TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00034-CV

Pedernales Electric Cooperative, Inc., Appellant

v.

Samuel S. White, Janette Barlow, Gregory Colon, and Stephanie Colon, Appellees

FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY, 

NO. 19-1250-C, THE HONORABLE ROBERT UPDEGROVE, JUDGE PRESIDING

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

PER CURIAM

Appellant Pedernales Electric Cooperative, Inc. (PEC) has filed an “Emergency 

Motion to Permit Appellant to Supersede Temporary Injunction and Set a Supersedeas Bond, or 

Alternatively, to Stay Temporary Injunction Pending Appeal.” PEC requests that we allow it to 

supersede the trial court’s January 11, 2021 order granting appellees’ application for a temporary 

injunction by posting a nominal $1,000 bond, pursuant to Texas Rule of Appellate Procedure 

24.2(a)(3), or alternatively, that we stay the temporary injunction under Texas Rule of Appellate 

Procedure 29.3, pending our disposition of the interlocutory appeal. Appellees (the 

“Landowners”) opposed PEC’s motion filed in the trial court for a supersedeas bond and initially 

opposed the relief requested by PEC in the emergency motion filed with this Court. The

Landowners subsequently submitted a response indicating that they are not opposed to this Court 
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allowing PEC to post a supersedeas bond in the nominal amount of $1,000 to suspend 

enforcement of the temporary injunction. We grant PEC’s motion in part and abate the appeal 

for the reasons explained below.

BACKGROUND

The Landowners brought the underlying suit against PEC, a member-owned 

electric cooperative, in September 2019, alleging that PEC exceeded the scope of an existing 

easement when it upgraded the capacity of an electric-power transmission line that crosses over 

the Landowners’ properties and extends from the Highway 32 substation to the Wimberley

substation. According to the Texas Public Utility Commission’s March 2018 order approving 

the capacity-upgrade project, the transmission line is the primary source of electricity for the 

Wimberley area and also provides a backup source of power for adjacent substations, including 

the Dripping Springs, Rutherford, Highway 32, and Fischer substations. PEC completed all 

work on the capacity-upgrade project that required entry on the Landowner’s properties in 

November 2019, and the transmission line was energized in December 2019. The temporary

injunction issued by the trial court prohibits PEC from (1) continuing work on the capacityupgrade project on the Landowners’ properties in Hays County (the trial court found that work 

was ongoing at the time of the temporary-injunction hearing), (2) operating the transmission line 

at its upgraded capacity, and (3) accessing the Landowners’ properties for maintenance or 

operations in connection with the capacity-upgrade project. Even though PEC had requested that 

the trial court set a supersedeas-bond amount at the hearing on the form of the temporaryinjunction order, the trial court did not include a bond amount in the temporary injunction—

implicitly denying PEC’s request for supersedeas relief. To date, the trial court has not ruled on 

PEC’s subsequent motions to set a bond amount and to rule on its pending motions. Instead, the 
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trial court stayed its temporary injunction for a period of forty-five days to allow PEC to seek 

relief from this Court. 

The trial court initially conducted a temporary-injunction hearing on November 

25, 2019, and then conducted a hearing on the form of the order on September 28, 2020, before 

entering the January 11, 2021 temporary injunction. At the initial hearing, PEC offered 

testimony from a PEC employee who explained the impact both operationally and financially on 

its provision of electric power to Wimberley if it is required to undo the work done to upgrade 

the line’s capacity and restore the transmission line back to providing the lower voltage that it

provided before the upgrade project. The impact on PEC’s members would include the 

possibility of rolling blackouts that would affect not only its residential members, but also its 

commercial members, schools, and emergency-response facilities, and the cost of restoring the 

line to its prior capacity would be approximately $4 million. Instead of requiring PEC to undo

the work it had already completed, the proposed order submitted by the Landowners and 

addressed at the September 2020 hearing requested the lesser relief of requiring PEC to stop 

using or operating the upgraded transmission line. In response, at the hearing, PEC offered to

present an employee witness whose testimony would explain what would be involved 

operationally for PEC to comply with an order requiring it to cease use of the transmission line 

and the effects of such an order on the electricity sources to the Wimberley community. The trial 

court indicated that the additional testimony would not be necessary because if PEC posted an 

appeal bond, there would not be any disruption of services. PEC’s counsel suggested that a 

nominal bond of $1,000 for PEC would be appropriate, and the Landowners’ counsel stated, “we

have no problem with a nominal [supersedeas] bond for PEC provided PEC has no problem with

a nominal [injunction] bond for us.” However, while the trial court’s temporary injunction 
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required the Landowners to pay a $1,000 cash bond to the trial-court clerk, as required by Texas 

Rule of Civil Procedure 684, the order is silent on the matter of a supersedeas bond.

LEGAL FRAMEWORK

Unless the law or the Texas Rules of Appellate Procedure provide otherwise, a

judgment debtor is entitled to supersede a judgment and thus defer its enforcement while 

pursuing an appeal. See Tex. R. App. P. 24.1; see also Miga v. Jensen, 299 S.W.3d 98, 100 

(Tex. 2009). The purpose of supersedeas is to preserve the status quo of the matters in litigation 

as they existed before the issuance of the judgment from which an appeal is taken. See, e.g.,

Smith v. Texas Farmers Ins., 82 S.W.3d 580, 585 (Tex. App.—San Antonio 2002, pet. denied).

We review a trial court’s ruling on supersedeas for an abuse of discretion. See

Tex. R. App. P. 29.2 (establishing standard of review for trial court’s refusal to permit appellant

to supersede interlocutory order); see also id. R. 24.4(a). A trial court abuses its discretion when

it renders an arbitrary and unreasonable decision lacking support in the facts or circumstances of 

the case, or when it acts in an arbitrary or unreasonable manner without reference to guiding 

rules or principles. Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011). On a party’s 

motion, we may review: (1) the sufficiency or excessiveness of the amount of security, (2) the 

sureties on a bond, (3) the type of security, (4) the determination whether to permit suspension of 

enforcement, and (5) the trial court’s exercise of discretion when ruling on the amount and type 

of security and the sufficiency of sureties. See Tex. R. App. P. 24.4(a). We may require that the

amount of a bond be increased or decreased and that another bond be provided and approved by

the trial-court clerk. See id. R. 24.4(d). We may also require other changes in the trial court’s
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order and remand to the trial court for entry of findings of fact or for the taking of evidence. See 

id.

Rule 24.2(a)(3) governs the supersedeas issue in this appeal because the 

temporary injunction is a judgment “for something other than money or an interest in property.”

Although the underlying issue in the lawsuit is the scope of PEC’s easement, the temporary 

injunction itself requires PEC to refrain from (1) further work on the transmission line, (2) using 

or operating the transmission line at the upgraded capacity, and (3) accessing the Landowners’

properties to maintain or operate the transmission line. The temporary injunction does not 

resolve the issue of the scope of PEC’s easement, and thus it is not a judgment “for the recovery 

of an interest in real or personal property,” which would be governed by Rule 24.2(a)(2).

Under Rule 24.2(a)(3), “the trial court must set the amount and type of security 

that the judgment debtor [here, PEC] must post. The security must adequately protect the 

judgment creditor [here, the Landowners] against loss or damage that the appeal might cause.”

(Emphasis added.) However, “the trial court may decline to permit the judgment to be 

superseded if [the Landowners] post[] security ordered by the trial court in an amount and type

that will secure [PEC] against any loss or damage caused by the relief granted [i.e., the 

temporary injunction] to [the Landowners] if an appellate court determines, on final disposition, 

that the relief was improper.” Id. R. 24.2(a)(3). When the trial court declines to permit a 

judgment to be superseded because the judgment creditor posts a bond, the judgment creditor’s 

bond is referred to as a “counter-supersedeas bond.” See, e.g., WC 1st & Trinity, LP v. Roy F. & 

JoAnn Cole Mitte Found., No. 03-19-00905-CV, 2020 WL 544748, at *2 (Tex. App.—Austin 

Feb. 3, 2020, no pet.) (order and mem. op.).
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ANALYSIS

Under Rule 24.2(a)(3), the trial court abused its discretion by refusing to permit 

PEC to supersede the judgment. Absent the posting of a counter-supersedeas bond by the 

Landowners, the trial court “must set the amount and type of security” that PEC must post to 

supersede the judgment. See Tex. R. App. P. 24.2(a)(3); see also id. R. 24.1. The record before 

the trial court reflects that the Landowners did not request that they be allowed to file a countersupersedeas bond either at the September 2020 hearing or in their response opposing PEC’s trialcourt motions for supersedeas bond. We agree that under the circumstances of this case, and in 

particular given the non-quantifiable public interest involved in the continued provision of 

electric-power transmission to PEC’s Wimberley members, it would be an abuse of discretion for 

the trial court to allow the Landowners to counter-supersede the temporary injunction. See id. R. 

24.4(1)(4) (establishing that appellate court may review trial court’s determination whether to 

permit suspension of enforcement of judgment).

Under Rule 29.3, an “appellate court must not suspend the trial court’s 

[interlocutory] order if the appellant’s rights would be adequately protected by supersedeas or 

another order made under Rule 24.” We note that in response to PEC’s request that it be allowed

to supersede the temporary injunction, the Landowners presented no evidence to quantify “the 

loss or damage that the appeal might cause.”

1

 Id. R. 24.2(a)(3) (emphasis added). In fact, they 

acknowledged at the trial-court hearing and in their response to PEC’s emergency motion that 

allowing PEC to post a nominal bond of $1,000 would be appropriate. On this record, we 

1

 We further note that the transmission line has been operating at its upgraded capacity 

since December 2019, and the Landowners presented no evidence at the September 2020 hearing 

to quantify any damage suffered since the upgrade was completed. 
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conclude that PEC’s right to supersede the judgment would be adequately protected if the trial 

court allows it to post a nominal bond in the amount of $1,000.

Accordingly, we abate this appeal and remand the case to the trial court for the 

entry of an order requiring PEC to post a supersedeas bond in the amount of $1,000. See id. R. 

24.4(d) (establishing that appellate court may require changes in trial court’s order on

supersedeas). The trial court’s January 11, 2021 order granting appellees’ application for a 

temporary injunction is stayed in part, pending further order of this Court. See id. R. 24.4(c)

(“The appellate court may issue any temporary orders necessary to preserve the parties’ rights”

in connection with its review of the trial court’s ruling on supersedeas.). We stay all provisions 

of the temporary injunction, except for the provision setting the matter for trial and hearing on 

the permanent injunction on March 3, 2021, at 9:30 a.m. See Tex. Civ. Prac. & Rem. Code 

§ 51.014(a)(4) (allowing interlocutory appeal from grant of temporary injunction), (b) (providing 

for automatic stay of commencement of trial in trial court pending resolution of interlocutory 

appeal, “other than an appeal under Subsection (a)(4)” (emphasis added)).

The parties are ordered to file a joint status report with this Court concerning the

status of the trial-court proceedings or a motion to reinstate the appeal on or before March 22, 

2021.

It is so ordered on February 4, 2021.

Before Justices Goodwin, Triana, and Kelly

Abated and Remanded

Filed: February 4, 2021