Affirmed and Memorandum Opinion filed January 10, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00832-CV

NABILCO INC. and D. HOUSTON, INC. D/B/A TREASURES, Appellants

V.

THE STATE OF TEXAS and THE CITY OF HOUSTON, Appellees

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2012-28683

M E M O R A N D U M O P I N I O N

This is an interlocutory appeal from a temporary injunction that was sought 

by the State and the City of Houston to abate a common nuisance at Treasures, a 

gentlemen’s club, pursuant to Chapter 125 of the Texas Civil Practice and 

Remedies Code. See Tex. Civ. Prac. & Rem. Code §§ 125.001—.047. Appellants 

raise five issues challenging the propriety of the temporary injunction order and 

some of the restrictions imposed therein. We affirm.
2

PROCEDURAL BACKGROUND

Appellees filed suit in May 2012 alleging that the business operated by D. 

Houston, Inc. d/b/a Treasures (Treasures),

1

and its landlord and owner of the 

property, Nabilco Inc., maintained a nuisance by tolerating and failing to take 

reasonable steps to abate drug activity and prostitution occurring on the property. 

See Tex. Civ. Prac. & Rem. Code §§ 125.0015(a)(4); (a)(6). On September 10, 

2012, at the conclusion of a four-day evidentiary hearing, the trial court made its 

oral ruling from the bench. The trial court found that Treasures (1) was habitually 

used for purposes of prostitution and the sale and/or possession of drugs; (2) 

knowingly tolerated this activity; and (3) failed to make reasonable efforts to abate 

the activity. Appellants immediately filed a notice of appeal, and the appeal was 

assigned to this court.

On September 11, 2012, Treasures filed a notice of removal of the case to 

the United States District Court for the Southern District of Texas. Although 

Treasures advised this court of the removal on September 18, 2012, the notice 

required by statute was not filed with this court until October 19, 2012. See 28 

U.S.C. § 1446(d). We then abated the appeal. 

The trial court signed the injunction order that is the subject of this appeal on 

October 12, 2012, after the case was remanded from federal court. The injunction

order included ten specific provisions requiring appellants to take steps necessary 

to prevent the use of the premises as a common nuisance pending final trial. On 

October 18, 2012, appellants filed an emergency motion asking this court to stay 

 

1

In 2011, this court affirmed the decision to deny Treasures additional time to comply with the 

City of Houston’s 1997 ordinance regulating sexually oriented businesses (SOBs). See D. 

Houston, Inc. v. City of Houston, 14-10-00384-CV, 2011 WL 2536162 (Tex. App.—Houston 

[14th Dist.] Jun. 28, 2011, no pet.) (mem. op.). The issues in this appeal do not involve the City’s 

SOB ordinance. Treasures denies that it is operating as a SOB, referring to its business as a 

“bikini bar,” and asserts that its status is the subject of a separate suit pending in another Harris 

County District Court.
3

portions of the injunction. The motion was denied, among other reasons, because 

the case had been removed to federal court. After the motion for stay was denied, 

Treasures filed a copy of the federal court’s October 3, 2012 remand order. The 

appeal then was reinstated.

Appellants filed a petition for writ of mandamus in the Texas Supreme Court

on October 19, 2012. On October 26, 2012, the Texas Supreme Court issued an 

order staying parts of the injunction. See In re Nabilco Inc. and D. Houston Inc. 

d/b/a Treasures, No. 12-0852 (Tex. Oct. 26, 2012) (order). The original proceeding 

remains pending at the Texas Supreme Court.

Appellants filed an amended notice of appeal with this court to evidence 

their intent to appeal from the trial court’s temporary injunction order signed on 

October 12, 2012. The record and the parties’ briefs were then filed. On December 

27, 2012, the City of Houston advised this court that it has reached a settlement 

with appellants and will not file a brief in this appeal. No motion to dismiss the 

City as a party to the appeal has been filed as of the date of this opinion. The 

appeal was set at issue and ready for submission to the court on December 27, 

2012. 

Trial of the permanent injunction had been set for December 10, 2012, but 

was reset for reasons not disclosed in the appellate record. According to the parties, 

trial is scheduled to commence February 4, 2013.

STANDARD OF REVIEW

Our review of an order granting a temporary injunction is limited to a 

determination of whether the trial court clearly abused its discretion. Butnaru v. 

Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002). In reviewing the trial court’s 

order granting temporary injunctive relief, we do not review the merits of the 

underlying case. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).
4

To determine whether a trial court abused its discretion, we must decide if it 

acted without reference to any guiding rules or principles; in other words, we must 

decide whether the trial court’s order was arbitrary or unreasonable. See Downer v. 

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Any factual 

issues decided by the court in reaching the decision under review are not reviewed 

by legal and factual sufficiency standards, but the facts determined by the court 

must have some support in the evidence. Haddock v. Quinn, 287 S.W.3d 158, 170

n.2 (Tex. App.—Fort Worth 2009, pet. denied). If some evidence supports the trial 

court’s decision, no abuse of discretion has been shown. Butnaru, 84 S.W.3d at 

211. 

We must not substitute our judgment for the trial court’s judgment unless the 

trial court’s action was so arbitrary that it exceeded the bounds of reasonable 

discretion. Butnaru, 84 s3 at 211. We review the evidence submitted to the trial 

court in the light most favorable to its ruling, drawing all legitimate inferences 

from the evidence, and deferring to the trial court’s resolution of conflicting 

evidence. Sonwalkar v. St. Luke’s Sugar Land P’ship, L.L.P., ___ S.W.3d ___, No. 

01-11-00473-CV, 2012 WL 3525384, *5 (Tex. App.—Houston [1st Dist.] Aug. 16, 

2012, no pet.) (citing Davis, 571 S.W.2d at 862). An abuse of discretion does not 

exist if the trial court bases its decisions on conflicting evidence. Bailey v. 

Rodriguez, 351 S.W.3d 424, 426 (Tex. App.—El Paso 2011, no pet.) (citing Davis, 

571 S.W.2d at 862).

When, as here, an applicant relies upon a statutory source for injunctive 

relief, the statute’s express language supplants the common law injunctive relief 

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

remedy at law. Butnaru, 84 S.W.3d at 210 (recognizing that requirements for 

establishing right to common law injunctive relief differ from those where 

injunctive relief is authorized by statute).
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CHAPTER 125

Suits to enjoin a common nuisance are addressed in Chapter 125 of the 

Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 

125.001—.047. A common nuisance exists if the defendant: 

1. maintains a place to which persons habitually go for certain illegal 

purposes;

2. knowingly tolerates the activity; and

3. fails to make reasonable attempts to abate the activity.

Tex. Civ. Prac. & Rem. Code § 125.0015(a). Two of the illegal purposes 

enumerated in the statute are:

1. delivery or possession of a controlled substance in violation of 

Chapter 481 of the Health and Safety Code.; and

2. prostitution, as prohibited by the Penal Code. 

Tex. Civ. Prac. & Rem. Code § 125.0015(a)(4), (6).

If the trial court determines that the party seeking to enjoin the nuisance is 

likely to succeed on the merits of its suit, section 125.0045(a) authorizes the court 

to impose reasonable requirements to prevent use of the premises as a nuisance 

pending final trial. The statute provides in relevant part as follows:

If, after notice and hearing on a request by a petitioner for a temporary 

injunction, a court determines that the petitioner is likely to succeed 

on the merits in a suit brought under Section 125.002, the court:

(1) may include in its order reasonable requirements to prevent the use 

or maintenance of the place as a nuisance. . . .

Tex. Civ. Prac. & Rem. Code § 125.0045(a).

An appeal from a temporary injunction granted in a suit to abate a common 

nuisance is required to be decided within ninety days of the injunction order. See 

Tex. Civ. Prac. & Rem. Code § 125.003(c). Accordingly, we have expedited 

consideration of this appeal without the benefit of the Texas Supreme Court’s 
6

decision on appellants’ pending petition for writ of mandamus.

OVERVIEW OF ISSUES PRESENTED

Appellants raise five issues in this appeal challenging both the bases for 

issuance of the injunctive order and the reasonableness of some of the restrictions 

imposed therein. Appellants have framed some of the issues as challenges the 

sufficiency of the evidence. We will apply the appropriate abuse of discretion 

standard outlined above.

Appellants have not challenged provisions 1, 7, and 8 in the temporary 

injunction. The Texas Supreme Court has stayed provisions 5, 6, 9 and part of 10.2

Treasures is not currently bound to comply with these provisions; therefore, they 

are not at issue in this appeal. Because a court of superior jurisdiction has stayed 

these provisions, any declaration by this court about the propriety of these 

provisions would have no practical legal effect on the controversy between the 

parties. See Morton v. City of Boerne, 345 S.W.3d 485, 489 (Tex. App.—San 

Antonio 2011, pet. denied). This is particularly true with respect to a temporary 

injunction order in a case set for trial on the merits in less than a month. As long as 

the stay is in effect, any decision by this court would be advisory. See id.

Therefore, we will consider appellants’ issues only with respect to the remaining 

provisions in the injunction. These are provisions 2, 3, 4, and the portion of 

provision 10 that was not stayed by the Texas Supreme Court. 

The provisions at issue in this appeal require appellants to:

2. Thoroughly check all bags of all independent contractors and 

 

2

The Texas Supreme Court stayed, pending further orders, the provisions in the October 12, 

2012, temporary injunction that require appellants to (1) terminate all employees or contractors 

with a felony conviction in the last ten years; (2) install 14 additional video cameras on the 

premises and deliver the recordings to the appellees; (3) perform random drug tests on 

employees and contractors and deliver the results to appellees; and perform criminal background 

checks on employees and contractors and deliver these results to appellees.
7

employees each time they enter [appellants’] premises. Bag checks 

must be performed at the front desk and be captured on camera 

surveillance;

3. Enforce a dress code as to all employees and independent 

contractors requiring that they fully cover their buttocks while on 

[appellants’] premises;

4. Enforce a dress code for all patrons on the [appellants’] premises, 

specifically, shirts must be tucked in;

10. Use existing cameras in [appellants’] premises . . . to record 

activity at all times that [appellants’] premises are open.3

In addressing appellants’ issues, appellees have re-stated the fundamental 

issues in our review of the temporary injunction as follows:

1. Whether the trial court clearly abused its discretion in determining 

that the State of Texas was entitled to temporary injunctive relief 

to attempt to enjoin or abate a common nuisance (prostitution and 

drug activity) at Treasures until trial for permanent injunctive 

relief.

2. Whether the trial court clearly abused its discretion in crafting a 

temporary injunction order that contained reasonable requirements 

to prevent the use or maintenance of Treasures as a common 

nuisance.

DISCUSSION

A temporary injunction to prevent the use or maintenance of Treasures as a 

common nuisance pending the final trial is appropriate if some evidence shows that 

(1) appellants maintain a place to which persons habitually go for drugs and 

prostitution;4(2) appellants knowingly tolerate the activity; and (3) appellants 

 

3

The videotapes are to be delivered weekly to the County Attorney’s office, with restrictions to 

limit their dissemination. 

4

The Texas Penal Code defines solicitation of prostitution as follows:

A person commits an offense if he knowingly: (1) offers to engage, agrees to 

engage, or engages in sexual conduct for a fee; or (2) solicits another in a public 

place to engage with him in sexual conduct for hire.

Tex. Penal Code § 43.02(a).
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failed to make reasonable attempts to abate the activity. See Tex. Civ. Prac. & 

Rem. Code § 125.0015(a). Because the trial court found that appellees are likely to 

succeed on the merits, the injunction included requirements to prevent Treasures’s 

use or maintenance as a nuisance pending final trial. See Tex. Civ. Prac. & Rem. 

Code § 125.045(a). We will address the elements necessary to show a common 

nuisance first, and then consider the reasonableness of the restrictions imposed in 

the injunction, taking appellants’ issues out of order.

In their third issue, appellants challenge the trial court’s finding that 

Treasures is habitually used for prostitution and drug-related activities, the first 

element of a common nuisance. Specifically, appellants assert that evidence of 

numerous convictions, not mere accusations, should be required to establish that a 

premises is habitually used for one of the enumerated crimes. They argue that the 

injunction should be reversed because the number of convictions for prostitution 

and drug crimes resulting from arrests at Treasures is so small that it cannot 

constitute habitual use.

There was evidence admitted at the hearing that in the three-year period 

immediately preceding the underlying suit, there were forty arrests at Treasures. 

The offense reports of the arrests were admitted as evidence. The reports contain 

the circumstances surrounding the twenty-one prostitution arrests and ten drug 

arrests at Treasures during the three-year period. At the time of the hearing, only 

five of the prostitution cases had resulted in convictions, and there were three 

convictions for possession of controlled substances. Therefore, during this threeyear period there were eight convictions for offenses covered by Chapter 125.

We disagree with appellants’ contention that multiple convictions for 

Chapter 125 crimes must be shown to establish a common nuisance. The plain 

language of the statute demonstrates otherwise. The statute provides that 

“[e]vidence of the general reputation of the place involved is admissible to show 
9

the existence of the nuisance.” See Tex. Civ. Prac. & Rem. Code § 125.004(c).

This provision would be meaningless if the existence of a common nuisance could 

be established only with evidence of convictions. The statute expressly provides 

that evidence of convictions and arrests for enumerated offenses are admissible to 

show knowledge of the nuisance. Id. § 125.004(b) (emphasis added).

5

The statute 

does not contain a similar provision to show habitual use; but because arrests are 

expressly permitted to establish that the owner of the premises had knowledge of 

the illegal activities, it would be absurd to interpret the statute in a manner in 

which arrests may not be considered to show the premises are habitually used for 

those crimes. 

The term “habitually” is not defined in the statute, and the few cases offering 

guidance on its meaning applied the predecessor statute to Chapter 125.

6

For 

example, in Otten v. Town of China Grove, 660 S.W.2d 565, 569 (Tex. App.—San 

Antonio 1983, writ dism’d), the appellate court determined that “a few incidents of 

alleged gambling” on two of the three Sundays that a horse race track was open 

were insufficient to show habitual use of the race tract for gambling.

At the other end of the spectrum, in Deblo, Inc. v. State, 654 S.W.2d 807, 

810-11 (Tex. App.—Houston [14th Dist.] 1983, writ dism’d), this court upheld an 

injunction because the record was “replete with testimony of solicitations for 

 

5

“Evidence that persons have been arrested for or convicted of offenses for an activity described 

in Section 125.0015 in the place involved is admissible to show knowledge on the part of the 

defendant with respect to the act that occurred.” See Tex. Civ. Prac. & Rem. Code § 125.004(b).

6

See Former Arts. 4664 to 4667, Tex. Rev. Civ. Stat. (repealed by Acts 1985, 69th Leg., ch. 959, 

§ 9(1), eff. Sept. 1, 1985., enacting the Civil Practice and Remedies Code). Former Tex. Rev. 

Civ. Stat. art. 4667(a)(2)(a) provided in relevant part:

(a) The habitual use, actual, threatened or contemplated, of any premises, place or 

building or part thereof, for any of the following uses shall constitute a public 

nuisance and shall be enjoined at the suit of either the State or any citizen thereof:

* * *

(2) For the promotion or aggravated promotion of prostitution, or compelling 

prostitution . . . .
10

prostitution” on the premises. We rejected the contention that the injunction should 

be reversed because the evidence of these solicitations was insufficient to support 

convictions, finding the evidence showed that the premises were used for 

prostitution. Id.

In Benton v. City of Houston, 605 S.W.2d 679, 682 (Tex. Civ. App.—

Houston [14th Dist.] 1980, no writ), this court identified evidence in the appellate 

record showing the owners had promoted prostitution, warranting injunctive relief. 

There was evidence that when the undercover officers visited the Crystal Pistol and 

sat down at a table, a female employee would sit in the officer’s lap and offer 

sexual relations at a “party table” at the back of the club in return for the purchase 

of a high-priced drink. Id.; see also Morgan v. State, 596 S.W.2d 220, 221 (Tex. 

Civ. App.—Houston [14th Dist.] 1980, no writ) (affirming temporary injunction to 

abate prostitution at a club based on testimony from two vice squad officers and a 

civilian that on three different occasions they were repeatedly solicited to engage 

in sexual activities at the premises in exchange for pre-determined fees). 

The quantum of proof in the case relied on by appellants, Morgan v. City of 

Humble, 598 S.W.2d 364 (Tex. Civ. App.—Houston [14th Dist.] 1980, no writ), is 

far less than the evidence in this record. In City of Humble, we reversed a 

temporary injunction granted against a club because prostitution was alleged to 

have occurred there. Id. at 365-66. We rejected reliance upon the testimony of a 

single police officer who had no personal knowledge. Id. The arrest of two alleged 

prostitutes was insufficient to show that the premises were “dedicated to the 

solicitation of prostitution.” Id. The testifying officer was not present at the arrests, 

and we observed that “[t]here is nothing in the record to indicate whether the 

arrestees were apprehended while soliciting or while merely present at the club. No 

connection between them and the club management is shown.” Id. 

Here, in contrast to City of Humble, undercover police officers visited 
11

Treasures at least eight times over several months. Three officers testified about 

their personal observations and experiences while working undercover at 

Treasures. They testified to repeated offers of sex for money when they visited the 

premises. Officers visited the “VIP” area upstairs at the club twice and both times 

witnessed sex acts in progress. Officers also purchased controlled substances 

(cocaine and methamphetamine) from dancers at Treasures on two occasions.

These officers’ testimony at the temporary injunction hearing constitutes

some evidence that Treasures was habitually used as a locale for soliciting 

prostitution and selling illegal drugs. We overrule appellants’ third issue.

In their fifth issue, appellants contend the evidence is insufficient to show 

that they “knowingly tolerated” the prostitution and drug violations at Treasures, 

the second element of a common nuisance under Chapter 125. See Tex. Civ. Prac. 

& Rem. Code § 125.0015(a). The statute contains specific provisions about 

evidence and the burden of proof for this element. First, “[p]roof that an activity 

described by Section 125.0015 is frequently committed at the place involved or 

that the place is frequently used for [such an activity] . . . is prima facie evidence 

that the defendant knowingly tolerated the activity.” Tex. Civ. Prac. & Rem. Code 

§ 125.004(a). Second, as mentioned above, proof of arrests and convictions is 

admissible to show knowledge. Id. § 125.004(b). In addition, the posting of a sign 

prohibiting the crime is not conclusive evidence that the defendant did not tolerate 

the crime. Id.

In addition to the officers’ testimony about numerous specific instances of 

solicitation of prostitution and two drug sales, our record contains evidence of 

thirty-one arrests and eight convictions for drug activity and prostitution that 

occurred at Treasures. The record also reveals that David Davari, the club’s

president, was actually aware of many, if not all, of the arrests and convictions. 

The frequency of the illegal activity is some evidence that the activity was 
12

knowingly tolerated. 

To show that they did not tolerate prostitution and illegal drugs, appellants 

provided evidence of Treasures’ company policies and claimed strict enforcement 

or a “zero tolerance” policy regarding instances of prostitution and drug activity. 

Dancers at Treasures are required to sign an Independent Contractor Packet 

containing the club’s rules and policies, which include the following:

1. Dancers must sign forms acknowledging the club’s policies before 

every shift;

2. Bag checks are performed on all employees and dancers before 

every shift to ensure that no drugs, drug paraphernalia, or condoms 

are brought to the club;

3. Signs are posted throughout the club alerting employees and 

contractors of the zero tolerance policy and that prostitution is a 

crime; 

4. All potential employees and dancers are screened to determine if 

they have ever been convicted of a drug crime or prostitution; 

5. Managers routinely patrol the club to ensure that no improper 

behavior occurs; 

6. Customers are expelled if found engaging in either sex acts or 

seeking drugs; 

7. All association with dancers and employees who commit a crime is 

terminated; and

8. Police are called if issues arise and police are allowed to enter the 

club.

The club reserves the right to terminate dancers’ employment for any violation of 

these rules. The rules are enforced by four shift managers on duty each night.

Gene Moreno, one of the managers, testified that generally a dancer is sent 

home and suspended and a customer is asked to leave if sexual contact or drugs are 

observed. Moreno denied ever observing any sexual activity in the upstairs areas. 

He testified that Treasures has a policy prohibiting physical contact between the 

dancers and customers, and he enforces that policy. Crystal Cowart, a club hostess, 
13

also testified that when dancers or other employees are involved in illegal conduct, 

they are immediately suspended and any customers involved are expelled from the 

club. She stated that Treasures’ president, David Davari, terminates dancers who 

have been arrested and only allows them to return to work if and when charges are 

disposed favorably.

The record contains ample evidence that appellants did not strictly enforce 

its policies. Undercover officers testified about their observations and experiences 

during numerous visits to Treasures. The officers testified that the dancers engaged 

in suggestive physical contact with the officers and other customers. Even though 

four managers were on duty while the officers were at the club, the officers never 

saw them intervene when dancers suggestively touched them or other customers.

The officers also testified that the dancers offered sex for money, dancers offered 

to obtain illegal drugs for them, and one officer observed a customer engaged in a 

sex act with a female employee in the private upstairs VIP room.

There was also evidence of a police raid at Treasures. One officer caught a 

customer and a dancer engaging in a sex act upstairs in a booth in the VIP area. He 

found a used condom and multiple condom wrappers littering the floor and 

benches in that area. The officer testified that after the raid, the club resumed 

operations the same night, “business as usual . . . as if nothing happened.” Three 

months later, a male and female officer, posing as a couple, visited the club and 

negotiated a fee of $500 for three-way sex with a dancer, while recording the 

negotiations.

We conclude that there is some evidence that appellants knowingly tolerated 

the illegal activity. Appellants’ fifth issue is overruled.

In issue four, appellants challenge the sufficiency of the evidence to support 

a finding that they did not take “reasonable attempts to abate” the illegal activity 

constituting a common nuisance, the third prong necessary for a common nuisance
14

finding. See Tex. Civ. Prac. & Rem. Code § 125.0015(a). Appellants argue that 

they are being held to an impossible standard requiring 100% success in abating 

the illegal activity. The court has not required 100% success, however.

The same evidence recited above also applies to this element. Although 

Treasures has implemented policies to limit illegal activities, the record contains 

evidence of widespread violations of Treasures’ rules and policies. Despite the 

club’s “no touching” policy, the undercover officers testified that dancers sat in 

their laps and touched them suggestively. There is also evidence of lax 

enforcement by management. The officers testified that managers observed 

violations and did not intervene. There was evidence that the lighting in parts of 

the club is extremely low, high-backed chairs block the view of many activities, 

and the booths upstairs are dark and secluded, all of which make improper conduct 

easier to conceal. Even though appellants presented some evidence that efforts are 

being made to abate prostitution and drug use, the trial court reasonably could have 

concluded that appellants were not making a serious effort based on the lax 

enforcement. There is some evidence to support the trial court’s finding on the 

third element required for a common nuisance. We overrule appellants’ fifth issue.

In appellants’ first issue, they have challenged the reasonableness of the 

temporary injunction’s requirements to prevent the club from being used as a 

common nuisance pending final trial. The requirements imposed by the court must 

“directly correlate” to the elimination of the nuisance activity. Martinez v. State, 

323 S.W.3d 493, 503 (Tex. Crim. App. 2010) (addressing a conviction for 

violating the terms of a permanent injunction to abate a public nuisance). 

The provisions at issue in this appeal require appellants to thoroughly check 

all bags of independent contractors and employees each time they enter appellants’ 

premises and videotape those checks, enforce a dress code for all patrons on the 

premises requiring shirts to be tucked in, enforce a dress code for dancers to cover 
15

their buttocks, and use existing video cameras to record activity at all times that the 

premises are open. 

Appellants argue that bag checks and video cameras, with tapes submitted to 

the State, violate the Fourth Amendment protections against unreasonable searches 

and seizures. This contention fails because the rights invoked by Treasures belong 

to the individual employees, contractors, and patrons – not to Treasures. “Fourth 

Amendment Rights are personal rights which . . . may not be vicariously asserted.” 

Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 428 (1978); see also United 

States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010) (“Fourth Amendment rights are 

personal rights, which may be enforced only by the person whose rights were 

infringed.”). A party lacks standing to complain about the invasion of someone 

else’s personal rights. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). 

Therefore, appellants have no standing to assert a Fourth Amendment claim on 

behalf of Treasures’ dancers and customers. See Club Retro, LLC v. Hilton, 568 

F.3d 181, 195 n. 5 (5th Cir. 2009) (club owner had no standing to assert Fourth 

Amendment rights on behalf of its patrons). 

Next, the injunction’s dress code requirement that shirts be tucked in is 

reasonably related to curbing illicit acts. Shirt tails could conceal improper 

touching and conceal drugs or drug paraphernalia. Appellants only briefly referred 

in their briefing to the dress code requirement that dancers keep their buttocks 

covered and made no specific arguments about why it not reasonable. Treasures’ 

employees and dancers testified that the club is a “bikini bar,” in which the dancers 

are required to wear “full bottom” bikinis. Videotapes were admitted into evidence 

showing that dancers sometimes did not appear to comply with this requirement. 

The trial court could have found that the dress code requirement for dancers is 

reasonably related to limiting prostitution. 

We conclude that some evidence supports the reasonableness of these
16

challenged restrictions. Accordingly, we overrule appellants’ first issue.

In their second issue, appellants contend that the temporary injunction 

improperly granted final relief. A final judgment in favor of a plaintiff, as opposed 

to a temporary injunction, “must order that the place where the nuisance exists be 

closed for one year after the date of judgment.” Tex. Civ. Prac. & Rem. Code § 

125.002(e). Appellants argue that allowing video cameras in the club is a 

“constructive padlock,” which has the effect of closing the club and accomplishing 

final relief in a temporary order. In Stone Fox v. State, 668 S.W.2d 911, 912-13

(Tex. App.—Houston [14th Dist.] 1984, no writ), also decided under the prior 

version of the nuisance statute, we reversed part of temporary injunction ordering a 

club padlocked for one year, or until either appellant posted a bond and agreed to 

abate the nuisance or until the final hearing. We found the padlock order improper

because an order closing the premises is reserved for final judgment. Id.

The only evidence supporting appellants’ claim that video cameras will 

effectively result in closure of the club is in the form of opinion testimony from

club employees and a dancer. Ms. Cowart, a hostess, testified that “[n]obody really 

wants to be recorded.” Floor manager Moreno stated that in his opinion, 

videotaping inside Treasures would “be detrimental” because the clientele “would 

not want to be in that building at all.” One of the dancers at the club testified that 

most of the club’s customers are businessmen who would not want video cameras 

because they may not want their wives to know they were at the club.

There is evidence in the record that Treasures already has twelve video 

cameras in the club that have been in use for years. Evidence at the hearing was 

that generally there may be about 200 customers and 100 dancers at Treasures on 

an average night. Therefore, the existing cameras do not appear to deter patrons.

This evidence contradicts testimony that cameras would drive away customers, 

effectively closing the club. When evidence is conflicting, no abuse of discretion is 
17

shown. We overruled appellants’ second issue.

CONCLUSION

There is some evidence in the record supporting the trial court’s 

determination that a common nuisance is maintained at Treasures warranting 

temporary injunctive relief. The portions of the trial court’s injunction currently in 

force are supported by some evidence and are reasonably related to preventing use 

of the premises as a nuisance pending final trial. The trial court did not clearly 

abuse its discretion, and the temporary injunction order is affirmed.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.