NUMBER 13-22-00510-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

 

IN RE COUNTY OF HIDALGO, HIDALGO COUNTY ELECTIONS

DEPARTMENT, HILDA A. SALINAS, INTERIM ELECTIONS

ADMINISTRATOR AND EVERARDO VILLARREAL, IN BOTH HIS

OFFICIAL CAPACITY AS HIDALGO COUNTY PRECINCT 3 COUNTY 

COMMISSIONER AND INDIVIDUAL CAPACITY

 

On Petition for Writ of Mandamus.

 

OPINION

Before Chief Justice Contreras and Justices Benavides and Tijerina

Opinion by Justice Tijerina1

On October 21, 2022, the County of Hidalgo, the Hidalgo County Elections 

Department, Hilda A. Salinas as the Interim Elections Administrator, and Everardo 

Villarreal in both his official capacity as Hidalgo County Precinct 3 Commissioner and his 

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not 

required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 

47.4 (distinguishing opinions and memorandum opinions).
2

individual capacity (relators), filed a petition for writ of mandamus in this Court. Relators 

assert through multiple issues that the trial court2 abused its discretion by issuing a 

temporary restraining order3requiring relators “to immediately cease and desist from 

proceeding with the early voting elections starting on October 24, 2022, and the 

November 8, 2022 general election” unless relators open the Peñitas Public Library as 

an additional polling location. 

“The right to vote is fundamental, as it preserves all other rights.” Andrade v. 

NAACP of Austin, 345 S.W.3d 1, 12 (Tex. 2011). We are reluctant to render a decision in 

this case which would prevent the citizens of Peñitas from having access to a polling 

place within their city limits. Nonetheless, the separation of powers doctrine and the rules 

of civil procedure require us to conclude that the trial court’s temporary restraining order 

cannot stand. Accordingly, we conditionally grant the petition for writ of mandamus.4

I. BACKGROUND

In January 2022, relators submitted a request to use the John F. Kennedy 

Elementary School in Peñitas, Texas, as a polling place for the 2022 election cycle. That 

request was denied. On August 18, 2022, relators timely issued the Notice of General 

2 This original proceeding arises from trial court cause number C-4049-22-A in the 92nd District 

Court of Hidalgo County, Texas, and the respondent is the Honorable Rogelio Valdez, sitting by 

assignment. See TEX. R. APP. P. 52.2.

3 The temporary restraining order states that it was heard by the trial court on October 20, 2022, 

and it provides that it was “SIGNED and ENTERED on “October, 2022 at 4:30 p.m.” The order thus fails to 

be “endorsed with the date and hour of issuance” as required by Texas Rule of Civil Procedure 680. See

TEX. R. CIV. P. 680. We note that the docket sheet for this trial court cause number indicates that the 

temporary restraining order was signed on October 21, 2022. 

4 As noted by Peñitas, the petition for writ of mandamus failed to include a certification. See TEX.

R. APP. P. 52.3(j). However, relators subsequently filed a certification in accordance with the appellate rules, 

and thus Peñitas’s complaint has been addressed. 
3

Election for voters in Hidalgo County, in accordance with the August 22, 2022 deadline 

to do so, which included a list of polling places for the election as required by the election 

code. See, e.g., TEX. ELEC. CODE ANN. § 4.003(a) (prescribing deadlines by which 

authorities must provide notice of an election); id. § 4.004(a)(2) (requiring the notice of 

election to include “the location of each polling place”). This list did not include a polling 

place in Peñitas. 

In the middle of the afternoon on August 22, 2022, La Joya Independent School 

District (La Joya ISD) submitted a request to relators that Peñitas Public Library serve as 

an early voting polling location. On August 25, 2022, Agua Special Utility District (Agua 

SUD) provided a similar request. Relators informed these parties that their requests were 

not timely.

On Thursday, October 20, 2022, the real parties in interest, the City of Peñitas, a 

home-rule municipality located in Hidalgo County, Texas, and Ramiro Loya, in his official 

capacity as Mayor of the City of Peñitas and in his individual capacity (collectively 

Peñitas), filed suit against relators seeking declaratory relief, a temporary restraining 

order, and temporary and permanent injunctive relief. Peñitas alleged that relators’

conduct in refusing the requests to use the Peñitas Public Library as a polling place 

violated the Texas Election Code, the Voting Rights Act, and the Texas and United States 

Constitutions. Peñitas alleged that it had been “adversely affected and harmed” by 

relators’ conduct, “which will disenfranchise eligible Texas citizens, specifically Peñitas

vote[r]s in the upcoming election this November 8, 2022.” Peñitas sought ex parte relief 

on the stated grounds that “[t]here is not enough time to serve notice on [relators] and to 
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hold a hearing on this application.”

On October 20, 2022, the trial court held a hearing on Peñitas’s request for relief. 

Relators were not present. Having heard Peñitas’s claims, the trial court granted ex parte 

relief to Peñitas in the form of a temporary restraining order. The trial court therein ordered 

relators: (1) “to immediately cease and desist from proceeding with the early voting 

elections starting on October 24, 2022, and the November 8, 2022 general election 

without opening the Pe[ñ]itas Public Library polling location”; (2) “to immediately post a 

Notice of the Election that includes a list of Election Day and [e]arly voting polling locations 

to the Hidalgo County Election Department’s website no later than Friday, October 21, 

2022[,] at 7:00 a.m. and that list of polling locations shall include the City of Peñitas Public 

Library polling location”; and (3) “to open the City of Pe[ñ]itas Public Library polling 

location for the entire early voting period and General Election day as [o]rdered by La 

Joya ISD and Agua SUD.” The temporary restraining order provided that its terms would 

expire on further order of the trial court or fourteen days from the date of its entry. 

On Friday, October 21, 2022, relators filed this petition for writ of mandamus.

Through six issues with sub-issues, relators contend that the trial court abused its 

discretion by granting the temporary restraining order and that they lack an adequate 

remedy at law. We have reorganized and restated relators’ issues for the sake of clarity. 

As restated, relators assert that the trial court’s temporary restraining order should be set 

aside because: (1) it does not comply with Texas Rules of Civil Procedure 680, 683, and 

684; (2) it violates Rule 2.6 of the “Local Rules of Hidalgo County, Texas District Courts”; 

(3) it violates Texas law and bypasses election laws; (4) it violates the separation of 
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powers doctrine; and (5) the trial court does not have subject matter jurisdiction because 

Peñitas lacks standing, and its claims are moot. By a sixth issue, relators further assert 

that they lack an adequate remedy by appeal to address these errors. Relators further 

filed a motion for emergency stay through which they requested that we stay the 

temporary restraining order at issue in this original proceeding.

By order issued on Sunday afternoon, October 23, 2022, we granted the motion 

for emergency stay and requested that Peñitas file a response to the petition for writ of 

mandamus and relators’ request for emergency relief by 5:00 p.m. on Monday, October 

24, 2022. Peñitas filed two motions for extension of time to file its response, its response, 

and a motion for leave to late-file its response. We grant Peñitas’s motions and proceed 

to consider the merits of this original proceeding.

II. MANDAMUS

Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem. 

Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836, 

840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 

S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that (1) the trial 

court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re 

USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re 

Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833, 

839–40 (Tex. 1992) (orig. proceeding). “The relator bears the burden of proving these two 

requirements.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. 

proceeding) (per curiam); Walker, 827 S.W.2d at 840. 
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III. TIMELINESS

Relators present two issues that generally concern the timeliness of Peñitas’s 

claims for relief in the context of the election process. In their fourth issue, relators assert 

that the temporary restraining order is invalid because it violates the “separation of 

powers” doctrine, and in part of their fifth issue, relators assert that Peñitas’s claims are 

moot. With regard to the separation of powers, relators contend that the temporary 

restraining order “effectively stops the general election” and assert that the judicial branch 

of state government cannot interfere with an election that is in progress. Relators further 

argue that Peñitas’s claims are moot because absentee balloting has begun and early 

voting began on Monday, October 24, 2022. Relators contend that they “cannot comply 

with the applicable statutory and regulatory deadlines to place a polling location at [the 

Peñitas Public Library] because said deadlines have long since passed.”

In contrast, Peñitas argues that its causes of action are not moot 

since the November 8, 2022 general election [has] yet to occur and the early 

voting extends beyond October 24, 2022[,] and runs through November 4, 

2022[,] and the [reinstatement] of the temporary restraining order can be 

followed by the [r]elators moving voting machines” into the Pe[ñ]itas Public 

Library within 24 hours.

Peñitas further asserts that relators’ arguments in fact support the opposite proposition—

that relators’ claims are moot, whereas Peñitas’s claims are not.

The Texas Supreme Court has explained the separation of powers doctrine as 

follows:

The principle of separation of powers is foundational for federal and state 

governments in this country and firmly embedded in our nation’s history. 

The Texas Constitution mandates:
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The powers of the Government of the State of Texas shall be 

divided into three distinct departments, each of which shall be 

confided to a separate body of magistracy, to wit: Those which 

are Legislative to one; those which are Executive to another, 

and those which are Judicial to another; and no person, or 

collection of persons, being of one of these departments, shall 

exercise any power properly attached to either of the others, 

except in the instances herein expressly permitted.

Exceptions to the constitutionally mandated separation of powers are never 

to be implied in the least; they must be “expressly permitted” by the 

Constitution itself.

Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 570 (Tex. 2013) (quoting and 

discussing TEX. CONST. art. II, § 1) (footnote omitted). “It is well settled that separation of 

powers and the judiciary’s deference to the legislative branch require that judicial power 

not be invoked to interfere with the elective process.” Blum v. Lanier, 997 S.W.2d 259, 

263 (Tex. 1999); see City of Cleveland v. Keep Cleveland Safe, 500 S.W.3d 438, 455 

(Tex. App.—Beaumont 2016, no pet.). Thus, as a fundamental matter, “judicial power 

cannot be invoked to interfere with the election process once it has begun.” In re Lopez, 

593 S.W.3d 353, 357 (Tex. App.—Tyler 2018, orig. proceeding). In Blum, the supreme 

court held that although the voter had “no right to enjoin the scheduled election,” the trial 

court had jurisdiction to issue an injunction forbidding the city from using misleading 

language on the ballot as long as the injunction did not operate to delay or cancel the 

called election. Blum, 997 S.W.3d at 263–64.

The separation of powers doctrine is related to mootness. See Abbott v. Mex. Am. 

Leg. Caucus, Tex. House of Representatives, 647 S.W.3d 681, 689 (Tex. 2022). A case 

is moot when a justiciable controversy does not exist between the parties or when the 

parties do not have a legally cognizable interest in the outcome. See id.; Heckman v. 
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Williamson County, 369 S.W.3d 137, 162 (Tex. 2012). Courts lack subject-matter 

jurisdiction to decide a moot controversy. Tex. Dep’t of Fam. & Protective Servs. v. N.J., 

644 S.W.3d 189, 192 (Tex. 2022). In general, a challenge to the electoral process will be 

considered moot when the validity of the alleged error cannot be finally determined in time 

for the error to be corrected or, stated otherwise, for the requested task to be substantially 

accomplished by election officials. See, e.g., In re Uresti, 377 S.W.3d 696, 696 (Tex. 

2012) (orig. proceeding) (per curiam) (“Once an election begins, a challenge to the 

candidacy of an individual becomes moot.”); Polk v. Davidson, 196 S.W.2d 632, 634 (Tex. 

1946) (“[W]hen the time comes that the issues cannot be heard and a final judgment 

entered adjudging the validity or invalidity of the nominee’s certificate so that absentee 

ballots can be printed and available to voters as and when required by statute, the contest 

is moot and must be dismissed.”); Skelton v. Yates, 119 S.W.2d 91, 91–92 (Tex. 1938)

(orig. proceeding) (“Under the law absentee balloting has begun,” thus, “[t]he election 

therefore is already in progress, and no order which this court might enter could be 

effective at this late date to govern such election.”); Sterling v. Ferguson, 53 S.W.2d 753, 

761 (Tex. 1932) (per curiam) (“The courts generally follow the rule that where no date 

when the authority of a court or other body for exercising a special jurisdiction shall cease, 

then that it does cease when any judgment which might be entered by the court would 

become moot—that is to say, when any right which might be determined by the judicial 

tribunal could not be effectuated in the manner provided by law.”); Salazar v. Gonzales, 

931 S.W.2d 59, 60 (Tex. App.—Corpus Christi–Edinburg 1996, no writ) (“An election 

contest becomes moot, and the issues no longer justiciable, when a final judgment 
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adjudging the validity or invalidity of a candidate’s certificate of nomination is not entered 

in time for election officials to comply with the statutory deadlines for preparing and 

conducting the general election, or when absentee balloting has begun during the 

pendency of the appeal.”); see also Garmon v. Tolbert, 614 S.W.3d 190, 194 (Tex. App.—

Tyler 2020, pet. denied); In re Nat’l Republican Cong. Comm., 608 S.W.3d 544, 547–48 

(Tex. App.—Austin 2020, orig. proceeding). 

The separation of powers doctrine and mootness considerations thus constrain a 

court’s ability to act in certain situations. In this regard, the time constraints that apply to 

the election process present challenges for judicial review. The Texas Supreme Court 

recently described these challenges as follows: 

To begin, the executive and legislative branches of government are the 

primary managers of our state’s elections. They, no less than the courts, 

are sworn to uphold the Constitution and the laws. Texas courts do not sit 

as general overseers of election processes; they sit only to resolve any 

concrete and justiciable disputes that may arise. A party with such a dispute 

certainly has access to judicial resolution. But for a court to resolve an 

election dispute, the court must receive the case early enough to order relief 

that would not disrupt the larger election.

This Court, like the U.S. Supreme Court, therefore has repeatedly 

explained that invoking judicial authority in the election context requires 

unusual dispatch—the sort of speed not reasonably demanded of parties 

and lawyers when interests less compelling than our society’s need for 

smooth and uninterrupted elections are at stake. Time is particularly of the 

essence if a lawsuit seeks judicial action that may prevent the election from 

happening on time. Like the courts themselves, all parties must minimize 

delays in this context. Avoidable delays, in particular, may be fatal to the 

courts’ ability to proceed at all.

Another corollary is likewise true: as the risk of judicial interference 

with an election rises, so does the duty of the party invoking judicial power 

to explain with precision how any relief will affect that election and the larger 

structure of our state’s election machinery. At a bare minimum, a party who 

asks a court to take action that could disrupt the election calendar after the 
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election process has begun has the duty to explain the practical 

consequences of the requested judicial action. That explanation must 

contain sufficient detail to allow the Court to weigh the need for the 

requested relief against the burdens the relief would impose on the election 

process and on the rights of other Texans.

These principles are not novel. Courts at every level, including the 

U.S. Supreme Court and this Court, have declined to implement even 

“seemingly innocuous” alterations to election laws on the eve of an election, 

let alone after one has begun. Democratic Nat’l Comm. v. Wis. State 

Legislature, — U.S. —, 141 S. Ct. 28, 31, 208 L.Ed.2d 247 (2020) 

(Kavanaugh, J., concurring); see In re Hotze, 627 S.W.3d 642, 646 (2020) 

(“[C]ourt changes of election laws close in time to the election are strongly 

disfavored.”) (quoting Tex. All. for Retired Ams. v. Hughs, 976 F.3d 564, 

567 (5th Cir. 2020)); see also Republican Nat’l Comm. v. Democratic Nat’l 

Comm., — U.S. —, 140 S. Ct. 1205, 1207, 206 L.Ed.2d 452 (2020) (per 

curiam) (holding that a lower court errs when it changes election laws on 

the eve of the election without sufficient showing of constitutional burdens). 

All parties must move with maximum expedition so that the courts—which 

also must act quickly when properly called upon—do not themselves 

contribute to electoral confusion.

In re Khanoyan, 637 S.W.3d 762, 764–65 (Tex. 2022) (orig. proceeding) (footnotes 

omitted). 

In this case, Peñitas filed its request for relief in the trial court on October 20, 2022, 

and the trial court issued the temporary restraining order at issue either that afternoon or 

on October 21, 2022. However, the relevant statutory deadlines under the election code 

had already passed before these events occurred. The election code states that, “[f]or an 

election to be held on a uniform election date, the election shall be ordered not later than 

the 78th day before election day.” TEX. ELEC. CODE ANN. § 3.005. For this election cycle, 

that date was August 22, 2022. Further, the election code requires the election notice to 

include the location of each polling place. See id. §§ 4.004(a)(2), 85.004, 85.067.5 On 

5 We note that the election code contemplates that the public notice of the branch voting schedule

posted by the early voting clerk “may be amended after the beginning of early voting by personal 
11

August 18, 2022, relators issued the Notice of General Election for voters in Hidalgo 

County, which included the list of polling places for the election, including the early voting 

locations. 

Peñitas did not seek relief from the trial court until October 20, 2022, long after the 

relevant deadlines in the election code had passed and less than two business days 

before early voting was scheduled to begin. At this point, Peñitas’s requested relief and 

the trial court’s temporary restraining order interfered with the electoral process. See 

Blum, 997 S.W.2d at 263; In re Lopez, 593 S.W.3d at 357; City of Cleveland, 500 S.W.3d 

at 455. Stated otherwise, Peñitas did not ask for the Peñitas Public Library to be 

designated as a polling place in time for the election officials to comply with their statutory 

deadlines for preparing and conducting the general election. See Salazar, 931 S.W.2d at 

60.

In this regard, Peñitas did not pursue its requested relief in a timely manner. 

Relators posted the required notices identifying the polling places on August 18, 2022, 

yet Peñitas waited two months before seeking relief in the trial court, and only requested 

relief on the eve of early voting. This avoidable delay is untenable given “our society’s 

need for smooth and uninterrupted elections,” and when time is “particularly of the 

essence.” In re Khanoyan, 637 S.W.3d at 764. Peñitas failed to act with due diligence in 

appearance to include notice of additional temporary branch polling place locations, dates, and hours, but 

any amendment must be made not later than the fifth day before the date the voting is scheduled to begin 

at the additional temporary branch.” TEX. ELEC. CODE ANN. § 85.067(c). None of the parties here invoked 

that provision of the election code, and the trial court’s order did not comply with its terms. Accordingly, we 

do not address it in the context of this case and express no opinion regarding its application to these facts.
12

requesting relief from the trial court, and that delay was fatal to the trial court’s ability to 

provide the requested relief. See id.

Based on the foregoing, we sustain relators’ fourth issue regarding the separation 

of powers and the part of relators’ fifth issue regarding mootness. 

IV. FORM AND SUBSTANCE OF THE TEMPORARY RESTRAINING ORDER

We ordinarily would not address relators’ remaining issues that are related to the 

merits because they are not necessary to the disposition of this original proceeding. See

TEX. R. APP. P. 47.1, 47.4. However, for the sake of clarity and completeness, and in our 

sole discretion, we also address relators’ first issue in which they assert that the temporary 

restraining order constitutes an abuse of discretion because the order does not comply 

with Texas Rules of Civil Procedure 680, 683, and 684. See TEX. R. CIV. P. 680, 683, 684. 

Relators contend that the temporary injunction fails to comply with the rules of civil 

procedure because it does not explain why it was issued without notice, and it does not 

adequately explain the reasons for its issuance.

A. Introduction

Temporary restraining orders are subject to the requirements of the Texas Rules 

of Civil Procedure. See TEX. R. CIV. P. 680, 683, 684. These procedural requirements are 

mandatory, and an order granting a temporary restraining order that fails to meet these

requirements is void. See In re Luther, 620 S.W.3d 715, 722 (Tex. 2021) (orig. 

proceeding) (per curiam) (discussing Rule 683); In re Office of Att’y Gen., 257 S.W.3d at 

697 (discussing Rule 680); Qwest Commc’ns Corp. v. AT & T Corp., 24 S.W.3d 334, 337 

(Tex. 2000) (per curiam) (discussing Rules 683 and 684); see also InterFirst Bank San 
13

Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986) (per curiam). The Texas 

Supreme Court has instructed us that these requirements must be “strictly” followed. In 

re Luther, 620 S.W.3d at 722; InterFirst Bank San Felipe, N.A., 715 S.W.2d at 641.

In summary, a trial court issuing a temporary restraining order is required to: 

(1) state why the order was granted without notice if it is granted ex parte; (2) state the 

reasons for the issuance of the order by defining the injury and describing why it is 

irreparable; (3) state the date the order expires and set a hearing on a temporary 

injunction; and (4) set a bond. See TEX. R. CIV. P. 680, 683, 684; In re Office of Att’y Gen., 

257 S.W.3d at 697; Nelson v. Vernco Const., Inc., 367 S.W.3d 516, 522 (Tex. App.—El 

Paso 2012, no pet.).

B. Requirements for Restraining Order

Relators’ claims concern the form of the temporary restraining order that was 

issued by the trial court and arise from the express, mandatory text of two rules. First, 

Texas Rule of Civil Procedure 680 provides that:

No temporary restraining order shall be granted without notice to the 

adverse party unless it clearly appears from specific facts shown by affidavit 

or by the verified complaint that immediate and irreparable injury, loss, or 

damage will result to the applicant before notice can be served and a 

hearing had thereon. Every temporary restraining order granted without 

notice shall be endorsed with the date and hour of issuance; shall be filed 

forthwith in the clerk’s office and entered of record; shall define the injury 

and state why it is irreparable and why the order was granted without 

notice . . . .

TEX. R. CIV. P. 680. And Rule 683 states in part that “every restraining order shall set forth 

the reasons for its issuance; shall be specific in terms; [and] shall describe in reasonable 
14

detail and not by reference to the complaint or other document, the act or acts sought to 

be restrained.” Id. R. 683.

With regard to the “irreparable injury” description required by the rules, the 

temporary restraining order was required to “define the injury and state why it is 

irreparable and why the order was granted without notice,” id. R. 680, and to be “specific 

in terms.” Id. R. 683. The supreme court interprets the rules to require that every 

temporary restraining order must “set forth the reasons why the court deems it proper to 

issue the writ to prevent injury to the applicant in the interim; that is, the reasons why the 

court believes the applicant’s probable right will be endangered if the writ does not issue.”

Transp. Co. of Tex. v. Robertson Transps., Inc., 261 S.W.2d 549, 553 (Tex. 1953); accord 

State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex. 1971) (“Under Rule 683 . . . it is 

necessary to give the reasons why injury will be suffered if the interlocutory relief is not 

ordered.”). This explanation may not be conclusory. See Good Shepherd Hosp., Inc. v. 

Select Specialty Hosp.-Longview, Inc., 563 S.W.3d 923, 929 (Tex. App.—Texarkana 

2018, no pet.); In re Chaumette, 456 S.W.3d 299, 305 (Tex. App.—Houston [1st Dist.] 

2014, orig. proceeding); El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 744 (Tex. 

App.—Dallas 2011, no pet.). Further, the temporary restraining order must recite the facts

on which the trial court relied in reaching its conclusion. See Caniglio v. Woods, 593 

S.W.3d 856, 858 (Tex. App.—Texarkana 2019, no pet.); El Tacaso, Inc., 356 S.W.3d at 

744; see also Conclusory, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “conclusory”

as “[e]xpressing a factual inference without stating the underlying facts on which the 

inference is based”).
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Relators contend that the temporary restraining order does not meet the foregoing 

requirements. First, relators argue that the temporary restraining order failed to explain or 

address “why the order was granted without notice” and thus fails to meet the mandatory 

requirement to do so contained in Texas Rule of Civil Procedure 680. See TEX. R. CIV. P. 

680. In contrast, Peñitas asserts that relators’ contention “has no basis in fact or law.”

Peñitas contends that it “conferred” with an attorney for the Hidalgo County District 

Attorney’s Civil Division by telephone regarding its application for temporary relief on the 

date that it was filed and advised that attorney that he “could follow up with the Court if 

he wanted to weigh in on the ex parte request before the trial court considered or signed 

the temporary restraining order.”

Peñitas offers no authority in support of its position that a telephone call constitutes 

adequate notice to a party that a pleading seeking ex parte relief has been filed and will 

be heard, and its arguments are not supported by the rules of civil procedure. Rule 21 of 

the Texas Rules of Civil Procedure requires pleadings to be “served on all other parties,” 

and “[a]n application to the court for an order and notice of any hearing thereon, not 

presented during a hearing or trial, must be served upon all other parties not less than 

three days before the time specified for the hearing, unless otherwise provided by these 

rules or shortened by the court.” Id. R. 21(a), (b). It is undisputed that relators were not 

served with Peñitas’s pleadings or provided with the requisite notice for a hearing. See 

id. And, even if we were to conclude that the trial court shortened the requisite notice 

period, there is no indication in the record that relators were ever served with notice of 

that hearing. See id. Instead, Peñitas expressly proceeded with the hearing on an ex 
16

parte basis. See id. Accordingly, the temporary restraining order was required to contain 

the necessary findings regarding notice. See id. R. 21, 680.6 We conclude that the 

temporary restraining order was deficient in this regard. 

Second, relators assert that the temporary restraining order does not specifically 

define the irreparable injury that Peñitas would suffer in the absence of relief. Here, the 

only part of the temporary restraining order that can be construed as setting forth the 

reasons for its issuance states that the temporary restraining order is necessary because 

otherwise relators “will commit the disenfranchisement of voters before notice and a 

hearing on Plaintiffs’ Application for Temporary Injunction,” and “Plaintiffs will suffer 

irreparable harm if [relators] are not restrained immediately because Plaintiffs will have 

no adequate remedy at law to grant Plaintiffs complete, final[,] and equal relief.” Peñitas

asserts that this recitation of harm is sufficient to meet the requirements of the rules.

6 We note that one of relators’ issues alleges that the temporary restraining order was invalid 

because it did not comply with Hidalgo County District Courts Local Rule 2.6. Rule 2.6 provides:

Temporary Orders. Except in emergencies when the clerk’s office is not open for business, 

no application for immediate or temporary relief shall be presented to the judge until it has 

been filed and assigned to a Court as provided in these rules. If the judge of the court to 

which such case is assigned is absent or is occupied with other matters, such application 

may be assigned by the Presiding Judge to any other judge, who may sit for the judge of 

the court to which the case is pending, and shall make all orders, writs and process 

returnable to that court. Hearings or applications for temporary injunctions, temporary 

receiverships, and the like shall be set in the court to which the case is assigned and that 

court shall be responsible for all proceedings thereafter. All applications for ex-parte relief 

shall state whether or not, within the knowledge of the applicant, and his attorney, the 

opposing party is represented by counsel, and the name of such counsel.

HIDALGO CNTY. (TEX.) DIST. CT. LOC. R. 2.6 (emphasis added). Peñitas’s arguments regarding notice of the 

hearing would suggest that its application for a temporary restraining order could have, but did not, include 

this information. See id. Given our resolution of this petition for writ of mandamus, we need not further 

address this issue.
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This explanation as to why Peñitas will suffer irreparable harm is conclusory and 

does not recite the facts on which the trial court relied in reaching its conclusion, and thus 

violates the requirements for a temporary restraining order. See id. R. 680, 683; Good 

Shepherd Hosp., Inc., 563 S.W.3d at 929; El Tacaso, Inc., 356 S.W.3d at 744. The 

statement that relators “will commit the disenfranchisement of voters” is not “specific in 

terms,” does not explain why this alleged injury is irreparable, and is not supported by any 

factual allegations supporting this conclusion. See TEX. R. CIV. P. 680, 683. Further, the 

general statement that Peñitas will suffer irreparable harm for which it lacks an adequate 

remedy is insufficient. See In re Chaumette, 456 S.W.3d at 305 (collecting cases deeming 

this general statement insufficient). Thus, the temporary restraining order does not satisfy 

the mandatory rules governing the issuance of such an order. See Clark v. Hastings 

Equity Partners, LLC, 651 S.W.3d 359, 374 (Tex. App.—Houston [1st Dist.] 2022, no 

pet.); In re Chaumette, 456 S.W.3d at 305; El Tacaso, Inc., 356 S.W.3d at 744–45; City 

of Corpus Christi v. Friends of Coliseum, 311 S.W.3d 706, 709 (Tex. App.—Corpus 

Christi–Edinburg 2010, no pet.). 

We conclude that the temporary restraining order fails to meet the mandatory 

procedural requirements of the Texas Rules of Civil Procedure, and it is consequently 

void. See In re Luther, 620 S.W.3d at 722; In re Office of Att’y Gen., 257 S.W.3d at 697. 

We sustain relators’ first issue.

V. ADEQUACY OF A REMEDY BY APPEAL

Finally, in their sixth issue, relators contend that an appeal would be an inadequate 

remedy to correct the trial court’s error in issuing the temporary restraining order. In 
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contrast, Peñitas asserts that “[r]elators could have sought a stay of the TRO, and/or 

requested an emergency hearing, and filed a Motion to Dissolve or Modify the TRO in the 

trial court.” It further argues that relators have not shown that mandamus is necessary 

because “[r]elators present nothing to suggest that they are at risk of losing important 

substantive or procedural rights.” See, e.g., In re Team Rocket, L.P., 256 S.W.3d 257, 

262 (Tex. 2008) (orig. proceeding) (“In evaluating benefits and detriments, we consider 

whether mandamus will preserve important substantive and procedural rights from 

impairment or loss.”).

Mandamus review of a trial court’s temporary restraining order is proper because 

such an order cannot be appealed; thus, the party against whom such injunctive relief is 

granted lacks an adequate remedy by appeal. See In re Abbott, 601 S.W.3d 802, 813 

(Tex. 2020) (orig. proceeding) (per curiam); In re Office of Att’y Gen., 257 S.W.3d 695, 

698 (Tex. 2008) (orig. proceeding) (per curiam); see also In re Tex. Nat. Res. 

Conservation Comm’n, 85 S.W.3d 201, 207 (Tex. 2002) (orig. proceeding).

Because relators may not appeal the temporary restraining order and this case 

involves important matters of public concern which are time-sensitive, we conclude that 

an appeal after any temporary injunction is entered would not provide relators with an 

adequate remedy. See In re Abbott, 601 S.W.3d at 813; In re Office of Att’y Gen., 257 

S.W.3d at 698; In re Turner, 558 S.W.3d 796, 801 (Tex. App.—Houston [14th Dist.] 2018, 

orig. proceeding). We sustain relators’ sixth issue. Having done so, we need not reach 

relators’ remaining issues.
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VI. CONCLUSION

This Court, having examined and fully considered the petition for writ of 

mandamus, the record, the response, and the applicable law, is of the opinion that relators

have met their burden to obtain mandamus relief. Accordingly, we lift the stay previously 

imposed in this case. We conditionally grant the petition for writ of mandamus, and we 

direct the trial court to vacate the temporary restraining order immediately. It was void 

and had no effect. We are confident that the trial court will comply, and the writ will issue 

only if the trial court fails to do so. 

JAIME TIJERINA

Justice

Delivered and filed on the

26th day of October, 2022.