adopted by ordinance, that part of the Plan imposed no legal obligation on later 

Orange city councils. Article III, Section 3.11, Home Rule Charter for the City of 

Orange, Texas, supra website note 3.

It is well settled that a resolution is not an ordinance.7 See Hutchins v. 

Prasifka, 450 S.W.2d 829, 832 (Tex. 1970) (explaining that a resolution is not a 

law but is used to express an opinion and cannot be used as a procedure to create 

laws when the legislative body has been mandated to legislate in a different form). 

In reviewing the record, we agree with the CITY that evidence admitted in the 

hearing failed to establish that the Comprehensive Master Plan provisions 

addressing the location of the City’s offices were ever adopted by ordinance.

Therefore, the trial court could reasonably view section 8.04 of the City’s Charter 

as limited to those sections of the Plan that the City subsequently adopted through 

 7 We note that some of the provisions of the Plan that are not at issue in the 

appeal are referred to in the City Zoning Ordinances, but none of the City’s 

ordinances reference Section IV of the Plan, the part of the Plan that covers the Old 

Town Center.
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ordinances that are not at issue here. Article III, Section 3.11, Home Rule Charter 

for the City of Orange, Texas, supra website note 3.

In the appeal, HOPE does not dispute the CITY’s assertion that the 

Comprehensive Master Plan was adopted by resolution and not by ordinance. The 

record that was before the trial court also shows that the City adopted some of the 

provisions found in the Plan into its ordinances, although not the provisions that 

are at issue in this appeal. See City of Orange Code of Ordinances § 12.102.

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Therefore, the trial court’s view that section 8.04 of the City’s Charter addressed 

only those sections of the Comprehensive Master Plan that were subsequently 

adopted by the City by ordinance9 was not unreasonable.

We hold that the trial court’s construction of the Comprehensive Master Plan 

regarding the relocation of the City’s principal administrative offices was not 

unreasonable. See Fernandez v. City of San Antonio, 158 S.W.3d 532, 534-35 

(Tex. App.―San Antonio 2004, no pet.) (concluding that the language used in a 

neighborhood plan was advisory). We further conclude that the trial court’s 

 8 Available at https://www.municode.com/library/tx/orange/codes/code_of_ 

ordinances?nodeId=COOR_CH12PLZO (last visited November 2, 2016).

9 Various zoning provisions in the Comprehensive Master Plan were adopted 

by ordinance, but in this case, the parties’ dispute does not concern any zoning 

laws. See City of Orange Code of Ordinances §§ 12.101, 12.102, 12.304, 12.401, 

12.402, available at https://www.municode.com/library/tx/orange/codes/code_of_

ordinances?nodeId=COOR_CH12PLZO (last visited November 2, 2016).
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decision that City Council was not required to amend the City Charter in order to 

lawfully pass the resolution that authorized the City to relocate its offices to 16th 

Street was also not shown in the hearing to have been unreasonable. Therefore, we 

hold that the trial court’s decision denying HOPE’s request for injunctive relief did 

not constitute an abuse of discretion. See Butnaru, 84 S.W.3d at 204. We overrule 

HOPE’s issue arguing the trial court abused its discretion, and we affirm the trial 

court’s order.

AFFIRMED.

______________________________

HOLLIS HORTON

Justice

Submitted on June 1, 2016

Opinion Delivered November 17, 2016

Before McKeithen, C.J., Horton and Johnson, JJ.