### 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, Appellee s

FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS CO U N TY, 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 a n “ E mergency M otion to P ermi t Appellant to Super s ede Temporary Injunction and Set a Supersedeas Bond, or Alternatively, to Stay Tempor ary Injunction Pending Appeal. ” PEC requests that we allow it to supersede the trial court’s January 11, 2021 order granting appellees ’ application f or a temporary injun c tion by posting a nominal $1,000 bond, pursuant to Texas Rule of Appellate Proce dure
2 4.2(a)(3) , or alternatively , that we stay the temporary injunction under Texas Rule of Appellate Procedure 29.3 , pending our disposition of the inter locutory ap peal. Ap p ellees (the

“ Landowners ” ) opposed PEC ’ s motion f iled in the trial court for a supersedeas bond and initially opposed the relief requested by PEC in the emergency motion filed with this Cour t. T he Landowners subsequently su bmitted a r esponse indicating t h at they are not opposed to this Court2

allowing PEC to post a supersedeas bond in the nominal amount of $1,000 to suspend
enforc ement of the temporary injunctio n . We grant PEC ’ s motion in part and abate the appeal for the r easons expla in ed b elow.

BACKGROU N D

T he Landowners brought t he underlying suit against PEC, a member

- owned electric coo perative, in September 2019, alleging that PE C exceeded the scop e of an existing easement whe n it upgraded the capacity of a n electric

- power transm ission line that cros s e s over the Landowners ’ properties and extends from the Highw ay 32 substation to the Wimberley substation

. Accor ding to the Texas P ublic Utility Commi ssion ’ s March 2018 order approving the capacity

- upgrade project, t he tr ansmission l ine is the primary so u rce of electricity for the Wimberley area and also provides a backup source of power for adjacent substations, including the Drippin g Springs, Rutherford, Highway 32, and Fischer substations. PEC completed all work on the capacity

- up grade project that re q uired entry on the Landowner ’ s properties in November 2019 , and the transmission line was energized in December 2019 . The temp orary injuncti on issued by the trial court p rohibit s PEC from (1) continuing work on the capaci ty

upgrade p roject on the L a ndown e rs ’ properties in Hays County (the trial court found that work was ongoing at the time of the temporary

- injunction hearing) , (2) ope rating th e transmission line at its upgraded capaci ty, and (3) accessing the Landowners ’ p roperties fo r maintenance or
oper a tions in connection with the capacity

- upgrade project. E ven though PEC had requ ested that the trial cour t set a supersedeas

- bond am ount at t he hearing on the form of the temp orary injunction or d er, t he trial court did not include a b ond amount in the tem p orary injunction

— implicitly den ying PEC’s request for supersedeas relief

. To date, the trial court has not rule d on PEC’s subsequen t motions to set a bond amount and to rule on its pending motions

. Instead, t he3

trial cou rt stayed it s t empor ary inju nctio n for a per iod of forty

- five days to allow PEC t o seek relief from this Court.

The trial court initially conducted a temporary

- in junction hearin g on November 25, 2019 , and then conducted a hearing on the f orm of the ord er on Septem ber 28, 2020 , before

e nteri ng the January 11, 2021 temporary inju nction

. At the initial hearin g, PEC offered testimony from a PEC employee who explained the impac t both operation ally and financially on its provi sion of electric p ower to Wimber l e y if it is req u ired to undo the work done t o up grade the line ’ s capacity and restore the trans mission line back to p rovi ding the lower voltage that it provided befo re the up grade project. The impact on PEC ’ s mem bers would include the
poss i bility of roll ing blackout s th at would affect n o t o nly its resid ential members , but also its commercial mem bers, school s, and emerge ncy - response fa cilit ies , and the cost of restori ng the
li ne to its prior capacity would be approximately $4 million

. Inste a d of requiring PEC to undo
t he work it had alr e a dy completed, t he proposed order submitted by the Landowners and addressed a t the Se ptember 2020 hearing requested the lesser relief of requi ring PEC to stop using or oper ating the up graded trans mission lin e. In response, at the hear ing , PEC offered to
p r esent a n employee witness whose testimony would explain what woul d be involve d operationally for PEC to comply with an order requiri ng it to cease use of the transmissi on line and the effects of such an order on the electr ici ty sou r ce s to the Wimb e rl e y co m munity. The trial court indicated that the additional testimony would not be necessary because if P EC posted an appeal bond, there would not be any disruption of services. PEC ’ s counsel suggested tha t a nominal bond of $ 1,000 for P E C would be app r opriat e , and the Landowners ’ counsel stated , “ we h ave no problem with a nominal [supe rsedeas] bond for PEC provided PEC has no problem with

a nomina l [injunction] bond for us . ” Ho wever, while the trial court ’ s temporary injuncti on4

require d the La ndowners to p ay a $ 1,000 cas h bond to the trial

- court clerk, as required by Texas Rule of Ci vi l Procedure 684 , the order is silent on the matter of a superse deas bond.

LEGAL FRAMEWORK
U nless the law or the Texas R u les of A ppellate Pro cedure pro v i de other wise, a judgm e nt debtor is entitled to supersede a ju dgment a nd thus de fer its enforcement w hile pursuing an appeal. See Tex . R. A pp. P. 24.1 ; se e also Mi ga v. Jensen , 299 S.W.3d 98, 100 (Tex. 2009)

. The purpose o f supersedeas is to p reserve th e status quo of t he mat t ers in litigation as th ey existed befor e the is suance of the judgment from whi ch an appeal is taken. See, e.g. , Smith v. Tex as Farm ers Ins. , 82 S.W.3d 580, 585 (Tex. App.

— San Antonio 2002, pet. denied )

.

We review a tr ial court ’ s ruling on supe r sedeas f or an abuse of discretion. See
Te x. R . App. P. 29.2 ( establi sh ing standard o f rev iew for trial court ’ s refu sal to permit appellant
to super sede interlocutory order ) ; see al so id. R. 24.4(a)

. A trial court abuses its dis cretion wh e n it renders an arbitra r y and unreasonable decision lackin g su pport in t he facts or circumstances of the case, or when it acts in an arbitrary or unreasona ble manne r without reference to guiding rules or principles. Samlows k i v. Wooten , 332 S.W .3d 404, 4 1 0 (Tex. 2011)

. On a p a r ty ’s motion, we may review: (1) th e su fficiency or excessiveness of the amoun t of security, (2) the sureties on a bond, (3) the typ e of secu rity, (4) the determination whether to permit suspension of

e nforcement, and (5) the trial c o urt ’ s exercise of disc r etion when ruling on the amount an d ty pe of secu rity and the sufficiency of s ureties

. 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 b y the trial

- cou r t clerk

. See i d. R. 24.4(d)

. We may als o req uire other changes in the trial court ’s5

order and remand to th e trial court for entry of find ings of f act or for the taking of evidence. See id. Rule 24.2(a)( 3 ) governs the supers edeas issu e in this appeal because the temporary injunction is a jud g ment “ fo r somethin g ot her than mo ney or an interest in prope rty. ” Although the underlying issue in the la wsuit is the scope of PEC ’ s easement, the temporary injuncti o n itself requires PE C to refr a i n from (1) furt h er work o n the transmission line , (2) using or operating the transmission line at the upgraded capacity, and (3) ac cessing the Landowners ’
pro pertie s to maintain or operate the transmission line. The tempora r y injunction does no t resolv e t h e issue of the scope of PEC ’ s easement , and thus it is not a judgment “ for the reco very of an intere st in real or personal property, ” which would be gover n ed b y Ru le 24. 2(a)( 2)

.

Un der Rule 24.2( a)(3) , “ the trial court mus t set the amount and type of se c u rity that the j udgment d ebtor [ her e , PEC ] must post. The security must adequately pr otect the judgm ent cre ditor [here , the Landowners ] against loss or da mage that the appea l might cause

. ” (Emphasis added.) How ever, “ the t rial court may decli ne to per m i t the judgment t o be
supe r seded if [the Landow ners ] post [] security ordered by the trial court in an amount and ty pe that will secure [ PEC ] against any lo s s or dam a ge c aused by th e relief granted [i.e., the temporary injunct i on ] to [ the Landowne rs ] if a n a p pella te court d etermines , on final disposition, that the r elief was improper. ” Id. R

. 24.2(a)(3)

. When the trial court declines to permit a judgment to be supers eded because the judgment creditor posts a bond, the judgmen t creditor ’ s bond is referred t o as a “ counter

- s upersedea s bon d

. ” 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 .).6 ANALY S IS Und e r Rule 24.2(a)(3 ) , t he trial c o u rt abused its d iscretion by refusing to permit
PEC to supersede the judgment. Absent the posting of a counter

- supersedeas bon d by the Landowners, the tri al court “ must set the amount and type of security ” that PEC must pos t to supersede the ju dgment

. S e e Tex. R. App. P

. 24.2 (a) ( 3) ; see also id. R. 24.1

. The record before the trial court reflects that the Landow ners did not request that they be allowed to file a c ounter

supersedeas bond either at the September 2020 hearing or in their response opposing PE C ’ s trial

co urt m otion s f

or super s edeas bond

. We agree that under the circumstances of this case, and in particular gi ven the non - quantifiable public interest involved in the continued provision of elect ric

- power transmission to PEC ’ s Wimber l e y m embers, i t wo uld be an abu s e of d i scretion for the trial court to allow the Landowners to co unter

- supersede the temporary injunc tion. S ee id. R. 24.4(1)(4) ( establishin g that ap pellate court may review trial cour t ’ s determination whether to permit su sp en sion of en forc em ent of judg m ent).

Under R u le 29.3 , an “ appellate court must not suspend the trial court ’ s [interlocut ory ] order if the appellant ’ s rights would be adequ ately pro tected by supersedeas or another order made under Rule 24. ” We note that i n response t o PE C ’s request t h at it b e allowe d to supersede the tempo rary inju nction, the Land owners presented no evidence to quant ify “ the loss or damage that the appeal m ight caus e. ” 1 Id. R. 24.2 (a)(3) (emphasis added). In fact, they ackn owledged at th e tria l

- cour t hearing and in the ir r e sponse to PEC ’ s emergency motion tha t allowing PEC to post a nomina l bond of $1 ,000 would be ap propriate. On this record, w e

1 We further note that t he transmission line has b een operating at its upgra d ed capacity sin c e December 2019, a nd the Landowners presented no evidence at the September 2020 heari ng to quantify any damage suffer ed since the upgrade was completed.7

conclude that PE C ’ s right to supersed e the judg ment would be adequately protected if the tria l court allo w s it to post a nominal b ond in the amount of $1,000.

Accordingly , we ab ate this app eal and remand the case to the t rial court for the entry of a n order r e q u i r i n g PEC to post a supersedeas bond in the a mount of $1,000

. See id. R.
2 4.4 (d) ( establishing t hat appellate court may r equire ch a nges in trial cou rt ’ 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

. S ee id. R

. 24.4 (c) ( “T he appell a t e court m a y iss u e any temporary orders nece ssary to preserve the parties ’ rights ”
in connection with its r evie w of the trial court ’s ruling on su persede as .)

. We stay a ll provisions of the temporary injunction , exce pt for the provision set ti ng t he matter for trial a n d hearing on the perman ent injunction on March 3, 20 21 , at 9:30 a.m. See Tex. Civ. Prac

. & Rem. Co de § 51.014 (a) ( 4 ) (allowing interlo cutory ap peal from grant of temp o rary injunction ), (b) ( providing for automatic stay of com mence ment of trial in trial c o u r t pending resol u t ion of interlocutory appeal, “ other than an appeal under Subsection (a)(4) ” (emphasi s added) )

.

The partie s are ord ered to f ile a join t s tatu s r eport with this Court concerning the
stat us of the trial

- court pr oc e edi ngs or a motion to r e i n state the appea l o n or before March 22,
2021

. It is so ordered on February 4 , 2021

.

Before Jus tices Goodwin, Triana, and Kelly Abated a nd Remanded Filed: February 4 , 2021